Sutherland Asbill & Brennan LLP

U.S. Lifts Nuclear-Related Sanctions on Iran on Implementation Day

I. Introduction - On January 16, 2016, “Implementation Day” occurred under the Joint Comprehensive Plan of Action (JCPOA). This historic sanctions relief followed verification from the International Atomic Energy Agency…more

EU, General Licenses, IAEA, Implementation Day, Iran Sanctions

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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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NAIC Report: 2016 Summer National Meeting

The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California. The meeting began with strong words from the NAIC President and…more

Insurance Industry, NAIC

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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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Internal Investigations: The Impact of the Yates Memo, the FCPA Unit Pilot Program and Recent Legal Decisions

Following recent regulatory announcements and legal decisions, internal investigations are becoming increasingly more complicated to navigate. Join Sutherland for a moderated roundtable where our experienced practitioners…more

D&O Insurance, FCPA, Internal Investigations, Litigation Strategies, Professional Liability

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New York Issues Two Advisory Opinions Regarding Surplus Lines Insurance

The New York State Department of Taxation and Finance (Department) issued two advisory opinions determining that unauthorized non-life insurance corporations (here, surplus lines insurance companies) are subject to insurance…more

Advisory Opinions, ALJ, Double Taxation, Franchise Taxes, Insurance Industry

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Price Optimization: 2015 Year in Review and a Look Ahead

2015 saw approximately one-third of U.S. states join the first state, Maryland, in issuing guidance to property and casualty insurers with respect to price optimization; action by the National Association of Insurance…more

Big Data, Insurance Industry, NAIC, Price Optimization

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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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D.C. Circuit Holds that Coast Guard May Impose Nonfinancial Conditions Before Allowing Ships Accused of Violating MARPOL to Leave Port

On December 15, 2015, a panel of the U.S. Court of Appeals for the D.C. Circuit held that the U.S. Coast Guard could impose nonfinancial conditions, in addition to a bond, before permitting ships under suspicion of a MARPOL…more

Coast Guard, Oil & Gas, Oil Spills, Ports, Shipping

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Louisiana: Get Your Amnesty Before It's Gone!

Louisiana will offer a tax amnesty from November 16, 2015 to December 15, 2015. Taxpayers that agree to pay delinquent taxes will receive a waiver of 33% of penalties and 17% of interest…more

Department of Revenue, Income Taxes, Tax Amnesty

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Administration Signals Intent to Challenge Judicial Decision That Struck Down Fracking Rule as Unlawful

On June 24, the Obama Administration filed its notice of appeal to challenge last week’s federal court decision to strike down the newest regulation over hydraulic fracturing on federal and Indian lands by the Bureau of Land…more

Agency Deference, Bureau of Land Management, Energy Policy Act, Environmental Policies, Fracking

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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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Smokin’ Hot New Jersey Throw-Out Decision

In another taxpayer victory, the New Jersey Superior Court, Appellate Division held that an intangible holding company was not required to throw out any of its so-called “nowhere receipts” from an affiliated tobacco company in…more

Business Taxes, Holding Companies

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Heads I Win, Tails You Lose: TCPA Defendants Finding Success in Striking “Fail-Safe” Class Allegations

The 1964 cold war era movie, “Fail-Safe,” centered on the plight of a U.S. military jet pilot who received an errant instruction to drop a nuclear bomb on Moscow. Unlike the movie, where Henry Fonda, as the fictional…more

Class Action, Class Certification, Defense Strategies, TCPA

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Here’s the Deal: Georgia Governor Signs Several Significant Tax Bills

Following the conclusion of Georgia’s 2016 legislative session, Governor Nathan Deal signed into law several tax bills touching on a wide range of tax matters, including sales and use taxes, property taxes, corporate income…more

Audits, Corporate Taxes, E-Commerce, Governor Deal, Interest Rates

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Legal Alert: New York’s New BSA/AML Rule Imposes Monitoring, Filtering and Certification Requirements

On June 30, 2016, the New York Department of Financial Services (DFS) adopted a new anti-terrorism and anti-money laundering (AML) regulation (Final Rule) that builds on federal anti-money laundering requirements to address what…more

Anti-Money Laundering, Bank Secrecy Act, Board of Directors, Chief Compliance Officers, Corporate Officers

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White House Issues Guidance Advising Agencies to Assess Climate Change in NEPA Reviews

On August 1, the White House Council on Environmental Quality (CEQ) issued its final guidance for federal agencies on considering greenhouse gas (GHG) emissions and the effects of climate change in National Environmental Policy…more

CEQ, Climate Change, Energy Policy, Environmental Policies, FERC

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NAIC Life Insurance and Annuities (A) Committee Adopts Revisions to Actuarial Guideline 49

On July 27, 2016, the Life Insurance and Annuities (A) Committee adopted revisions to Actuarial Guideline 49 (AG 49) to address situations where indexed universal life (IUL) insurance policies make available multiple index…more

Actuarial Values, Annuities, 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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The Grandpappy of All Extensions: Congress Permanently Extends the Internet Tax Freedom Act

On February 11, the United States Senate approved a permanent extension of the Internet Tax Freedom Act (ITFA) contained in the Conference Report accompanying H.R. 644, the “Trade Facilitation and Trade Enforcement Act of 2015,”…more

E-Commerce, Internet Taxation, Local Taxes, Pending Legislation, State Taxes

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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

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Sutherland Submits Comment Letters on Two SEC Rulemaking Projects Pertinent to Business Development Companies

In response to requests for comment from the U.S. Securities and Exchange Commission (SEC), Sutherland Asbill & Brennan LLP recently submitted comment letters on two SEC rulemaking projects pertinent to business development…more

Business Development Companies, Fixing America’s Surface Transportation Act (FAST Act), Investment Company Act of 1940, Proposed Regulation, Registration Statement

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White House Issues Guidance Advising Agencies to Assess Climate Change in NEPA Reviews

On August 1, the White House Council on Environmental Quality (CEQ) issued its final guidance for federal agencies on considering greenhouse gas (GHG) emissions and the effects of climate change in National Environmental Policy…more

CEQ, Climate Change, Energy Policy, Environmental Policies, FERC

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Internal Investigations: The Impact of the Yates Memo, the FCPA Unit Pilot Program and Recent Legal Decisions

Following recent regulatory announcements and legal decisions, internal investigations are becoming increasingly more complicated to navigate. Join Sutherland for a moderated roundtable where our experienced practitioners…more

D&O Insurance, FCPA, Internal Investigations, Litigation Strategies, Professional Liability

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NAIC Life Insurance and Annuities (A) Committee Adopts Revisions to Actuarial Guideline 49

On July 27, 2016, the Life Insurance and Annuities (A) Committee adopted revisions to Actuarial Guideline 49 (AG 49) to address situations where indexed universal life (IUL) insurance policies make available multiple index…more

Actuarial Values, Annuities, Insurance Industry, Life Insurance, NAIC

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Brexit Impact on European Patents and Trademarks

On June 23, in the popularly-termed “Brexit” referendum, the United Kingdom voted to exit the European Union, a decision which will have wide-ranging effects, including potential effects on intellectual property rights in the…more

Community Trademark, EU, European Patent Convention, European Union Trade Mark (EUTM), Intellectual Property Protection

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SEC Issues Guidance on Business Continuity Planning for Registered Investment Companies

On June 27, the staff of the Securities and Exchange Commission’s (Commission or SEC) Division of Investment Management (IM) issued a Guidance Update on business continuity planning for registered investment companies (funds)…more

Business Continuity Plans, Chief Compliance Officers, Compliance, Cybersecurity, Disaster Preparedness

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NAIC Report: 2016 Summer National Meeting

The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California. The meeting began with strong words from the NAIC President and…more

Insurance Industry, NAIC

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Quill Part Deux: North Dakota Lost the Nexus Battle. Will South Dakota Win the War?

