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Boston, MA 02109, United States
Phone: 617-526-6000
Fax: 617-526-5000
Areas Of Practice
  • Alternative Dispute Resolution (ADR)
  • Antitrust & Trade Regulation
  • Appellate Practice
  • Bankruptcy
  • Criminal Law
  • Energy & Utilities
  • Environmental Law
  • Finance & Banking
  • Government
  • Intellectual Property
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
  • Real Estate
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
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Locations
Other U.S. Locations
  • California
  • Colorado
  • D.C.
  • Massachusetts
  • New York
  • Ohio
Other Countries
  • Belgium
  • China
  • Germany
  • United Kingdom
Number of Attorneys
1,000+ Attorneys

Nasdaq Proposes Board Diversity Rules

On December 1, 2020, Nasdaq filed a proposal with the SEC to adopt Rules 5605(f) and 5606 regarding board diversity and board composition disclosure, respectively. Nasdaq believes that these new rules, if approved by the SEC,…more

Board of Directors, Corporate Governance, Directors, Diversity, LGBTQ

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District Court Dismisses FTC’s “Unfairness” Claim Against Internet of Things Manufacturer

A district court judge has dismissed an “unfairness” claim included in the FTC’s complaint against D-Link, a connected devices manufacturer selling routers and internet-connected cameras. The FTC had made the claim without…more

Connected Cars, Corporate Counsel, Cybersecurity, Dismissals, Federal Trade Commission (FTC)

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In Case You Missed It: Launch Links - October 2020 #4

Some interesting links we found across the web this week: Venus Williams’ Advice For Entrepreneurs: Don’t Let Fear Take Over - Just Push Through It - Tennis champion and Olympic gold medalist Venus Williams has some…more

Coronavirus/COVID-19, Corporate Financing, Early Stage Companies, Entrepreneurs, Private Equity

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2021 Venture Capital Report

Despite the arrival of the COVID-19 pandemic in early 2020 and the ensuing economic dislocation, venture capital financing proceeds, median amount raised, and median pre-money valuation all increased from 2019 levels, although…more

Acquisitions, Capital Raising, Corporate Financing, Early Stage Companies, Entrepreneurs

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Supreme Court Rejects Heightened Harm Requirement In Title VII Discrimination Case

On April 17, 2024, the U.S. Supreme Court ruled in Muldrow v. City of St. Louis, Missouri that an employee challenging a job transfer under Title VII of the Civil Rights Act of 1964, as amended, must show only that the transfer…more

Civil Rights Act, Employee Transfers, Employer Liability Issues, Employment Litigation, Hiring & Firing

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CETA’s dispute settlement mechanism compatible with EU law - a closer look at the CJEU’s opinion

Is the Court of Justice Opinion 1/17, in response to Belgium’s concerns over the compatibility of the Comprehensive Economic Trade Agreement (CETA) Tribunals and EU law, a further step towards investor-state dispute settlement…more

Arbitration, Canada, CETA, Court of Justice of the European Union (CJEU), Dispute Resolution

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2023 Trade Secret Update: A Look Back at Recent Trade Secret Developments

Trade secret identification remains a hot button issue. Notwithstanding years of commentary and a statutory framework for trade secret identification in some states, including California, courts across the country continue to…more

Intellectual Property Protection, Misappropriation, Trade Secrets

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DOJ Announces Pilot Whistleblower Rewards Program and Increased AI Enforcement

On March 7, 2024, Deputy Attorney General Lisa Monaco announced Department of Justice (DOJ) initiatives to incentivize whistleblowers with payouts from civil or criminal forfeitures and to integrate artificial intelligence (AI)…more

Artificial Intelligence, CFTC, Corporate Crimes, Criminal Prosecution, Department of Justice (DOJ)

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Revised Swiss Rules of Arbitration

The Swiss Arbitration Centre (formerly known as the Swiss Chambers’ Arbitration Institution (SCAI)) has released revised arbitration rules, which are effective as of 1 June 2021 and apply to arbitration proceedings commenced on…more

Amended Regulation, Arbitration, Arbitrators, Commercial Arbitration, Dispute Resolution

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White House Orders New Rules on U.S. Outbound Investment

The Biden Administration has issued its long-awaited Executive Order on Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern (“EO”), which will create a new…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, China, Cybersecurity, Executive Orders

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Latin America Anti-Bribery Year-in-Review: 2020 Developments and Predictions for 2021 (Spanish version)

A pesar de los impactos de la pandemia del COVID-19, 2020 fue un año activo no solo para la aplicación de la Ley de Prácticas Corruptas Extranjeras (Foreign Corrupt Practices Act, FCPA), sino también para la lucha contra la…more

Anti-Bribery, Anti-Corruption, Argentina, Brazil, Central America

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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Upcoming Deadlines for Reporting 2023 Incentive Stock Option Exercises and ESPP Stock Transfers

Section 6039 of the Internal Revenue Code (Section 6039) requires corporations to file returns with the Internal Revenue Service (IRS) and provide information statements to employees reporting exercises of incentive stock…more

Electronic Filing, Employee Benefits, ESOP, Filing Deadlines, Incentive Compensation

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A Conversation on Diversity, Equity and Inclusion

