Sutherland Asbill & Brennan LLP

The U.S. and Other Nations Reach Historic Nuclear Deal with Iran

On July 14, the P5+1 (China, France, Russia, the United Kingdom, the United States and Germany) reached a historic nuclear agreement with Iran, following almost two years of negotiations. Under the Joint Comprehensive Plan of…more

IAEA, Iran, Iran Sanctions, Joint Comprehensive Plan of Action (JCPOA), Nuclear Weapons

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Insurance Topics We Will Be Watching in 2014

With the first month of the year behind us, this report outlines major insurance topics that we will be watching throughout 2014. Forces, trends and events that we believe will affect regulation, transactions and…more

Affordable Care Act, Casualty Insurance, Federal Insurance Office, Healthcare, Healthcare Reform

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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FY 2016 Budget Tax Proposals Target Insurance Companies

On February 2, the Obama Administration released its fiscal year 2016 budget (FY 2016 Budget). The hallmarks of the FY 2016 Budget are proposals that would impose (i) a minimum tax on the current foreign earnings of U.S…more

Barack Obama, Controlled Foreign Corporations, Corporate Taxes, FATCA, Federal Budget

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Executive Order Mandates Clean Energy Consumption at Federal Buildings

Yesterday, President Obama released an Executive Order entitled “Planning for Federal Sustainability in the Next Decade.” In short, the order mandates that heads of agency take action to promote energy conservation and…more

Barack Obama, Clean Energy, Executive Orders, Government Agencies

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SEC Proposes Controversial Rule Requiring Companies to Adopt No-Fault Clawback Policies

Recently, the U.S. Securities and Exchange Commission (SEC or the Commission) proposed a controversial new rule under the Dodd-Frank Act that instructs companies to establish policies that require “executive officers” to repay…more

Accounting, Clawbacks, Disclosure Requirements, Dodd-Frank, Executive Compensation

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New York State ALJ Determines Travel Reservation Facilitation Receipts and Online Advertising Receipts Constitute Service Receipts That Must Be Sourced Where Performed For Income Tax Purposes

There has been significant controversy in New York regarding whether receipts from services—particularly those that may be delivered via the Internet—constitute “service” receipts or “other business receipts” for corporate…more

Corporate Taxes, eCommerce, Internet, State Taxes

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Update on NAIC and State Regulatory Activity on “Price Optimization”

Regulatory activity on price optimization appears to be coming to a head. The National Association of Insurance Commissioners (NAIC) Casualty Actuarial and Statistical (C) Task Force is continuing to gather input, with all roads…more

Department of Insurance, Insurance Industry, NAIC, Price Optimization, White Paper

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Legal Alert: Isolated Genes No Longer Patentable: Supreme Court Reverses Federal Circuit in Myriad Case

In a thinly worded unanimous decision in Assn. for Molecular Pathology v. Myriad Genetics, Inc. on June 13, 2013, the U.S. Supreme Court held that patent claims directed to genes are not patent eligible despite being claimed in…more

AMP v Myriad, DNA, Human Genes, Myriad, Patent-Eligible Subject Matter

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Louisiana Court Rejects Imposition Of Franchise Tax Based On Ownership Of Partnership Interest

The Louisiana Court of Appeal reversed and remanded Bridges v. Polychim USA, Inc., No. 581,759 (La. Jud. Dist. Ct. Jan. 2, 2014) (unpublished), a case in which the trial court held that an out-of-state corporation was subject to…more

Appeals, Corporate Taxes, Foreign Corporations, Franchise Taxes, Principal Place of Business

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Proposed Changes to Proposition 65: What It Means for Texas Businesses

If you’ve been to California recently, you likely returned with a heightened awareness of the dangers present in the products you consume and use on a daily basis. That is because in California, Proposition 65 requires…more

Proposition 65, Warning Labels

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Another Software Patent is Ruled Patent-Ineligible - Are Business Method and Software Patents at Risk?

On November 14, 2014, in a much-anticipated decision following the U.S. Supreme Court’s decision in Alice v. CLS Bank, a unanimous U.S. Court of Appeals for the Federal Circuit held in Ultramercial, L.L.C. v. WildTangent, Inc…more

CLS Bank v Alice Corp, Copyrights, Covered Business Method Patents, Mayo v. Prometheus, Online Advertisements

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Supreme Court Holds Dismissal of Individual Case in MDL Proceedings Is Immediately Appealable

The U.S. Supreme Court unanimously held yesterday in Gelboim v. Bank of America Corp., No. 13-1174, that an order disposing of an individual case previously consolidated with other cases for multidistrict litigation (MDL)…more

Antitrust Litigation, Appeals, Banks, Gelboim v Bank of America, Multidistrict Litigation

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Call (Un)Answered (the Second Ring): FCC Issues Sweeping Package of Declaratory Rulings on TCPA Petitions

In some of its most comprehensive guidance published in years, resolving more than 20 petitions requesting clarification of the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission (FCC) on July 10…more

Banking Sector, Cell Phones, Corporate Counsel, Declaratory Rulings, Exemptions

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Redial: 2014 TCPA Year In Review – Analysis Of Critical Issues And Trends

In this Analysis: - New TCPA Rules Take Effect for Telemarketing Calls - Just the Fax: Recent TCPA Developments on Liability for Unsolicited Faxes and Fax Opt-Out Notices - TCPA Best Practices: Consent,…more

Best Practices, Insurance Industry, Opt-Outs, Popular, Prior Express Consent

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Georgia Supreme Court Rejects Challenge to Property Tax Incentives

On March 27, 2015, the Georgia Supreme Court rejected a challenge to the legal validity of property tax incentives in Georgia, largely on procedural grounds. SJN Properties, LLC v. Fulton County Bd. of Tax Assessors, No…more

Economic Development, GA Supreme Court, Property Tax, Standing, Tax Incentives

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Volcker Agencies Provide Seeding Period Guidance for BDCs, RICs and FPFs in New FAQ

On July 16, 2015, the agencies responsible for implementing the Volcker rule (Agencies) issued FAQ 16, which provides guidance on the circumstances under which a seed investment would not cause (i) a registered investment…more

Bank Holding Company, Business Development Companies, Covered Banking Entity, Federal Reserve, Investment Company Act of 1940

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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EPA Ordered to Revise CSAPR Emissions Budgets

On July 28, the U.S. Court of Appeals for the D.C. Circuit ordered the U.S. Environmental Protection Agency (EPA) to revise emissions budgets for several states under the agency’s Cross-State Air Pollution Rule (CSAPR or the…more

Appeals, Clean Air Act, Cross-State Air Pollution, EPA, Power Plants

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NAIC Close to Adopting Guideline for IUL Illustrations

On June 4, after long deliberation and extensive consultation with issuers of indexed universal life (IUL) insurance policies and other interested parties by the Life Actuarial (A) Task Force (LATF), the NAIC’s Life Insurance…more

Actuarial Values, Insurance Industry, Life Insurance, NAIC

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The Aftermath of a Section 355 Transaction

In this article: - Mechanics of Section 355 - Framework for analysis - Deviation from asserted corporate business purpose - Post-spin events involving Distributing or Controlled assets -…more

Articles of Incorporation, Corporate Charters, Section 355, Stocks

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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Are You Continuing Construction? IRS Issues Fourth Renewable Energy Tax Credit Beginning of Construction Notice

On March 11, 2015, the Internal Revenue Service (IRS) issued Notice 2015-25, which provides further guidance to assist renewable energy facility developers and investors in evaluating whether such facilities satisfied the…more

Construction Industry, Energy Projects, Investment Tax Credits, IRS, Production Tax Credit

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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Broker-Dealers Face Unique Challenges Under Unclaimed Property Laws, Says New SIFMA White Paper

On January 23, 2015, the Securities Industry and Financial Markets Association (SIFMA) released a new white paper outlining the unique and varied challenges broker-dealers face when complying with state unclaimed property laws…more

Broker-Dealer, Securities, SIFMA, Unclaimed Property, White Paper

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IRS Issues Preliminary Section 529A ABLE Plan Guidance

On March 10, 2015, the Internal Revenue Service released Notice 2015-18, which provides advance notification of a provision that is expected to be included in final regulations to be issued under section 529A of the Internal…more

ABLE Act, IRS, Section 529 Program, Section 529A

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Congress Authorizes New Ukraine-Related Sanctions Against Russia

On December 18th, President Obama signed into law the “Ukraine Freedom Support Act of 2014,” authorizing stricter sanctions against Russia, and also increasing military and non-military assistance for Ukraine. Although the new…more

Banking Sector, Barack Obama, Defense Sector, Energy Sector, Oil & Gas

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NAIC Close to Adopting Guideline for IUL Illustrations

On June 4, after long deliberation and extensive consultation with issuers of indexed universal life (IUL) insurance policies and other interested parties by the Life Actuarial (A) Task Force (LATF), the NAIC’s Life Insurance…more

Actuarial Values, Insurance Industry, Life Insurance, NAIC

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Volcker Agencies Provide Seeding Period Guidance for BDCs, RICs and FPFs in New FAQ

On July 16, 2015, the agencies responsible for implementing the Volcker rule (Agencies) issued FAQ 16, which provides guidance on the circumstances under which a seed investment would not cause (i) a registered investment…more

Bank Holding Company, Business Development Companies, Covered Banking Entity, Federal Reserve, Investment Company Act of 1940

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SST Governing Board Considers "Best Practices" Matrix and Marketplace Fairness Implementation; SLAC Contemplates Digital Goods Sourcing

The Streamlined Sales Tax Governing Board (SSTGB), as well as its State and Local Advisory Council (SLAC) and Business Advisory Council (BAC), assembled in Minneapolis this week to discuss a number of policy matters related to…more

Digital Goods, Marketplace Fairness Act, State and Local Government

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NAIC Update – Spring 2015

The National Association of Insurance Commissioners (NAIC) held its first national meeting for 2015 in Phoenix, Arizona, from March 26 through March 31. Noteworthy new initiatives include cybersecurity, price optimization and…more

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New York City Legislation Enacts General Corporation Tax Reform

On April 13, 2015, Governor Andrew Cuomo signed New York’s 2015-2016 budget legislation, which, among other changes, conforms the New York City general corporation tax (GCT) to the most significant changes from last year’s New…more

Andrew Cuomo, Corporate Taxes, Franchise Taxes, State Budgets, Tax Reform

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Georgia Public Service Commission Renders Initial Decision in Favor of Jackson EMC in Territorial Dispute with Georgia Power

The Georgia Public Service Commission recently rendered an initial decision in a dispute between Jackson EMC and Georgia Power under the so-called “grandfather clause” of the Georgia Territorial Act. Under the grandfather…more

Electric Generation Suppliers, Electricity, Grandfathering Rules, Manufacturers, Manufacturing Facilities

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The Ninth Circuit Raises Pleading Standards for FLSA Plaintiffs

The U.S. Court of Appeals for the Ninth Circuit makes pleading Fair Labor Standards Act (FLSA) violations more difficult by applying the heightened standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v…more

Employer Liability Issues, FLSA, Minimum Wage, Pleading Standards, Twombly/Iqbal Pleading Standard

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Mandatory Clearing in Europe May Still Be “A Ways Off”: ESMA Responds to Proposed Amendments on Interest Rate Swaps Clearing RTS and Postpones Consideration of FX NDF Clearing

The Dodd-Frank Wall Street Reform and Consumer Protection Act’s mandatory clearing requirement for interest rate swaps and certain credit default swaps has been in place for quite some time. However, the clearing requirement for…more

Dodd-Frank, EMIR, ESMA, EU, European Securities and Markets Authority

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The CFPB Proposes to Supervise Nonbanks that Perform One Million or More International Money Transfers Per Year

On January 23, 2014, the Consumer Financial Protection Bureau (CFPB) proposed a rule whereby the definition of “larger participants” will be expanded to include nonbanks that perform one million or more international money…more

CFPB, Compliance, Enforcement, Money Transfer, Nonbank Firms

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“White Collar” Exemptions Defined and Delimited

On June 30, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued its much-anticipated Notice of Proposed Rulemaking (NPRM) on “Defining and Delimiting the Exemptions for Executive, Administrative,…more

Bonuses, Comment Period, DOL, Exempt-Employees, FLSA

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“White Collar” Exemptions Defined and Delimited

On June 30, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued its much-anticipated Notice of Proposed Rulemaking (NPRM) on “Defining and Delimiting the Exemptions for Executive, Administrative,…more