On March 22nd, South Dakota Governor Daugaard signed into law Senate Bill 106 (S.B. 106), the passage of which may be the ultimate vehicle to challenge Quill at the U.S. Supreme Court. With landslide support in the South Dakota…more

Economic Presence Nexus, Judicial Review, New Legislation, Quill, Sales & Use Tax

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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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Jackson EMC Prevails in Grandfather Rights Dispute Before Full Commission

As previously reported, on April 3, 2015, a hearing officer of the Georgia Public Service Commission issued an initial decision in favor of Jackson EMC in its dispute with Georgia Power Company over the right to serve a wood…more

Electric Generation Suppliers, Georgia Power, Grandfathered Status, Power Companies, Public Service Commissions

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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, EU, European Securities and Markets Authority (ESMA), Interest Rate Swaps

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What Is Your Starting Salary? New FLSA Regulations Raise The Bar For U.S. Employers

Employers with salaried employees earning under $47,476 annually should evaluate the impact on their organizations of major changes to employee compensation following new federal wage requirements effective December 1,…more

DOL, Educational Institutions, Final Rules, FLSA, Minimum Salary

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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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SEC Proposes Rule Related to Use of Derivatives and Financial Commitment Transactions by Regulated Funds

In December 2015, the Securities and Exchange Commission (the SEC) proposed a new Rule 18f-4 under the Investment Company Act of 1940 (the 1940 Act) that would, if adopted, affect the ability of mutual funds, exchange-traded…more

Derivatives, ETFs, Investment Company Act of 1940, Rule 18f-4, SEC

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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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Court of Appeals Hears Michigan’s Compact Election Cases

The long saga of Michigan's Multistate Tax Compact election continued on Wednesday with oral argument before the Michigan Court of Appeals. A packed courtroom witnessed a 1.5 hour proceeding before an active three-judge panel…more

Appeals, Apportionment, Corporate Taxes, Due Process, IBM

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NAIC Report: 2016 Summer National Meeting

The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California. The meeting began with strong words from the NAIC President and…more

Insurance Industry, NAIC

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Supreme Court Explores Injury Requirement for Federal Statutory Standing

In a 6-2 opinion issued May 16, 2016, the Supreme Court vacated a Ninth Circuit holding that a plaintiff who alleges that his own federal statutory rights have been violated has alleged enough to establish Article III standing…more

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

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ISDA Publishes Variation Margin Protocol

On August 16, 2016, the International Swaps and Derivatives Association, Inc. (ISDA) published the ISDA 2016 Variation Margin Protocol (VM Protocol). The VM Protocol is intended as a tool to help market participants that will be…more

Counterparties, ISDA Master Agreement, Margin Requirements, Prudential Regulation Authority, Uncleared Swaps

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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

Omnicare v Laborers District Council, Registration Statement, SCOTUS, Section 11, Securities Act of 1933

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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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Videocast: Sutherland SALT Scoreboard – 2nd Quarter Highlights

Sutherland SALT tracks and tallies significant state and local tax litigation wins and losses in the quarterly Sutherland SALT Scoreboard publication. In this videocast, Charles C. Capouet and Elizabeth S. Cha share the second…more

Income Taxes, Sales Tax, SALT, State Taxes, Tax Exemptions

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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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Videocast: Sutherland SALT Scoreboard – 2nd Quarter Highlights

Sutherland SALT tracks and tallies significant state and local tax litigation wins and losses in the quarterly Sutherland SALT Scoreboard publication. In this videocast, Charles C. Capouet and Elizabeth S. Cha share the second…more

Income Taxes, Sales Tax, SALT, State Taxes, Tax Exemptions

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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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Sweeping Changes Proposed to Tax Treatment of Related-Party Debt May Impact Private Funds

Recently proposed Treasury regulations under IRC § 385 (the Proposed Regulations) would potentially treat related-party debt, in whole or in part, as equity for U.S. tax purposes. The Proposed Regulations generally apply to debt…more

Comment Period, Controlled Groups, Debt, IRS, Private Funds

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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 Administration (SSA)

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Deferred No Longer: Treasury and IRS Issue Long-Awaited 409A Guidance

On June 21, the Treasury Department and the Internal Revenue Service (IRS) issued proposed Internal Revenue Code (Code) section 409A regulations, modifying existing proposed and final section 409A regulations regarding deferred…more

Comment Period, Deferred Compensation, Income Taxes, Internal Revenue Code (IRC), IRS

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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, Internal Revenue Code (IRC), IRS

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Legal Alert: New York’s New BSA/AML Rule Imposes Monitoring, Filtering and Certification Requirements

On June 30, 2016, the New York Department of Financial Services (DFS) adopted a new anti-terrorism and anti-money laundering (AML) regulation (Final Rule) that builds on federal anti-money laundering requirements to address what…more

Anti-Money Laundering, Bank Secrecy Act, Board of Directors, Chief Compliance Officers, Corporate Officers

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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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Dialing-In: TCPA Hot Issues for 2016

The year 2015 saw a continued wave of class action filings under the Telephone Consumer Protection Act (TCPA). However, unsettled law continues to place a compliance burden on companies that communicate with consumers by phone…more

Auto-Dialed Calls, Campbell Ewald v Gomez, Class Action, Corporate Counsel, FCC

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Deferred No Longer: Treasury and IRS Issue Long-Awaited 409A Guidance

On June 21, the Treasury Department and the Internal Revenue Service (IRS) issued proposed Internal Revenue Code (Code) section 409A regulations, modifying existing proposed and final section 409A regulations regarding deferred…more

Comment Period, Deferred Compensation, Income Taxes, Internal Revenue Code (IRC), IRS

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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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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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Revised LB&I Examination Process Requires Taxpayer’s Written Acknowledgement of Facts for Unagreed Issues

Recently announced changes to the Internal Revenue Service (IRS) Large Business and International (LB&I) Division’s examination process include a requirement that the audit team issue an Information Document Request (IDR) asking…more

Audits, Examination Procedures, IRS

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Price Optimization: 2015 Year in Review and a Look Ahead

2015 saw approximately one-third of U.S. states join the first state, Maryland, in issuing guidance to property and casualty insurers with respect to price optimization; action by the National Association of Insurance…more

Big Data, Insurance Industry, NAIC, Price Optimization

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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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UK Banking Regulator Finalizes Rules Requiring Adherence to Contractual Stay

On November 13, the Bank of England’s Prudential Regulation Authority (PRA) published a final policy statement titled “Contractual Stays in Financial Contracts Governed by Third-Country Law” (the PRA Policy Statement). These…more

Bank of England, Banking Regulators, BRRD, EU, Policy Statement

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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

Anti-Dumping Duty, China, Countervailing Duties, Investigations, ITC

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Revised LB&I Examination Process Requires Taxpayer’s Written Acknowledgement of Facts for Unagreed Issues

Recently announced changes to the Internal Revenue Service (IRS) Large Business and International (LB&I) Division’s examination process include a requirement that the audit team issue an Information Document Request (IDR) asking…more

Audits, Examination Procedures, 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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Dialing-In: TCPA Hot Issues for 2016

The year 2015 saw a continued wave of class action filings under the Telephone Consumer Protection Act (TCPA). However, unsettled law continues to place a compliance burden on companies that communicate with consumers by phone…more

Auto-Dialed Calls, Campbell Ewald v Gomez, Class Action, Corporate Counsel, FCC

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Basic-Supplemental Life Insurance Plan Pricing Structure Upheld in ERISA Class Action

An employee benefit plan that includes an alleged subsidization component for its basic and supplemental options is neither prohibited by the Employee Retirement Income Security Act of 1974 (ERISA) nor a violation of the plan…more

Arm's Length Principle, Benefit Plan Sponsors, Class Action, Dismissals, Employee Benefits

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Effect of Energy Policy Bills on Natural Gas Exports

Legislative Update. On April 20, the U.S. Senate passed broad legislation that covers many different aspects of the energy and environmental sectors, including changes to streamline the approval process for the export of natural…more

Delays, DOE, Energy Policy, Energy Sector, Exports

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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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Treasury Announces 2016-2017 Regulatory Agenda for Employee Benefits

The principal regulators of U.S. employee benefits have recently published updates to their guidance plans for the coming months. ..On August 15, 2016, the U.S. Department of the Treasury and the Internal Revenue Service…more

DOL, Employee Benefits, Executive Compensation, Guidance Update, Health Insurance

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Amnesty, Hon! Maryland Tax Amnesty Begins September 1, 2015

From September 1, 2015, through October 30, 2015, the Comptroller of Maryland will administer a Tax Amnesty Program (Program) for tax periods beginning before December 31, 2014. Eligible taxpayers that participate in the Program…more

Corporate Taxes, General Assembly, Income Taxes, Sales & Use Tax, Tax Amnesty

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Limited Liability Communication: Seventh Circuit Limits TCPA Liability for Communications Made by Third-Parties

On March 21, the U.S. Court of Appeals for the Seventh Circuit affirmed a lower court’s ruling that a small business had no liability under the Telephone Consumer Protection Act (TCPA) for fax advertisements sent by a…more

Bench Trial, Class Action, Class Certification, Class Representatives, Strict Liability

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Here’s the Deal: Georgia Governor Signs Several Significant Tax Bills

Following the conclusion of Georgia’s 2016 legislative session, Governor Nathan Deal signed into law several tax bills touching on a wide range of tax matters, including sales and use taxes, property taxes, corporate income…more

Audits, Corporate Taxes, E-Commerce, Governor Deal, Interest Rates

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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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NAIC Report: 2016 Summer National Meeting

The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California. The meeting began with strong words from the NAIC President and…more

Insurance Industry, NAIC

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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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PHMSA Announces Proposed Pipeline Safety Regulations

On October 1, 2015, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) announced proposed regulations to revise and update its pipeline safety standards and reporting…more

Department of Transportation (DOT), NPRM, Oil & Gas, PHMSA, Pipelines

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D.C. Circuit Questions FERC’s Policy Statement on Income Tax Allowances

On July 1, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in United Airlines, Inc., et al. v. FERC. This oil pipeline rate case appeal involves SFPP, L.P., a pipeline organized as a limited…more