WilmerHale podcast co-hosts and Partners Brendan McGuire and John Walsh welcome Partner Brittany Amadi, who is joined by guests Malini Moorthy and Ajit Narang to discuss diversity, equity and inclusion efforts at Medtronic…more

Corporate Culture, Diversity, Diversity and Inclusion Standards (D&I), Leadership

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COVID-19: The Virus Creates New Regulatory Priorities and Litigation Risks for Public Companies and Market Participants

COVID-19 has had an unprecedented effect on the securities and derivatives markets. Public companies and market participants face significant operational challenges and unpredictability, including evolving and novel regulatory…more

CFTC, Corporate Governance, Derivatives, Enforcement, Publicly-Traded Companies

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COVID-19: New York to Strengthen Its Price-Gouging Law as Its Attorney General Targets Price Gouging in Upstream Sales

The coronavirus pandemic has continued to spur shortages of and price increases for necessities such as medical equipment, cleaning supplies and paper products. Prosecutors and regulators at the federal, state and local levels…more

Coronavirus/COVID-19, Legislative Agendas, Price Gouging, State Attorneys General, Supply Chain

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Juniper FCPA Settlement Provides Useful Compliance Reminders

On August 29, 2019, the Securities and Exchange Commission (“Commission” or “SEC”) agreed to resolve an enforcement action against Juniper Networks, Inc. (“Juniper” or the “Company”), a Silicon Valley-based cybersecurity and…more

Bribery, Cease and Desist Orders, China, Civil Monetary Penalty, Compliance

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In Case You Missed It: Launch Links - December 2018

Some interesting links we found across the web this week: 3 Blind Spots That Will Sink Your Startup - Forbes highlights three blind spots that could lead to your company’s failure, and they all relate to you as the…more

Crowdfunding, Entrepreneurs, Startups, Strategic Planning

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Final Section 162(f) Regulations Liberalize Opportunities to Deduct Disgorgement and Other Payments Made in Government Investigations

On January 12, 2021, the Internal Revenue Service (IRS) and the Treasury Department released final regulations governing the deductibility of certain fines, penalties and other amounts paid to, or at the direction of, a…more

Disgorgement, Final Rules, Forfeiture, Government Investigations, IRS

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Patent Owners’ Options After Claims Are Cancelled in AIA Post-Grant Proceedings

The America Invents Act (AIA) instituted sweeping changes in U.S. patent law, including creating new proceedings for third parties to challenge an issued patent before the Patent Trial and Appeal Board (PTAB). These new…more

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

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Preparing for New Cybersecurity Disclosures

Public companies will soon be required to provide increased transparency about cybersecurity incidents, risk management, strategy and governance as a result of new rules adopted by the Securities and Exchange Commission (the…more

Corporate Governance, Cyber Incident Reporting, Cybersecurity, Disclosure Requirements, Final Rules

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Chambers Global Practice Guides - International Arbitration 2023 - England & Wales

In 2023, the international arbitration landscape is dominated by macroeconomic factors. The inflationary pressures combined with price volatility and the use of sanctions by governments following Russia’s invasion of Ukraine…more

Arbitration, Arbitration Agreements, Arbitration Awards, Commercial Arbitration, Confidential Communications

See all updates »

Time Is Money: Historical Strip Prices and Valuation in Oil & Gas Bankruptcies

Timing is key to valuation of all types and in all contexts. But in bankruptcy, valuation timing can take on heightened importance because a central element of bankruptcy involves distributing value as of a specific point in…more

Asset Valuations, Business Valuations, Chapter 11, Commercial Bankruptcy, Creditors

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CFTC 2022 Enforcement and Regulatory Developments and a Look Forward

The year 2022 was a historic year for the Commodity Futures Trading Commission (“CFTC” or the “Commission”). Just four days into the new year, on January 4, 2022, Rostin Behnam was sworn in as the CFTC’s 15th Chairman. Three…more

CFTC, Cryptoassets, Decentralized Finance (DeFi), Enforcement, Enforcement Actions

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In Case You Missed It: Launch Links - November 2021 #3

Some interesting links we found across the web this week: Startups, This Is What You Should Be Asking Investors For Outside Of Capital - All investors, including those without deep pockets, may provide value beyond…more

Accelerators, Capital Raising, Early Stage Companies, Entrepreneurs, Investors

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NY Appellate Division Confirms Narrow Scope of the Manifest Disregard Doctrine

A recent decision of the Appellate Division reaffirms the extreme skepticism with which claims of “manifest disregard of the law” are viewed by New York courts in the context of applications to vacate international arbitral…more

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Looking Forward After the SEC’s Victory in “Shadow Trading” Case

This month the SEC secured a jury trial victory in its much-discussed “shadow trading” case in SEC v. Panuwat. As we have described in a prior alert, the term “shadow trading” has been used to refer to trading in the securities…more

Breach of Duty, Insider Trading, Jury Trial, Material Nonpublic Information, Pfizer

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COVID-19: Examining State Work-From-Home and Shelter-in-Place Orders - Issues and Trends As We Enter Month Two

In response to the COVID-19 pandemic, governors of 49 states have issued executive orders restricting operations or closing categories of businesses and/or requiring residents to shelter-in-place. These orders vary…more