Bonuses, Comment Period, DOL, Exempt-Employees, FLSA

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U.S. Government Resets Cuban Policy and Eases Sanctions Against Cuba

Yesterday, President Obama announced that the United States and Cuba will begin talks to resume full diplomatic relations and partially lift travel and economic sanctions and restrictions, some of which have existed for more…more

Barack Obama, Cuba, Embargo, Foreign Relations, Sanctions

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Supreme Court Allows Disparate-Impact Claims Under the Fair Housing Act

The Supreme Court held today that the Fair Housing Act (FHA) not only prohibits intentional discrimination, but also establishes liability for practices that result in a disparate impact on minority groups. Texas Department of…more

Affordable Housing, Disparate Impact, ECOA, Fair Housing Act, HUD

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ISDA Publishes EMIR Classification Letter

On July 13, the International Swaps and Derivatives Association, Inc. (ISDA) published the ISDA EMIR Classification Letter (the Classification Letter), a form of letter that may be used by market participants managing their…more

Banking Sector, Classification, Counterparties, Derivatives, EMIR

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Redial: 2014 TCPA Year In Review – Analysis Of Critical Issues And Trends

In this Analysis: - New TCPA Rules Take Effect for Telemarketing Calls - Just the Fax: Recent TCPA Developments on Liability for Unsolicited Faxes and Fax Opt-Out Notices - TCPA Best Practices: Consent,…more

Best Practices, Insurance Industry, Opt-Outs, Popular, Prior Express Consent

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Omnicare Opinion Expands Liability for Expressions of Opinion Under Section 11

The Supreme Court, in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U.S. ___ (March 24, 2015), expanded the scope of liability for expressions of opinions under Section 11 of the Securities…more

Issuers, Omnicare v Laborers District Council, Registration Statement, SCOTUS, Section 11

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CFTC Fines Summit Energy Services, Inc. for Violating CTA Registration Rules Under the Commodity Exchange Act

On January 16, the Commodity Futures Trading Commission (CFTC) issued a settlement order requiring Summit Energy Services, Inc. (Summit Energy) to pay a $140,000 civil monetary penalty for acting as an unregistered commodity…more

CFTC, Civil Monetary Penalty, Commodities Exchange Act, CTA, Enforcement Actions

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Omnicare Opinion Expands Liability for Expressions of Opinion Under Section 11

The Supreme Court, in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U.S. ___ (March 24, 2015), expanded the scope of liability for expressions of opinions under Section 11 of the Securities…more

Issuers, Omnicare v Laborers District Council, Registration Statement, SCOTUS, Section 11

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International Design Patent Filing Option Available May 13, 2015, to U.S. Filers

Beginning May 13, 2015, U.S. applicants will be able to file international design patent applications through the U.S. Patent and Trademark Office. In addition, U.S. design patents resulting from applications filed on or after…more

Design Patent, Hague Agreement, Patent Applications, Patents, USPTO

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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IRS Targets Use of Basket Option Contracts and Basket Contracts by Hedge Funds and Other Taxpayers as Tax Avoidance Transactions

On July 8, the Internal Revenue Service (IRS) issued two notices (Notice 2015-47, 2015-30 IRB 1, and Notice 2015-48, 2015-30 IRB 1) targeting the use of Basket Option Contracts and Basket Contracts as tax avoidance transactions…more

Basket Option Contracts, IRC, IRS, Limited Liability Companies, Partnerships

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Massachusetts Treasurer Demands National Mutual Fund Records in Multistate Unclaimed Property Audit

Late this summer, the Massachusetts Treasurer demanded mutual fund records on a nationwide basis as part of a multistate unclaimed property audit. Thirty-five (35) states are involved in the audit, but the Treasurer has sought…more

Audits, Death Master Files, IRA, Mutual Funds, Social Security Adminstration

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IRS Warns Plan Sponsors About Hardship Withdrawal Documentation

In a recent Employee Plans Newsletter, the Internal Revenue Service (IRS) warned plan sponsors that they must obtain and keep documentation related to hardship withdrawals, particularly the documentation necessary to…more

Benefit Plan Sponsors, Hardship Distributions, IRS, Record Retention, Required Documentation

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To the Direct Acquirer Belong the Tax Attributes: Proposed Regulations Modify the Definition of Acquiring Corporation for Purposes of IRC § 381

On May 7, Treasury and the IRS published proposed regulations addressing which corporation succeeds to the tax attributes of another corporation that transfers assets in an acquisitive asset reorganization described in IRC §§…more

Acquisitions, Asset Transfer, Business Assets, IRC, IRS

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Legal Alert: A Little Rule With Big Implications: USPTO Implements New Fee Schedule Including a 75% Reduction in Patent Fees for Applicants Qualifying for "Micro Entity" Status

On March 19, 2013, the United States Patent and Trademark Office (USPTO) implemented a new fee schedule as authorized by the Leahy-Smith America Invents Act (Act). Among numerous changes in the fees for patent services provided…more

America Invents Act, Micro Entity Status, Patent Applications, Patent Fees, Patent Reform

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SEC Proposes Controversial Rule Requiring Companies to Adopt No-Fault Clawback Policies

Recently, the U.S. Securities and Exchange Commission (SEC or the Commission) proposed a controversial new rule under the Dodd-Frank Act that instructs companies to establish policies that require “executive officers” to repay…more

Accounting, Clawbacks, Disclosure Requirements, Dodd-Frank, Executive Compensation

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2014 in Review: ERISA Individual Prohibited Transaction Exemptions and Advisory Opinions

In 2014, the Department of Labor (DOL) maintained a diminished program of advance guidance under the Employment Retirement Income Security Act of 1974, as amended (ERISA), in response to requests from the regulated community…more

Affordable Care Act, DOL, EBSA, ERISA, Exemptions

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Deadline Approaching for Submission of 2014 BEA Surveys of U.S. Direct Investment Abroad and Foreign Direct Investment in the U.S.

The Bureau of Economic Analysis (BEA) of the U.S. Commerce Department is conducting its quinquennial (every five years) survey of investment in foreign entities. The BE-10 Benchmark Survey (BE-10 Survey) is the most…more

BEA, Deadlines, Foreign Direct Investment, Foreign Subsidiaries, Form BE-10

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Legal Alert: The 2012 Tax Litigation Year in Review: Important Events

The year 2012 was quite an interesting one for tax controversy. Whereas 2011 brought a win for the Treasury on deference issues in Mayo Foundation for Medical Ed. v. United States, 131 S. Ct. 704 (2011), 2012 was the year courts…more

Administrative Procedure Act, Dominion Resources, FICA Taxes, H&M, Hewlett-Packard

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BLM Issues First Federal Regulations for Hydraulic Fracturing

On Thursday, March 26, 2015, the U.S. Department of the Interior’s Bureau of Land Management (BLM) published in the Federal Register the Final Rule on hydraulic fracturing on federal and Indian lands. The Final Rule sets forth…more

Bureau of Land Management, Energy Sector, Final Rules, Fracking, Government Land

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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S.D.N.Y. Judge Permits Novel Theory And Allows SEC To Use Unpaid Taxes As Measure Of Disgorgement In Securities Fraud Case

In a case against Dallas billionaires Sam Wyly and the estate of his late brother, Charles, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York agreed with the U.S. Securities and Exchange…more

Corporate Counsel, Disgorgement, IRS, Offshore Funds, Popular

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Update on NAIC and State Regulatory Activity on “Price Optimization”

Regulatory activity on price optimization appears to be coming to a head. The National Association of Insurance Commissioners (NAIC) Casualty Actuarial and Statistical (C) Task Force is continuing to gather input, with all roads…more

Department of Insurance, Insurance Industry, NAIC, Price Optimization, White Paper

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The Ninth Circuit Raises Pleading Standards for FLSA Plaintiffs

The U.S. Court of Appeals for the Ninth Circuit makes pleading Fair Labor Standards Act (FLSA) violations more difficult by applying the heightened standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v…more

Employer Liability Issues, FLSA, Minimum Wage, Pleading Standards, Twombly/Iqbal Pleading Standard

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SST Governing Board Considers "Best Practices" Matrix and Marketplace Fairness Implementation; SLAC Contemplates Digital Goods Sourcing

The Streamlined Sales Tax Governing Board (SSTGB), as well as its State and Local Advisory Council (SLAC) and Business Advisory Council (BAC), assembled in Minneapolis this week to discuss a number of policy matters related to…more

Digital Goods, Marketplace Fairness Act, State and Local Government

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CFTC Fines Summit Energy Services, Inc. for Violating CTA Registration Rules Under the Commodity Exchange Act

On January 16, the Commodity Futures Trading Commission (CFTC) issued a settlement order requiring Summit Energy Services, Inc. (Summit Energy) to pay a $140,000 civil monetary penalty for acting as an unregistered commodity…more

CFTC, Civil Monetary Penalty, Commodities Exchange Act, CTA, Enforcement Actions

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Solar Products from China and Taiwan Face Major New Investigations

On February 14, the U.S. International Trade Commission (“ITC”) voted to go forward with the new antidumping and countervailing duty cases filed on New Year’s Eve by SolarWorld Industries America, Inc., the U.S. solar panel unit…more

Antidumping Duties, China, Countervailing Duties, Investigations, ITC

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Legal Alert: The Tax Court Approves the Use of Predictive Coding

On September 17, the U.S. Tax Court, in Dynamo Holdings LP v. Commissioner, 143 T.C. No. 9 (Sept. 17, 2014), held that a taxpayer could use predictive coding, over the objection of the Internal Revenue Service (IRS), to identify…more

Attorney-Client Privilege, Discovery, Electronically Stored Information, Federal Rules of Civil Procedure, IRS

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Inherited IRAs Are Not Bankruptcy-Exempt as “Retirement Funds”

On June 12, 2014, the U.S. Supreme Court unanimously held in Clark v. Rameker that an inherited individual retirement account (IRA) does not qualify for the “retirement funds” exemption in the Bankruptcy Code and is not excluded…more

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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Redial: 2014 TCPA Year In Review – Analysis Of Critical Issues And Trends

In this Analysis: - New TCPA Rules Take Effect for Telemarketing Calls - Just the Fax: Recent TCPA Developments on Liability for Unsolicited Faxes and Fax Opt-Out Notices - TCPA Best Practices: Consent,…more

Best Practices, Insurance Industry, Opt-Outs, Popular, Prior Express Consent

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Challenge to Delaware Unclaimed Property Estimation Methods Allowed to Proceed

A lawsuit challenging the unclaimed property estimation methodology used by the State of Delaware and its auditor Kelmar Associates will proceed, according to a ruling issued by a Delaware federal district court on March 11. In…more

Assessment, Audits, Due Process, Preemption, Unclaimed Property

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Legal Alert: Final Volcker Rule: Update and Key Takeaways

On December 10, 2013, the Federal Reserve Board (FRB), the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the Securities and Exchange Commission and the Commodity Futures…more

Bank Holding Company Act, Banks, CFTC, Collateralized Debt Obligations, Compliance

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President Signs Changes to Collins Amendment Favorable to Insurers

On December 18, President Obama signed into law the Insurance Capital Standards Clarification Act of 2014 (the Act). The Act makes it clear that the Board of Governors of the Federal Reserve (the Fed) is not required to apply…more

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2014 in Review: ERISA Individual Prohibited Transaction Exemptions and Advisory Opinions

In 2014, the Department of Labor (DOL) maintained a diminished program of advance guidance under the Employment Retirement Income Security Act of 1974, as amended (ERISA), in response to requests from the regulated community…more

Affordable Care Act, DOL, EBSA, ERISA, Exemptions

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Multistate Tax Commission Amends the Equitable Apportionment Provision of the Compact and Apportionment Rules for Financial Institutions

Yesterday, the Multistate Tax Commission (MTC) held its annual meeting in Spokane, Washington. The meeting is the annual event where full MTC member states approve model laws in their final version. The approved versions are…more

Amended Regulation, Apportionment, Bylaws, Model Rules, Multistate Tax Commission

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If They Build It, Will They Come? ALAS Advisory Group Prepares Final Program Design to Present to MTC Executive Committee Amidst Light Early Interest From States

The Multistate Tax Commission’s (“MTC”) Arm’s-Length Adjustment Services Advisory Group (“the Group”) met via teleconference to continue working on the Final Program Design. States participating on the call were: Alabama,…more

Advisory Board, Multistate Tax Commission

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Counterparty Rights in Energy Bankruptcies

For the past several years, low interest rates and higher commodity prices have resulted in generally favorable financial conditions in the energy sector, keeping energy bankruptcy activity to a minimum. With the recent sharp…more