Energy Sector, FERC, Income Taxes, Limited Partnerships, Pipelines

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Solidifying Claim Construction in Inter Partes Review – Cuozzo Allows Patent Office to Govern the Inter Partes Review Process

On June 20, the U.S. Supreme Court’s decision in Cuozzo Speed Technologies, LLC v. Lee, 2016 WL 3369425 (June 20, 2016) upheld the Patent Office’s long-held policy of construing a patent claim according to its broadest…more

America Invents Act, Broadest Reasonable Interpretation Standard, Chevron Deference, Chevron v NRDC, Claim Construction

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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 Proposes Expansive “Connected Entity” Reporting Requirement

The Federal Energy Regulatory Commission (FERC) has proposed requiring the operators of centralized wholesale power markets to collect and provide to FERC a broad range of market participant data, including (i) each market…more

Affiliates, Asset Management, C-Suite Executives, CFTC, Comment Period

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SEC Issues Guidance on Business Continuity Planning for Registered Investment Companies

On June 27, the staff of the Securities and Exchange Commission’s (Commission or SEC) Division of Investment Management (IM) issued a Guidance Update on business continuity planning for registered investment companies (funds)…more

Business Continuity Plans, Chief Compliance Officers, Compliance, Cybersecurity, Disaster Preparedness

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IRS Updates Beginning of Construction Guidance for Renewable Energy Tax Credits Extended by PATH Act

On May 5, 2016, the Internal Revenue Service (IRS) issued Notice 2016-31, which updates prior guidance regarding the beginning of construction requirement for IRC sections 45 and 48 renewable energy tax credits following…more

Begun Construction Test, Energy Projects, Guidance Update, Internal Revenue Code (IRC), IRS

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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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Stay Out of the Weeds: Egregious, Not Garden-Variety, Patent Infringement Is Subject to Enhanced Damages

On June 13, the U.S. Supreme Court unanimously rejected the Federal Circuit’s rigid two-part test for awarding enhanced damages in patent cases. In two cases decided together, Halo Elecs., Inc. v. Pulse Elecs., Inc., and Stryker…more

35 U.S.C. § 284, Enhanced Damages, Halo v Pulse, Judicial Discretion, Octane Fitness v. ICON

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New York Issues Two Advisory Opinions Regarding Surplus Lines Insurance

The New York State Department of Taxation and Finance (Department) issued two advisory opinions determining that unauthorized non-life insurance corporations (here, surplus lines insurance companies) are subject to insurance…more

Advisory Opinions, ALJ, Double Taxation, Franchise Taxes, Insurance Industry

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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 Intermediaries to Adopt and Implement Cybersecurity Programs by March 1, 2016

Commencing March 1, 2016, all commodity pool operators, commodity trading advisors, futures commission merchants, retail foreign exchange dealers, investment brokers, major swap participants and swap dealers that are National…more

CFTC, Cybersecurity, Data Breach Plans, Data Protection, Employee Training

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What Is Your Starting Salary? New FLSA Regulations Raise The Bar For U.S. Employers

Employers with salaried employees earning under $47,476 annually should evaluate the impact on their organizations of major changes to employee compensation following new federal wage requirements effective December 1,…more

DOL, Educational Institutions, Final Rules, FLSA, Minimum Salary

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What Is Your Starting Salary? New FLSA Regulations Raise The Bar For U.S. Employers

Employers with salaried employees earning under $47,476 annually should evaluate the impact on their organizations of major changes to employee compensation following new federal wage requirements effective December 1,…more

DOL, Educational Institutions, Final Rules, FLSA, Minimum Salary

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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 Notice Offers Relief to Issuers of Variable Insurance Products in Response to Pending Money Market Fund Reforms

On May 5, 2016, the IRS issued Notice 2016-32, 2016-21 I.R.B. 1, which affords relief with respect to the application of the diversification requirements of IRC § 817(h) to variable life insurance and annuity contracts…more

Diversification Requirements, Floating NAV, IRS, Life Insurance, Money Market Funds

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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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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

Omnicare v Laborers District Council, Registration Statement, SCOTUS, Section 11, Securities Act of 1933

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IRS Notice Offers Relief to Issuers of Variable Insurance Products in Response to Pending Money Market Fund Reforms

On May 5, 2016, the IRS issued Notice 2016-32, 2016-21 I.R.B. 1, which affords relief with respect to the application of the diversification requirements of IRC § 817(h) to variable life insurance and annuity contracts…more

Diversification Requirements, Floating NAV, IRS, Life Insurance, Money Market Funds

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Internal Investigations: The Impact of the Yates Memo, the FCPA Unit Pilot Program and Recent Legal Decisions

Following recent regulatory announcements and legal decisions, internal investigations are becoming increasingly more complicated to navigate. Join Sutherland for a moderated roundtable where our experienced practitioners…more

D&O Insurance, FCPA, Internal Investigations, Litigation Strategies, Professional Liability

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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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FERC Proposes Expansive “Connected Entity” Reporting Requirement

The Federal Energy Regulatory Commission (FERC) has proposed requiring the operators of centralized wholesale power markets to collect and provide to FERC a broad range of market participant data, including (i) each market…more

Affiliates, Asset Management, C-Suite Executives, CFTC, Comment Period

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California Supreme Court Holds Multistate Tax Compact is Not Binding

On December 31, 2015, the California Supreme Court closed the book on California’s Multistate Tax Compact election saga, unanimously holding that the Compact is not a binding contract among its members and the State was not…more

CA Supreme Court, Corporate Taxes, Franchise Tax Board, Gillette v Franchise Tax Board, Multistate Corporations

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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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Argentina Relaxes Restrictions on Ownership of Rural Properties by Foreigners

On June 29, 2016, the Argentine executive branch enacted decree 820/2016 (the New Decree), easing certain restrictions imposed under existing law on the acquisition and leasing of rural lands by foreign individuals and legal…more

Argentina, Change of Control, Foreign Direct Investment, Foreign Entities, Foreign Investment

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Price Optimization: 2015 Year in Review and a Look Ahead

2015 saw approximately one-third of U.S. states join the first state, Maryland, in issuing guidance to property and casualty insurers with respect to price optimization; action by the National Association of Insurance…more

Big Data, Insurance Industry, NAIC, Price Optimization

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SEC Adopts Changes to Form ADV and Books and Records Rules

On August 25, the Securities and Exchange Commission (the SEC) adopted amendments to Form ADV Part 1 that will require SEC-registered investment advisers to provide a significant amount of new information. The SEC adopted these…more

Amended Regulation, Form ADV, Investment Adviser, Reporting Requirements, SEC

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What Is Your Starting Salary? New FLSA Regulations Raise The Bar For U.S. Employers

Employers with salaried employees earning under $47,476 annually should evaluate the impact on their organizations of major changes to employee compensation following new federal wage requirements effective December 1,…more

DOL, Educational Institutions, Final Rules, FLSA, Minimum Salary

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Lumber War May Be Imminent

Negotiations to keep the peace in the complex and long-running international trade dispute between the United States and Canada over U.S. imports of Canadian softwood lumber appear to have stalled. Parties on both sides of the…more

Barack Obama, Canada, Imports, Justin Trudeau, NAFTA

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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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In Case You Missed It, A New Act Amends Wisconsin’s Managed Forest Law

On April 14, 2016, Governor Scott Walker signed into law Wisconsin Senate Bill 434, a bill that significantly amends the Managed Forest Law (Sections 77.80 to 77.91, Wis. Stats.), thereby enacting the 2015 Wisconsin Act 3581…more

Forestry, Governor Walker, New Regulations, Property Owners, Sustainability

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EPA Cuts to Landfill Methane Emissions Create New Opportunities for Credit Trading and Gas–to-Energy Projects

On July 14, the Environmental Protection Agency (EPA) issued its latest set of methane regulations as part of the Obama Administration’s Climate Action Plan: Strategy to Reduce Methane Emissions. The Administration issued two…more

Climate Action Plan, Emission Rate Credits, Energy Projects, EPA, Landfills

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Preliminary Report on the Swap Dealer De Minimis Exception

On November 18, the staff of the Commodity Futures Trading Commission (CFTC) issued a much anticipated report on the de minimis exception from the “swap dealer” definition, the Swap Dealer De Minimis Exception Preliminary Report…more

CFTC, Comment Period, De Minimus Quantity Exemption, Registration Requirement, Swap Dealers

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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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D.C. Circuit Holds that Coast Guard May Impose Nonfinancial Conditions Before Allowing Ships Accused of Violating MARPOL to Leave Port

On December 15, 2015, a panel of the U.S. Court of Appeals for the D.C. Circuit held that the U.S. Coast Guard could impose nonfinancial conditions, in addition to a bond, before permitting ships under suspicion of a MARPOL…more

Coast Guard, Oil & Gas, Oil Spills, Ports, Shipping

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Righting Copyright Wrongs Remains Elusive – Kirtsaeng Leaves Fee Awards to District Court Discretion