Business Closures, Coronavirus/COVID-19, Enforcement, Remote Working, Shelter-In-Place

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SEC Reaches Settlement with Blackbaud Over Inadequate Disclosure Controls

On March 9, 2023, the Securities and Exchange Commission (SEC) reached a settlement with Blackbaud – a client relationship management (CRM) service provider for nonprofits – over allegations that Blackbaud (i) made materially…more

Disclosure Requirements, Enforcement Actions, Material Misstatements, Ransomware, Securities and Exchange Commission (SEC)

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Monitoring Mobility - The Current and Future Regulatory Landscape for Advanced Automotive Tech

This is the fourth article in a series of five articles written by WilmerHale lawyers discussing how the emergence of IoT technologies will impact the automotive industry. The first article, ‘‘The Developing Landscape of…more

Automotive Industry, California Consumer Privacy Act (CCPA), Connected Cars, Data Collection, Data Security

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The SECs Fixed Income Market Structure Advisory Committee Approves Two New Recommendations

The Securities and Exchange Commission’s (SEC) Fixed Income Market Structure Advisory Committee (FIMSAC) held its latest meeting on February 10, 2020. The SEC formed FIMSAC to provide advice to the SEC on the efficiency and…more

Advisory Committee, Corporate Bonds, Financial Industry Regulatory Authority (FINRA), Fixed Income Investments, MSRB

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Supreme Court Holds That False Claims Act Requires Subjective Inquiry

On June 1, 2023, the Supreme Court decided a pair of closely watched False Claims Act (FCA) cases, U.S. ex rel. Schutte v. SuperValu Inc., No. 21-1326, and U.S. ex rel. Proctor v. Safeway, Inc., No. 22-111…more

Drug Pricing, False Claims Act (FCA), Materiality, Medicaid, Medicare

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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SEC Enforcement Director Warns Against AI Washing

On April 15, 2024, Gurbir S. Grewal, Director of the SEC’s Division of Enforcement, spoke at a compliance and enforcement conference regarding the challenges and potential missteps associated with the increased use of artificial…more

Artificial Intelligence, Corporate Governance, Cybersecurity, Disclosure Requirements, Registered Investment Advisors

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Ready to Report: Complying with FinCEN’s New Beneficial Ownership Rule Under the CTA

Although the Corporate Transparency Act’s (“CTA”) new beneficial ownership rule goes into effect on January 1, 2024, recent polling suggests that many businesses remain either unaware of these upcoming reporting obligations or…more

AML/CFT, Beneficial Owner, Compliance, Corporate Governance, Corporate Transparency Act

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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Year in Review: Top 2023 Data Breach Litigation Trends

One of the main risks that a company faces after a data breach is a potential lawsuit. Plaintiffs often will allege creative statutory and common law theories of harm after they learn that their personal information has been…more

Article III, Corporate Counsel, Damages, Data Breach, Emotional Distress Damages

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Infrastructure Series: Fast-Tracking Electric Transmission Infrastructure

This is the third issue of WilmerHale's 10-in-10 Infrastructure Series. In this series, our attorneys will share insights on current and emerging issues affecting infrastructure project developers in the United States…more

Critical Infrastructure Sectors, Department of Energy (DOE), Electricity, Eminent Domain, Energy Projects

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2024 IPO Report

Pessimism surrounding the Federal Reserve’s interest rate hikes, combined with subdued business and consumer confidence as well as geopolitical concerns, weighed heavily on the IPO market in 2023. With 117 IPOs in 2023…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Listing Rules, Publicly-Traded Companies

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Avoiding Inadvertent Privilege Waivers In E-Communications

An evolution in how courts interpret the confidentiality prong of the attorney-client privilege, which requires that both the client and attorney have an expectation of confidentiality in the communication for which the client…more

Attorney-Client Privilege, Electronic Communications, Email, Privilege Waivers, Third-Party

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Corporate Sustainability Due Diligence Directive: Final Sprint to the Finish Line

The EU legislature has finally reached an agreement on the text of the Corporate Sustainability Due Diligence Directive (CS3D) (see here our previous client alert). The CS3D profoundly affects the ways companies active in Europe…more

Corporate Governance, Corporate Social Responsibility, Due Diligence, Environmental Social & Governance (ESG), Human Rights

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Private Equity Firms, the Healthcare Industry, and the FCA: The “Butterfly Effect” in Action?