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Insurance Topics We Will Be Watching in 2014

With the first month of the year behind us, this report outlines major insurance topics that we will be watching throughout 2014. Forces, trends and events that we believe will affect regulation, transactions and…more

Affordable Care Act, Casualty Insurance, Federal Insurance Office, Healthcare, Healthcare Reform

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Legal Alert: Call Answered (The First Ring): FCC Issues Sweeping Package of Declaratory Rulings on TCPA Petitions

In its most significant action on the Telephone Consumer Protection Act (TCPA) since its revised TCPA rules took effect in late 2013, the Federal Communications Commission (FCC) has issued a package of declaratory rulings…more

Declaratory Rulings, FCC, Robocalling, Statutory Interpretation, TCPA

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Texas Supreme Court Rules CGL Policy’s “Contractual Liability" Exclusion Does Not Bar Coverage for Claims Arising From Construction Defects

On January 17, 2014, the Supreme Court of Texas rejected a commercial general liability (“CGL”) insurer’s attempt to invoke the “contractual liability” exclusion to deny coverage under a standard CGL policy regarding a…more

Breach of Contract, Commercial General Liability Policies, Construction Contracts, Construction Defects, Construction Disputes

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Legal Alert: CFPB Proposes to Examine and Directly Supervise Nonbank Auto Lenders

On September 17, the Consumer Financial Protection Bureau (CFPB) proposed to make nonbank automobile lenders subject to the examination and direct supervision of the Bureau. The proposed rule can be found here. Under the…more

Automotive Industry, Automotive Loans, CFPB, Larger Participant, Nonbank Firms

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BLM Issues First Federal Regulations for Hydraulic Fracturing

On Thursday, March 26, 2015, the U.S. Department of the Interior’s Bureau of Land Management (BLM) published in the Federal Register the Final Rule on hydraulic fracturing on federal and Indian lands. The Final Rule sets forth…more

Bureau of Land Management, Energy Sector, Final Rules, Fracking, Government Land

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D.C. Circuit Vacates 100-Hour Exemption for Emergency Generators

On May 1, 2015, the D.C. Circuit in Delaware v. EPA vacated a portion of EPA’s National Emissions Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS) for Reciprocating Internal Combustion…more

Emergency Generators, EPA, Pollution Control, Power Grid

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The Finite Life of a Patent Upheld: No Royalties After Expiration

The U.S. Supreme Court, in a 6 to 3 ruling citing stare decisis, upheld the half-century rule against royalty payments accruing after expiration of a patent. The Court’s decision in Kimble v. Marvel Entertainment, LLC is a…more

Brulotte, Expiration Date, Kimble v Marvel Enterprises, License Agreements, Patent Expiration

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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FERC Confirms Distribution Cooperatives Must Purchase QF Output

A distribution cooperative must purchase the electrical output made available to it by a qualifying facility (QF), notwithstanding restrictions in the cooperative’s all-requirements contract with its generation and transmission…more

Electricity, FERC, PURPA

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FERC Confirms Distribution Cooperatives Must Purchase QF Output

A distribution cooperative must purchase the electrical output made available to it by a qualifying facility (QF), notwithstanding restrictions in the cooperative’s all-requirements contract with its generation and transmission…more

Electricity, FERC, PURPA

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International Design Patent Filing Option Available May 13, 2015, to U.S. Filers

Beginning May 13, 2015, U.S. applicants will be able to file international design patent applications through the U.S. Patent and Trademark Office. In addition, U.S. design patents resulting from applications filed on or after…more

Design Patent, Hague Agreement, Patent Applications, Patents, USPTO

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MTC Nearing Completion of Model Sourcing Regulation for Services and Intangibles

The Multistate Tax Commission’s (MTC) Annual Conference and Committee Meetings are being held on July 27-30, 2015, in Spokane, Washington. On Tuesday, July 28, 2015, at approximately 1:00 pm PDT (exact time subject to change),…more

Intangible Property, Leases, Market Based Approach, Model Rules, Multistate Tax Commission

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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CFTC Fines Summit Energy Services, Inc. for Violating CTA Registration Rules Under the Commodity Exchange Act

On January 16, the Commodity Futures Trading Commission (CFTC) issued a settlement order requiring Summit Energy Services, Inc. (Summit Energy) to pay a $140,000 civil monetary penalty for acting as an unregistered commodity…more

CFTC, Civil Monetary Penalty, Commodities Exchange Act, CTA, Enforcement Actions

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U.S. District Judge in Florida Dismisses SEC Action Against Corporate Defendants and Holds that Five-Year Statute of Limitations Removed the Court’s Subject-Matter Jurisdiction

On May 12, Judge James Lawrence King of the U.S. District Court for the Southern District of Florida dismissed with prejudice the U.S. Securities and Exchange Commission’s (SEC) case against five defendants in an action alleging…more

Dismissals, SEC, Section 2462, Securities Fraud, Statute of Limitations

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Redial: 2014 TCPA Year In Review – Analysis Of Critical Issues And Trends

In this Analysis: - New TCPA Rules Take Effect for Telemarketing Calls - Just the Fax: Recent TCPA Developments on Liability for Unsolicited Faxes and Fax Opt-Out Notices - TCPA Best Practices: Consent,…more

Best Practices, Insurance Industry, Opt-Outs, Popular, Prior Express Consent

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Regulators Respond to Recent Crude by Rail Incidents: Ten Considerations Before Shipping Crude by Rail to Mitigate Exposure

Last week’s derailments in West Virginia and Canada bring more scrutiny to the already heavily scrutinized shipment of crude by rail given the real-time media coverage of the incidents. Last Friday, Oregon Senator Ron…more

Crude by Rail, Oil & Gas, Oil Spills, PHMSA, Railroads

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Wellness Programs Alive and Well?

The Equal Employment Opportunity Commission (EEOC) has issued proposed regulations under the Americans with Disabilities Act (ADA) regarding employer-provided wellness programs that were published in the Federal Register on…more

ADA, Affordable Care Act, Benefit Plan Sponsors, EEOC, ERISA

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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First Investor Control Case Since 1984 Is Released

On June 30, the Tax Court released Webber v. Commissioner, 144 T.C. No.17, in which the court upheld and applied the principles set forth in the Internal Revenue Service’s (IRS) “investor control” rulings, concluding that for…more

Life Insurance, Private Placement Life Insurance

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S.D.N.Y. Judge Permits Novel Theory And Allows SEC To Use Unpaid Taxes As Measure Of Disgorgement In Securities Fraud Case

In a case against Dallas billionaires Sam Wyly and the estate of his late brother, Charles, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York agreed with the U.S. Securities and Exchange…more

Corporate Counsel, Disgorgement, IRS, Offshore Funds, Popular

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FERC Confirms Distribution Cooperatives Must Purchase QF Output

A distribution cooperative must purchase the electrical output made available to it by a qualifying facility (QF), notwithstanding restrictions in the cooperative’s all-requirements contract with its generation and transmission…more

Electricity, FERC, PURPA

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Are You Really Sure That Construction Began? IRS Issues Third Notice Regarding Renewable Energy Tax Credit Beginning of Construction Test

On August 8, 2014, the Internal Revenue Service (“IRS”) issued Notice 2014-46, which provides further guidance intended to assist developers and purchasers of renewable energy facilities evaluate whether such facilities…more

Construction Contracts, Construction Disputes, Investment Tax Credits, IRS, Production Tax Credit

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Validus Affirmed for All the Right Reasons – The FET Does Not Apply to Wholly Foreign Reinsurance Transactions

On May 26, the U.S. Court of Appeals for the District of Columbia affirmed the result of the U.S. District Court for the District of Columbia in Validus Reinsurance, Ltd. v. U.S., 19 F. Supp. 3d 225 (2014), which was the first…more

Excise Tax, Extraterritoriality Rules, Foreign Insurance Companies, IRS, Reinsurance

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Omnicare Opinion Expands Liability for Expressions of Opinion Under Section 11

The Supreme Court, in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U.S. ___ (March 24, 2015), expanded the scope of liability for expressions of opinions under Section 11 of the Securities…more

Issuers, Omnicare v Laborers District Council, Registration Statement, SCOTUS, Section 11

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Broker-Dealers Face Unique Challenges Under Unclaimed Property Laws, Says New SIFMA White Paper

On January 23, 2015, the Securities Industry and Financial Markets Association (SIFMA) released a new white paper outlining the unique and varied challenges broker-dealers face when complying with state unclaimed property laws…more

Broker-Dealer, Securities, SIFMA, Unclaimed Property, White Paper

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Another Software Patent is Ruled Patent-Ineligible - Are Business Method and Software Patents at Risk?

On November 14, 2014, in a much-anticipated decision following the U.S. Supreme Court’s decision in Alice v. CLS Bank, a unanimous U.S. Court of Appeals for the Federal Circuit held in Ultramercial, L.L.C. v. WildTangent, Inc…more

CLS Bank v Alice Corp, Copyrights, Covered Business Method Patents, Mayo v. Prometheus, Online Advertisements

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CFTC Fines Summit Energy Services, Inc. for Violating CTA Registration Rules Under the Commodity Exchange Act

On January 16, the Commodity Futures Trading Commission (CFTC) issued a settlement order requiring Summit Energy Services, Inc. (Summit Energy) to pay a $140,000 civil monetary penalty for acting as an unregistered commodity…more

CFTC, Civil Monetary Penalty, Commodities Exchange Act, CTA, Enforcement Actions

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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U.S. Supreme Court Holds That Time Spent in Security Screenings Not Compensable Under FLSA

On December 9, 2014, the United States Supreme Court unanimously reversed a decision by the United States Court of Appeals for the Ninth Circuit holding that warehouse employees had stated a claim for unpaid wages under the Fair…more

FLSA, Integrity Staffing v Busk, SCOTUS, Security Checks, Wage and Hour

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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Colombia Seeks Foreign Investment to Expand Timberland Plantations

Colombia plans to double its cultivated acreage from one million to two million hectares by 2020, according to Rubén Darío Lizarralde, the country’s Minister of Agriculture and Rural Development. Lizarralde announced the planned…more

Foreign Investment, Forestry, Free Trade Agreement, Income Taxes, International Tax Issues

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Update on NAIC and State Regulatory Activity on “Price Optimization”

Regulatory activity on price optimization appears to be coming to a head. The National Association of Insurance Commissioners (NAIC) Casualty Actuarial and Statistical (C) Task Force is continuing to gather input, with all roads…more

Department of Insurance, Insurance Industry, NAIC, Price Optimization, White Paper

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Florida Legislature Relaxes Agency Licensing Requirements for Broker-Dealer Branch Offices Selling Insurance Products but Creates New Disclosure Requirements for Surrenders

Under current Florida insurance laws, branch offices of broker-dealers selling insurance products in Florida are required to either “license” or “register” as agency branches (in addition to satisfying insurance producer…more

Broker-Dealer, Disclosure Requirements, Insurance Brokers, Insurers, Licensing Rules

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Texas Apartment Association Files Amicus Brief in U.S. Supreme Court Fair Housing Act Case

The U.S. Supreme Court will review a Fair Housing Act case to address whether the Act prohibits facially neutral conduct that has an unintended disparate impact on members of a protected class. In its amicus curiae brief, the…more

Affordable Housing, DHCA v Inclusive Communities Project, Discrimination, Disparate Impact, Fair Housing Act

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2014 in Review: ERISA Individual Prohibited Transaction Exemptions and Advisory Opinions

In 2014, the Department of Labor (DOL) maintained a diminished program of advance guidance under the Employment Retirement Income Security Act of 1974, as amended (ERISA), in response to requests from the regulated community…more

Affordable Care Act, DOL, EBSA, ERISA, Exemptions

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FERC Issues a NOPR Reforming Gas Day and Two Orders to Improve Natural Gas – Electric Generation Industry Coordination

On March 20, 2014, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) and two separate, but related, Orders to improve the coordination of scheduling natural gas pipeline capacity to…more

Energy, FERC, Natural Gas, Utilities Sector

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The U.S. and Other Nations Reach Historic Nuclear Deal with Iran

On July 14, the P5+1 (China, France, Russia, the United Kingdom, the United States and Germany) reached a historic nuclear agreement with Iran, following almost two years of negotiations. Under the Joint Comprehensive Plan of…more

IAEA, Iran, Iran Sanctions, Joint Comprehensive Plan of Action (JCPOA), Nuclear Weapons