On June 16, the U.S. Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons Inc., No. 15-375, resolved a circuit court split by reaffirming the test district courts should use to determine whether to award attorney’s fees to…more

Attorney's Fees, Copyright Infringement, Fee Awards, Fee-Shifting, First Sale Doctrine

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Supreme Court: For ERISA Plans, Time May Be Money

A new U.S. Supreme Court decision is a reminder that Employee Retirement Income Security Act (ERISA) plans must act promptly if they want to assert a lien to secure a participant’s obligation to reimburse medical expenses or to…more

Employer Group Health Plans, Equitable Relief, ERISA, Medical Expenses, Medical Liens

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Revised LB&I Examination Process Requires Taxpayer’s Written Acknowledgement of Facts for Unagreed Issues

Recently announced changes to the Internal Revenue Service (IRS) Large Business and International (LB&I) Division’s examination process include a requirement that the audit team issue an Information Document Request (IDR) asking…more

Audits, Examination Procedures, IRS

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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

FINRA, Regulatory Standards, SEC

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Revised LB&I Examination Process Requires Taxpayer’s Written Acknowledgement of Facts for Unagreed Issues

Recently announced changes to the Internal Revenue Service (IRS) Large Business and International (LB&I) Division’s examination process include a requirement that the audit team issue an Information Document Request (IDR) asking…more

Audits, Examination Procedures, IRS

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The Grandpappy of All Extensions: Congress Permanently Extends the Internet Tax Freedom Act

On February 11, the United States Senate approved a permanent extension of the Internet Tax Freedom Act (ITFA) contained in the Conference Report accompanying H.R. 644, the “Trade Facilitation and Trade Enforcement Act of 2015,”…more

E-Commerce, Internet Taxation, Local Taxes, Pending Legislation, State Taxes

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Changes to 2016 ALTA Survey Standards – What You Need to Know

The American Land Title Association (ALTA) and the National Society of Professional Surveyors (NSPS) recently adopted revised Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys. The new standards became…more

ALTA, Land Titles, New Source Performance Standards (NSPS), Parking Lots, Surveys

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Sweeping Changes Proposed to Tax Treatment of Related-Party Debt May Impact Private Funds

Recently proposed Treasury regulations under IRC § 385 (the Proposed Regulations) would potentially treat related-party debt, in whole or in part, as equity for U.S. tax purposes. The Proposed Regulations generally apply to debt…more

Comment Period, Controlled Groups, Debt, IRS, Private 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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SEC Adopts Changes to Form ADV and Books and Records Rules

On August 25, the Securities and Exchange Commission (the SEC) adopted amendments to Form ADV Part 1 that will require SEC-registered investment advisers to provide a significant amount of new information. The SEC adopted these…more

Amended Regulation, Form ADV, Investment Adviser, Reporting Requirements, SEC

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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 Variation Margin Protocol

On August 16, 2016, the International Swaps and Derivatives Association, Inc. (ISDA) published the ISDA 2016 Variation Margin Protocol (VM Protocol). The VM Protocol is intended as a tool to help market participants that will be…more

Counterparties, ISDA Master Agreement, Margin Requirements, Prudential Regulation Authority, Uncleared Swaps

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ISDA Publishes Variation Margin Protocol

On August 16, 2016, the International Swaps and Derivatives Association, Inc. (ISDA) published the ISDA 2016 Variation Margin Protocol (VM Protocol). The VM Protocol is intended as a tool to help market participants that will be…more

Counterparties, ISDA Master Agreement, Margin Requirements, Prudential Regulation Authority, Uncleared Swaps

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SEC Adopts Changes to Form ADV and Books and Records Rules

On August 25, the Securities and Exchange Commission (the SEC) adopted amendments to Form ADV Part 1 that will require SEC-registered investment advisers to provide a significant amount of new information. The SEC adopted these…more

Amended Regulation, Form ADV, Investment Adviser, Reporting Requirements, SEC

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Solidifying Claim Construction in Inter Partes Review – Cuozzo Allows Patent Office to Govern the Inter Partes Review Process

On June 20, the U.S. Supreme Court’s decision in Cuozzo Speed Technologies, LLC v. Lee, 2016 WL 3369425 (June 20, 2016) upheld the Patent Office’s long-held policy of construing a patent claim according to its broadest…more

America Invents Act, Broadest Reasonable Interpretation Standard, Chevron Deference, Chevron v NRDC, Claim Construction

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Don’t Hail the CAB – Why FINRA’s Capital Acquisition Broker Rule Set Will Not Get Private Funds to their Destination

For many years, the private fund industry and the securities bar have called for a limited rule set to govern broker-dealers solely engaged in raising capital for private funds or other issuers of unregistered securities or in…more

Acquisitions, Capital Acquisition Broker (CAB), FINRA, Mergers, Private Equity Funds

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FERC Proposes Expansive “Connected Entity” Reporting Requirement

The Federal Energy Regulatory Commission (FERC) has proposed requiring the operators of centralized wholesale power markets to collect and provide to FERC a broad range of market participant data, including (i) each market…more

Affiliates, Asset Management, C-Suite Executives, CFTC, Comment Period

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Sutherland Submits Comment Letters on Two SEC Rulemaking Projects Pertinent to Business Development Companies

In response to requests for comment from the U.S. Securities and Exchange Commission (SEC), Sutherland Asbill & Brennan LLP recently submitted comment letters on two SEC rulemaking projects pertinent to business development…more

Business Development Companies, Fixing America’s Surface Transportation Act (FAST Act), Investment Company Act of 1940, Proposed Regulation, Registration Statement

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EPA Cuts to Landfill Methane Emissions Create New Opportunities for Credit Trading and Gas–to-Energy Projects

On July 14, the Environmental Protection Agency (EPA) issued its latest set of methane regulations as part of the Obama Administration’s Climate Action Plan: Strategy to Reduce Methane Emissions. The Administration issued two…more

Climate Action Plan, Emission Rate Credits, Energy Projects, EPA, Landfills

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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

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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

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What Is Your Starting Salary? New FLSA Regulations Raise The Bar For U.S. Employers

Employers with salaried employees earning under $47,476 annually should evaluate the impact on their organizations of major changes to employee compensation following new federal wage requirements effective December 1,…more

DOL, Educational Institutions, Final Rules, FLSA, Minimum Salary

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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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The Grandpappy of All Extensions: Congress Permanently Extends the Internet Tax Freedom Act

On February 11, the United States Senate approved a permanent extension of the Internet Tax Freedom Act (ITFA) contained in the Conference Report accompanying H.R. 644, the “Trade Facilitation and Trade Enforcement Act of 2015,”…more

E-Commerce, Internet Taxation, Local Taxes, Pending Legislation, State Taxes

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Dialing-In: TCPA Hot Issues for 2016

The year 2015 saw a continued wave of class action filings under the Telephone Consumer Protection Act (TCPA). However, unsettled law continues to place a compliance burden on companies that communicate with consumers by phone…more

Auto-Dialed Calls, Campbell Ewald v Gomez, Class Action, Corporate Counsel, FCC

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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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North Carolina Rejects Third-Party Sales of Solar-Generated Electricity

The North Carolina Utilities Commission recently ruled that third-party sales of solar-generated electricity violate state law. The Commission rejected a test case brought by an advocacy group seeking to legitimize such…more

Cost-Shifting, Declaratory Rulings, Electricity, Photovoltaic, Public Utilities Commission

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Effect of Energy Policy Bills on Natural Gas Exports

Legislative Update. On April 20, the U.S. Senate passed broad legislation that covers many different aspects of the energy and environmental sectors, including changes to streamline the approval process for the export of natural…more

Delays, DOE, Energy Policy, Energy Sector, Exports

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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 (FHA)

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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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NAIC Report: 2016 Summer National Meeting

The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California. The meeting began with strong words from the NAIC President and…more

Insurance Industry, NAIC

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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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Don’t Hail the CAB – Why FINRA’s Capital Acquisition Broker Rule Set Will Not Get Private Funds to their Destination

For many years, the private fund industry and the securities bar have called for a limited rule set to govern broker-dealers solely engaged in raising capital for private funds or other issuers of unregistered securities or in…more

Acquisitions, Capital Acquisition Broker (CAB), FINRA, Mergers, Private Equity Funds

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PHMSA Announces Proposed Pipeline Safety Regulations

On October 1, 2015, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) announced proposed regulations to revise and update its pipeline safety standards and reporting…more

Department of Transportation (DOT), NPRM, Oil & Gas, PHMSA, Pipelines

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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 Industry, Insurance Reform, NAIC

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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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D.C. Circuit Holds that Coast Guard May Impose Nonfinancial Conditions Before Allowing Ships Accused of Violating MARPOL to Leave Port

On December 15, 2015, a panel of the U.S. Court of Appeals for the D.C. Circuit held that the U.S. Coast Guard could impose nonfinancial conditions, in addition to a bond, before permitting ships under suspicion of a MARPOL…more

Coast Guard, Oil & Gas, Oil Spills, Ports, Shipping

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Basic-Supplemental Life Insurance Plan Pricing Structure Upheld in ERISA Class Action

