Kilpatrick Townsend & Stockton LLP

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1100 Peachtree Street NE
Atlanta, GA 30309-4528, United States
Phone: 404.815.6500
Fax: 404.815.6555
Areas of Practice
  • Art, Entertainment, & Sports Law
  • Bankruptcy
  • Communications & Media Law
  • Construction Law
  • Debtor/Creditor
  • Energy & Utilities
  • Environmental Law
  • Finance & Banking
  • Government
  • Health
  • Indigenous Peoples
  • Intellectual Property
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
  • Products Liability
  • Professional Malpractice
  • Real Estate
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
  • Transportation
  • Zoning, Planning & Land Use
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Locations
Other U.S. Locations
  • California
  • Colorado
  • D.C.
  • Georgia
  • New York
  • North Carolina
  • Texas
  • Washington
Other Countries
  • China
  • Japan
  • Sweden
Number of Attorneys
400+ Attorneys

OSHA Sets December 15 Deadline to Electronically Submit Workplace Injury and Illness Reports

After much uncertainty and delay, the Occupational Safety and Health Administration confirmed that the deadline for employers to electronically submit injury and illness data from their 2016 OSHA Form 300A is December 15, 2017…more

Anti-Retaliation Provisions, Electronic Filing, Employer Liability Issues, Final Rules, OSHA

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Updated: President Trump Turns to the U.S. Trade Representative for China IP Investigation

From the earliest days of his campaign, President Trump has spoken out on alleged intellectual property misconduct by China. He is now turning to the U.S. Trade Representative for a formal investigation of China in this regard…more

China, Intellectual Property Protection, Section 301, Trade Act of 1974, Trump Administration

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Key Takeaways: Patent Prosecution: Latest Trends and Best Practices in Asia

Kilpatrick Townsend partners Hitoshi Akiba, Charles Gray, and Kris Reed recently presented on the latest trends and best practices in Asia patent prosecution. Key takeaways concerning patent prosecution in China,…more

China, Japan Patent Office, Patent Litigation, Patents

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OSHA Sets December 15 Deadline to Electronically Submit Workplace Injury and Illness Reports

After much uncertainty and delay, the Occupational Safety and Health Administration confirmed that the deadline for employers to electronically submit injury and illness data from their 2016 OSHA Form 300A is December 15, 2017…more

Anti-Retaliation Provisions, Electronic Filing, Employer Liability Issues, Final Rules, OSHA

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Oil States Oral Argument: Justices Grapple with Constitutionality of IPR

The Supreme Court held oral argument Monday, November 27, in the case of Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, et al. to address the question of whether inter partes review (IPR) proceedings before the…more

Inter Partes Review (IPR) Proceeding, Oil States Energy Services v Greene's Energy Group, Oral Argument, Patent Litigation, Patent Trial and Appeal Board

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Supreme Court Rules that Bare Statutory Violation without Other Concrete Harm Cannot Provide Federal Court Standing

On May 16, 2016, the United States Supreme Court issued its opinion in Spokeo v. Robins, No. 13-1339, which presented the question of whether a plaintiff has standing in federal court to assert a claim where the only…more

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

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OSHA Sets December 15 Deadline to Electronically Submit Workplace Injury and Illness Reports

After much uncertainty and delay, the Occupational Safety and Health Administration confirmed that the deadline for employers to electronically submit injury and illness data from their 2016 OSHA Form 300A is December 15, 2017…more

Anti-Retaliation Provisions, Electronic Filing, Employer Liability Issues, Final Rules, OSHA

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Top Takeaways: 3 “Secrets of Trade Secrets”

Kilpatrick Townsend partners Lou Barbieri, Josh Ganz, and John Jett recently presented to a group of entrepreneurs at the Atlanta Tech Village on the “Secrets of Trade Secrets.” Here are three key takeaways from the…more

Defend Trade Secrets Act (DTSA), Intellectual Property Protection, Non-Disclosure Agreement, Trade Secrets

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Wave of SEC Enforcement Actions Reinforces Importance of Strong Compliance Culture

On September 10, 2014, the Securities and Exchange Commission (the “SEC”) announced charges against 18 individuals and ten investment firms for violating federal securities laws that require prompt reporting about their holdings…more

Civil Monetary Penalty, Compliance, Corporate Officers, Directors, Enforcement Actions

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BYOD (Bring Your Own Device) Policies and Best Practices

Some of us may remember a time when companies were not as concerned about where their information was maintained, as most of it was kept in some form or fashion in file cabinets or individual desks, or perhaps stored offsite in…more

Bring Your Own Device (BYOD), Data Protection, Discovery, Electronically Stored Information, Employer Liability Issues

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5 Key Takeaways: Retail & Consumer Goods Industry Team Presentation “In the Trenches with Social Media”

Kilpatrick Townsend’s Retail & Consumer Goods Team presented a webinar In the Trenches with Social Media, focusing on risk mitigation and solutions. Led by Barry M. Benjamin, partner in the firm’s New York office and chair of…more

Advertising, Endorsements, FTC, Marketing, Social Media

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Chinese Investments In The United States Remain In CFIUS Crosshairs

On September 13, 2017, President Trump issued an Executive Order blocking the $1.3 billion acquisition by Canyon Bridge Capital Partners, a Chinese government-backed private equity fund (“Canyon Bridge”) of Lattice Semiconductor…more

Acquisitions, CFIUS, China, Foreign Acquisitions, Foreign Investment

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Clarity on Doctrine of Equivalents Analysis for Chemical Claims

Mylan Institutional LLC v. Aurobindo Pharma Ltd, No. 2017-1645 (Fed. Cir. May 19, 2017) - On May 19, 2017, the Federal Circuit addressed and modified a rare grant of a preliminary injunction based on the doctrine of…more

Mylan Pharmaceuticals, Patent Infringement, Patent Litigation, Patents, Pharmaceutical Industry

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The Spokeo Saga Continues: Ninth Circuit Finds That Incorrect Consumer Report About Age, Marital Status, Wealth, Education Level, And Profession Gives Rise To Concrete Injury

Takeaway: In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (“Spokeo II”), the Supreme Court ruled that not every statutory violation gives rise to a concrete injury for standing purposes. An inaccurate report of a person’s zip…more

Article III, FCRA, Injury-in-Fact, SCOTUS, Spokeo

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Department of Justice Releases Guidance for Human Resources Professionals

On October 20, 2016, the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) published a joint guidance for HR professionals to alert them to potential antitrust violations. Importantly, in addition to describing…more

Antitrust Violations, DOJ, FTC, Hiring & Firing, Human Resources Professionals

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SoFi Withdraws U.S. Banking Application

We previously reported on Social Finance, Inc.’s application for an industrial loan company (ILC) charter. That is now over, at least for the time being. On Friday, October 13, the online lender announced it is withdrawing its…more

Deposit Accounts, FDIC, FinTech, Internet Lenders, Savings and Loan Companies

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Congress Votes to Overturn the Consumer Financial Protection Bureau’s Arbitration Agreements Final Rule

As previously reported, the Consumer Financial Protection Bureau (CFPB or Bureau) recently issued a final rule governing agreements that provide for the arbitration of any future disputes between consumers and providers of…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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Comprehensive Partnership Audit Reform Requires Amendments To Partnership (and LLC Operating) Agreements

Congress has recently scrapped the existing procedures for IRS audits of partnerships. The new rules (the “BBA Audit Rules”1) are effective for partnership taxable years beginning on or after January 1, 2018. A partnership that…more

Audits, Business Taxes, IRS, Limited Liability Company (LLC), Operating Agreements

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What if IPRs are Found Unconstitutional in Oil States?