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Legal Alert: Marvin M. Brandt Revocable Trust v. United States: Supreme Court Opens the Door to Potential Fifth Amendment Takings Litigation in Rails-to-Trails Cases

In what is commonly known as a rails-to-trails case, the U.S. Supreme Court held on March 10, 2014, in an eight-to-one decision, that certain railroad rights-of-way revert to private property owners following the railroad’s…more

Brandt Irrevocable Trust v Us, Fifth Amendment, Railways, SCOTUS, Takings

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Colombia Seeks Foreign Investment to Expand Timberland Plantations

Colombia plans to double its cultivated acreage from one million to two million hectares by 2020, according to Rubén Darío Lizarralde, the country’s Minister of Agriculture and Rural Development. Lizarralde announced the planned…more

Foreign Investment, Forestry, Free Trade Agreement, Income Taxes, International Tax Issues

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EPA Ordered to Revise CSAPR Emissions Budgets

On July 28, the U.S. Court of Appeals for the D.C. Circuit ordered the U.S. Environmental Protection Agency (EPA) to revise emissions budgets for several states under the agency’s Cross-State Air Pollution Rule (CSAPR or the…more

Appeals, Clean Air Act, Cross-State Air Pollution, EPA, Power Plants

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CFTC Fines Summit Energy Services, Inc. for Violating CTA Registration Rules Under the Commodity Exchange Act

On January 16, the Commodity Futures Trading Commission (CFTC) issued a settlement order requiring Summit Energy Services, Inc. (Summit Energy) to pay a $140,000 civil monetary penalty for acting as an unregistered commodity…more

CFTC, Civil Monetary Penalty, Commodities Exchange Act, CTA, Enforcement Actions

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Legal Alert: Private Offerings: The SEC Lifts Ban on General Solicitation But Proposes a Hefty Regulatory Burden in Return

During an open meeting of the U.S. Securities and Exchange Commission (the SEC) on July 10, 2013, the SEC adopted a rule that lifts the ban on general solicitation of unregistered securities offerings and paves the way for…more

Advertising, Bad Actors, General Solicitation, JOBS Act, Regulation D

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Inherited IRAs Are Not Bankruptcy-Exempt as “Retirement Funds”

On June 12, 2014, the U.S. Supreme Court unanimously held in Clark v. Rameker that an inherited individual retirement account (IRA) does not qualify for the “retirement funds” exemption in the Bankruptcy Code and is not excluded…more

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Department of Energy Report Indicates Fracking Has Not Contaminated Drinking Water in Western Pennsylvania

A recent study by the Department of Energy’s National Energy Technology Laboratory (NETL) indicates that chemical-laced fluids used in hydraulic fracturing, or fracking, have not contaminated the drinking water at a test drill…more

Chemicals, Contamination, DOE, Energy, Fracking

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Fifth Circuit Limits Pollution Liability

In a significant decision issued February 24, 2014, the Fifth U.S. Circuit Court of Appeals ruled that federal laws preempt state laws in the case of the 2010 Gulf of Mexico oil spill, because the event occurred in federal…more

Discharge of Pollutants, Environmental Liability, Gulf Oil Spill, Oil & Gas

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“Use It or Lose It”: Service Mark Registration Canceled When Application Supported Only by Advertising

On March 2, 2015, the U.S. Court of Appeals for the Federal Circuit issued its first-ever ruling addressing use requirements for registering service marks. The court held that offering a service, without the actual rendering of…more

Advertising, Appeals, Lanham Act, Registration, Service Marks

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Trenchant Analysis or Jiggery-Pokery? U.S. Supreme Court Upholds Affordable Care Act

In a 6-3 decision on June 25, 2015 in King v. Burwell, the U.S. Supreme Court held that tax credits are available under the Patient Protection and Affordable Care Act (Affordable Care Act or PPACA) to all eligible Americans,…more

Affordable Care Act, Chevron Deference, Health Insurance, Health Insurance Exchanges, Individual Mandate

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Legal Alert: The 2012 Tax Litigation Year in Review: Important Events

The year 2012 was quite an interesting one for tax controversy. Whereas 2011 brought a win for the Treasury on deference issues in Mayo Foundation for Medical Ed. v. United States, 131 S. Ct. 704 (2011), 2012 was the year courts…more

Administrative Procedure Act, Dominion Resources, FICA Taxes, H&M, Hewlett-Packard

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Texas Apartment Association Files Amicus Brief in U.S. Supreme Court Fair Housing Act Case

The U.S. Supreme Court will review a Fair Housing Act case to address whether the Act prohibits facially neutral conduct that has an unintended disparate impact on members of a protected class. In its amicus curiae brief, the…more

Affordable Housing, DHCA v Inclusive Communities Project, Discrimination, Disparate Impact, Fair Housing Act

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Ten Items to Consider as FINRA’s Consolidated Supervision Rules Take Effect

On December 1, 2014, the Financial Industry Regulatory Authority’s (FINRA) Consolidated Supervision Rules will take effect. The Consolidated Supervision Rules, which were approved by the U.S. Securities and Exchange Commission…more

Consolidated Supervision Rules, FINRA, Regulatory Standards, SEC

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Legal Alert: The Tax Court Approves the Use of Predictive Coding

On September 17, the U.S. Tax Court, in Dynamo Holdings LP v. Commissioner, 143 T.C. No. 9 (Sept. 17, 2014), held that a taxpayer could use predictive coding, over the objection of the Internal Revenue Service (IRS), to identify…more

Attorney-Client Privilege, Discovery, Electronically Stored Information, Federal Rules of Civil Procedure, IRS

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

See All Updates »

MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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What Financial Advisers and Accountants Should Know About Expanded IRS Streamlined Filing Compliance Procedures for U.S. Taxpayers with Unreported Foreign Assets and Accounts

The Internal Revenue Service (IRS) recently announced “major changes” to its offshore compliance programs, including the Streamlined Filing Compliance Procedures (Streamlined Procedures), the delinquent international information…more

Filing Requirements, Foreign Bank Accounts, IRS, Offshore Companies, Offshore Funds

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Legal Alert: A Little Rule With Big Implications: USPTO Implements New Fee Schedule Including a 75% Reduction in Patent Fees for Applicants Qualifying for "Micro Entity" Status

On March 19, 2013, the United States Patent and Trademark Office (USPTO) implemented a new fee schedule as authorized by the Leahy-Smith America Invents Act (Act). Among numerous changes in the fees for patent services provided…more

America Invents Act, Micro Entity Status, Patent Applications, Patent Fees, Patent Reform

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New York’s Insurance Regulator Announces Results of Cybersecurity Survey and Previews New Regulatory Initiatives

On February 9, the New York Department of Financial Services (DFS) released a Report on Cyber Security in the Insurance Sector (Report), summarizing the results of a survey completed by 43 insurers about their cybersecurity…more

Cybersecurity, Insurance Companies, Insurance Industry, NYDFS, Popular

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Focus On International Standards

The influence of international standards on the direction of insurance regulation in the United States has dominated public discussion about insurance regulation during recent years. Nowhere was that more evident than in…more

Congressional Investigations & Hearings, Corporate Governance, Insurance Industry, International Monetary Fund, NAIC

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ISDA Publishes EMIR Classification Letter

On July 13, the International Swaps and Derivatives Association, Inc. (ISDA) published the ISDA EMIR Classification Letter (the Classification Letter), a form of letter that may be used by market participants managing their…more

Banking Sector, Classification, Counterparties, Derivatives, EMIR

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SEC Updates Guidance on Cybersecurity

Emphasizing the critical importance of cybersecurity to registered investment companies (RICs), including insurance separate accounts and business development companies, and to investment advisers, the SEC’s Division of…more

Business Development Companies, Cybersecurity, Identity Theft, Investment Adviser, Investment Management

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The Finite Life of a Patent Upheld: No Royalties After Expiration

The U.S. Supreme Court, in a 6 to 3 ruling citing stare decisis, upheld the half-century rule against royalty payments accruing after expiration of a patent. The Court’s decision in Kimble v. Marvel Entertainment, LLC is a…more

Brulotte, Expiration Date, Kimble v Marvel Enterprises, License Agreements, Patent Expiration

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New York’s Insurance Regulator Announces Results of Cybersecurity Survey and Previews New Regulatory Initiatives

On February 9, the New York Department of Financial Services (DFS) released a Report on Cyber Security in the Insurance Sector (Report), summarizing the results of a survey completed by 43 insurers about their cybersecurity…more

Cybersecurity, Insurance Companies, Insurance Industry, NYDFS, Popular

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What Does It Take to Make the SEC Happy? SEC Criticism of Broker-Dealers’ Due Diligence for Sales of Unregistered Securities Leaves More Questions Than Answers

To ensure that broker-dealers (BDs) do not inadvertently facilitate an unlawful distribution of securities, the Securities and Exchange Commission has long required BDs to conduct a “reasonable inquiry” into the circumstances…more

Broker-Dealer, Due Diligence, FINRA, OCIE, SEC

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BLM Issues First Federal Regulations for Hydraulic Fracturing

On Thursday, March 26, 2015, the U.S. Department of the Interior’s Bureau of Land Management (BLM) published in the Federal Register the Final Rule on hydraulic fracturing on federal and Indian lands. The Final Rule sets forth…more

Bureau of Land Management, Energy Sector, Final Rules, Fracking, Government Land

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New SEC Guidance Adds Flexibility to BDC Co-Investing

The U.S. Securities and Exchange Commission (SEC) Division of Investment Management (the Division) just published guidance that will permit business development companies (BDCs) to co-invest with certain persons considered…more

Affiliates, Business Development, Business Development Companies, Equity Investors, Investment Company Act of 1940

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New Standards for Shipping Crude Oil, Petroleum Products and Renewable Fuel by Rail

On Friday, May 1, the U.S. Department of Transportation (“DOT”) issued a final rule establishing new requirements for transporting flammable liquids in a continuous block of 20 or more tank cars or 35 or more tank cars loaded…more

Crude by Rail, DOT, Final Rules, Oil & Gas, Railroads

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Broker-Dealers Face Unique Challenges Under Unclaimed Property Laws, Says New SIFMA White Paper

On January 23, 2015, the Securities Industry and Financial Markets Association (SIFMA) released a new white paper outlining the unique and varied challenges broker-dealers face when complying with state unclaimed property laws…more

Broker-Dealer, Securities, SIFMA, Unclaimed Property, White Paper

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BLM Issues First Federal Regulations for Hydraulic Fracturing

On Thursday, March 26, 2015, the U.S. Department of the Interior’s Bureau of Land Management (BLM) published in the Federal Register the Final Rule on hydraulic fracturing on federal and Indian lands. The Final Rule sets forth…more

Bureau of Land Management, Energy Sector, Final Rules, Fracking, Government Land

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Broker-Dealers Face Unique Challenges Under Unclaimed Property Laws, Says New SIFMA White Paper

On January 23, 2015, the Securities Industry and Financial Markets Association (SIFMA) released a new white paper outlining the unique and varied challenges broker-dealers face when complying with state unclaimed property laws…more

Broker-Dealer, Securities, SIFMA, Unclaimed Property, White Paper

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Wellness Programs Alive and Well?