An employee benefit plan that includes an alleged subsidization component for its basic and supplemental options is neither prohibited by the Employee Retirement Income Security Act of 1974 (ERISA) nor a violation of the plan…more

Arm's Length Principle, Benefit Plan Sponsors, Class Action, Dismissals, Employee Benefits

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FINRA’s Projected 2015 Fines: Not Keeping Pace With 2014’s Total, But Still a Blockbuster Year

Despite a slowdown in the fines reported in 2015, the Financial Industry Regulatory Authority (FINRA) has continued to flex its enforcement muscle so far this year. During the first half of 2015, FINRA reported $37.5 million in…more

Advertising, Anti-Money Laundering, Associated Persons, Broker-Dealer, Corporate Fines

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EPA Cuts to Landfill Methane Emissions Create New Opportunities for Credit Trading and Gas–to-Energy Projects

On July 14, the Environmental Protection Agency (EPA) issued its latest set of methane regulations as part of the Obama Administration’s Climate Action Plan: Strategy to Reduce Methane Emissions. The Administration issued two…more

Climate Action Plan, Emission Rate Credits, Energy Projects, EPA, Landfills

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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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Unusual Antitrust Agencies’ Guidance on Defense Mergers

The Department of Justice (Justice) and the Federal Trade Commission (FTC) today issued an unusual joint statement that highlighted their continued commitment to preserve defense industry competition by closely reviewing mergers…more

Antitrust Division, Competition, Defense Sector, Department of Defense (DOD), DOJ

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Preliminary Report on the Swap Dealer De Minimis Exception

On November 18, the staff of the Commodity Futures Trading Commission (CFTC) issued a much anticipated report on the de minimis exception from the “swap dealer” definition, the Swap Dealer De Minimis Exception Preliminary Report…more

CFTC, Comment Period, De Minimus Quantity Exemption, Registration Requirement, Swap Dealers

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Simplified Partnership Audit Procedures Radically Alter the Federal Income Tax Treatment of Partnerships

On November 2, 2015, President Obama signed the Budget Act of 2015 (the “2015 Budget Act”), which makes significant amendments to the procedural rules governing federal income tax audits and judicial proceedings that apply to…more

Audits, Income Taxes, Partnerships, TEFRA

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Congress Extends Internet Tax Freedom Act as part of Short-Term Spending Bill

On September 30, the U.S. House of Representative voted in favor of H.R. 719, which includes provisions extending the Internet Tax Freedom Act (ITFA) through December 11, 2015. The bill, passed earlier in the day by the Senate,…more

Internet, Internet Taxation, Legislative History, Pending Legislation

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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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Only the Lonely: “Lonely” Life Insurance Companies Confront New Issues Under Proposed Debt-Equity Regulations

The rules of IRC § 1504 and Treas. Reg. § 1.1502-47 provide the general parameters for determining whether a domestic life insurance company (within the meaning of IRC § 816(a)) may join in filing a consolidated U.S. federal…more

Acquisitions, Consolidated Tax Returns, Debt, Exceptions, Holding Companies

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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 (FHA), 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, Internal Revenue Code (IRC)

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Revised LB&I Examination Process Requires Taxpayer’s Written Acknowledgement of Facts for Unagreed Issues

Recently announced changes to the Internal Revenue Service (IRS) Large Business and International (LB&I) Division’s examination process include a requirement that the audit team issue an Information Document Request (IDR) asking…more

Audits, Examination Procedures, IRS

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NAIC Report: 2016 Summer National Meeting

The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California. The meeting began with strong words from the NAIC President and…more

Insurance Industry, NAIC

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Sutherland Submits Comment Letters on Two SEC Rulemaking Projects Pertinent to Business Development Companies

In response to requests for comment from the U.S. Securities and Exchange Commission (SEC), Sutherland Asbill & Brennan LLP recently submitted comment letters on two SEC rulemaking projects pertinent to business development…more

Business Development Companies, Fixing America’s Surface Transportation Act (FAST Act), Investment Company Act of 1940, Proposed Regulation, Registration Statement

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CFPB Fires Another Warning Shot for Processors to Be Aware of Their Merchants’ Activities

In a recent line of enforcement actions, the Consumer Financial Protection Bureau (CFPB) has signaled that it will hold payment processors liable if the CFPB believes the processors know or should have known that transactions…more

ACH Payments, CFPA, CFPB, Corporate Counsel, Enforcement Actions

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The End of an Era—IRS Issues Additional Guidance on End of Determination Letter Application Program

In 2015, the Internal Revenue Service (IRS) announced changes to its existing determination letter program, namely that the staggered remedial amendment cycle for individually designed retirement plans would end effective…more

Benefit Plan Sponsors, Defined Contribution Plans, Determination Letter, IRS, Plan Documents

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NAIC Report: 2016 Summer National Meeting

The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California. The meeting began with strong words from the NAIC President and…more

Insurance Industry, NAIC

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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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Sweeping Changes Proposed to Tax Treatment of Related-Party Debt May Impact Private Funds

Recently proposed Treasury regulations under IRC § 385 (the Proposed Regulations) would potentially treat related-party debt, in whole or in part, as equity for U.S. tax purposes. The Proposed Regulations generally apply to debt…more

Comment Period, Controlled Groups, Debt, IRS, Private Funds

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SEC Announces Second Round of Charges Against Underwriters Under MCDC Initiative

On September 30, the Securities and Exchange Commission (SEC) announced enforcement actions against 22 municipal bond underwriters, the second round of enforcement actions brought by the SEC under the Municipalities Continuing…more

Disclosure Requirements, Enforcement Actions, MCDC, Municipal Bonds, Municipal Securities Issuers

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Ten Things You Should Know About the 2016 Uniform Unclaimed Property Act

The 2016 Uniform Unclaimed Property Act (2016 Act) was adopted unanimously by the Uniform Law Commission (ULC) in a 49-0 vote at its 2016 summer meeting. The adoption of the revised model law is a significant step forward for…more

Audits, B2B Transactions, Contingency Fees, De Minimus Quantity Exemption, Death Benefits

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Heads I Win, Tails You Lose: TCPA Defendants Finding Success in Striking “Fail-Safe” Class Allegations

The 1964 cold war era movie, “Fail-Safe,” centered on the plight of a U.S. military jet pilot who received an errant instruction to drop a nuclear bomb on Moscow. Unlike the movie, where Henry Fonda, as the fictional…more

Class Action, Class Certification, Defense Strategies, TCPA

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IRS Updates Beginning of Construction Guidance for Renewable Energy Tax Credits Extended by PATH Act

On May 5, 2016, the Internal Revenue Service (IRS) issued Notice 2016-31, which updates prior guidance regarding the beginning of construction requirement for IRC sections 45 and 48 renewable energy tax credits following…more

Begun Construction Test, Energy Projects, Guidance Update, Internal Revenue Code (IRC), IRS

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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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The End of an Era—IRS Issues Additional Guidance on End of Determination Letter Application Program

In 2015, the Internal Revenue Service (IRS) announced changes to its existing determination letter program, namely that the staggered remedial amendment cycle for individually designed retirement plans would end effective…more

Benefit Plan Sponsors, Defined Contribution Plans, Determination Letter, IRS, Plan Documents

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Is the SEC Poised to Broaden Standard Co-Investment Relief?

The U.S. Securities and Exchange Commission (SEC) Division of Investment Management recently issued a notice with regard to the application for co-investment relief filed by Apollo Investment Corporation and certain of its…more

Board of Directors, Business Development Companies, Co-Investment Rights, EBITDA, Portfolio Managers

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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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Patronage Capital Case Successfully Removed to Federal Court

In December 2015, two plaintiffs filed a class action complaint against Pennsylvania’s REA Energy Cooperative, Inc. The complaint, which was filed on behalf of current and former cooperative members, asserted that REA must…more

Class Action, Preemption, Removal

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New Sedona Conference Commentary Recommends Restricting the Reach of Document Requests Directed to U.S. Affiliates of Overseas Companies

Earlier this month, the Sedona Conference issued the final version of its “Commentary on Rule 34 and Rule 45 ‘Possession, Custody, or Control.’” The Commentary recommends adopting the “legal right” test to analyze the…more

Document Requests, Electronically Stored Information, Federal Rules of Civil Procedure, Foreign Affiliates, Subpoenas

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Sutherland Submits Comment Letters on Two SEC Rulemaking Projects Pertinent to Business Development Companies

In response to requests for comment from the U.S. Securities and Exchange Commission (SEC), Sutherland Asbill & Brennan LLP recently submitted comment letters on two SEC rulemaking projects pertinent to business development…more

Business Development Companies, Fixing America’s Surface Transportation Act (FAST Act), Investment Company Act of 1940, Proposed Regulation, Registration Statement

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Brexit Impact on European Patents and Trademarks

On June 23, in the popularly-termed “Brexit” referendum, the United Kingdom voted to exit the European Union, a decision which will have wide-ranging effects, including potential effects on intellectual property rights in the…more