On November 27, the Supreme Court will hear arguments in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. The issue is: - Whether inter partes review, an adversarial process used by the Patent and Trademark…more

America Invents Act, Covered Business Method Proceedings, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board

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A Few Highlights From The Newly-Enacted Federal Defend Trade Secrets Act

The federal Defend Trade Secrets Act (the “DTSA” or “Act”) became law on May 11, 2016. Here are a few highlights: - 1. The DTSA seeks to address the significant effects that trade secret misappropriation has on the…more

Asset Seizure, Corporate Counsel, Defend Trade Secrets Act (DTSA), Ex Parte, Misappropriation

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4 Top Takeaways: Use of Investigators

Kilpatrick Townsend senior counsel Chris Bussert recently presented in a workshop with Jeremy Liebman, franchise counsel at Krispy Kreme Doughnut Corporation, at the ABA Annual Forum on Franchising in Palm Springs, California…more

Franchises, Franchisors, Investigations

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Broadest Reasonable Interpretation Guidance During Prosecution

Even though the USPTO has been using the broadest reasonable interpretation (BRI) for over 100 years, guidance by the Federal Circuit is still needed. Recently, Federal Circuit found the application of the BRI by the Patent…more

Broadest Reasonable Interpretation Standard, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board, Patents

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Judge Issues Order Invalidating DOL Exempt-Employee Salary Rule

Last November, Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas issued a preliminary injunction in the case of Nevada v. U.S. Dep’t of Labor that put on hold the U.S. Department of Labor’s Final…more

DOL, Exempt-Employees, FLSA, Minimum Salary, Over-Time

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“Patents 4 Patients”: A New Cancer Immunotherapy “Fast Track” for U.S. Patent Applicants

In connection with the White House Cancer Moonshot Initiative, the United States Patent and Trademark Office (“USPTO”) announced on June 29 that it is “Teaming Up to Cure Cancer” by establishing a new accelerated process for…more

Classen Immunotherapies, Fast Track Process, Patent Applications, Patents, USPTO

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Maximizing Insurance Recovery For Businesses Impacted By Recent Natural Disasters

There has been a spate of natural disasters throughout the world recently—from major earthquakes in Japan and Ecuador to torrential rainfall and flooding in Texas. These events have had devastating consequences, including the…more

Business Interruption, Insurance Industry, Natural Disasters, Property Insurance

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Senate Version of Tax Reform Proposes Compensation and Retirement Plan Changes

On November 10, 2017, the Senate released a document entitled “Description of the Chairman’s Mark of the ‘Tax Cuts and Jobs Act’” prepared by the Joint Committee on Tax summarizing the proposals expected to appear in the Senate…more

401k, 403(b) Plans, 457(b) Plans, Deferred Compensation, Retirement Plan

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You May Need To Rethink Your Approach To Patents In Deals

In retrospect, the patent community should have been ready for a decision like the U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank International, but based on the yearly increases in patent applications designated as…more

Acquisitions, Patent Applications, Patent Portfolios, Patents

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New Georgia Law Allows Employees to Use Sick Leave for Care of Family Members

On May 8, 2017, Georgia Governor Nathan Deal signed into law a new statute requiring certain employers to allow their employees to use up to five days of their available paid sick leave to care for immediate family members. This…more

Employer Liability Issues, Paid Leave, Sick Leave, Wage and Hour

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Top Takeaways: Best Ways to Address Section 101 Patent Eligibility

Kilpatrick Townsend partners Megan Chung and Thomas Franklin recently participated in a panel at the 2016 National Asian Pacific American Bar Association Convention in San Diego. Panelists, which included Jay Choi from Uber and…more

Patent-Eligible Subject Matter, Patents, Popular, Section 101

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Reported Clearance of ChemChina’s $43 Billion Deal for Syngenta Underscores Need for Chinese Companies to Take a Proactive Approach to CFIUS

The Committee on Foreign Investment in the United States (CFIUS), which reviews transactions for potential national-security issues, has reportedly cleared state-owned China National Chemical Corp.’s (ChemChina) planned $43…more

Acquisitions, CFIUS, China, Foreign Investment, National Security

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House Ways and Means Committee Says, “Never Mind” to Repeal and Replace of Code Section 409A

One week ago the Republicans’ Tax Bill H.R. 1, the “Tax Relief and Jobs Act,” was released. Section 3801 of that bill proposed to significantly curtail deferred compensation arrangements by replacing Internal Revenue Code…more

Deferred Compensation, Internal Revenue Code (IRC), IRS, Section 409A, Tax Reform

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How Does the PTAB Evaluate Follow-On IPR Petitions?

Under 35 U.S.C. § 325(d), the Patent Trial and Appeal Board has the discretion to deny a follow-on inter partes review petition where multiple petitions are filed against the same patent. In exercising its discretion, the Board…more

Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board, Patents

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Supreme Court Holds a Portion of Section 2(a) of the Lanham Act Unconstitutional

In Matal v. Tam, the Supreme Court held that a portion of Section 2(a) of the Lanham Act prohibiting the federal registration of potentially disparaging trademarks and service marks violated the Free Speech Clause of the First…more

Disparagement, First Amendment, Free Speech, Lanham Act, Matal v Tam

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“Patents 4 Patients”: A New Cancer Immunotherapy “Fast Track” for U.S. Patent Applicants

In connection with the White House Cancer Moonshot Initiative, the United States Patent and Trademark Office (“USPTO”) announced on June 29 that it is “Teaming Up to Cure Cancer” by establishing a new accelerated process for…more

Classen Immunotherapies, Fast Track Process, Patent Applications, Patents, USPTO

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6 Key Takeaways: SaaS, PaaS, and IaaS: Evaluating Cloud Service Agreement Models, Negotiating Key Terms, & Minimizing Contract Disputes

Kilpatrick Townsend Associate Megan Demicco recently participated in a webinar that provided guidance to business and technology counsel concerning drafting cloud computing service agreements…more

Cloud Computing, Cloud Service Providers (CSPs), Data Security

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Law Firm Leadership: Realizing a New Vision for Client Development

How partnering with a firm's marketing department created a vision for deeper client relationships - and led to new work…more

Business Development, Business of Law, Client Services, Firm Leadership, Inside Story

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How to Register Additional Securities on Form S-3: Rule 413(b) or Rule 462(b)?

The general rule (as set forth in Rule 413(a) under the Securities Act) is that a company cannot register additional securities on a registration statement that is already in effect; instead, a company must file a new…more

Form S-3, Registration Statement, SEC, WKSIs

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Does the First Sale Doctrine Protect the Reselling of Genuine Goods that Include Non-Genuine Replacement Parts with the Original Trademark Retained? C.D.Cal Denied the Application of First Sale Doctrine as Defense in a Trademark Infringement Claim

Rolex Watch USA., INC. v. Krishan Agarwal, 2012 WL 12886444 (C.D. Cal. 2012) - TAKEAWAY - The First Sale Doctrine in Trademark Law will provide only limited protection to resellers of luxury products who have…more

First Sale Doctrine, Trademark Litigation, Trademarks

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3 Key Takeaways: Navigating the Post-Grant Landscape

Kilpatrick Townsend’s John Alemanni, Allison Dobson, Matthew Holohan, and Wab Kadaba recently presented on navigating the Post-Grant landscape. Here are three key takeaways from their presentation. The STRONG Patents Act of…more

America Invents Act, Estoppel, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patents

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New California Law Requires Small Employers to Provide Unpaid Baby-Bonding Leave

On October 12, 2017, California Governor Jerry Brown signed into law the New Parent Leave Act, a law that will require employers with 20-49 employees to provide up to 12 weeks of unpaid, job-protected parental leave to eligible…more

Employee Rights, Employer Liability Issues, Local Ordinance, Parental Leave, Small Employers

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Department of Labor Publishes a Final Rule Establishing Paid Sick Leave Requirements for Federal Contractors

On September 30, 2016, the United States Department of Labor, implementing Executive Order 13706, published its final rule establishing paid sick leave requirements for certain federal contractors. The final rule will apply to…more

DOL, Executive Orders, Federal Contractors, Final Rules, Paid Leave

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Tribes Really Need More Than Sovereign Immunity Defense

The title of this article might seem familiar — it should. A year ago we published an article titled “Tribes Need More Than Just The Sovereign Immunity Defense.” In that article, we advised tribes about the value of liability…more

Liability Insurance, Native American Issues, Sovereign Immunity

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Nasdaq Requires Listed Company Disclosure of Third Party Compensation Agreements with Directors and Nominees

Nasdaq has amended its listing rules to require listed companies to publicly disclose compensation or other payments by third parties to company directors or nominees for director. The new rule, which is designated as…more

Compensation Agreements, Directors, Disclosure Requirements, Nasdaq, Third-Party

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4 Key Takeaways: Consulting Agreements – Who Owns the IP?

Silicon Valley-based Kilpatrick Townsend Counsel Alan Dow focuses his practice on patent prosecution, acquisition and counseling, and on intellectual property and commercial transactions. Mr. Dow recently presented on important…more

Copyright, Patents, The Copyright Act, Trade Secrets

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Following Federal Courts’ Lead, North Carolina Superior Court Dismisses No-Injury Class Action For Lack of Standing

The United States Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which holds plaintiffs without concrete injury lack standing to sue in federal court, relies on federal constitutional and…more

Article III, Class Action, Corporate Counsel, Debit and Credit Card Transactions, FACTA

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Proposal to Change from Quarterly to Annual Periodic Reporting

This post is not about a recent development or practice tip. It is a “trial balloon” to test, in a public forum, my outlier but serious proposal that has haunted me for almost 20 years. I began a fairly long article about it in…more

Disclosure Requirements, Form 10-K, Form 10-Q, Form 8-K, Publicly-Traded Companies

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SEC Expands Confidential Review of IPO Registration Statements

The SEC announced earlier this summer (and supplemented that announcement late last week with additional information) that it has expanded the availability of its popular procedure for confidential non-public review of, and…more

Draft Documents, Emerging Growth Companies, Initial Public Offerings, JOBS Act, Registration Statement

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FERC Proposes Rule to Open Up Wholesale Markets to Energy Storage and Distributed Energy Resource Aggregations

On November 30, 2016, the Federal Energy Regulatory Commission (FERC) published a proposed rule in the Federal Register that would allow energy storage and distributed energy resource aggregations to participate in organized…more

Energy Market, Energy Sector, Energy Storage, FERC, ISOs

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Unusual Fact Situation? Tennessee Supreme Court Upholds Imposition of Alternative Apportionment in Vodafone v. Roberts

Corporate taxpayers that benefit from cost of performance sourcing face the unwelcome prospect of filing correctly under a state’s statute, yet later learning that a state revenue department is imposing an alternative…more

Corporate Taxes, Telecommunications, UDITPA, Variances, Vodafone

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Fair Pay & Safe Workplaces: What Are Contractors Required to Disclose?