When Riordan, Lewis & Haden Inc. (RLH), a private equity firm, found itself ensnared in a False Claims Act (FCA) litigation for its role in a prescription drug kickback scheme orchestrated by one of its portfolio companies, it…more

Best Practices, Board of Directors, Corporate Governance, Corporate Liability, Enforcement Actions

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SEC Brings Two More “AI Washing” Enforcement Actions Against Investment Advisers, Continuing Its Pursuit of Misstatements Related to AI

On March 18, 2024, the Securities and Exchange Commission (SEC or the Commission) announced settled charges against two investment advisers, Delphia (USA) Inc. and Global Predictions, Inc., for making false and misleading…more

Artificial Intelligence, Civil Monetary Penalty, Enforcement Actions, Investment Adviser, Material Misstatements

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What High Court Will Consider in Helsinn On-Sale Bar Case

The U.S. Supreme Court may soon resolve an issue that has sparked much debate since the enactment of the Leahy-Smith America Invents Act — namely, whether under the AIA, an inventor’s sale of an invention to a third party that…more

America Invents Act, On-Sale Bar, Oral Argument, Patent Litigation, Patents

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January 2022 Changes to the Stark Law That Impact Group-Practice Physician Compensation

At the beginning of the year, the Department of Health and Human Services (HHS) issued new Stark Law regulations that affect how physician practices may share profits and that clarify how they may pay productivity bonuses. These…more

Amended Regulation, Compliance, Department of Health and Human Services (HHS), Physicians, Stark Law

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Global Anti-Bribery Year-in-Review: 2022 Developments and Predictions for 2023

While Foreign Corrupt Practices Act (FCPA) enforcement activity has not come close to returning to the heights seen a few years ago, 2022 reflected significant increases from the prior year in both the number of cases against…more

Anti-Bribery, Anti-Corruption, Bribery, CFTC, Compliance

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Treasury Releases Long-Awaited Sanctions Policy Review

The US Treasury Department has released its 2021 Sanctions Review (the “Review”), which describes the US sanctions framework and the agency’s future sanctions priorities. The Review reflects on the evolution over two decades of…more

China, Corporate Counsel, Economic Sanctions, EU, Hong Kong

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The Art of Projecting Budgets for Litigation Alternative Fee Arrangements

Predicting the future has become a critical skill for lawyers—at least when it comes to budgeting for case work. Clients want as much certainty as possible for planning and allocating legal expenses, which inherently carry…more

Alternative Fee Arrangements, Client Services, Law Practice Management, Legal Fees, Legal Project Management

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EPA Limits State and Tribal Authority Under Section 401 of the Clean Water Act

On June 1, 2020, the US Environmental Protection Agency (“EPA”) announced a final rule narrowing the ability of states and Indian tribes to formally object to federally permitted projects based on state water quality standards…more

Certification Requirements, Clean Water Act, Environmental Protection Agency (EPA), Land-Use Permits, Real Estate Development

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2018 M&A Report

Despite generally favorable macroeconomic conditions, high levels of cash among strategic acquirers and low interest rates, the number of reported M&A transactions and deal value worldwide both declined for the second…more

Acquisitions, Cross-Border Transactions, Entire Fairness Standard, Foreign Corrupt Practices Act (FCPA), Mergers

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Supreme Court Holds That False Claims Act Requires Subjective Inquiry

On June 1, 2023, the Supreme Court decided a pair of closely watched False Claims Act (FCA) cases, U.S. ex rel. Schutte v. SuperValu Inc., No. 21-1326, and U.S. ex rel. Proctor v. Safeway, Inc., No. 22-111…more

Drug Pricing, False Claims Act (FCA), Materiality, Medicaid, Medicare

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Prohibited AI Practices - A Deep Dive into Article 5 of the European Union’s AI Act

This blog post focuses on Artificial Intelligence (AI) practices prohibited under the EU AI Act. Article 5 of the AI Act essentially prohibits AI practices that materially distort peoples’ behavior or that raise serious concerns…more

Artificial Intelligence, Enforcement, EU, European Commission, Law Enforcement

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House Passes Historic SAFE Banking Act

The US House of Representatives recently passed the Secure and Fair Enforcement (SAFE) Banking Act, H.R. 1595 (the Act), which, if it becomes law, would have far-reaching implications for financial institutions considering…more

Cannabidiol (CBD) oil, Controlled Substances Act, Criminal Proceeds, Depository Institutions, Dispensaries

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DOJ Issues Updated Guidance on Evaluation of Corporate Compliance Programs

On April 30, 2019, the Assistant Attorney General for the Criminal Division, Brian A. Benczkowski, announced an update to the Department of Justice’s (“DOJ”) 2017 guidance document entitled Evaluation of Corporate Compliance…more

Acquisitions, Chief Compliance Officers, Compliance, Corporate Culture, Corporate Governance

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Nestle USA, Inc. v. Doe: Supreme Court Clarifies US Corporate Liability for Human Rights Violations Overseas

In a decision issued June 17, the US Supreme Court further limited the ability of plaintiffs to seek redress in US courts for human rights abuses that occur overseas, but did not go as far in restricting those suits as some had…more

Alien Tort Statute, Cargill, Cargill Inc. v Doe I, Extraterritoriality Rules, Human Rights

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DOJ Significantly Limits the Use of Supplemental Environmental Projects

The US Department of Justice (DOJ) Environment and Natural Resources Division has announced a major overhaul in the use of Supplemental Environmental Projects (SEPs) - a key penalty mitigation approach commonly used in…more

Department of Justice (DOJ), Environmental Liability, Environmental Litigation, Policy Memorandums, Settlement Agreements

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Biden Administration Provides Guidance on Advancing Diversity in Higher Education Following the Supreme Courts Decision in Harvard/UNC Affirmative Action Cases

On August 14, 2023, the Biden Administration released its first guidance on how institutions of higher education may lawfully pursue efforts to recruit and admit diverse student bodies in light of the Supreme Court’s recent…more