Community Trademark, EU, European Patent Convention, European Union Trade Mark (EUTM), Intellectual Property Protection

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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, Public Private Partnerships (P3s)

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Here’s the Deal: Georgia Governor Signs Several Significant Tax Bills

Following the conclusion of Georgia’s 2016 legislative session, Governor Nathan Deal signed into law several tax bills touching on a wide range of tax matters, including sales and use taxes, property taxes, corporate income…more

Audits, Corporate Taxes, E-Commerce, Governor Deal, Interest Rates

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IRS Notice Offers Relief to Issuers of Variable Insurance Products in Response to Pending Money Market Fund Reforms

On May 5, 2016, the IRS issued Notice 2016-32, 2016-21 I.R.B. 1, which affords relief with respect to the application of the diversification requirements of IRC § 817(h) to variable life insurance and annuity contracts…more

Diversification Requirements, Floating NAV, IRS, Life Insurance, Money Market Funds

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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

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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CFPB Fires Another Warning Shot for Processors to Be Aware of Their Merchants’ Activities

In a recent line of enforcement actions, the Consumer Financial Protection Bureau (CFPB) has signaled that it will hold payment processors liable if the CFPB believes the processors know or should have known that transactions…more

ACH Payments, CFPA, CFPB, Corporate Counsel, 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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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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NY DFS Announces Proposal for Cybersecurity Rules for Financial Services Companies

On September 13, 2016, New York Governor Andrew Cuomo announced a proposal by the New York Department of Financial Services (the DFS) of a rule that establishes cybersecurity requirements for financial services companies…more

Cybersecurity, Financial Services Industry, NAIC, NYDFS, Proposed Regulation

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ISDA Publishes Variation Margin Protocol

On August 16, 2016, the International Swaps and Derivatives Association, Inc. (ISDA) published the ISDA 2016 Variation Margin Protocol (VM Protocol). The VM Protocol is intended as a tool to help market participants that will be…more

Counterparties, ISDA Master Agreement, Margin Requirements, Prudential Regulation Authority, Uncleared Swaps

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UK Payment Systems Regulator Issues Guidance Setting Credit and Debit Interchange Caps

On March 24th, the United Kingdom’s Payment Systems Regulator (PSR) issued final guidance establishing interchange fee caps on credit and debit card transactions where the point of sale is located in the United Kingdom. The…more

Credit Cards, Cross-Border Transactions, Debit Cards, EEA, EU

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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 Updates Beginning of Construction Guidance for Renewable Energy Tax Credits Extended by PATH Act

On May 5, 2016, the Internal Revenue Service (IRS) issued Notice 2016-31, which updates prior guidance regarding the beginning of construction requirement for IRC sections 45 and 48 renewable energy tax credits following…more

Begun Construction Test, Energy Projects, Guidance Update, Internal Revenue Code (IRC), IRS

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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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Congress Amends Section 831(b): Is This the Beginning of the End of Section 831(b) Abuses?

On December 18, 2015, Congress passed and President Obama signed into law the Protecting Americans from Tax Hikes Act of 2015 (Act), which made several significant amendments to section 831(b) of the Internal Revenue Code. Prior…more

Annual Reports, Internal Revenue Code (IRC), Protecting Americans from Tax Hikes (PATH) Act, Reinsurance, Underwriting

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Bad Day for California as TTA Sales Tax Exemption for Software Is Broadly Reaffirmed by Appellate Court – Will Taxpayer Refund Claims Now Move?

In a significant rebuff of the California State Board of Equalization (BOE), the California Second District Court of Appeal held that a manufacturer’s sale of software on tangible media was exempt from sales tax under the…more

Appeals, CBOE, Copyright, IP Assignment Agreements, IP License

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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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Smokin’ Hot New Jersey Throw-Out Decision

In another taxpayer victory, the New Jersey Superior Court, Appellate Division held that an intangible holding company was not required to throw out any of its so-called “nowhere receipts” from an affiliated tobacco company in…more

Business Taxes, Holding Companies

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Sweeping Changes Proposed to Tax Treatment of Related-Party Debt May Impact Private Funds

Recently proposed Treasury regulations under IRC § 385 (the Proposed Regulations) would potentially treat related-party debt, in whole or in part, as equity for U.S. tax purposes. The Proposed Regulations generally apply to debt…more

Comment Period, Controlled Groups, Debt, IRS, Private Funds

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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

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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, Loan Modifications, Mortgages, New Legislation, Recordation Taxes

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NAIC Life Insurance and Annuities (A) Committee Adopts Revisions to Actuarial Guideline 49

On July 27, 2016, the Life Insurance and Annuities (A) Committee adopted revisions to Actuarial Guideline 49 (AG 49) to address situations where indexed universal life (IUL) insurance policies make available multiple index…more

Actuarial Values, Annuities, 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

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FINRA’s Projected 2015 Fines: Not Keeping Pace With 2014’s Total, But Still a Blockbuster Year

Despite a slowdown in the fines reported in 2015, the Financial Industry Regulatory Authority (FINRA) has continued to flex its enforcement muscle so far this year. During the first half of 2015, FINRA reported $37.5 million in…more

Advertising, Anti-Money Laundering, Associated Persons, Broker-Dealer, Corporate Fines

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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, Confidential Information, Cybersecurity, Data Breach

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U.S. Lifts Nuclear-Related Sanctions on Iran on Implementation Day

I. Introduction - On January 16, 2016, “Implementation Day” occurred under the Joint Comprehensive Plan of Action (JCPOA). This historic sanctions relief followed verification from the International Atomic Energy Agency…more

EU, General Licenses, IAEA, Implementation Day, Iran Sanctions

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D.C. Circuit Holds that Coast Guard May Impose Nonfinancial Conditions Before Allowing Ships Accused of Violating MARPOL to Leave Port

On December 15, 2015, a panel of the U.S. Court of Appeals for the D.C. Circuit held that the U.S. Coast Guard could impose nonfinancial conditions, in addition to a bond, before permitting ships under suspicion of a MARPOL…more

Coast Guard, Oil & Gas, Oil Spills, Ports, Shipping

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Tyson Foods v. Bouaphakeo: “Representative” Evidence May Be Used in (Some) Class Actions

On March 22, 2016, the United States Supreme Court affirmed the certification of a class of Tyson Foods employees under Rule 23(b)(3) and a collective action under the Fair Labor Standards Act (FLSA). The Court held that…more

Admissible Evidence, Calculation of Damages, Class Action, Class Certification, Doffing

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Revised LB&I Examination Process Requires Taxpayer’s Written Acknowledgement of Facts for Unagreed Issues

Recently announced changes to the Internal Revenue Service (IRS) Large Business and International (LB&I) Division’s examination process include a requirement that the audit team issue an Information Document Request (IDR) asking…more

Audits, Examination Procedures, IRS

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Only the Lonely: “Lonely” Life Insurance Companies Confront New Issues Under Proposed Debt-Equity Regulations

The rules of IRC § 1504 and Treas. Reg. § 1.1502-47 provide the general parameters for determining whether a domestic life insurance company (within the meaning of IRC § 816(a)) may join in filing a consolidated U.S. federal…more

Acquisitions, Consolidated Tax Returns, Debt, Exceptions, Holding Companies

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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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District Court to EEOC: Leave Wellness Enough Alone

A Wisconsin federal district court dismissed (with prejudice) a complaint by the Equal Employment Opportunity Commission (EEOC) that a company’s wellness program violated the Americans with Disabilities Act (ADA). The EEOC had…more

ADA, Biometric Information, EEOC, Employer Group Health Plans, HRA

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Patent Infringement Safe Harbor and Importation Redefined: Ruling Incentivizes Generic Pharmaceutical Offshore Product Testing

A recent ruling by the U.S. Court of Appeals for the Federal Circuit has provided an apparent loophole for manufacturers to avoid infringement liability for conducting patented manufacturing quality control steps offshore. On…more

Hatch-Waxman, Patent Infringement, Pharmaceutical Industry, Quality Control Plan, Supply Chain

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EPA to Reduce Methane Emissions from the Oil and Natural Gas Industry

On May 12, the U.S. Environmental Protection Agency (EPA) released final regulations (the Rules) aimed at reducing methane emissions from certain new and modified oil and gas facilities by 40% to 45% from 2012 levels by 2025…more

Energy Sector, EPA, Final Rules, Greenhouse Gas Emissions, Methane

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IRS Updates Beginning of Construction Guidance for Renewable Energy Tax Credits Extended by PATH Act

On May 5, 2016, the Internal Revenue Service (IRS) issued Notice 2016-31, which updates prior guidance regarding the beginning of construction requirement for IRC sections 45 and 48 renewable energy tax credits following…more

Begun Construction Test, Energy Projects, Guidance Update, Internal Revenue Code (IRC), IRS

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Sabine Bankruptcy Court Allows Rejection of Gathering Agreements