Continuing our series of Alerts on the Fair Pay and Safe Workplaces Final Rule, this Alert address what form of violations must be disclosed. The Final Rule provides three broad categories of decisions for violations of 14…more

Disclosure Requirements, DOL, Fair Pay and Safe Workplaces, Federal Contractors, FLSA

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Department of Justice Releases Guidance for Human Resources Professionals

On October 20, 2016, the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) published a joint guidance for HR professionals to alert them to potential antitrust violations. Importantly, in addition to describing…more

Antitrust Violations, DOJ, FTC, Hiring & Firing, Human Resources Professionals

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Advancing the Law Against Knock-Offs

Background and Overview: In September 2015, Coty, along with its licensors Calvin Klein, Vera Wang, and Lady Gaga, filed a lawsuit in U.S. District Court for Southern District of New York against Excell Brands, LLC, a…more

Dilution, Knockoffs, Trademark Infringement, Trademarks

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Argentine Data Protection Authority Approves Model Clauses

The Argentine Data Protection Authority recently issued a new regulation approving two sets of model contractual clauses (controller-to-controller and controller-to-processor) for the international transfer of personal data…more

Argentina, Data Protection, Data Protection Authority, Personal Data

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Judge Issues Order Invalidating DOL Exempt-Employee Salary Rule

Last November, Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas issued a preliminary injunction in the case of Nevada v. U.S. Dep’t of Labor that put on hold the U.S. Department of Labor’s Final…more

DOL, Exempt-Employees, FLSA, Minimum Salary, Over-Time

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Alibaba Says “Close Sesame”: C.D. Cal. Finds No Liability When “Online” Mall Provides a Search Engine Allowing Consumers to Search for Plaintiff’s Products Within its Online Marketplace

TAKEAWAY - Courts continue to show reluctance to permit trademark claims to hamper the sale of products via the Internet absent concrete evidence of actual confusion, especially if the website offers trademark owners an…more

Trademark Infringement, Trademark Litigation, Trademarks

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Consent Issues Preclude Certification of TCPA Class Action

Takeaway: A March 2017 D.C. Circuit decision excluding solicited faxes from the scope of the TCPA may spell trouble for class action plaintiffs. The Northern District of Illinois recently ruled that, at least where there is…more

Advertising, Class Action, Class Certification, Consent, Faxes

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Another Shoe Drops: UBS Withdraws from the Broker Protocol

Only one month after Morgan Stanley withdrew from the Protocol for Broker Recruiting (the “Protocol”), a second major brokerage firm has announced its intention to withdraw effective December 1st. UBS says it is withdrawing as…more

Brokers, Investment Adviser, Morgan Stanley, Recruitment Policies

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New Labeling Requirements and Production Standards Apply to All Alcoholic Beverages Imported, Manufactured, and Sold in Mexico

Executive Summary - In response to the growing issue of alcohol abuse in Mexico and the related health problems associated with alcohol abuse, the Mexican government implemented revised labeling requirements and production…more

Imports, Labeling, Manufacturers, Mexico, Wine & Alcohol

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Federal Circuit Reverses the PTAB’s Reliance on Evidence Presented Solely During Oral Argument and Its Claim Construction

On March 15, 2016, the Federal Circuit reversed and remanded the PTAB's cancellation of claims 3 and 20 of Patent No. 6,948,021 directed to hot-swappable components in computer systems. See Dell Inc., v. Acceleron, LLC, No…more

Claim Construction, Dell, Evidence, Oral Argument, Patent Trial and Appeal Board

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Expanded Earnings Stripping Proposed Rules Will Impact Typical Debt Push Downs

In a surprising move amidst its continuing crack down on corporate inversions, the U.S. Treasury just proposed new regulations reflecting a broadly expanded approach to the practice of earnings stripping. Because an inversion…more

Acquisitions, Inversion, IRS, Proposed Regulation, U.S. Treasury

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Key Takeaways: Software Patent Prosecution Requires Data-Based Strategies Due to Patent Office Inconsistencies

Kilpatrick Townsend attorneys Kate Gaudry, Ph.D. and Thomas D. Franklin recently presented at the Practising Law Institute’s 11th Annual Patent Law Institute regarding “Software/EE: Are We There, Yet?”…more

Abstract Ideas, Patent-Eligible Subject Matter, Patents, Popular, Software

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Broadest Reasonable Interpretation Guidance During Prosecution

Even though the USPTO has been using the broadest reasonable interpretation (BRI) for over 100 years, guidance by the Federal Circuit is still needed. Recently, Federal Circuit found the application of the BRI by the Patent…more

Broadest Reasonable Interpretation Standard, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board, Patents

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Indian Country Should Defend Environmental Protections

Doing exactly what he promised to do throughout his campaign, Donald Trump has been rolling back Obama-era environmental regulations since his first full day in office when he issued an executive order to expedite approval of…more

EPA, Executive Orders, Fracking, Oil & Gas, Trump Administration

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Top Takeaways: 3 “Secrets of Trade Secrets”

Kilpatrick Townsend partners Lou Barbieri, Josh Ganz, and John Jett recently presented to a group of entrepreneurs at the Atlanta Tech Village on the “Secrets of Trade Secrets.” Here are three key takeaways from the…more

Defend Trade Secrets Act (DTSA), Intellectual Property Protection, Non-Disclosure Agreement, Trade Secrets

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Becoming a Unicorn Fintech by Shoring Up Intellectual Property

Investment in fintech companies is at an all-time high. “Unicorns” are start-ups that have valuations of more than 1 billion dollars. The majority of the unicorns are in the fintech industry. Fintech companies are often agile…more

Copyright, Due Diligence, FinTech, Intellectual Property Protection, Patents

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What does Spokeo mean? The Eleventh Circuit’s Unusual Debate about the U.S. Supreme Court’s Controversial Decision

Takeaway: The decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), where the U.S. Supreme Court evaluated Article III standing in the context of a federal statutory violation, continues to generate controversy. Since its…more

Article III, Class Action, Injury-in-Fact, Mortgage Satisfaction Notice, Mortgages

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4 Top Takeaways: Smart Prosecution for Value

Kilpatrick Townsend Partners Eugenia Garrett-Wackowski, Paul Haughey, Babak Kusha, and Karam Saab recently presented on issues and strategies to consider when writing and prosecuting patent applications to withstand Alice…more

Patent Examinations, Patent Litigation, Patents, USPTO

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Congress Votes to Overturn the Consumer Financial Protection Bureau’s Arbitration Agreements Final Rule

As previously reported, the Consumer Financial Protection Bureau (CFPB or Bureau) recently issued a final rule governing agreements that provide for the arbitration of any future disputes between consumers and providers of…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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5 Key Takeaways: Texas Lien Laws and Advanced Lien & Payment

Kilpatrick Townsend’s Brian Gaudet recently gave two presentations, “Texas Lien Laws” and “Advanced Lien & Payment,” at the Associated General Contractors of America Houston Chapter…more

Construction Contracts, Construction Industry, Construction Liens, Contractors, General Contractors

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3 Top Takeaways: Appeals of Post-Alice Eligibility Rejections Face Tough Prospects

Nearly all eligibility rejections challenged in post-Alice appeals in computer related technologies are affirmed in whole by the Patent Trial and Appeal Board (PTAB). Most of those appeals originate from business-method art…more

Covered Business Method Proceedings, Patent Litigation, Patent Trial and Appeal Board, Patents

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The Abstract Swing: Major League Problems In Patent Law

Professional baseball was in a crisis, at least through the eyes of the major market teams. It all started with a rather unremarkable second baseman, Aliceandro, who played for the San Jose Programmers. During the last season,…more

Baseball, Patents, Sports

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U.S. Supreme Court Halo Decision Rejects Seagate’s High Bar for Treble Damages

In a unanimous decision, on June 13, 2016, the U.S. Supreme Court rejected the CAFC Seagate “objective recklessness” standard and appeal criteria. As is its habit, the Supreme Court has thus taken away relatively clear…more