Affirmative Action, Biden Administration, Civil Rights Act, Colleges, Department of Education

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FTC Staff Releases Paper Highlighting Key Privacy and Security Issues for Autonomous and Connected Vehicles

The Federal Trade Commission Staff (FTC) released a new “Staff Perspective” on January 9, 2018, that highlights key privacy and data security issues related to autonomous and connected vehicles. The Staff Perspective outlines…more

Automotive Industry, Connected Cars, Cybersecurity, Driverless Cars, Federal Trade Commission (FTC)

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Precedential Opinion Panel Clarifies Reasonable Likelihood Standard for Printed Publications at the Institution Stage of Post-Grant Proceedings

On December 20, 2019, the Precedential Opinion Panel (POP) of the Patent Trial and Appeal Board (PTAB) issued its decision in IPR2018-01039, addressing “What is required for a petitioner to establish that an asserted reference…more

Administrative Appeals, Final Written Decisions, Hulu, Inter Partes Review (IPR) Proceeding, Litigation Strategies

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How Claims Court Ruling May Expand Bid Protest Avenues

The U.S. Court of Federal Claims' willingness to accept jurisdiction over what are ostensibly Other Transaction Authorities, or OTAs, surfaced again this month in Hydraulics International Inc. v. U.S., where the court found…more

Bid Protests, Court of Federal Claims, Federal Contractors, Federal Procurement Systems, GAO

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Supreme Court Holds that TTAB Decisions May Have Preclusive Effect, Raising Stakes for Trademark Agency Proceedings

On March 24, the US Supreme Court issued a decision that is likely to raise the stakes of proceedings before the Trademark Trial and Appeal Board (TTAB). In B&B Hardware, Inc.v. Hargis Industries, Inc., No. 13-352 (March 24,…more

B&B Hardware v Hargis Industries, Issue Preclusion, Likelihood of Confusion, Popular, SCOTUS

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CFTC Year in Review: 23 Takeaways From 2023 and Predictions for 2024

At an industry event in early 2023, Commodity Futures Trading Commission (CFTC or the Commission) Chairman Rostin Behnam set out a comprehensive agenda to include nearly three dozen rulemaking proposals as well as “business as…more

Asset Class, CFTC, Commodities, Compliance, Conflicts of Interest

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Strategies For Navigating Compliance Monitorships

The imposition of an independent compliance monitor continues to be a favored tool of the government in resolving corporate enforcement matters. Indeed, in 2022, both the U.S. Department of Justice and the U.S. Securities…more

Chief Compliance Officers, Compliance, Compliance Monitoring, Department of Justice (DOJ), Risk Management

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SEC Enforcement Actions Reflect Expansion of SEC’s AML Compliance Focus: Broker-Dealers, Investment Advisers, Registered Investment Companies and Individuals Must Take Note

The Securities and Exchange Commission (SEC) recently announced anti-money laundering (AML)-related charges against an individual registered representative for failing to escalate red flags of potentially suspicious activity, as…more

Anti-Money Laundering, Compliance, Enforcement Actions, FinCEN, Investment Adviser

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Navigating China’s Data Security Laws in US Discovery

The enactment of China’s Cybersecurity Law (CSL), Data Security Law (DSL), and Personal Information Protection Law (PIPL, together with the CSL and the DSL, “Data Security Laws”) has significantly reshaped the landscape of data…more

China, Cybersecurity, Data Privacy, Data Processors, Data Security

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The Coronavirus Aid, Relief, and Economic Security (CARES) Act - Oversight Authorities and Managing New Risks

On March 27, the President signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The $2 trillion stimulus package is the largest in American history and will make available hundreds of billions of…more

CARES Act, Coronavirus/COVID-19, Financial Stimulus, Relief Measures

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The Article 29 Working Party Releases Draft Guidelines on the Application and Setting of Administrative Fines

One of the key components of the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) is its stronger enforcement mechanisms. Administrative fines are one of the most powerful parts of the enforcement toolbox…more

Administrative Fines, Article 29 Working Party (WP29), Corporate Counsel, Draft Guidance, EU

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In Case You Missed It: Launch Links - March 2022

Some interesting links we found across the web this week: What Current Series B Trends Say About the US Startup Scene - Series B rounds are getting larger - last year, the average Series B round totaled $45 million, a…more

Early Stage Companies, Entrepreneurs, Startups

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PWG Report on Stablecoins - Implications for the Regulatory Environment

On November 1, 2021, the President’s Working Group on Financial Markets (PWG) - along with the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC) - published the Report on…more

Anti-Money Laundering, Blockchain, CFTC, Cross-Border, Cryptocurrency

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FTC/DOJ Guidance to Human Resource Professionals - Enforcement Scrutiny of Employment-Related Conduct

Last month, the Federal Trade Commission (FTC) and Department of Justice (DOJ) issued their Antitrust Guidance for Human Resource Professionals. The HR Guidance reflects the agencies' enhanced scrutiny in a realm that may not…more

Antitrust Violations, Criminal Prosecution, Department of Justice (DOJ), Federal Trade Commission (FTC), Hiring & Firing

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The 5th Amendment In Civil Practice: 3 Big Considerations