In a March 8, 2016 ruling from the bench, the U.S. Bankruptcy Court for the Southern District of New York issued a significant decision regarding the ability of a debtor in bankruptcy to reject gas gathering agreements and…more

Commercial Bankruptcy, Covenants that Run With the Land, Debtors, Executory Contracts, Midstream Contracts

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Opting-In: Treasury Regulations Provide Rules for Electing into the New Partnership Audit Regime Early

As reported in a prior Sutherland Legal Alert, the Bipartisan Budget Act of 2015 (the 2015 Budget Act) makes significant changes to the procedural rules governing federal income tax audits and judicial proceedings that apply to…more

Audits, Bipartisan Budget, IRS, Opt-In, Partnerships

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NAIC Report: 2016 Summer National Meeting

The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California. The meeting began with strong words from the NAIC President and…more

Insurance Industry, NAIC

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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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Three Million Reasons to Understand the New Federal Rules: Deleting Emails Results in Multi-Million-Dollar Rule 37(e) Sanction

On July 12, a federal district court imposed a $3 million punitive sanction pursuant to the recently amended Federal Rule of Civil Procedure 37(e). GN Netcom, Inc. v. Plantronics, Inc., No. CV 12-1318-LPS, 2016 WL 3792833 (D…more

Destruction of Evidence, Economic Sanctions, Electronically Stored Information, Email, Federal Rules of Civil Procedure

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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 Issues Two Advisory Opinions Regarding Surplus Lines Insurance

The New York State Department of Taxation and Finance (Department) issued two advisory opinions determining that unauthorized non-life insurance corporations (here, surplus lines insurance companies) are subject to insurance…more

Advisory Opinions, ALJ, Double Taxation, Franchise Taxes, Insurance Industry

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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, EU, European Securities and Markets Authority (ESMA), Interest Rate Swaps

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EPA to Reduce Methane Emissions from the Oil and Natural Gas Industry

On May 12, the U.S. Environmental Protection Agency (EPA) released final regulations (the Rules) aimed at reducing methane emissions from certain new and modified oil and gas facilities by 40% to 45% from 2012 levels by 2025…more

Energy Sector, EPA, Final Rules, Greenhouse Gas Emissions, Methane

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SEC Announces Second Round of Charges Against Underwriters Under MCDC Initiative

On September 30, the Securities and Exchange Commission (SEC) announced enforcement actions against 22 municipal bond underwriters, the second round of enforcement actions brought by the SEC under the Municipalities Continuing…more

Disclosure Requirements, Enforcement Actions, MCDC, Municipal Bonds, Municipal Securities Issuers

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Ten Things You Should Know About the 2016 Uniform Unclaimed Property Act

The 2016 Uniform Unclaimed Property Act (2016 Act) was adopted unanimously by the Uniform Law Commission (ULC) in a 49-0 vote at its 2016 summer meeting. The adoption of the revised model law is a significant step forward for…more

Audits, B2B Transactions, Contingency Fees, De Minimus Quantity Exemption, Death Benefits

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Treasury Announces 2016-2017 Regulatory Agenda for Employee Benefits

The principal regulators of U.S. employee benefits have recently published updates to their guidance plans for the coming months. ..On August 15, 2016, the U.S. Department of the Treasury and the Internal Revenue Service…more

DOL, Employee Benefits, Executive Compensation, Guidance Update, Health Insurance

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Changes to 2016 ALTA Survey Standards – What You Need to Know

The American Land Title Association (ALTA) and the National Society of Professional Surveyors (NSPS) recently adopted revised Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys. The new standards became…more

ALTA, Land Titles, New Source Performance Standards (NSPS), Parking Lots, Surveys

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Cooperate or Terminate: Second Circuit Protects Companies that Terminate Employees for Failure to Cooperate with Investigations

On June 16, the U.S. Court of Appeals for the Second Circuit upheld the right of a company to terminate for cause executives who refuse to cooperate with an internal investigation and remain “silent” even with the specter of…more

Bid Rigging, Board of Directors, Cooperation, Corporate Executives, Criminal Investigations

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D.C. Circuit Questions FERC’s Policy Statement on Income Tax Allowances

On July 1, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in United Airlines, Inc., et al. v. FERC. This oil pipeline rate case appeal involves SFPP, L.P., a pipeline organized as a limited…more

Energy Sector, FERC, Income Taxes, Limited Partnerships, Pipelines

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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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Ten Things You Should Know About the 2016 Uniform Unclaimed Property Act

The 2016 Uniform Unclaimed Property Act (2016 Act) was adopted unanimously by the Uniform Law Commission (ULC) in a 49-0 vote at its 2016 summer meeting. The adoption of the revised model law is a significant step forward for…more

Audits, B2B Transactions, Contingency Fees, De Minimus Quantity Exemption, Death Benefits

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Effect of Energy Policy Bills on Natural Gas Exports

Legislative Update. On April 20, the U.S. Senate passed broad legislation that covers many different aspects of the energy and environmental sectors, including changes to streamline the approval process for the export of natural…more

Delays, DOE, Energy Policy, Energy Sector, Exports

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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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IRS Extends FATCA Transition Rules

On September 18, 2015, the Internal Revenue Service (IRS) issued Notice 2015-66, in which Treasury and the IRS announced that they intend to extend certain transition rules and modify certain other reporting rules under the…more

FATCA, FDAP, Foreign Financial Institutions (FFI), Intergovernmental Agreements, IRS

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EPA Cuts to Landfill Methane Emissions Create New Opportunities for Credit Trading and Gas–to-Energy Projects

On July 14, the Environmental Protection Agency (EPA) issued its latest set of methane regulations as part of the Obama Administration’s Climate Action Plan: Strategy to Reduce Methane Emissions. The Administration issued two…more

Climate Action Plan, Emission Rate Credits, Energy Projects, EPA, Landfills

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FERC Proposes Expansive “Connected Entity” Reporting Requirement

The Federal Energy Regulatory Commission (FERC) has proposed requiring the operators of centralized wholesale power markets to collect and provide to FERC a broad range of market participant data, including (i) each market…more

Affiliates, Asset Management, C-Suite Executives, CFTC, Comment Period

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Sweeping Changes Proposed to Tax Treatment of Related-Party Debt May Impact Private Funds

Recently proposed Treasury regulations under IRC § 385 (the Proposed Regulations) would potentially treat related-party debt, in whole or in part, as equity for U.S. tax purposes. The Proposed Regulations generally apply to debt…more

Comment Period, Controlled Groups, Debt, IRS, Private Funds

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Proposed Regulations Dramatically Change U.S. Federal Tax Treatment of Outbound Transfers of Intangible Property

On September 16, 2015, the Treasury Department (Treasury) and the Internal Revenue Service (IRS) published proposed regulations under section 367 and proposed and temporary regulations under section 482 that together would…more

Foreign Corporations, Goodwill, Intangible Property, IRS, Outbound Transactions

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Dialing-In: TCPA Hot Issues for 2016

The year 2015 saw a continued wave of class action filings under the Telephone Consumer Protection Act (TCPA). However, unsettled law continues to place a compliance burden on companies that communicate with consumers by phone…more

Auto-Dialed Calls, Campbell Ewald v Gomez, Class Action, Corporate Counsel, FCC

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EU-US Privacy Shield: European Union and U.S. Reach Agreement in Principle for New Data Transfer Framework – But Uncertainty Remains

On February 2, 2016, the European Commission (EC) and the U.S. Department of Commerce (Commerce) announced that they had reached agreement on a new data transfer safe harbor arrangement for the transfer of personal data from…more

Article 29 Working Party (WP29), Binding Corporate Rules, EU, EU-US Privacy Shield, European Commission

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Brazilian House of Representatives Will Expedite Vote to Ease Restrictions on Acquisitions and Leasing of Rural Properties by Foreigners

On September 16, the House of Representatives of the Brazilian Congress approved a request to consider legislation on an expedited basis which would ease certain restrictions imposed under existing law on the acquisition and…more

Brazil, Foreign Investment, Proposed Legislation, Real Estate Transfers, Rural Development

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White House Issues Guidance Advising Agencies to Assess Climate Change in NEPA Reviews

On August 1, the White House Council on Environmental Quality (CEQ) issued its final guidance for federal agencies on considering greenhouse gas (GHG) emissions and the effects of climate change in National Environmental Policy…more

CEQ, Climate Change, Energy Policy, Environmental Policies, FERC

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Ten Things You Should Know About the 2016 Uniform Unclaimed Property Act

The 2016 Uniform Unclaimed Property Act (2016 Act) was adopted unanimously by the Uniform Law Commission (ULC) in a 49-0 vote at its 2016 summer meeting. The adoption of the revised model law is a significant step forward for…more

Audits, B2B Transactions, Contingency Fees, De Minimus Quantity Exemption, Death Benefits

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Michigan’s New Year Resolution: Refund Opportunities Associated with Electronically Accessed Software and Certain Online Services

The Michigan Department of Treasury (Department) issued a Notice announcing that it will no longer impose sales or use tax on certain prewritten computer software accessed electronically and associated online services. The…more