Enhanced Damages, Halo v Pulse, Patent Infringement, SCOTUS, Seagate

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5 Key Takeaways: Patent Litigation Trends

Kilpatrick Townsend attorneys Andy Rinehart and Dr. Jennifer Giordano-Coltart recently presented their assessment of trends in patent litigation and prosecution at the firm’s annual patent CLE in Research Triangle Park. Twenty…more

Corporate Counsel, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board, Patents

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Ninth Circuit: Rule 23(F)’S Interlocutory Appeal Deadline Is Not Jurisdictional – Equitable Exceptions Apply To Extend The Deadline

Under Federal Rule 23(f), parties have 14 days to petition for interlocutory review of an order granting or denying class certification. The federal appellate courts of appeals construe this deadline as “procedural” rather than…more

Class Action, Class Certification, Equitable Tolling, Motion for Reconsideration, Rule 23(f)

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Key Takeaways: Patent Prosecution: Latest Trends and Best Practices in Asia

Kilpatrick Townsend partners Hitoshi Akiba, Charles Gray, and Kris Reed recently presented on the latest trends and best practices in Asia patent prosecution. Key takeaways concerning patent prosecution in China,…more

China, Japan Patent Office, Patent Litigation, Patents

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Cyber Winter is Here, and Coming to Regulation: New York Cybersecurity Rule Ice Dragon Heading for the Wall

The State of New York’s response to two large cybersecurity breaches may fuel the transformation of the state regulation of corporate cybersecurity in the U.S. Unlike typical state data breach statutes which focus on…more

Covered Entities, Cybersecurity, Data Breach, Equifax, FTC

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Rates Matter! Using the Tactics of Negotiation to Obtain Reasonable Rates for Defense Counsel

Heather Habes, Kilpatrick Townsend Attorney, recently presented “Rates Matter!: Using the Tactics of Negotiation to Obtain Reasonable Rates for Defense Counsel,” as a part of the ABA Insurance Coverage Litigation Committee CLE…more

Insurance Industry, Insurance Litigation

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Filing An Early Motion To Strike Class Allegations

A recent decision by the Western District of Michigan is indicative of the increasing trend in federal district courts to grant early motions to strike class allegations where it is obvious that a class cannot be certified. The…more

Class Action, Class Certification, Corporate Counsel, Discovery, Motion To Strike

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Supreme Court Rules that Bare Statutory Violation without Other Concrete Harm Cannot Provide Federal Court Standing

On May 16, 2016, the United States Supreme Court issued its opinion in Spokeo v. Robins, No. 13-1339, which presented the question of whether a plaintiff has standing in federal court to assert a claim where the only…more

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

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Cobell Buy-Back Must Advance Indian Country Interests

On Dec. 14, 2010, President Barack Obama signed the Claims Resolution Act of 2010, which, among other things, settled Cobell v. Salazar for a total of $3.4 billion after 14 years of intense litigation. Of that amount, $1.5…more

Department of the Interior, Native American Issues, Tribal Lands, Trump Administration

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U.S. International Trade Commission Persists with Remedy for PTAB-Invalidated Patent

The U.S. International Trade Commission has declined to rescind remedial orders blocking importation of products found to infringe two patents that were recently found invalid by the Patent Trial and Appeal Board of the U.S…more

Inter Partes Review (IPR) Proceeding, ITC, Patent Infringement, Patent Invalidity, Patent Trial and Appeal Board

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Following Federal Courts’ Lead, North Carolina Superior Court Dismisses No-Injury Class Action For Lack of Standing

The United States Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which holds plaintiffs without concrete injury lack standing to sue in federal court, relies on federal constitutional and…more

Article III, Class Action, Corporate Counsel, Debit and Credit Card Transactions, FACTA

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4 Top Takeaways: Smart Prosecution for Value

Kilpatrick Townsend Partners Eugenia Garrett-Wackowski, Paul Haughey, Babak Kusha, and Karam Saab recently presented on issues and strategies to consider when writing and prosecuting patent applications to withstand Alice…more

Patent Examinations, Patent Litigation, Patents, USPTO

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Revised Capital Framework for Depository Institution Holding Companies Organized as LLCs and Partnerships

The Federal Reserve Board (the “Board”) has adopted amendments to the Board’s regulatory capital framework (“Regulation Q”), that clarify how the revised regulatory capital framework applies to depository institution holding…more

Capital Markets, Corporate Counsel, Depository Institutions, ESOP, Federal Reserve

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Something for Designers to (Maybe) Cheer About: Star Athletica v. Varsity Brands

Historically, fashion designers, as well as other designers whose creative efforts are incorporated into useful/functional articles like clothing, shoes, and furniture, have struggled successfully to assert copyright protection…more

Cheerleaders, Copyright, Copyright Infringement, Fashion Design, SCOTUS

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5 Key Takeaways: Fighting Back Against Negative Contractor Performance Assessment Report System (CPARS) Reviews

Kilpatrick Townsend’s Gunjan Talati and Chris Henel, members of the firm’s Government Contracting Team, recently presented a webinar in collaboration with Federal Publications Seminars. With over 300 in attendance, they…more

CPARS, Federal Acquisition Regulations (FAR), Federal Contractors, Federal Procurement Systems, Performance Reviews

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Tenth Circuit Rules Colorado Can Require Remote Retailers to Notify Customers of the State's Use Tax

On Monday, the U.S. Court of Appeals for the Tenth Circuit upheld the constitutionality of a Colorado law that requires remote retailers to notify customers of the state’s use tax requirements and report certain customer tax…more

Commerce Clause, Corporate Counsel, Department of Revenue, Dormant Commerce Clause, Interstate Commerce

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5 Key Takeaways: Three Years After Octane Fitness – Patent Litigation Fee Fights

Kilpatrick Townsend’s Clay Holloway, a partner in the firm’s Atlanta office, recently participated in a webinar as part of a panel to discuss the issue of attorney fees three years after the U.S. Supreme Court decision in Octane…more

Attorney's Fees, Corporate Counsel, Octane Fitness v. ICON, Patent Infringement, Patent Litigation

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3 Key Takeaways: Navigating the Post-Grant Landscape

Kilpatrick Townsend’s John Alemanni, Allison Dobson, Matthew Holohan, and Wab Kadaba recently presented on navigating the Post-Grant landscape. Here are three key takeaways from their presentation. The STRONG Patents Act of…more

America Invents Act, Estoppel, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patents

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The Need to Preserve and Expand Tribal VAWA Jurisdiction and Federal Resources

March 7, 2017 marks two years since Indian tribes could elect to exercise criminal jurisdiction over certain non-Indians for domestic or dating violence offenses. Although some claimed that non-Indian violence against Native…more

Dating Violence, DOJ, Domestic Violence, VAWA

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New Labeling Requirements and Production Standards Apply to All Alcoholic Beverages Imported, Manufactured, and Sold in Mexico

Executive Summary - In response to the growing issue of alcohol abuse in Mexico and the related health problems associated with alcohol abuse, the Mexican government implemented revised labeling requirements and production…more

Imports, Labeling, Manufacturers, Mexico, Wine & Alcohol

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5 Top Takeaways: When Is an Opinion of Counsel Required in the New, Post-Halo Environment?

Kilpatrick Townsend Partner James Isbester recently addressed the Intellectual Property Section of the Contra Costa County Bar Association at a CLE event held at the firm’s Walnut Creek office. The presentation, “When Is an…more

Halo v Pulse, Patent Infringement, Patent Litigation, Patents, Willful Infringement

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Spokeo and the TCPA: Mere Receipt of Fax with Non-Compliant Opt-Out Notice is Not “Concrete Injury”

In ARcare v. Qiagen N. Am. Holdings, Inc., No. CV 16-7638 PA (ASX), 2017 WL 449173, at *1 (C.D. Cal. Jan. 19, 2017), the district court granted the defendant’s motion to dismiss a TCPA class action, finding that the simple…more

Class Action, Injury-in-Fact, Motion to Dismiss, Standing, TCPA

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New Georgia Law Allows Employees to Use Sick Leave for Care of Family Members

On May 8, 2017, Georgia Governor Nathan Deal signed into law a new statute requiring certain employers to allow their employees to use up to five days of their available paid sick leave to care for immediate family members. This…more

Employer Liability Issues, Paid Leave, Sick Leave, Wage and Hour

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Judge Issues Order Invalidating DOL Exempt-Employee Salary Rule

Last November, Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas issued a preliminary injunction in the case of Nevada v. U.S. Dep’t of Labor that put on hold the U.S. Department of Labor’s Final…more

DOL, Exempt-Employees, FLSA, Minimum Salary, Over-Time

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Another Example of Practical Estoppel in IPR Practice

Earlier this year, the Federal Circuit held that statements made by patentees in an inter partes review (IPR) can constitute prosecution disclaimer. Aylus Networks, Inc. v. Apple Inc., No. 2016-1599 (Fed. Cir. May 11, 2017). In…more