The right to remain silent and not testify at your own criminal trial is well known within the legal community and among the public. A defendant “taking the fifth” has been depicted in movies and television shows, and reported…more

Adverse Inference Instructions, Criminal Procedure, Fifth Amendment, Rules of Civil Procedure, Testimony

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Supreme Court Limits Scope of Omission Liability Under Section 10(b)

On April 12, 2024, the U.S. Supreme Court took a significant step to curb securities fraud suits based on alleged omissions in SEC filings. The Supreme Court held in Macquarie Infrastructure Corporation v. Moab Partners, L.P…more

Disclosure Requirements, Macquarie Infrastructure Corp v Moab Partners LP, Omissions, Regulation S-K, Rule 10(b)

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COVID-19: Renewed Interest by Public Companies in NOL Rights Plans

As we reported in COVID-19: Revisiting Shareholder Rights Plans, the turmoil in U.S. equity markets created by the COVID-19 pandemic has resulted in many companies facing depressed stock prices, leaving them vulnerable to…more

Coronavirus/COVID-19, Financial Markets, Net Operating Losses, Poison Pill, Publicly-Traded Companies

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Department of Justice Issues Voluntary Self-Disclosure Policy for Corporate Criminal Enforcement Applicable to U.S. Attorneys’ Offices Nationwide

On February 22, 2023, the Department of Justice (DOJ) issued a Voluntary Self-Disclosure Policy (VSDP) which, effective immediately, applies to all U.S. Attorneys’ Offices (USAOs) nationwide with respect to corporate criminal…more

Compliance, Corporate Criminal Fines, Corruption, Department of Justice (DOJ), Enforcement

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2023 Trade Secret Update: A Look Back at Recent Trade Secret Developments

Trade secret identification remains a hot button issue. Notwithstanding years of commentary and a statutory framework for trade secret identification in some states, including California, courts across the country continue to…more

Intellectual Property Protection, Misappropriation, Trade Secrets

See all updates »

The Time Is Now: Leading the Charge for Lawyer Well-Being

PD professionals can play a leadership role in the transformation of legal culture by following these practical suggestions for implementing well-being policies and practices in the law firm environment. In the mid-1880s it…more

Corporate Culture, Firm Leadership, Law Firm Partners, Law Practice Management

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A Secret On Sale: When Trade Secrecy and Invention Disclosure Collide

You have invented a process for manufacturing a high-potency artificial sweetener. You are now faced with a critical business decision: how do you protect your intellectual property? You could keep your process a closely guarded…more

Administrative Law Judge (ALJ), America Invents Act, Intellectual Property Protection, International Trade Commission (ITC), On-Sale Bar

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Legal Mechanics of Organizing Corporations

The legal mechanics of organizing corporations encompass a variety of corporate, tax, securities and business considerations. By anticipating the special problems and situations which are likely to arise in the course of the…more

Business Formation, Corporate Governance, Entrepreneurs, Startups

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Chambers Global Practice Guides - International Arbitration 2023 - England & Wales

In 2023, the international arbitration landscape is dominated by macroeconomic factors. The inflationary pressures combined with price volatility and the use of sanctions by governments following Russia’s invasion of Ukraine…more

Arbitration, Arbitration Agreements, Arbitration Awards, Commercial Arbitration, Confidential Communications

See all updates »

Latin America Anti-Bribery Year-in-Review: 2020 Developments and Predictions for 2021 (Spanish version)

A pesar de los impactos de la pandemia del COVID-19, 2020 fue un año activo no solo para la aplicación de la Ley de Prácticas Corruptas Extranjeras (Foreign Corrupt Practices Act, FCPA), sino también para la lucha contra la…more

Anti-Bribery, Anti-Corruption, Argentina, Brazil, Central America

See all updates »

2018 M&A Report

Despite generally favorable macroeconomic conditions, high levels of cash among strategic acquirers and low interest rates, the number of reported M&A transactions and deal value worldwide both declined for the second…more

Acquisitions, Cross-Border Transactions, Entire Fairness Standard, Foreign Corrupt Practices Act (FCPA), Mergers

See all updates »

Courts Fight Back Against Rising Tide of Federal Disclosure Suits

In the past few years, there has been a dramatic rise in the number of M&A disclosure lawsuits filed in federal court. Recently, courts have begun to fight back against this nuisance litigation using different approaches…more

Acquisitions, Board of Directors, Breach of Duty, Disclosure-Based Settlements, Failure To Disclose

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The U.S. Supreme Court Rules That U.S. Discovery Under 28 U.S.C. 1782 Is Unavailable For Use in Most International Arbitrations

On 13 June 2022, in ZF Automotive v. Luxshare, the U.S. Supreme Court held unanimously that 28 U.S.C. § 1782 does not allow discovery for use in most international arbitral proceedings. The Supreme Court held that only…more

28 U.S.C. § 1782, AlixPartners LLP v The Fund for Protection of Investors Rights in Foreign States, Arbitration, Business Disputes, Business Litigation

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LIBOR Fallback to Prime May Increase Corporate Loan Costs

The London Interbank Offered Rate (LIBOR) officially ceased to be published on June 30, 2023. The change comes after almost 40 years of LIBOR serving as the principal benchmark rate for trillions of dollars of various financial…more