The Equal Employment Opportunity Commission (EEOC) has issued proposed regulations under the Americans with Disabilities Act (ADA) regarding employer-provided wellness programs that were published in the Federal Register on…more

ADA, Affordable Care Act, Benefit Plan Sponsors, EEOC, ERISA

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U.S. Supreme Court Hears Oral Argument Over the Preclusive Effect of Administrative Trademark Determinations on Future Infringement Litigation

The U.S. Supreme Court heard oral argument last week in a much anticipated trademark matter, B&B Hardware Inc. v. Hargis Industries Inc. et al. The primary question presented was whether a likelihood-of-confusion determination…more

Administrative Hearings, B&B Hardware v Hargis Industries, Claim Preclusion, Infringement, Likelihood of Confusion

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Multistate Tax Commission Amends the Equitable Apportionment Provision of the Compact and Apportionment Rules for Financial Institutions

Yesterday, the Multistate Tax Commission (MTC) held its annual meeting in Spokane, Washington. The meeting is the annual event where full MTC member states approve model laws in their final version. The approved versions are…more

Amended Regulation, Apportionment, Bylaws, Model Rules, Multistate Tax Commission

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“White Collar” Exemptions Defined and Delimited

On June 30, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued its much-anticipated Notice of Proposed Rulemaking (NPRM) on “Defining and Delimiting the Exemptions for Executive, Administrative,…more

Bonuses, Comment Period, DOL, Exempt-Employees, FLSA

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Legal Alert: Final Volcker Rule: Update and Key Takeaways for Insurers

On December 10, 2013, the Federal Reserve Board (FRB), the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Securities and Exchange Commission, and the Commodity Futures Trading…more

Bank Holding Company Act, Banks, CFTC, Collateralized Debt Obligations, Dodd-Frank

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Update on NAIC and State Regulatory Activity on “Price Optimization”

Regulatory activity on price optimization appears to be coming to a head. The National Association of Insurance Commissioners (NAIC) Casualty Actuarial and Statistical (C) Task Force is continuing to gather input, with all roads…more

Department of Insurance, Insurance Industry, NAIC, Price Optimization, White Paper

See All Updates »

Fifth Circuit Limits Pollution Liability

In a significant decision issued February 24, 2014, the Fifth U.S. Circuit Court of Appeals ruled that federal laws preempt state laws in the case of the 2010 Gulf of Mexico oil spill, because the event occurred in federal…more

Discharge of Pollutants, Environmental Liability, Gulf Oil Spill, Oil & Gas

See All Updates »

Texas Apartment Association Files Amicus Brief in U.S. Supreme Court Fair Housing Act Case

The U.S. Supreme Court will review a Fair Housing Act case to address whether the Act prohibits facially neutral conduct that has an unintended disparate impact on members of a protected class. In its amicus curiae brief, the…more

Affordable Housing, DHCA v Inclusive Communities Project, Discrimination, Disparate Impact, Fair Housing Act

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Securities Class Action Defendants Can Rebut the Basic Fraud-on-the-Market Presumption of Reliance at the Class Certification Stage

The U.S. Supreme Court held yesterday that defendants in securities fraud class actions can defeat the Basic fraud-on-the-market presumption of reliance at the class certification stage “through evidence that the…more

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

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You Can’t Judge a Book By Its Cover: When Are Domestic Negotiations a “Sale” or “Offer to Sell”?

In Halo Electronics, Inc. v. Pulse Electronics, Inc., 2013-1472, - 1656 (October 22, 2014), the Federal Circuit concluded that there was no direct infringement when substantial activities of a sales transaction – including the…more

Contract Disputes, Direct Infringement, Electronics, Extraterritoriality Rules, Patent Infringement

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FY 2016 Budget Tax Proposals Target Insurance Companies

On February 2, the Obama Administration released its fiscal year 2016 budget (FY 2016 Budget). The hallmarks of the FY 2016 Budget are proposals that would impose (i) a minimum tax on the current foreign earnings of U.S…more

Barack Obama, Controlled Foreign Corporations, Corporate Taxes, FATCA, Federal Budget

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New Law Doubles the Penalties for Failure to File Correct Tax Information Returns and Provide Payee Statements

On June 29, President Obama signed into law the Trade Preferences Extension Act of 2015. Quietly embedded in Section 806 of this new law is a provision that doubled the cap on penalties, from $1.5 million to $3 million, for…more

Affordable Care Act, Corporate Taxes, Gross Receipts, Income Taxes, IRC

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Recent Developments on Variable Annuity Captive Reinsurance and Hedging Risk Evaluation; and Impacts on VA Issuers

In the midst of the broader discussion within the insurance regulatory community regarding the financial risks potentially posed by captive reinsurers, the National Association of Insurance Commissioners (NAIC) has recently…more

Captive Insurance Company, Insurance Industry, NAIC, Regulatory Agenda, Risk Assessment

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Obama Issues Executive Order and Presidential Memorandum Concerning Equal Pay Initiatives for Federal Contractors

Yesterday, President Obama issued an Executive Order and Presidential Memorandum intended to address equal pay for women. The Executive Order prohibits federal contractors from retaliating against an applicant or employee who…more

Equal Pay, Executive Orders, Federal Contractors, OFCCP, Retaliation

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Treasury and the IRS Offer a New Take on the PFIC Active Insurance Exception

On April 23, Treasury and the IRS issued proposed regulations interpreting the active insurance exception under the passive foreign investment company (PFIC) rules. Although the release of the proposed regulations did not come…more

Foreign Insurance Companies, Insurance Industry, IRS, PFIC, Proposed Regulation

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NAIC Close to Adopting Guideline for IUL Illustrations

On June 4, after long deliberation and extensive consultation with issuers of indexed universal life (IUL) insurance policies and other interested parties by the Life Actuarial (A) Task Force (LATF), the NAIC’s Life Insurance…more

Actuarial Values, Insurance Industry, Life Insurance, NAIC

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Taxpayer Wynne’s: Supreme Court Rules Maryland Personal Income Tax Violates Constitution

This morning the U.S. Supreme Court ruled that Maryland’s personal income tax regime is unconstitutional. By failing to provide a full credit to its residents for taxes paid to other states, Maryland unconstitutionally created…more

Comptroller of the Treasury v Wynne, Dormant Commerce Clause, Income Taxes, Non-Resident Income Taxes, SCOTUS

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New SEC Guidance Adds Flexibility to BDC Co-Investing

The U.S. Securities and Exchange Commission (SEC) Division of Investment Management (the Division) just published guidance that will permit business development companies (BDCs) to co-invest with certain persons considered…more

Affiliates, Business Development, Business Development Companies, Equity Investors, Investment Company Act of 1940

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NASAA M&A Broker Model Rule

On January 15, 2015, the Broker-Dealer Section of the North American Securities Administrators Association (NASAA) requested comments on a proposed uniform state model rule (the Model Rule) regarding the exemption of certain…more

Exemptions, M&A Brokers, Model Rules, NASAA, Registration Requirement

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President Signs Changes to Collins Amendment Favorable to Insurers

On December 18, President Obama signed into law the Insurance Capital Standards Clarification Act of 2014 (the Act). The Act makes it clear that the Board of Governors of the Federal Reserve (the Fed) is not required to apply…more

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FIO Report Sets the Agenda for Discourse on the Future of Insurance Regulation

On December 12, 2013, the Federal Insurance Office (FIO) of the U.S. Department of the Treasury released its much anticipated study, How to Modernize and Improve the System of Insurance Regulation in the United States (Report). …more

Dodd-Frank, Federal Insurance Office, Insurance Companies, Insurance Reform, Insurers

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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Legal Alert: CFPB Proposes to Examine and Directly Supervise Nonbank Auto Lenders

On September 17, the Consumer Financial Protection Bureau (CFPB) proposed to make nonbank automobile lenders subject to the examination and direct supervision of the Bureau. The proposed rule can be found here. Under the…more

Automotive Industry, Automotive Loans, CFPB, Larger Participant, Nonbank Firms

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DOL Has Many Questions About its Fiduciary Reproposal

As has been widely reported, the U.S. Department of Labor (DOL) on April 14 issued its proposal to expand the definition of investment advice fiduciary under the Employee Retirement Income Security Act (ERISA). DOL included in…more

401k, DOL, ERISA, Fiduciary Duty, FINRA

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No SLUSA Protection Absent Material Connection With Sale/Purchase of Covered Security

In Chadbourne & Parke LLP v. Troice, the U.S. Supreme Court held on February 26, 2014, that the victims of Allen Stanford’s multibillion-dollar Ponzi scheme can proceed with their claims against law firms, insurance brokers, and…more

Banks, Chadbourne & Parke LLP v Troice, Fraud, Ponzi Scheme, SCOTUS

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New Standards for Shipping Crude Oil, Petroleum Products and Renewable Fuel by Rail

On Friday, May 1, the U.S. Department of Transportation (“DOT”) issued a final rule establishing new requirements for transporting flammable liquids in a continuous block of 20 or more tank cars or 35 or more tank cars loaded…more

Crude by Rail, DOT, Final Rules, Oil & Gas, Railroads

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Supreme Court Holds Dismissal of Individual Case in MDL Proceedings Is Immediately Appealable

The U.S. Supreme Court unanimously held yesterday in Gelboim v. Bank of America Corp., No. 13-1174, that an order disposing of an individual case previously consolidated with other cases for multidistrict litigation (MDL)…more

Antitrust Litigation, Appeals, Banks, Gelboim v Bank of America, Multidistrict Litigation

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CFTC Fines Summit Energy Services, Inc. for Violating CTA Registration Rules Under the Commodity Exchange Act

On January 16, the Commodity Futures Trading Commission (CFTC) issued a settlement order requiring Summit Energy Services, Inc. (Summit Energy) to pay a $140,000 civil monetary penalty for acting as an unregistered commodity…more

CFTC, Civil Monetary Penalty, Commodities Exchange Act, CTA, Enforcement Actions

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IRS Issues Favorable Private Letter Ruling to Data Center REIT

On June 6, 2014, the Internal Revenue Service (IRS) released Private Letter Ruling 201423011 (the PLR), confirming that income from certain data center services can constitute “rents from real property” for purposes of the real…more

Data Centers, IRS, Private Letter Rulings, REIT

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IRS Establishes 80% Threshold for Energy Companies to Apply When Determining Whether “Substantially All” of a Major Component Has Been Replaced

On July 6, the Internal Revenue Service (IRS) Large Business and International Division issued a Directive1 to IRS agents regarding how to determine when a major component pertaining to steam or electric generation property has…more

Corporate Taxes, Electric Generation Suppliers, Energy Sector, IRS, Power Plants

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Michigan Supreme Court Approves Partial Use Tax Exemption for Transmission and Distribution Equipment

The Michigan Supreme Court held that an electric utility’s transmission and distribution equipment used for both taxable and exempt purposes qualifies for a partial sales and use tax exemption. See Detroit Edison Co. v. Dept. of…more

Detroit Edison, Electric Generation Suppliers, Electricity, Exemptions, MI Supreme Court

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Executive Order Mandates Clean Energy Consumption at Federal Buildings

Yesterday, President Obama released an Executive Order entitled “Planning for Federal Sustainability in the Next Decade.” In short, the order mandates that heads of agency take action to promote energy conservation and…more

Barack Obama, Clean Energy, Executive Orders, Government Agencies

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MTC Nearing Completion of Model Sourcing Regulation for Services and Intangibles

The Multistate Tax Commission’s (MTC) Annual Conference and Committee Meetings are being held on July 27-30, 2015, in Spokane, Washington. On Tuesday, July 28, 2015, at approximately 1:00 pm PDT (exact time subject to change),…more

Intangible Property, Leases, Market Based Approach, Model Rules, Multistate Tax Commission

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Treasury and the IRS Offer a New Take on the PFIC Active Insurance Exception

On April 23, Treasury and the IRS issued proposed regulations interpreting the active insurance exception under the passive foreign investment company (PFIC) rules. Although the release of the proposed regulations did not come…more

Foreign Insurance Companies, Insurance Industry, IRS, PFIC, Proposed Regulation

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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Supreme Court Allows Disparate-Impact Claims Under the Fair Housing Act

The Supreme Court held today that the Fair Housing Act (FHA) not only prohibits intentional discrimination, but also establishes liability for practices that result in a disparate impact on minority groups. Texas Department of…more

Affordable Housing, Disparate Impact, ECOA, Fair Housing Act, HUD

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New Law Doubles the Penalties for Failure to File Correct Tax Information Returns and Provide Payee Statements

On June 29, President Obama signed into law the Trade Preferences Extension Act of 2015. Quietly embedded in Section 806 of this new law is a provision that doubled the cap on penalties, from $1.5 million to $3 million, for…more

Affordable Care Act, Corporate Taxes, Gross Receipts, Income Taxes, IRC

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New Temporary and Proposed Regulations Offer Welcome Clarification on Application of the Embedded Loan Rule

On May 8, 2015, the Treasury Department and the Internal Revenue Service published temporary and proposed regulations under IRC §§ 446 and 956 (T.D. 9719; REG-102656-15), clarifying when nonperiodic payments made pursuant to…more

Dodd-Frank, IRC, IRS, Proposed Regulation, Swaps

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Focus On International Standards

The influence of international standards on the direction of insurance regulation in the United States has dominated public discussion about insurance regulation during recent years. Nowhere was that more evident than in…more

Congressional Investigations & Hearings, Corporate Governance, Insurance Industry, International Monetary Fund, NAIC

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Georgia Public Service Commission Renders Initial Decision in Favor of Jackson EMC in Territorial Dispute with Georgia Power

The Georgia Public Service Commission recently rendered an initial decision in a dispute between Jackson EMC and Georgia Power under the so-called “grandfather clause” of the Georgia Territorial Act. Under the grandfather…more

Electric Generation Suppliers, Electricity, Grandfathering Rules, Manufacturers, Manufacturing Facilities