Estoppel, Inter Partes Review (IPR) Proceeding, Patent Infringement, Patent Litigation, Patents

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Congress Votes to Overturn the Consumer Financial Protection Bureau’s Arbitration Agreements Final Rule

As previously reported, the Consumer Financial Protection Bureau (CFPB or Bureau) recently issued a final rule governing agreements that provide for the arbitration of any future disputes between consumers and providers of…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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Federal Circuit Clarifies AIA On-Sale Bar

Helsinn v. Teva (Fed. Cir. 2017) - On May 1, 2017, a Federal Circuit panel ruled that the AIA did not change the statutory meaning of “on sale” and that the on-sale bar can be triggered by a sale whose existence is public,…more

America Invents Act, ANDA, FDA, On-Sale Bar, Patents

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Filing An Early Motion To Strike Class Allegations

A recent decision by the Western District of Michigan is indicative of the increasing trend in federal district courts to grant early motions to strike class allegations where it is obvious that a class cannot be certified. The…more

Class Action, Class Certification, Corporate Counsel, Discovery, Motion To Strike

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Department of Labor Publishes a Final Rule Establishing Paid Sick Leave Requirements for Federal Contractors

On September 30, 2016, the United States Department of Labor, implementing Executive Order 13706, published its final rule establishing paid sick leave requirements for certain federal contractors. The final rule will apply to…more

DOL, Executive Orders, Federal Contractors, Final Rules, Paid Leave

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Supreme Court Holds a Portion of Section 2(a) of the Lanham Act Unconstitutional

In Matal v. Tam, the Supreme Court held that a portion of Section 2(a) of the Lanham Act prohibiting the federal registration of potentially disparaging trademarks and service marks violated the Free Speech Clause of the First…more

Disparagement, First Amendment, Free Speech, Lanham Act, Matal v Tam

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4 E-Discovery Strategies for GCs Under the "New" Federal Rules

When the cost of e-discovery drives case strategy, it is time to re-evaluate priorities. The U.S. Supreme Court and Congress agreed and amended several of the Federal Rules of Civil Procedure in December 2015 in light of massive…more

Discovery, Electronically Stored Information, Federal Rules of Civil Procedure, Rule 26, Rule 37

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Federal Circuit Clarifies AIA On-Sale Bar

Helsinn v. Teva (Fed. Cir. 2017) - On May 1, 2017, a Federal Circuit panel ruled that the AIA did not change the statutory meaning of “on sale” and that the on-sale bar can be triggered by a sale whose existence is public,…more

America Invents Act, ANDA, FDA, On-Sale Bar, Patents

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General Liability Coverage for Cyber Risks Arising from "Publication" of Private Data

Cyber liability issues present constant concerns to individuals and to companies who are custodians of private data. The “hot button” issues presented range from questions regarding data theft, including identity and credit…more

Commercial General Liability Policies, Cyber Insurance, Cybersecurity, Data Protection, Insurance Industry

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Nasdaq Requires Listed Company Disclosure of Third Party Compensation Agreements with Directors and Nominees

Nasdaq has amended its listing rules to require listed companies to publicly disclose compensation or other payments by third parties to company directors or nominees for director. The new rule, which is designated as…more

Compensation Agreements, Directors, Disclosure Requirements, Nasdaq, Third-Party

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Federal Circuit Clarifies AIA On-Sale Bar

Helsinn v. Teva (Fed. Cir. 2017) - On May 1, 2017, a Federal Circuit panel ruled that the AIA did not change the statutory meaning of “on sale” and that the on-sale bar can be triggered by a sale whose existence is public,…more

America Invents Act, ANDA, FDA, On-Sale Bar, Patents

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4 Key Takeaways: The Hague Agreement & Design Filings – Things You Need to Know & Do

Kilpatrick Townsend partner Babak Kusha, along with a panel of other thought leaders, recently presented a Knowledge Group webinar on the topic of “The Hague Agreement and Design Filings.” The Hague Agreement is an international…more

Design Patent, EU, Hague Agreement, Industrial Design, International Treaties

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Interim IPR Results & Litigation – What Happens At The Board May Not Stay At The Board

The America Invents Acts ("AIA") gives alleged infringers facing an infringement claim a choice—challenge validity in court or in an inter partes review (IPR). Like any choice, consequences have to be considered. The…more

America Invents Act, Inter Partes Review (IPR) Proceeding, Patent Infringement, Patent Trial and Appeal Board, Patents

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5 Key Takeaways-What You Need to Know in the US and Latin America About Franchising and IP

Kilpatrick Townsend Partner Marc Lieberstein, Co-Chair of the firm’s Retail & Consumer Goods Industry Team and member of the Firm’s Latin American Focus Group, recently joined other thought-leaders on an international panel to…more

Franchise Agreements, Franchisee, Franchises, Latin America, License Agreements

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2018 Benefit Limits

Retirement Plan Limits - The IRS updated very few of the retirement plan limits effective for the plan year that begins on or after January 1, 2018. Social Security Tax and Wage Base - For calendar year 2018, the…more

401k, 403(b) Plans, 457(b) Plans, Defined Contribution Plans, Employee Benefits

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President Trump Nails Coffin Shut on Federal Contractor “Blacklisting” Under Fair Pay and Safe Workplaces Rule

On March 27, 2017, President Trump signed a Congressional Review Act resolution, H.J. Res. 37, and issued his own Executive Order, which together nullified President Obama’s Fair Pay and Safe Workplaces Executive Order and its…more

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

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Obviousness Requires Articulation; Routine Optimization Insufficient Alone

In Re Stepan Company , No. 2016-1811 (Fed. Cir. Aug. 25, 2017) - The Federal Circuit vacated a Patent Trial and Appeal Board’s obviousness decision for failing to adequately articulate its reasoning. The Stepan Company filed…more

Appeals, Obviousness, Patent Litigation, Patent Trial and Appeal Board, Patents

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2018 Benefit Limits

Retirement Plan Limits - The IRS updated very few of the retirement plan limits effective for the plan year that begins on or after January 1, 2018. Social Security Tax and Wage Base - For calendar year 2018, the…more

401k, 403(b) Plans, 457(b) Plans, Defined Contribution Plans, Employee Benefits

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At the ITC, It’s Always “Standing” Room Only

Intellectual Ventures Refiles Against Auto Makers After Patent Assignment Fails ITC Scrutiny - The U.S. International Trade Commission (“ITC”) terminated an investigation because standing did not exist as of the date the…more

Corporate Counsel, ITC, Patent Infringement, Patent Litigation, Patents

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NLRB Creates New Headaches for Employers Using Staffing Agency Workers

It has become increasingly common for employers to use workers supplied by a staffing agency or other third party to supplement their work forces, often in the form of “temporary workers” or leased workers. Although these…more

Collective Bargaining, Joint Employers, NLRB, Staffing Agencies, Temporary Employees

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OSHA Rescinds Policy Allowing Union Access to Nonunionized Facilities

On April 25, 2017, the Occupational Safety and Health Administration (“OSHA”) rescinded a four-year-old policy allowing unions to participate in OSHA safety and health inspections at nonunionized facilities. Under a…more

Interpretive Letters, Non-Union, OSHA, Safety Inspections, Union Representatives

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5 Key Takeaways: North Carolina Legislative Update

Kilpatrick Townsend’s Government Relations Advisor Ches McDowell, based in the firm’s Raleigh and Winston-Salem offices, recently presented an update concerning the 2017 North Carolina Legislature…more

General Assembly, Legislative Agendas, Opioid, State and Local Government, State Budgets

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U.S. Copyright Office Creates New Registration Process for DMCA Agents

Under the Digital Millennium Copyright Act (DMCA), website operators and other Internet Service Providers (collectively, ISPs) can obtain protection from liability for copyright infringement claims based on the material…more

Copyright, Copyright Infringement, Copyright Office, DMCA, Internet Service Providers (ISPs)

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What if IPRs are Found Unconstitutional in Oil States?