Benchmarks, Commercial Loans, Financial Institutions, Financial Markets, Interest Rates

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Closed List Arbitrator Appointments: A Case Study

The Selection of international arbitrators is one of the most important aspects of the arbitral process. Established methods span from the selection of arbitrators by agreement between the parties to the selection by…more

Arbitrator Selection Disputes, Arbitrators, Commercial Arbitration, EU, Germany

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2021 Venture Capital Report

Despite the arrival of the COVID-19 pandemic in early 2020 and the ensuing economic dislocation, venture capital financing proceeds, median amount raised, and median pre-money valuation all increased from 2019 levels, although…more

Acquisitions, Capital Raising, Corporate Financing, Early Stage Companies, Entrepreneurs

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Prohibited AI Practices - A Deep Dive into Article 5 of the European Union’s AI Act

This blog post focuses on Artificial Intelligence (AI) practices prohibited under the EU AI Act. Article 5 of the AI Act essentially prohibits AI practices that materially distort peoples’ behavior or that raise serious concerns…more

Artificial Intelligence, Enforcement, EU, European Commission, Law Enforcement

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Recent Pay-to-Play Settlement: Notwithstanding a Strong Dissent Over 206(4)-5 Overbreadth, the Need for Strong Compliance Policies Persists

With political campaign activity ramping up as the fall elections approach, the Securities and Exchange Commission (SEC) has indicated it will continue stringent enforcement of Investment Advisers Act Rule 206(4)-5 (the…more

Broker-Dealer, Compliance, Enforcement, Enforcement Actions, Investment Adviser

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2018 Venture Capital Report

The venture capital market rebounded in 2017, with an uptick in deal flow, an increase in financing sizes, soaring proceeds and a record high median premoney valuation. The $73.2 billion invested into the US venture capital…more

Capital Raising, Corporate Financing, Debt-Equity, Entrepreneurs, Equity Financing

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Department of Justice Issues Voluntary Self-Disclosure Policy for Corporate Criminal Enforcement Applicable to U.S. Attorneys’ Offices Nationwide

On February 22, 2023, the Department of Justice (DOJ) issued a Voluntary Self-Disclosure Policy (VSDP) which, effective immediately, applies to all U.S. Attorneys’ Offices (USAOs) nationwide with respect to corporate criminal…more

Compliance, Corporate Criminal Fines, Corruption, Department of Justice (DOJ), Enforcement

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Preparing for New Issuer Repurchase Disclosures

In May 2023, the Securities and Exchange Commission (SEC) amended its rules to significantly increase the disclosures public companies must make about repurchases of their equity securities. The recent amendments are the latest…more

10b5-1 Plans, Corporate Governance, Disclosure Requirements, Equity Securities, Insider Trading

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Texas Claim of Immigration Invasion Buckles Under Constitution

Is Texas at “war”? And, if so, may Texas take immigration enforcement into its own hands in “self-defense”? These are among the provocative questions raised by United States v. Texas . Texas may not like the answers it’s likely…more

Appellate Review, Constitutional Challenges, Enforcement, Governor Abbott, Immigration Procedures

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The National Rapid Response Strike Force: Reinforcing DOJ’s Commitment to Targeting Health Care Fraud

Last week, the United States Department of Justice (“DOJ”) announced the creation of the National Rapid Response Strike Force (“NRR Strike Force”) within the DOJ’s Health Care Fraud Unit. The announcement was made in connection…more

Criminal Prosecution, Department of Justice (DOJ), Enforcement Actions, Health Care Providers, Healthcare Fraud

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GAO Bid Protest

On September 24, 2020, the Government Accountability Office (GAO) sustained a protest brought by Teledyne Brown Engineering Inc. (Teledyne) against the $651.6 million National Aeronautics and Space Administration (NASA) Marshall…more

Bid Protests, Conflicts of Interest, Contract Termination, Federal Contractors, Federal Procurement Systems

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SEC Enforcement Director Warns Against AI Washing

On April 15, 2024, Gurbir S. Grewal, Director of the SEC’s Division of Enforcement, spoke at a compliance and enforcement conference regarding the challenges and potential missteps associated with the increased use of artificial…more

Artificial Intelligence, Corporate Governance, Cybersecurity, Disclosure Requirements, Registered Investment Advisors

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COVID-19: A Second Look at Securities Act Litigation Amid COVID-19

This article follows an earlier Client Alert titled COVID-19: An Early Look at Securities Act Litigation Amid COVID-19. In that alert, we anticipated that there would be an increase in Securities Act filings involving claims…more

Class Action, Coronavirus/COVID-19, Corporate Counsel, Corporate Governance, Enforcement Actions

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Weekly COVID-19 Oversight & Enforcement Report - November 2020 #3

The Congressional Oversight Commission issued a statement on the Secondary Market Corporate Credit Facility (SMCCF), noting that the SMCCF “is still purchasing approximately $20 million worth of corporate bonds per day. The…more

Cal-OSHA, Congressional Committees, Coronavirus/COVID-19, Department of Justice (DOJ), Enforcement Actions

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EU Foreign Subsidies Regime: Publication of Final Implementing Regulation