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Counterparty Rights in Energy Bankruptcies

For the past several years, low interest rates and higher commodity prices have resulted in generally favorable financial conditions in the energy sector, keeping energy bankruptcy activity to a minimum. With the recent sharp…more

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IRS Warns Plan Sponsors About Hardship Withdrawal Documentation

In a recent Employee Plans Newsletter, the Internal Revenue Service (IRS) warned plan sponsors that they must obtain and keep documentation related to hardship withdrawals, particularly the documentation necessary to…more

Benefit Plan Sponsors, Hardship Distributions, IRS, Record Retention, Required Documentation

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New Patent Eligibility Guidance: USPTO Tones Down the Rhetoric

On December 15, 2014, the U.S. Patent and Trademark Office issued its long-awaited Interim Guidance on Patent Subject Matter Eligibility (published in the Federal Register on December 16). The Guidance supersedes the guidelines…more

AMP v Myriad, CLS Bank v Alice Corp, Guidance Update, Mayo v. Prometheus, Patent-Eligible Subject Matter

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BLM Issues First Federal Regulations for Hydraulic Fracturing

On Thursday, March 26, 2015, the U.S. Department of the Interior’s Bureau of Land Management (BLM) published in the Federal Register the Final Rule on hydraulic fracturing on federal and Indian lands. The Final Rule sets forth…more

Bureau of Land Management, Energy Sector, Final Rules, Fracking, Government Land

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U.S. Supreme Court Hears Oral Argument Over the Preclusive Effect of Administrative Trademark Determinations on Future Infringement Litigation

The U.S. Supreme Court heard oral argument last week in a much anticipated trademark matter, B&B Hardware Inc. v. Hargis Industries Inc. et al. The primary question presented was whether a likelihood-of-confusion determination…more

Administrative Hearings, B&B Hardware v Hargis Industries, Claim Preclusion, Infringement, Likelihood of Confusion

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IRS Targets Use of Basket Option Contracts and Basket Contracts by Hedge Funds and Other Taxpayers as Tax Avoidance Transactions

On July 8, the Internal Revenue Service (IRS) issued two notices (Notice 2015-47, 2015-30 IRB 1, and Notice 2015-48, 2015-30 IRB 1) targeting the use of Basket Option Contracts and Basket Contracts as tax avoidance transactions…more

Basket Option Contracts, IRC, IRS, Limited Liability Companies, Partnerships

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New Law Doubles the Penalties for Failure to File Correct Tax Information Returns and Provide Payee Statements

On June 29, President Obama signed into law the Trade Preferences Extension Act of 2015. Quietly embedded in Section 806 of this new law is a provision that doubled the cap on penalties, from $1.5 million to $3 million, for…more

Affordable Care Act, Corporate Taxes, Gross Receipts, Income Taxes, IRC

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Asbestos MDL Court Concludes Punitive Damages for Unseaworthiness Allowed for Seaman But Not for a Seaman’s Personal Representative in Wrongful Death or Survival Actions

In a consolidated asbestos products liability multidistrict litigation (MDL), the U.S. District Court for the Eastern District of Pennsylvania held in In re Asbestos Products Liability Litigation (No. VI), MDL 875, that punitive…more

Asbestos, Asbestos Litigation, Mesothelioma, Multidistrict Litigation

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Anthem’s Data Breach Affects Many Non-Anthem Plans: What Employers Need to Know Now

On February 4, 2015, Anthem Inc. (“Anthem”) disclosed that it had been a victim of a sophisticated cyber-attack that compromised the personal health plan data of up to 80 million customers of not only Anthem but also a much…more

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New SEC Guidance Adds Flexibility to BDC Co-Investing

The U.S. Securities and Exchange Commission (SEC) Division of Investment Management (the Division) just published guidance that will permit business development companies (BDCs) to co-invest with certain persons considered…more

Affiliates, Business Development, Business Development Companies, Equity Investors, Investment Company Act of 1940

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Georgia Public Service Commission Renders Initial Decision in Favor of Jackson EMC in Territorial Dispute with Georgia Power

The Georgia Public Service Commission recently rendered an initial decision in a dispute between Jackson EMC and Georgia Power under the so-called “grandfather clause” of the Georgia Territorial Act. Under the grandfather…more

Electric Generation Suppliers, Electricity, Grandfathering Rules, Manufacturers, Manufacturing Facilities

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SEC Updates Guidance on Cybersecurity

Emphasizing the critical importance of cybersecurity to registered investment companies (RICs), including insurance separate accounts and business development companies, and to investment advisers, the SEC’s Division of…more

Business Development Companies, Cybersecurity, Identity Theft, Investment Adviser, Investment Management

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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Volcker Agencies Provide Seeding Period Guidance for BDCs, RICs and FPFs in New FAQ

On July 16, 2015, the agencies responsible for implementing the Volcker rule (Agencies) issued FAQ 16, which provides guidance on the circumstances under which a seed investment would not cause (i) a registered investment…more

Bank Holding Company, Business Development Companies, Covered Banking Entity, Federal Reserve, Investment Company Act of 1940

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U.S. Supreme Court Unanimously Rules That Juries Should Decide Trademark Tacking

In its first substantive trademark ruling in more than a decade, the U.S. Supreme Court unanimously held on January 21, in Hana Financial, Inc. v. Hana Bank et al., No. 13-1211, that tacking – which is whether two trademarks are…more

Hana Financial v Hana Bank, Jury Questions, Likelihood of Confusion, SCOTUS, Tacking

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Performance Anxiety: SEC Proposes Pay Versus Performance Rule

On April 29, 2015, by a 3-2 vote, the Securities and Exchange Commission (the SEC) voted to propose a rule to implement Section 14(i) of the Securities Exchange Act of 1934 (the Exchange Act), as added by Section 953(a) of the…more

Disclosure Requirements, Dodd-Frank, Executive Compensation, Proposed Regulation, Say-on-Pay

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Public-Private Partnership Bill Passes Georgia Senate to Pave Way for Widespread P3 in Georgia

Georgia may soon join the growing ranks of states with broad enabling legislation for all forms of public-private partnerships (or P3). Senate Bill 255 (2013) passed the Georgia State Senate on Monday, February 24, 2014, by a…more

Infrastructure, P3s, Public-Private Partnerships

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Treasury and the IRS Offer a New Take on the PFIC Active Insurance Exception

On April 23, Treasury and the IRS issued proposed regulations interpreting the active insurance exception under the passive foreign investment company (PFIC) rules. Although the release of the proposed regulations did not come…more

Foreign Insurance Companies, Insurance Industry, IRS, PFIC, Proposed Regulation

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Clock Is Ticking…Relief for Late Filed GRAs Expected to Expire Soon

Time may be running out for taxpayers to correct technically deficient gain recognition agreements (GRAs) under the relief procedure contained in the Directive on Examination Action With Respect to Certain Gain Recognition…more

Gain Recognition Agreements, IRS, Tax Returns, Taxpayer Relief Provisions

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Legal Alert: Largest SEC Whistleblower Award Could Have Been Larger

On September 22, 2014, the U.S. Securities and Exchange Commission announced the largest-ever whistleblower award, more than double last year’s record-breaking award. According to the Order, the award, which will likely exceed…more

Dodd-Frank, Extraterritoriality Rules, Foreign Nationals, SEC, Whistleblower Awards

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FINRA Provides New Carve-Out Provisions to Include in Settlement and Confidentiality Agreements

Financial Industry Regulatory Authority (FINRA) Member Firms have new language to include in their settlement and confidentiality agreements. On October 9, FINRA released Regulatory Notice (RN) 14-40, warning that firms are…more

Arbitration Agreements, Carve Out Provisions, Confidentiality Agreements, FINRA, Settlement

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Legal Alert: CFPB Warns Credit Card Companies About Potential UDAAP Violations When Marketing Promotional Interest Rates

The Consumer Financial Protection Bureau (CFPB) issued a bulletin on September 3, 2014 warning credit card companies that marketing materials for promotional annual percentage rate (APR) offers may be in violation of the unfair,…more

Advertising, Banking Sector, Banks, CFPB, Credit Cards

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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IRS Issues Favorable Private Letter Ruling to Data Center REIT

On June 6, 2014, the Internal Revenue Service (IRS) released Private Letter Ruling 201423011 (the PLR), confirming that income from certain data center services can constitute “rents from real property” for purposes of the real…more

Data Centers, IRS, Private Letter Rulings, REIT

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SEC Approves New Rule Limiting Who Qualifies As a Public Arbitrator in FINRA Proceedings

On February 26, 2015, the Securities Exchange Commission (“SEC”) approved proposed Financial Industry Regulatory Authority (“FINRA”) rules that will substantially reduce the number of public arbitrators on the roster for FINRA…more

Arbitration, Arbitrators, FINRA, Proposed Regulation, Public Arbitrators

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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Focus On International Standards

The influence of international standards on the direction of insurance regulation in the United States has dominated public discussion about insurance regulation during recent years. Nowhere was that more evident than in…more

Congressional Investigations & Hearings, Corporate Governance, Insurance Industry, International Monetary Fund, NAIC

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ISDA Publishes EMIR Classification Letter

On July 13, the International Swaps and Derivatives Association, Inc. (ISDA) published the ISDA EMIR Classification Letter (the Classification Letter), a form of letter that may be used by market participants managing their…more

Banking Sector, Classification, Counterparties, Derivatives, EMIR

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U.S. Court of Appeals Rules in Favor of Durbin Amendment Rules

On March 21, 2014, in NACS, et. al. v. Board of Governors of the Federal Reserve System, the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the Federal Reserve’s interpretation of the Durbin…more

Debit and Credit Card Transactions, Durbin Amendment Rules, Federal Reserve

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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IRS Establishes 80% Threshold for Energy Companies to Apply When Determining Whether “Substantially All” of a Major Component Has Been Replaced

On July 6, the Internal Revenue Service (IRS) Large Business and International Division issued a Directive1 to IRS agents regarding how to determine when a major component pertaining to steam or electric generation property has…more

Corporate Taxes, Electric Generation Suppliers, Energy Sector, IRS, Power Plants

See All Updates »

Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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Validus Affirmed for All the Right Reasons – The FET Does Not Apply to Wholly Foreign Reinsurance Transactions

On May 26, the U.S. Court of Appeals for the District of Columbia affirmed the result of the U.S. District Court for the District of Columbia in Validus Reinsurance, Ltd. v. U.S., 19 F. Supp. 3d 225 (2014), which was the first…more

Excise Tax, Extraterritoriality Rules, Foreign Insurance Companies, IRS, Reinsurance

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MTC Nearing Completion of Model Sourcing Regulation for Services and Intangibles

The Multistate Tax Commission’s (MTC) Annual Conference and Committee Meetings are being held on July 27-30, 2015, in Spokane, Washington. On Tuesday, July 28, 2015, at approximately 1:00 pm PDT (exact time subject to change),…more

Intangible Property, Leases, Market Based Approach, Model Rules, Multistate Tax Commission

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Fifth Circuit Limits Pollution Liability

In a significant decision issued February 24, 2014, the Fifth U.S. Circuit Court of Appeals ruled that federal laws preempt state laws in the case of the 2010 Gulf of Mexico oil spill, because the event occurred in federal…more

Discharge of Pollutants, Environmental Liability, Gulf Oil Spill, Oil & Gas

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New York City Legislation Enacts General Corporation Tax Reform

On April 13, 2015, Governor Andrew Cuomo signed New York’s 2015-2016 budget legislation, which, among other changes, conforms the New York City general corporation tax (GCT) to the most significant changes from last year’s New…more

Andrew Cuomo, Corporate Taxes, Franchise Taxes, State Budgets, Tax Reform

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IRS Targets Use of Basket Option Contracts and Basket Contracts by Hedge Funds and Other Taxpayers as Tax Avoidance Transactions

On July 8, the Internal Revenue Service (IRS) issued two notices (Notice 2015-47, 2015-30 IRB 1, and Notice 2015-48, 2015-30 IRB 1) targeting the use of Basket Option Contracts and Basket Contracts as tax avoidance transactions…more

Basket Option Contracts, IRC, IRS, Limited Liability Companies, Partnerships

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Legal Alert: EPA Issues Amendments to the Renewable Fuel Standard to Address RIN Fraud

Earlier today and in the wake of the fraudulent renewable fuel credit (known as “RINs”) scandal that has shaken both the renewable fuel and petroleum industries, the Environmental Protection Agency (EPA) released a number of…more