On November 27, the Supreme Court will hear arguments in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. The issue is: - Whether inter partes review, an adversarial process used by the Patent and Trademark…more

America Invents Act, Covered Business Method Proceedings, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board

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Recent Ruling Creates Potential Liability For Use of Common Contractual Terms

Contracts containing uniform terms and conditions are a common feature of modern commercial life. Consumers are oftentimes required to agree to such contracts in order to buy a good or service, and the contracts typically…more

Attorney's Fees, Class Action, Consumer Contracts, Contract Terms, Terms and Conditions

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California Supreme Court endorses “fishing expedition” discovery under PAGA

In its recent decision concerning the proper scope of discovery under California’s Labor Code Private Attorneys General Act of 2004 – known as “PAGA” – the California Supreme Court authorized discovery just as broad as that…more

CA Supreme Court, Discovery, Employee Privacy Rights, Employer Liability Issues, Employment Litigation

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U.S. Supreme Court Halo Decision Rejects Seagate’s High Bar for Treble Damages

In a unanimous decision, on June 13, 2016, the U.S. Supreme Court rejected the CAFC Seagate “objective recklessness” standard and appeal criteria. As is its habit, the Supreme Court has thus taken away relatively clear…more

Enhanced Damages, Halo v Pulse, Patent Infringement, SCOTUS, Seagate

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Court Rules in Favor of Trump Appointee for CFPB Acting Director Slot

As we reported on earlier today, Consumer Financial Protection Bureau (CFPB) Deputy Director Leandra English filed a lawsuit late Sunday evening in the U.S. District Court for the District of Columbia (District Court) seeking to…more

Administrative Appointments, CFPB, Richard Cordray, Trump Administration

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E.D. Tex. Finds that Prior Art Estoppel Applies to References Rather than Specific Combinations of References

Defendant Hewlett Packard filed a Petition for IPR challenging claims of U.S. Patent No. 6,218,930 as invalid in view of two prior art references. On the same day Defendant requested joinder with an earlier filed IPR that…more

Estoppel, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board, Patents

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EU Passes New Trade Secret Directive to Harmonize Trade Secret Laws of Member States

In late December 2015, the European Union reached an agreement on the terms of a provisional Trade Secrets Directive, which was intended to harmonize the laws governing trade secrets and “improve[e] the effectiveness of the…more

Corporate Counsel, Cross-Border, Damages, EU, Intellectual Property Protection

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2016 Native American Tax Litigation Roundup

One driver of economic development for many tribes is derived from their ability to impose taxes on business activities on Reservations free from state and local taxation. This year, there has been continued litigation to…more

Double Taxation, Native American Issues, Sales Tax, State Taxes

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An Object Insurance Coverage Lesson For Class Action Defendants: Don’t Put The Cart Before The Horse

Where a defendant’s insured litigation risk exceeds the defendant’s assets, insurance drives the outcome of settlement negotiations, as naturally it’s the horse that pulls the cart, and not vice versa. The Eighth Circuit’s…more

Class Action, ERISA, Insurance Industry

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Cyber Winter is Here, and Coming to Regulation: New York Cybersecurity Rule Ice Dragon Heading for the Wall

The State of New York’s response to two large cybersecurity breaches may fuel the transformation of the state regulation of corporate cybersecurity in the U.S. Unlike typical state data breach statutes which focus on…more

Covered Entities, Cybersecurity, Data Breach, Equifax, FTC

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Tribal Self-Governance Under Trump A Common Goal

Tribes are rightly concerned that federal programs benefiting tribal communities may become the target of budget cuts under the Trump administration and the Republican Congress, but tribes should not lose heart quite yet. With…more

ISDEAA, Regulatory Reform, Tribal Governments, Trump Administration

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Oil & Gas Rights and CMBS Servicing—Transfer Considerations

Question: The borrower pledged oil and gas rights related to the collateral property to the lender. The borrower has notified the servicer that it would like to sell these oil and gas rights. Can the lender approve the lease or…more

Borrowers, CMBS, Commercial Leases, Lenders, Oil & Gas

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Congress Votes to Overturn the Consumer Financial Protection Bureau’s Arbitration Agreements Final Rule

As previously reported, the Consumer Financial Protection Bureau (CFPB or Bureau) recently issued a final rule governing agreements that provide for the arbitration of any future disputes between consumers and providers of…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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FERC Proposes Rule to Open Up Wholesale Markets to Energy Storage and Distributed Energy Resource Aggregations

On November 30, 2016, the Federal Energy Regulatory Commission (FERC) published a proposed rule in the Federal Register that would allow energy storage and distributed energy resource aggregations to participate in organized…more

Energy Market, Energy Sector, Energy Storage, FERC, ISOs

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New California Law Requires Small Employers to Provide Unpaid Baby-Bonding Leave

On October 12, 2017, California Governor Jerry Brown signed into law the New Parent Leave Act, a law that will require employers with 20-49 employees to provide up to 12 weeks of unpaid, job-protected parental leave to eligible…more

Employee Rights, Employer Liability Issues, Local Ordinance, Parental Leave, Small Employers

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Key Takeaways: IP 101 for Non-IP Counsel

Kilpatrick Townsend Partner Allisen Pawlenty-Altman and Associate Kate Gaudry Ph.D. recently participated in an interactive panel — “Technology and IP Forum: IP 101 for Non-IP Counsel” — presented by the National Capital Region…more

Copyright, Domain Names, Intellectual Property Protection, Patents, Trade Secrets

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Parens Patriae Representative Suits by State AGs: Parental Help with Strings Attached

Parens patriae is a Latin term which literally means “parent of the fatherland.” In parens patriae actions, a state sues on behalf of its citizens. The rights of the states to do this was first established in 1900 in Louisiana…more

Antitrust Litigation, Attorney Generals, Class Action, Parens Patriae

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Advancing the Law Against Knock-Offs

Background and Overview: In September 2015, Coty, along with its licensors Calvin Klein, Vera Wang, and Lady Gaga, filed a lawsuit in U.S. District Court for Southern District of New York against Excell Brands, LLC, a…more

Dilution, Knockoffs, Trademark Infringement, Trademarks

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3 Top Takeaways: Anti-Corruption in Mexico

Kilpatrick Townsend partner Adria Perez recently spoke on a panel with other thought leaders at the annual “Doing Business in Mexico” seminar which was offered by the Association of Corporate Counsel and Kilpatrick Townsend. The…more

Anti-Corruption, DOJ, FCPA, Mexico

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DOL Finalizes 18-Month Extension of Fiduciary Rule Transition Period

The Department of Labor (DOL) finalized the Fiduciary Rule’s transition period extension from January 1, 2018 to July 1, 2019, as it had previously announced in August. The DOL reported that it has not yet completed the…more

401k, DOL, ERISA, Fiduciary Rule, FINRA

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Circuit Split Remains: SCOTUS Passes on Defining Nominative Fair Use

In a recent disappointment to those advocating clarity for the muddy waters of determining permissible use of third-party trademarks under the nominative fair use doctrine, the Justices of the United States Supreme Court denied…more

Fair Use, Likelihood of Confusion, Trademark Litigation, Trademarks

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Late September Surge at the ITC: Ten New Section 337 Complaints In Two Weeks

September closed with ten new complaints of unfair competition under Section 337, including patent and trademark infringement, in the last two weeks of September. Five of those complaints were filed within the two-day span of…more

Intellectual Property Litigation, ITC, Patent Infringement, Section 337, Trademark Infringement

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5 Key Takeaways: Unclaimed Property – Escheatment by Any Other Name

Kilpatrick Townsend partner David Posner recently hosted a webinar addressing recent developments in the growing area of unclaimed property concepts and state requirements. Mr. Posner focuses his practice on bankruptcy and…more

Financial Institutions, Gift-Cards, Reporting Requirements, Unclaimed Property

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Advancing the Law Against Knock-Offs

Background and Overview: In September 2015, Coty, along with its licensors Calvin Klein, Vera Wang, and Lady Gaga, filed a lawsuit in U.S. District Court for Southern District of New York against Excell Brands, LLC, a…more

Dilution, Knockoffs, Trademark Infringement, Trademarks

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Omnibus Funding and Tax Extenders Legislation Includes Important Extensions for Renewable Energy Projects

On December 18, Congress passed and the President signed into law the “Consolidated Appropriations Act, 2016” and the “Protecting Americans from Tax Hikes (PATH) Act of 2015,” funding the government and providing a number of…more

Investment Tax Credits, Production Tax Credit, Protecting Americans from Tax Hikes (PATH) Act, Renewable Energy, Solar Energy

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The Department of the Interior Proposes Additional Regulatory Hurdles to Restoring Tribal Homelands

On October 4, the Acting Assistant Secretary – Indian Affairs proposed substantial changes to the current land into trust process by circulating a Consultation Draft to Tribal leaders. This new proposal impacts every Tribe…more

Department of the Interior, Native American Issues, NEPA, Tribal Lands

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Dateline Washington – Some Things Appear To Still Be Working, Albeit Not Well For Government

As required by the Competition in Contracting Act of 1984, 31 U.S.C. §§3554 et al. (CICA), the U.S. Government Accountability Office (GAO) has certain bid protest-related jurisdiction over executive agencies. As part of its…more

Bid Protests, CICA, Federal Contractors, GAO, Jurisdiction

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The Seventh Circuit Holds That Title VII Prohibits Sexual Orientation Discrimination: Key Takeaways for Employers

On April 4, 2017, the Seventh Circuit, sitting en banc, held in Hively v. Ivy Tech Community College of Indiana that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation. In an…more

Civil Rights Act, Employer Liability Issues, En Banc Review, Sex Discrimination, Sexual Orientation