Online Platforms, Sales & Use Tax, Software, Thompson Reuters

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Ho! Ho! Ho! Delaware Sets its Sights–Again–on Uncashed Rebate Checks

There’s never a dull moment in Delaware when it comes to unclaimed property. The latest salvo comes by way of a lawsuit filed by the Delaware Department of Finance against Blackhawk Engagement Solutions (DE), Inc. (formerly…more

Audits, Department of Finance, Escheat, Rebates, Summons

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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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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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IRS Notice Offers Relief to Issuers of Variable Insurance Products in Response to Pending Money Market Fund Reforms

On May 5, 2016, the IRS issued Notice 2016-32, 2016-21 I.R.B. 1, which affords relief with respect to the application of the diversification requirements of IRC § 817(h) to variable life insurance and annuity contracts…more

Diversification Requirements, Floating NAV, IRS, Life Insurance, Money Market Funds

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Delaware Supreme Court Addresses Novel Controlling-Stockholder Claim and Clarifies Effect of a Fully Informed, Uncoerced Stockholder Vote

The Delaware Supreme Court recently issued an opinion, captioned Corwin v. KKR Financial Holdings LLC, that sheds further light on when a stockholder owning less than 50% of the voting power of a company may be deemed a…more

Acquisitions, Asset Management, Controlling Stockholders, DE Supreme Court, Delaware General Corporation Law

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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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Effect of Energy Policy Bills on Natural Gas Exports

Legislative Update. On April 20, the U.S. Senate passed broad legislation that covers many different aspects of the energy and environmental sectors, including changes to streamline the approval process for the export of natural…more

Delays, DOE, Energy Policy, Energy Sector, Exports

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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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Righting Copyright Wrongs Remains Elusive – Kirtsaeng Leaves Fee Awards to District Court Discretion

On June 16, the U.S. Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons Inc., No. 15-375, resolved a circuit court split by reaffirming the test district courts should use to determine whether to award attorney’s fees to…more

Attorney's Fees, Copyright Infringement, Fee Awards, Fee-Shifting, First Sale Doctrine

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IRS Updates Beginning of Construction Guidance for Renewable Energy Tax Credits Extended by PATH Act

On May 5, 2016, the Internal Revenue Service (IRS) issued Notice 2016-31, which updates prior guidance regarding the beginning of construction requirement for IRC sections 45 and 48 renewable energy tax credits following…more

Begun Construction Test, Energy Projects, Guidance Update, Internal Revenue Code (IRC), IRS

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Stay Out of the Weeds: Egregious, Not Garden-Variety, Patent Infringement Is Subject to Enhanced Damages

On June 13, the U.S. Supreme Court unanimously rejected the Federal Circuit’s rigid two-part test for awarding enhanced damages in patent cases. In two cases decided together, Halo Elecs., Inc. v. Pulse Elecs., Inc., and Stryker…more

35 U.S.C. § 284, Enhanced Damages, Halo v Pulse, Judicial Discretion, Octane Fitness v. ICON

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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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Lumber War May Be Imminent

Negotiations to keep the peace in the complex and long-running international trade dispute between the United States and Canada over U.S. imports of Canadian softwood lumber appear to have stalled. Parties on both sides of the…more

Barack Obama, Canada, Imports, Justin Trudeau, NAFTA

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What Is Your Starting Salary? New FLSA Regulations Raise The Bar For U.S. Employers

Employers with salaried employees earning under $47,476 annually should evaluate the impact on their organizations of major changes to employee compensation following new federal wage requirements effective December 1,…more

DOL, Educational Institutions, Final Rules, FLSA, Minimum Salary

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The Final Rule: Technical Corrections to Best Interest Contract and Principal Transaction Exemptions

On July 7, 2016, DOL released technical corrections to its two new exemptions published in April 2016 in conjunction with the Final Rule: ..The Best Interest Contract Exemption (BICE), now officially designated as…more

Best Interest Contract Exemptions, DOL, ERISA, Fiduciary Duty, Final Rules

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Heads I Win, Tails You Lose: TCPA Defendants Finding Success in Striking “Fail-Safe” Class Allegations

The 1964 cold war era movie, “Fail-Safe,” centered on the plight of a U.S. military jet pilot who received an errant instruction to drop a nuclear bomb on Moscow. Unlike the movie, where Henry Fonda, as the fictional…more

Class Action, Class Certification, Defense Strategies, TCPA

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Patent Infringement Safe Harbor and Importation Redefined: Ruling Incentivizes Generic Pharmaceutical Offshore Product Testing

A recent ruling by the U.S. Court of Appeals for the Federal Circuit has provided an apparent loophole for manufacturers to avoid infringement liability for conducting patented manufacturing quality control steps offshore. On…more

Hatch-Waxman, Patent Infringement, Pharmaceutical Industry, Quality Control Plan, Supply Chain

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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, Public Private Partnerships (P3s)

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Internal Investigations: The Impact of the Yates Memo, the FCPA Unit Pilot Program and Recent Legal Decisions

Following recent regulatory announcements and legal decisions, internal investigations are becoming increasingly more complicated to navigate. Join Sutherland for a moderated roundtable where our experienced practitioners…more

D&O Insurance, FCPA, Internal Investigations, Litigation Strategies, Professional Liability

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EPA Cuts to Landfill Methane Emissions Create New Opportunities for Credit Trading and Gas–to-Energy Projects

On July 14, the Environmental Protection Agency (EPA) issued its latest set of methane regulations as part of the Obama Administration’s Climate Action Plan: Strategy to Reduce Methane Emissions. The Administration issued two…more

Climate Action Plan, Emission Rate Credits, Energy Projects, EPA, Landfills

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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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NY DFS Announces Proposal for Cybersecurity Rules for Financial Services Companies

On September 13, 2016, New York Governor Andrew Cuomo announced a proposal by the New York Department of Financial Services (the DFS) of a rule that establishes cybersecurity requirements for financial services companies…more

Cybersecurity, Financial Services Industry, NAIC, NYDFS, Proposed Regulation

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NAIC Report: 2016 Spring National Meeting

The National Association of Insurance Commissioners (NAIC) held its 2016 Spring National Meeting from April 1 through April 6 in New Orleans, Louisiana. As host, Louisiana provided beautiful weather and bountiful great food. The…more

Big Data, Casualty Insurance, Cybersecurity, DOL, Fiduciary Duty

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U.S. Customs Aims to Increase Enforcement of the Jones Act

In what could foretell a significant increase in the enforcement of the coastwise trade provisions of the Jones Act, U.S. Customs and Border Protection (Customs) announced on July 18 the creation of the National Jones Act…more

Commodities, Enforcement, Fines, Foreign Entities, Imports

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Opting-In: Treasury Regulations Provide Rules for Electing into the New Partnership Audit Regime Early

As reported in a prior Sutherland Legal Alert, the Bipartisan Budget Act of 2015 (the 2015 Budget Act) makes significant changes to the procedural rules governing federal income tax audits and judicial proceedings that apply to…more

Audits, Bipartisan Budget, IRS, Opt-In, 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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Legal Alert: Final Rules on Compensation Deduction Limit for Health Insurers

The Internal Revenue Service (IRS) and the Department of Treasury (Treasury) have issued final regulations under section 162(m)(6) of the Internal Revenue Code of 1986, as amended (Code), which limit the deduction certain health…more

Compensation & Benefits, Healthcare, Independent Contractors, IRS, U.S. Treasury

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Court of Appeals Hears National Federation of the Blind’s Challenge to DOT Rule Regarding Blind-Accessible Kiosks at Domestic Airports

On June 29, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard the National Federation of the Blind’s (NFB) challenge to a Department of Transportation (DOT) Final Rule regarding air carriers’ duty to…more

ADA, Advanced Notice of Proposed Rulemaking (ANPRM), Air Carriers, Class Action, Department of Transportation (DOT)

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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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Cooperate or Terminate: Second Circuit Protects Companies that Terminate Employees for Failure to Cooperate with Investigations

On June 16, the U.S. Court of Appeals for the Second Circuit upheld the right of a company to terminate for cause executives who refuse to cooperate with an internal investigation and remain “silent” even with the specter of…more

Bid Rigging, Board of Directors, Cooperation, Corporate Executives, Criminal Investigations

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Opting-In: Treasury Regulations Provide Rules for Electing into the New Partnership Audit Regime Early

As reported in a prior Sutherland Legal Alert, the Bipartisan Budget Act of 2015 (the 2015 Budget Act) makes significant changes to the procedural rules governing federal income tax audits and judicial proceedings that apply to…more

Audits, Bipartisan Budget, IRS, Opt-In, Partnerships

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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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NY DFS Announces Proposal for Cybersecurity Rules for Financial Services Companies

On September 13, 2016, New York Governor Andrew Cuomo announced a proposal by the New York Department of Financial Services (the DFS) of a rule that establishes cybersecurity requirements for financial services companies…more

Cybersecurity, Financial Services Industry, NAIC, NYDFS, Proposed Regulation

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