EPA, Renewable Energy, Renewable Fuel Standard, RIN

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Changes to the Recordation Tax in Maryland for Refinancing Commercial Mortgage Loans: Recordation Tax Imposed Only on New Money

Maryland Governor Martin O’Malley signed into law an act providing relief to commercial borrowers that wish to refinance or modify loans originally secured by indemnity deeds of trust. This new law, effective July 1, 2013,…more

Deed of Trust, Indemnity Deed of Trust, Loan Modifications, Mortgages, New Legislation

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NAIC Close to Adopting Guideline for IUL Illustrations

On June 4, after long deliberation and extensive consultation with issuers of indexed universal life (IUL) insurance policies and other interested parties by the Life Actuarial (A) Task Force (LATF), the NAIC’s Life Insurance…more

Actuarial Values, Insurance Industry, Life Insurance, NAIC

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

See All Updates »

SEC Updates Guidance on Cybersecurity

Emphasizing the critical importance of cybersecurity to registered investment companies (RICs), including insurance separate accounts and business development companies, and to investment advisers, the SEC’s Division of…more

Business Development Companies, Cybersecurity, Identity Theft, Investment Adviser, Investment Management

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Ethical Issues Implicated by Lawyers’ Use of Third-Party Cloud Services

Law firms increasingly turn to “cloud services” for processing and storing confidential client information because of their greater flexibility and efficiency. Use of “the cloud,” however, outsources the administration, physical…more

Attorney-Client Privilege, Cloud Computing, Cloud-Based Services, Confidential Information, Cybersecurity

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The U.S. and Other Nations Reach Historic Nuclear Deal with Iran

On July 14, the P5+1 (China, France, Russia, the United Kingdom, the United States and Germany) reached a historic nuclear agreement with Iran, following almost two years of negotiations. Under the Joint Comprehensive Plan of…more

IAEA, Iran, Iran Sanctions, Joint Comprehensive Plan of Action (JCPOA), Nuclear Weapons

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Supreme Court Allows Disparate-Impact Claims Under the Fair Housing Act

The Supreme Court held today that the Fair Housing Act (FHA) not only prohibits intentional discrimination, but also establishes liability for practices that result in a disparate impact on minority groups. Texas Department of…more

Affordable Housing, Disparate Impact, ECOA, Fair Housing Act, HUD

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The SEC Tackles Technicality

Within several months of Securities and Exchange Commission Chair Mary Jo White’s announcement in late 2013 of a commitment to improving the SEC’s trial readiness, the Commission suffered a number of losses in federal district…more

ALJ, Corporate Counsel, Enforcement Actions, Forum, Mary Jo White

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Legal Alert: The Tax Court Approves the Use of Predictive Coding

On September 17, the U.S. Tax Court, in Dynamo Holdings LP v. Commissioner, 143 T.C. No. 9 (Sept. 17, 2014), held that a taxpayer could use predictive coding, over the objection of the Internal Revenue Service (IRS), to identify…more

Attorney-Client Privilege, Discovery, Electronically Stored Information, Federal Rules of Civil Procedure, IRS

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FY 2016 Budget Tax Proposals Target Insurance Companies

On February 2, the Obama Administration released its fiscal year 2016 budget (FY 2016 Budget). The hallmarks of the FY 2016 Budget are proposals that would impose (i) a minimum tax on the current foreign earnings of U.S…more

Barack Obama, Controlled Foreign Corporations, Corporate Taxes, FATCA, Federal Budget

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FY 2016 Budget Tax Proposals Target Insurance Companies

On February 2, the Obama Administration released its fiscal year 2016 budget (FY 2016 Budget). The hallmarks of the FY 2016 Budget are proposals that would impose (i) a minimum tax on the current foreign earnings of U.S…more

Barack Obama, Controlled Foreign Corporations, Corporate Taxes, FATCA, Federal Budget

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Counterparty Rights in Energy Bankruptcies

For the past several years, low interest rates and higher commodity prices have resulted in generally favorable financial conditions in the energy sector, keeping energy bankruptcy activity to a minimum. With the recent sharp…more

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Trenchant Analysis or Jiggery-Pokery? U.S. Supreme Court Upholds Affordable Care Act

In a 6-3 decision on June 25, 2015 in King v. Burwell, the U.S. Supreme Court held that tax credits are available under the Patient Protection and Affordable Care Act (Affordable Care Act or PPACA) to all eligible Americans,…more

Affordable Care Act, Chevron Deference, Health Insurance, Health Insurance Exchanges, Individual Mandate

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EPA Ordered to Revise CSAPR Emissions Budgets

On July 28, the U.S. Court of Appeals for the D.C. Circuit ordered the U.S. Environmental Protection Agency (EPA) to revise emissions budgets for several states under the agency’s Cross-State Air Pollution Rule (CSAPR or the…more

Appeals, Clean Air Act, Cross-State Air Pollution, EPA, Power Plants

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Are You Continuing Construction? IRS Issues Fourth Renewable Energy Tax Credit Beginning of Construction Notice

On March 11, 2015, the Internal Revenue Service (IRS) issued Notice 2015-25, which provides further guidance to assist renewable energy facility developers and investors in evaluating whether such facilities satisfied the…more

Construction Industry, Energy Projects, Investment Tax Credits, IRS, Production Tax Credit

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CFTC Fines Summit Energy Services, Inc. for Violating CTA Registration Rules Under the Commodity Exchange Act

On January 16, the Commodity Futures Trading Commission (CFTC) issued a settlement order requiring Summit Energy Services, Inc. (Summit Energy) to pay a $140,000 civil monetary penalty for acting as an unregistered commodity…more

CFTC, Civil Monetary Penalty, Commodities Exchange Act, CTA, Enforcement Actions

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Master Limited Partnerships: Proposed Tax Regulations Scale Back Activities Giving Rise to Qualifying Income

The Treasury Department (Treasury) and the Internal Revenue Service (Service) have issued proposed tax regulations (Proposed Regulations) that provide guidance on, and significantly scale back, the types of activities relating…more

Corporate Taxes, IRS, Limited Partnerships, Master Limited Partnerships, Oil & Gas

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New York’s Insurance Regulator Announces Results of Cybersecurity Survey and Previews New Regulatory Initiatives

On February 9, the New York Department of Financial Services (DFS) released a Report on Cyber Security in the Insurance Sector (Report), summarizing the results of a survey completed by 43 insurers about their cybersecurity…more

Cybersecurity, Insurance Companies, Insurance Industry, NYDFS, Popular

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Inherited IRAs Are Not Bankruptcy-Exempt as “Retirement Funds”

On June 12, 2014, the U.S. Supreme Court unanimously held in Clark v. Rameker that an inherited individual retirement account (IRA) does not qualify for the “retirement funds” exemption in the Bankruptcy Code and is not excluded…more

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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New York Budget Incorporates More Significant Tax Changes

New York Governor Andrew Cuomo introduced his 2015-2016 budget and accompanying legislation on January 19, 2015 (the proposed legislation). After much negotiation, the Legislature just enacted the Budget Bill (the "2015…more

Andrew Cuomo, Corporate Taxes, Income Taxes, State Budgets

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Mandatory Clearing in Europe May Still Be “A Ways Off”: ESMA Responds to Proposed Amendments on Interest Rate Swaps Clearing RTS and Postpones Consideration of FX NDF Clearing

The Dodd-Frank Wall Street Reform and Consumer Protection Act’s mandatory clearing requirement for interest rate swaps and certain credit default swaps has been in place for quite some time. However, the clearing requirement for…more

Dodd-Frank, EMIR, ESMA, EU, European Securities and Markets Authority

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SEC Announces First Charges Against Underwriters under MCDC Initiative

On June 18, the U.S. Securities and Exchange Commission (SEC) announced enforcement actions against 36 municipal bond underwriters, the first enforcement actions against underwriters brought by the SEC under the Municipalities…more

Disclosure Requirements, Enforcement Actions, MCDC, Misleading Statements, Municipal Bonds

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SEC Updates Guidance on Cybersecurity

Emphasizing the critical importance of cybersecurity to registered investment companies (RICs), including insurance separate accounts and business development companies, and to investment advisers, the SEC’s Division of…more

Business Development Companies, Cybersecurity, Identity Theft, Investment Adviser, Investment Management

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DOL Has Many Questions About its Fiduciary Reproposal

As has been widely reported, the U.S. Department of Labor (DOL) on April 14 issued its proposal to expand the definition of investment advice fiduciary under the Employee Retirement Income Security Act (ERISA). DOL included in…more

401k, DOL, ERISA, Fiduciary Duty, FINRA

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SEC Proposes Controversial Rule Requiring Companies to Adopt No-Fault Clawback Policies

Recently, the U.S. Securities and Exchange Commission (SEC or the Commission) proposed a controversial new rule under the Dodd-Frank Act that instructs companies to establish policies that require “executive officers” to repay…more

Accounting, Clawbacks, Disclosure Requirements, Dodd-Frank, Executive Compensation

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International Design Patent Filing Option Available May 13, 2015, to U.S. Filers

Beginning May 13, 2015, U.S. applicants will be able to file international design patent applications through the U.S. Patent and Trademark Office. In addition, U.S. design patents resulting from applications filed on or after…more

Design Patent, Hague Agreement, Patent Applications, Patents, USPTO

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NAIC Unclaimed Benefits Model Drafting (A) Subgroup Identifies Key Model Law Issues

On May 29, the National Association of Insurance Commissioners (the NAIC) Unclaimed Benefits Model Drafting (A) Subgroup (the Subgroup) met to discuss regulator and industry materials submitted to the Subgroup and identified…more

Death Master Files, Life Insurance, NAIC, NCOIL Model Act, Unclaimed Life Insurance Benefits Act

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FERC Issues Proposed Policy Statement on Cost Recovery Mechanisms for Modernization of Natural Gas Facilities

On November 20, the Federal Energy Regulatory Commission (Commission) issued a Proposed Policy Statement on cost recovery mechanisms, such as trackers or surcharges, that pipelines may use to recoup infrastructure modernization…more

EPA, FERC, Natural Gas, Oil & Gas, PHMSA

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Legal Alert: Final Volcker Rule: Update and Key Takeaways for Private Funds

On December 10, 2013, the Federal Reserve Board (FRB), the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the Securities and Exchange Commission, and the Commodity Futures…more

Antitrust Provisions, Bank Holding Company Act, Banks, CFTC, Collateralized Debt Obligations

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Texas Apartment Association Files Amicus Brief in U.S. Supreme Court Fair Housing Act Case

The U.S. Supreme Court will review a Fair Housing Act case to address whether the Act prohibits facially neutral conduct that has an unintended disparate impact on members of a protected class. In its amicus curiae brief, the…more

Affordable Housing, DHCA v Inclusive Communities Project, Discrimination, Disparate Impact, Fair Housing Act

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IRS Targets Use of Basket Option Contracts and Basket Contracts by Hedge Funds and Other Taxpayers as Tax Avoidance Transactions

On July 8, the Internal Revenue Service (IRS) issued two notices (Notice 2015-47, 2015-30 IRB 1, and Notice 2015-48, 2015-30 IRB 1) targeting the use of Basket Option Contracts and Basket Contracts as tax avoidance transactions…more

Basket Option Contracts, IRC, IRS, Limited Liability Companies, Partnerships

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Executive Order Mandates Clean Energy Consumption at Federal Buildings

Yesterday, President Obama released an Executive Order entitled “Planning for Federal Sustainability in the Next Decade.” In short, the order mandates that heads of agency take action to promote energy conservation and…more

Barack Obama, Clean Energy, Executive Orders, Government Agencies

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CFTC Fines Summit Energy Services, Inc. for Violating CTA Registration Rules Under the Commodity Exchange Act

On January 16, the Commodity Futures Trading Commission (CFTC) issued a settlement order requiring Summit Energy Services, Inc. (Summit Energy) to pay a $140,000 civil monetary penalty for acting as an unregistered commodity…more

CFTC, Civil Monetary Penalty, Commodities Exchange Act, CTA, Enforcement Actions

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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New Law Doubles the Penalties for Failure to File Correct Tax Information Returns and Provide Payee Statements

On June 29, President Obama signed into law the Trade Preferences Extension Act of 2015. Quietly embedded in Section 806 of this new law is a provision that doubled the cap on penalties, from $1.5 million to $3 million, for…more

Affordable Care Act, Corporate Taxes, Gross Receipts, Income Taxes, IRC

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Redial: 2014 TCPA Year In Review – Analysis Of Critical Issues And Trends

In this Analysis: - New TCPA Rules Take Effect for Telemarketing Calls - Just the Fax: Recent TCPA Developments on Liability for Unsolicited Faxes and Fax Opt-Out Notices - TCPA Best Practices: Consent,…more

Best Practices, Insurance Industry, Opt-Outs, Popular, Prior Express Consent

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SEC Releases Results of 2014 Cybersecurity Exam Sweep

On February 3, the Securities and Exchange Commission (SEC) issued a Risk Alert prepared by its Office of Compliance Inspections and Examinations (OCIE) that summarizes the results of a sweep of more than 100 broker-dealers and…more

Broker-Dealer, Cybersecurity, Investment Adviser, OCIE, Risk Alert

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EPA’s New Final Rule on Logging Roads: Not So Final?