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Supreme Court Rejects Creative Dismissal Strategy To Engineer Appellate Review Of Order Denying Class Certification

Takeaway: The United States Supreme Court has rejected a tactic used by the plaintiffs’ bar to obtain appellate court review of an order denying class certification despite a settlement of the named plaintiffs’ claims. Justice…more

Article III, Class Action, Class Certification, Design Defects, Microsoft v Baker

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Nasdaq Requires Listed Company Disclosure of Third Party Compensation Agreements with Directors and Nominees

Nasdaq has amended its listing rules to require listed companies to publicly disclose compensation or other payments by third parties to company directors or nominees for director. The new rule, which is designated as…more

Compensation Agreements, Directors, Disclosure Requirements, Nasdaq, Third-Party

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Expanded Earnings Stripping Proposed Rules Will Impact Typical Debt Push Downs

In a surprising move amidst its continuing crack down on corporate inversions, the U.S. Treasury just proposed new regulations reflecting a broadly expanded approach to the practice of earnings stripping. Because an inversion…more

Acquisitions, Inversion, IRS, Proposed Regulation, U.S. Treasury

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Updated: President Trump Turns to the U.S. Trade Representative for China IP Investigation

From the earliest days of his campaign, President Trump has spoken out on alleged intellectual property misconduct by China. He is now turning to the U.S. Trade Representative for a formal investigation of China in this regard…more

China, Intellectual Property Protection, Section 301, Trade Act of 1974, Trump Administration

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Seventh Circuit: American Pipe Tolling Stops When A Class Action Is Dismissed – With Or Without Prejudice – Before A Class Is Certified

Takeaway: In Collins v. Village of Palatine, Ill., — F.3d —, 2017 WL 5490819, at *1 (7th Cir. November 16, 2017), the Seventh Circuit announced a “simple and uniform” rule for determining when a once-tolled statute of…more

American Pipe & Construction Co. v. Utah, Class Action, Class Certification, Statute of Limitations, Tolling

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California Enacts Law Barring Pre-Employment Inquiries About Salary History

On October 12, 2017, Governor Jerry Brown of California signed into law a statute that prohibits employers from seeking salary-history information, including compensation and benefits information, about an applicant for…more

Employer Liability Issues, Equal Pay, Hiring & Firing, Job Applicants, Local Ordinance

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Oil & Gas Rights and CMBS Servicing—Transfer Considerations

Question: The borrower pledged oil and gas rights related to the collateral property to the lender. The borrower has notified the servicer that it would like to sell these oil and gas rights. Can the lender approve the lease or…more

Borrowers, CMBS, Commercial Leases, Lenders, Oil & Gas

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FERC Proposes Rule to Open Up Wholesale Markets to Energy Storage and Distributed Energy Resource Aggregations

On November 30, 2016, the Federal Energy Regulatory Commission (FERC) published a proposed rule in the Federal Register that would allow energy storage and distributed energy resource aggregations to participate in organized…more

Energy Market, Energy Sector, Energy Storage, FERC, ISOs

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Oil States Oral Argument: Justices Grapple with Constitutionality of IPR

The Supreme Court held oral argument Monday, November 27, in the case of Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, et al. to address the question of whether inter partes review (IPR) proceedings before the…more

Inter Partes Review (IPR) Proceeding, Oil States Energy Services v Greene's Energy Group, Oral Argument, Patent Litigation, Patent Trial and Appeal Board

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DOI Actions Underscore Need For Tribal Consultation

At this point in the Obama administration eight years ago, Secretary Ken Salazar was clear on his commitment to restoring tribal homelands. Embracing his trust and treaty responsibilities, Secretary Salazar left no ambiguity on…more

Department of the Interior, Native American Issues, Oil & Gas, Tribal Lands

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5 Key Takeaways: IP Aspects of a Product to Market Timeline: A Comprehensive Look at Protecting the IP of a New Product

Kilpatrick Townsend partner Karam Saab recently presented to the Association of Corporate Counsel Denver Chapter on “IP Aspects of a Product to Market Timeline: A Comprehensive Look at Protecting the IP of a New Product.”…more

Confidential Information, Design Patent, Indemnification, Patents

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Fiduciary Rule: June 9 & Beyond

On May 22, Department of Labor (DOL) Secretary Alexander Acosta announced that, despite President Trump’s memorandum ordering further analysis of the fiduciary investment advice rule (Fiduciary Rule), there was no legal…more

Best Interest Contract Exemptions, DOL, ERISA, Fiduciary Rule, Investment Adviser

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Another Shoe Drops: UBS Withdraws from the Broker Protocol

Only one month after Morgan Stanley withdrew from the Protocol for Broker Recruiting (the “Protocol”), a second major brokerage firm has announced its intention to withdraw effective December 1st. UBS says it is withdrawing as…more

Brokers, Investment Adviser, Morgan Stanley, Recruitment Policies

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Reported Clearance of ChemChina’s $43 Billion Deal for Syngenta Underscores Need for Chinese Companies to Take a Proactive Approach to CFIUS

The Committee on Foreign Investment in the United States (CFIUS), which reviews transactions for potential national-security issues, has reportedly cleared state-owned China National Chemical Corp.’s (ChemChina) planned $43…more

Acquisitions, CFIUS, China, Foreign Investment, National Security

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IRS Eliminates One of the Section 83(b) Filing Requirements

If an individual makes a Section 83(b) election to include in income the value of unvested property (such as restricted stock) that is transferred in connection with the performance of services, the individual must file the…more

Filing Requirements, IRC Section 83(b), IRS, Restricted Stocks, Tax Returns

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“Patents 4 Patients”: A New Cancer Immunotherapy “Fast Track” for U.S. Patent Applicants

In connection with the White House Cancer Moonshot Initiative, the United States Patent and Trademark Office (“USPTO”) announced on June 29 that it is “Teaming Up to Cure Cancer” by establishing a new accelerated process for…more

Classen Immunotherapies, Fast Track Process, Patent Applications, Patents, USPTO

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2018 Benefit Limits

Retirement Plan Limits - The IRS updated very few of the retirement plan limits effective for the plan year that begins on or after January 1, 2018. Social Security Tax and Wage Base - For calendar year 2018, the…more

401k, 403(b) Plans, 457(b) Plans, Defined Contribution Plans, Employee Benefits

See all updates »

Congress Votes to Overturn the Consumer Financial Protection Bureau’s Arbitration Agreements Final Rule

As previously reported, the Consumer Financial Protection Bureau (CFPB or Bureau) recently issued a final rule governing agreements that provide for the arbitration of any future disputes between consumers and providers of…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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SEC Provides No-Action Relief for M&A Brokers

On January 31, the staff of the Securities and Exchange Commission (“SEC”) issued a no-action letter (“No-Action Letter”) permitting an “M&A Broker”, under certain circumstances, to facilitate mergers, acquisitions, business…more

Acquisitions, Broker-Dealer, Mergers, No-Action Letters, Privately Held Corporations

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New California Law Requires Small Employers to Provide Unpaid Baby-Bonding Leave

On October 12, 2017, California Governor Jerry Brown signed into law the New Parent Leave Act, a law that will require employers with 20-49 employees to provide up to 12 weeks of unpaid, job-protected parental leave to eligible…more

Employee Rights, Employer Liability Issues, Local Ordinance, Parental Leave, Small Employers

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FERC Proposes Rule to Open Up Wholesale Markets to Energy Storage and Distributed Energy Resource Aggregations

On November 30, 2016, the Federal Energy Regulatory Commission (FERC) published a proposed rule in the Federal Register that would allow energy storage and distributed energy resource aggregations to participate in organized…more

Energy Market, Energy Sector, Energy Storage, FERC, ISOs

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U.S. Supreme Court Halo Decision Rejects Seagate’s High Bar for Treble Damages

In a unanimous decision, on June 13, 2016, the U.S. Supreme Court rejected the CAFC Seagate “objective recklessness” standard and appeal criteria. As is its habit, the Supreme Court has thus taken away relatively clear…more

Enhanced Damages, Halo v Pulse, Patent Infringement, SCOTUS, Seagate

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General Liability Coverage for Cyber Risks Arising from "Publication" of Private Data

Cyber liability issues present constant concerns to individuals and to companies who are custodians of private data. The “hot button” issues presented range from questions regarding data theft, including identity and credit…more

Commercial General Liability Policies, Cyber Insurance, Cybersecurity, Data Protection, Insurance Industry

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California’s Automatic Renewal Law Continues to Create Class Action Risk

A recent federal district court opinion highlights the class action risks companies selling consumer goods and services in California face from California’s Automatic Renewal Law, California Business & Professions Code §17600…more

Automatic Renewals, Class Action, Consumer Contracts, Unfair Competition Law (UCL)

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Current Class-Action Issues

Though the Supreme Court has declined to address ascertainability this term (for now), it has granted petitions to resolve two other class-action issues…more

Ascertainable Class, Class Action, Class Certification, Corporate Counsel, SCOTUS

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Fiduciary Rule: June 9 & Beyond

On May 22, Department of Labor (DOL) Secretary Alexander Acosta announced that, despite President Trump’s memorandum ordering further analysis of the fiduciary investment advice rule (Fiduciary Rule), there was no legal…more

Best Interest Contract Exemptions, DOL, ERISA, Fiduciary Rule, Investment Adviser

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Are the Disability Claims Procedure Regulations Final?

The answer is most likely. In a prior post we discussed that on October 12th the Department of Labor provided for a 90-day delay to April 1, 2018. Since that time the Department of Labor reviewed whether the new regulations…more

Disability Benefits, DOL, Employer Liability Issues

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Delaware Encourages Use of “Blockchain” Technology for Corporate Recordkeeping

Amendments to the Delaware General Corporation Law (“DGCL”) allowing for the use of “distributed ledgers”, or “Blockchain” technology, for corporate recordkeeping, including stock ledgers, became effective on August 1, 2017…more

Blockchain, Delaware General Corporation Law, Distributed Ledger Technology (DLT), Financial Institutions

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U.S. Supreme Court Halo Decision Rejects Seagate’s High Bar for Treble Damages

In a unanimous decision, on June 13, 2016, the U.S. Supreme Court rejected the CAFC Seagate “objective recklessness” standard and appeal criteria. As is its habit, the Supreme Court has thus taken away relatively clear…more

Enhanced Damages, Halo v Pulse, Patent Infringement, SCOTUS, Seagate

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REO Advisor: Pre- And Post-Foreclosure Servicer Strategies To Allow For Tenant Construction Activities On Collateral Properties, As Well As The Subdivision And Subsequent Partial Sales Of Large REO Properties

This edition of the REO Advisor explores the pre- and post-foreclosure servicer strategies to allow for tenant construction activities on collateral properties, as well as the subdivision and subsequent partial sales of large…more

Borrowers, Foreclosure, REMIC, Tenants

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5 Key Takeaways: Fighting Back Against Negative Contractor Performance Assessment Report System (CPARS) Reviews

Kilpatrick Townsend’s Gunjan Talati and Chris Henel, members of the firm’s Government Contracting Team, recently presented a webinar in collaboration with Federal Publications Seminars. With over 300 in attendance, they…more

CPARS, Federal Acquisition Regulations (FAR), Federal Contractors, Federal Procurement Systems, Performance Reviews

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DOL Finalizes 18-Month Extension of Fiduciary Rule Transition Period

The Department of Labor (DOL) finalized the Fiduciary Rule’s transition period extension from January 1, 2018 to July 1, 2019, as it had previously announced in August. The DOL reported that it has not yet completed the…more

401k, DOL, ERISA, Fiduciary Rule, FINRA

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Expanded Earnings Stripping Proposed Rules Will Impact Typical Debt Push Downs

In a surprising move amidst its continuing crack down on corporate inversions, the U.S. Treasury just proposed new regulations reflecting a broadly expanded approach to the practice of earnings stripping. Because an inversion…more

Acquisitions, Inversion, IRS, Proposed Regulation, U.S. Treasury

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Revised Capital Framework for Depository Institution Holding Companies Organized as LLCs and Partnerships

The Federal Reserve Board (the “Board”) has adopted amendments to the Board’s regulatory capital framework (“Regulation Q”), that clarify how the revised regulatory capital framework applies to depository institution holding…more

Capital Markets, Corporate Counsel, Depository Institutions, ESOP, Federal Reserve

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Something for Designers to (Maybe) Cheer About: Star Athletica v. Varsity Brands

Historically, fashion designers, as well as other designers whose creative efforts are incorporated into useful/functional articles like clothing, shoes, and furniture, have struggled successfully to assert copyright protection…more

Cheerleaders, Copyright, Copyright Infringement, Fashion Design, SCOTUS

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Becoming a Unicorn Fintech by Shoring Up Intellectual Property

Investment in fintech companies is at an all-time high. “Unicorns” are start-ups that have valuations of more than 1 billion dollars. The majority of the unicorns are in the fintech industry. Fintech companies are often agile…more

Copyright, Due Diligence, FinTech, Intellectual Property Protection, Patents

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New Economy Businesses Need New Insurance: Can The Insurance Industry Keep Up?

Kilpatrick Townsend Attorney, Will Um, recently presented the “New Economy Businesses Need New Insurance: Can The Insurance Industry Keep Up?,” as a part of the ABA Insurance Coverage Litigation Committee CLE Seminar in Tucson,…more

Commercial Insurance Policies, Insurance Industry

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Guarding Against Inadvertent Disclosures in E-Discovery

Have you watched the news lately? Somewhere in between the coverage of politics, global turmoil, more politics, sports, and the absurd number of commercial breaks, there seem to be weekly, albeit very brief, reminders that your…more

Data Breach, Data Security, Disclosure, Discovery, Electronically Stored Information

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5 Takeaways: Ex Parte Appeals: A Multi-Year & Expensive Trajectory or an Allowance within 2 Months?

Kilpatrick Townsend attorneys Kate Gaudry, Ph. D. and Sameer Vadera recently presented to the Intellectual Property Owners Association (IPO) Software Related Inventions Committee regarding “Ex Parte Appeals: A Multi-Year &…more

Ex Parte, Patent Litigation, Patent Trial and Appeal Board, Patents

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Nasdaq Requires Listed Company Disclosure of Third Party Compensation Agreements with Directors and Nominees

Nasdaq has amended its listing rules to require listed companies to publicly disclose compensation or other payments by third parties to company directors or nominees for director. The new rule, which is designated as…more

Compensation Agreements, Directors, Disclosure Requirements, Nasdaq, Third-Party

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6 Key Takeaways, ACC Legal Quick Hit: Glass Half Empty or Half Full? Key Ways to Right-Size Joint IP Ownership

Kandace Watson, Kilpatrick Townsend Partner and Co-Chair of San Diego’s Association of Corporate Counsel Technology and Licensing Roundtable, recently led an interactive webinar titled “Legal Quick Hit: Glass Half Empty or Half…more

Confidentiality Agreements, IP License

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5 Key Takeaways: Patent Strategies Applicable for Repurposing & Rescuing of Drugs

Kilpatrick Townsend Partner Ken Weber, Ph.D. recently presented “The Role of Patents in Repurposing and Rescuing Old Drugs” at the STC 2017 Spring Seminar Series in Albuquerque, New Mexico. This presentation defined the role…more

Patents, Pharmaceutical Industry, Pharmaceutical Patents

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Supreme Court Confirms Expansive View of Insider Trading

Perhaps the most serious charge that could be leveled against a reader of this blog is that of being engaged in or associated with “insider trading.” The allegation alone is enough to derail or end a promising career. …more

Confidential Information, Corporate Executives, Criminal Convictions, Dirks v SEC, Insider Trading

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FDA Issues New Guidance on IRB Waiver or Alteration of Informed Consent for Minimal Risk Clinical Investigations

As July comes to an end, the Food and Drug Administration (FDA or agency) has issued a new guidance document for “immediate implementation” entitled “IRB Waiver or Alteration of Informed Consent for Clinical Investigations…more

Clinical Trials, FDA, Human Rights, Informed Consent, Medical Research

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U.S. Copyright Office Creates New Registration Process for DMCA Agents

Under the Digital Millennium Copyright Act (DMCA), website operators and other Internet Service Providers (collectively, ISPs) can obtain protection from liability for copyright infringement claims based on the material…more

Copyright, Copyright Infringement, Copyright Office, DMCA, Internet Service Providers (ISPs)

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Brexit — What IP Rights Holders Need to Understand Now

It is neither quick nor easy for a nation to leave the European Union (EU), and there is little precedent for it, especially for a nation such as the United Kingdom (UK), one of the major economic and political leaders within…more

Community Designs, EU, European Patent Office, European Union Trade Mark (EUTM), Member State

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Menu Labeling Update: Plans On-Track for Implementation in May 2018

On November 7, 2017, the U.S. Food and Drug Administration (FDA or the Agency) released the much-anticipated draft supplemental guidance, “Menu Labeling: Supplemental Guidance for Industry” (Draft Guidance). The Draft Guidance…more

FDA, Grocery Stores, Menu-Labeling, Restaurant Industry, Retail Market

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Is Discovery That Section 8 Affidavits Were Not Filed By The Owner Of The Registration Grounds For Cancellation? N.D.Cal Rules “No.”

CASE SUMMARY - Every trademark lawyer knows that between the fifth and sixth year after registration the trademark owner must file an affidavit of use. If the mark has been in continuous use, the owner may also file an…more

Trademark Litigation, Trademark Office, Trademark Registration, Trademarks

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