On November 30, 2012, the Environmental Protection Agency (EPA) issued its final rule revising the Phase I stormwater regulations under the Clean Water Act to clarify that stormwater discharges from logging roads do not…more

Clean Water Act, EPA, NPDES, Storm Water

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NAIC Unclaimed Benefits Model Drafting (A) Subgroup Identifies Key Model Law Issues

On May 29, the National Association of Insurance Commissioners (the NAIC) Unclaimed Benefits Model Drafting (A) Subgroup (the Subgroup) met to discuss regulator and industry materials submitted to the Subgroup and identified…more

Death Master Files, Life Insurance, NAIC, NCOIL Model Act, Unclaimed Life Insurance Benefits Act

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Michigan Supreme Court Approves Partial Use Tax Exemption for Transmission and Distribution Equipment

The Michigan Supreme Court held that an electric utility’s transmission and distribution equipment used for both taxable and exempt purposes qualifies for a partial sales and use tax exemption. See Detroit Edison Co. v. Dept. of…more

Detroit Edison, Electric Generation Suppliers, Electricity, Exemptions, MI Supreme Court

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Legal Alert: Alice v. CLS Bank: U.S. Supreme Court Revisits Subject Matter Eligibility Under 35 U.S.C. § 101

On June 19, the Supreme Court issued a decision in Alice Corporation. Pty. Ltd. v. CLS Bank International. et al., a high-profile patent case involving the scope of patent eligibility under 35 U.S.C. § 101. In a unanimous…more

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Legal Alert: Holder of Deed Need Not Be Holder of Note to Foreclose, Georgia Supreme Court Rules

The Georgia Supreme Court held this week that the holder of a security deed need not also hold the underlying note to exercise the power of sale in accordance with the terms of the security deed. You v. JP Morgan Chase Bank,…more

Deeds, Foreclosure, Land Titles, Mortgages, Promissory Notes

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Michigan Supreme Court Approves Partial Use Tax Exemption for Transmission and Distribution Equipment

The Michigan Supreme Court held that an electric utility’s transmission and distribution equipment used for both taxable and exempt purposes qualifies for a partial sales and use tax exemption. See Detroit Edison Co. v. Dept. of…more

Detroit Edison, Electric Generation Suppliers, Electricity, Exemptions, MI Supreme Court

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Legal Alert: CFTC Adopts Streamlined Approach for Delegation of CPO Registration

On May 12, 2014, the Commodity Futures Trading Commission’s (CFTC) Division of Swap Dealer and Intermediary Oversight (DSIO) issued a staff letter (the Staff Letter) that provides a streamlined approach for commodity pool…more

CFTC, Commodity Pool, Compliance, CPO, DSIO

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Another Software Patent is Ruled Patent-Ineligible - Are Business Method and Software Patents at Risk?

On November 14, 2014, in a much-anticipated decision following the U.S. Supreme Court’s decision in Alice v. CLS Bank, a unanimous U.S. Court of Appeals for the Federal Circuit held in Ultramercial, L.L.C. v. WildTangent, Inc…more

CLS Bank v Alice Corp, Copyrights, Covered Business Method Patents, Mayo v. Prometheus, Online Advertisements

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Legal Alert: Final Volcker Rule: Update and Key Takeaways for Private Funds

On December 10, 2013, the Federal Reserve Board (FRB), the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the Securities and Exchange Commission, and the Commodity Futures…more

Antitrust Provisions, Bank Holding Company Act, Banks, CFTC, Collateralized Debt Obligations

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First Investor Control Case Since 1984 Is Released

On June 30, the Tax Court released Webber v. Commissioner, 144 T.C. No.17, in which the court upheld and applied the principles set forth in the Internal Revenue Service’s (IRS) “investor control” rulings, concluding that for…more

Life Insurance, Private Placement Life Insurance

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SEC Updates Guidance on Cybersecurity

Emphasizing the critical importance of cybersecurity to registered investment companies (RICs), including insurance separate accounts and business development companies, and to investment advisers, the SEC’s Division of…more

Business Development Companies, Cybersecurity, Identity Theft, Investment Adviser, Investment Management

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SEC Approves New Rule Limiting Who Qualifies As a Public Arbitrator in FINRA Proceedings

On February 26, 2015, the Securities Exchange Commission (“SEC”) approved proposed Financial Industry Regulatory Authority (“FINRA”) rules that will substantially reduce the number of public arbitrators on the roster for FINRA…more

Arbitration, Arbitrators, FINRA, Proposed Regulation, Public Arbitrators

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U.S. Supreme Court Unanimously Rules That Juries Should Decide Trademark Tacking

In its first substantive trademark ruling in more than a decade, the U.S. Supreme Court unanimously held on January 21, in Hana Financial, Inc. v. Hana Bank et al., No. 13-1211, that tacking – which is whether two trademarks are…more

Hana Financial v Hana Bank, Jury Questions, Likelihood of Confusion, SCOTUS, Tacking

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Are You Really Sure That Construction Began? IRS Issues Third Notice Regarding Renewable Energy Tax Credit Beginning of Construction Test

On August 8, 2014, the Internal Revenue Service (“IRS”) issued Notice 2014-46, which provides further guidance intended to assist developers and purchasers of renewable energy facilities evaluate whether such facilities…more

Construction Contracts, Construction Disputes, Investment Tax Credits, IRS, Production Tax Credit

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De Novo Review of Claim Construction No Longer the De Facto Standard

On January 20, the U.S. Supreme Court, in Teva Pharmaceuticals USA, Inc. v. Sandoz, rejected the de novo review standard applied by the U.S. Court of Appeals for the Federal Circuit when reviewing all claim construction issues…more

Claim Construction, Clear Error Standard, De Novo Standard of Review, Intellectual Property Litigation, Patent Litigation

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Recent Developments on Variable Annuity Captive Reinsurance and Hedging Risk Evaluation; and Impacts on VA Issuers

In the midst of the broader discussion within the insurance regulatory community regarding the financial risks potentially posed by captive reinsurers, the National Association of Insurance Commissioners (NAIC) has recently…more

Captive Insurance Company, Insurance Industry, NAIC, Regulatory Agenda, Risk Assessment

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SEC Proposes Disclosure Rules on Director, Officer and Employee Hedging

In April 2015, the comment period expired for rules proposed by the U.S. Securities and Exchange Commission (the SEC) to implement Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank…more

Disclosure Requirements, Dodd-Frank, Equity Securities, Forward Contracts, Hedging

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SEC’s Examination Program Issues a Risk Alert on Investment Adviser Due Diligence Processes

On January 28, 2014, the U.S. Securities and Exchange Commission (SEC) Office of Compliance Inspections and Examinations (OCIE) issued a Risk Alert entitled: Investment Adviser Due Diligence Processes for Selecting Alternative…more

Compliance, Due Diligence, Enforcement, Investigations, OCIE

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It's Curtains for Some Lump-Sum Window Programs

On July 9, the Internal Revenue Service (IRS) released Notice 2015-49 to announce it intends to prohibit retirees who are receiving annuity payments from a defined benefit pension plan from electing a lump sum in lieu of the…more

Annuities, CBAs, Defined Benefit Plans, ERISA, Insurers

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New Standards for Shipping Crude Oil, Petroleum Products and Renewable Fuel by Rail

On Friday, May 1, the U.S. Department of Transportation (“DOT”) issued a final rule establishing new requirements for transporting flammable liquids in a continuous block of 20 or more tank cars or 35 or more tank cars loaded…more

Crude by Rail, DOT, Final Rules, Oil & Gas, Railroads

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“White Collar” Exemptions Defined and Delimited

On June 30, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued its much-anticipated Notice of Proposed Rulemaking (NPRM) on “Defining and Delimiting the Exemptions for Executive, Administrative,…more

Bonuses, Comment Period, DOL, Exempt-Employees, FLSA

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Call (Un)Answered (the Second Ring): FCC Issues Sweeping Package of Declaratory Rulings on TCPA Petitions

In some of its most comprehensive guidance published in years, resolving more than 20 petitions requesting clarification of the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission (FCC) on July 10…more

Banking Sector, Cell Phones, Corporate Counsel, Declaratory Rulings, Exemptions

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De Novo Review of Claim Construction No Longer the De Facto Standard

On January 20, the U.S. Supreme Court, in Teva Pharmaceuticals USA, Inc. v. Sandoz, rejected the de novo review standard applied by the U.S. Court of Appeals for the Federal Circuit when reviewing all claim construction issues…more

Claim Construction, Clear Error Standard, De Novo Standard of Review, Intellectual Property Litigation, Patent Litigation

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Public-Private Partnership Bill Passes Georgia Senate to Pave Way for Widespread P3 in Georgia

Georgia may soon join the growing ranks of states with broad enabling legislation for all forms of public-private partnerships (or P3). Senate Bill 255 (2013) passed the Georgia State Senate on Monday, February 24, 2014, by a…more

Infrastructure, P3s, Public-Private Partnerships

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Legal Alert: Largest SEC Whistleblower Award Could Have Been Larger

On September 22, 2014, the U.S. Securities and Exchange Commission announced the largest-ever whistleblower award, more than double last year’s record-breaking award. According to the Order, the award, which will likely exceed…more

Dodd-Frank, Extraterritoriality Rules, Foreign Nationals, SEC, Whistleblower Awards

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EPA Ordered to Revise CSAPR Emissions Budgets

On July 28, the U.S. Court of Appeals for the D.C. Circuit ordered the U.S. Environmental Protection Agency (EPA) to revise emissions budgets for several states under the agency’s Cross-State Air Pollution Rule (CSAPR or the…more

Appeals, Clean Air Act, Cross-State Air Pollution, EPA, Power Plants

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Delaware Supreme Court Finds UCC Termination Filings Valid Despite Lack of Lender’s Intent

On October 17, the Delaware Supreme Court held that JP Morgan (JPM) terminated its security interest in all of the collateral provided by General Motors (GM) in support of a $1.5 billion loan, despite neither party intending…more

Chapter 11, Commercial Bankruptcy, Commercial Loans, General Motors, Intent

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MTC Launches Transfer Pricing Effort

On June 2, the Arm’s Length Advisory Group (the Group) of the Multistate Tax Commission (MTC) met in St. Louis, Missouri, to begin the process of developing a multistate arm’s length pricing adjustment service. States…more

Audits, Multistate Tax Compact, Transfer Pricing

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Update on NAIC and State Regulatory Activity on “Price Optimization”

Regulatory activity on price optimization appears to be coming to a head. The National Association of Insurance Commissioners (NAIC) Casualty Actuarial and Statistical (C) Task Force is continuing to gather input, with all roads…more

Department of Insurance, Insurance Industry, NAIC, Price Optimization, White Paper

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Recent Developments on Variable Annuity Captive Reinsurance and Hedging Risk Evaluation; and Impacts on VA Issuers

In the midst of the broader discussion within the insurance regulatory community regarding the financial risks potentially posed by captive reinsurers, the National Association of Insurance Commissioners (NAIC) has recently…more

Captive Insurance Company, Insurance Industry, NAIC, Regulatory Agenda, Risk Assessment

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New Standards for Shipping Crude Oil, Petroleum Products and Renewable Fuel by Rail

On Friday, May 1, the U.S. Department of Transportation (“DOT”) issued a final rule establishing new requirements for transporting flammable liquids in a continuous block of 20 or more tank cars or 35 or more tank cars loaded…more

Crude by Rail, DOT, Final Rules, Oil & Gas, Railroads

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Treasury and the IRS Offer a New Take on the PFIC Active Insurance Exception

On April 23, Treasury and the IRS issued proposed regulations interpreting the active insurance exception under the passive foreign investment company (PFIC) rules. Although the release of the proposed regulations did not come…more

Foreign Insurance Companies, Insurance Industry, IRS, PFIC, Proposed Regulation

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