The EU’s Foreign Subsidies Regulation (FSR) was adopted in late 2022. Its stated aim is to combat the effects of competitive distortions caused by foreign subsidies in the EU internal market and thereby level the playing field…more

Competition, EU, European Commission, European Merger Control Regulation, Foreign Subsidies

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SEC Confirms Certain ICOs Are Securities Offerings; Regulators Renew Focus on Cryptocurrencies

What Is an ICO? An ICO, or initial coin offering, is the sale of virtual coins or tokens, often as a means of capital raising by startup companies that are involved in blockchain technology. Depending on the terms of the…more

Bitcoin, Blockchain, Cryptocurrency, Howey, Initial Coin Offering (ICOs)

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DOJ Announces Significant Guidance on Compliance, Compensation, Communications and Cooperation

On March 3, 2023, as part of the rollout of several updates to its guidance on corporate compliance programs, the Department of Justice (DOJ) released a new policy aimed at incentivizing compliance-driven compensation and bonus…more

Chief Compliance Officers, Compliance, Cooperation, Corporate Crimes, Corporate Misconduct

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U.S. Agencies Caution Foreign-Based Persons on Extraterritorial Reach of U.S. Sanctions and Export Control Regulations

On March 6, 2024, the U.S. Departments of the Treasury, Commerce, and Justice jointly issued a Tri-Seal Compliance Note titled “Obligations of Foreign-Based Persons to Comply with U.S. Sanctions and Export Control Laws”…more

Bureau of Industry and Security (BIS), Department of Justice (DOJ), Economic Sanctions, Export Controls, Exports

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A Secret On Sale: When Trade Secrecy and Invention Disclosure Collide

You have invented a process for manufacturing a high-potency artificial sweetener. You are now faced with a critical business decision: how do you protect your intellectual property? You could keep your process a closely guarded…more

Administrative Law Judge (ALJ), America Invents Act, Intellectual Property Protection, International Trade Commission (ITC), On-Sale Bar

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The Growing Threat of Wildfire to the Energy Sector Recent State and Federal Activity

The unfortunate trend of increased wildfires across the western landscape continued in 2018, both as to the number of fires and the acreage burned. Most disturbing is the growing severity and impacts of these fires in terms of…more

Bureau of Land Management, CPUC, Damages, Department of the Interior, Executive Orders

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Implications of the Supreme Court's Kokesh Decision

Earlier this month, the Supreme Court ruled unanimously in Kokesh v. SEC that a claim for disgorgement arising from the violation of federal securities law constitutes a “penalty” for purposes of the general statute of…more

Consumer Financial Protection Bureau (CFPB), Disgorgement, Enforcement Actions, Kokesh v SEC, Misappropriation

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Chambers Global Practice Guides - International Arbitration 2023 - England & Wales

In 2023, the international arbitration landscape is dominated by macroeconomic factors. The inflationary pressures combined with price volatility and the use of sanctions by governments following Russia’s invasion of Ukraine…more

Arbitration, Arbitration Agreements, Arbitration Awards, Commercial Arbitration, Confidential Communications

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Looking Forward After the SEC’s Victory in “Shadow Trading” Case

This month the SEC secured a jury trial victory in its much-discussed “shadow trading” case in SEC v. Panuwat. As we have described in a prior alert, the term “shadow trading” has been used to refer to trading in the securities…more

Breach of Duty, Insider Trading, Jury Trial, Material Nonpublic Information, Pfizer

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OIG Issues New Advisory Opinion on Federal Anti-Kickback Statute

The Department of Health and Human Services Office of Inspector General (OIG) recently issued an advisory opinion that explored the limits of a relatively new safe harbor to the federal Anti-Kickback Statute (AKS) that aims to…more

Advisory Opinions, Anti-Kickback Statute, Civil Monetary Penalty, Department of Health and Human Services (HHS), Health Care Providers

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Clearing the Air on Criminal Enforcement of Hydrofluorocarbon Importation Laws

The Biden Administration’s focus on climate change mitigation is showcased in a prosecution recently announced by the U.S. Attorney’s Office, Southern District of Cali- fornia against Michael Hart, who is accused of smuggling…more

Biden Administration, Clean Air Act, Climate Change, Consolidated Appropriations Act (CAA), Criminal Penalties

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Developments in Antitrust Law: Keep an Eye on New York

Although much attention recently has been focused upon debates in Congress, potential legislative changes to U.S. antitrust law are not limited to proposals at the federal level. Many states are considering changes to their own…more

Antitrust Provisions, Department of Justice (DOJ), Federal Trade Commission (FTC), Mergers, Premerger Notifications

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FRAND Quarterly: Navigating the Global SEP Landscape - January 2024

This marks the first issue of WilmerHale’s FRAND Quarterly: Navigating the Global SEP Landscape, a bulletin that will highlight developments about the licensing, litigation, and regulation of patents that are or are claimed to…more

Apple, China, Ericsson, EU, FRAND

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Death Knell to Merger Litigation for Massachusetts Corporations?

In IBEW Local No. 129 Benefit Fund v. Tucci, the Massachusetts Supreme Judicial Court (SJC) affirmed the dismissal of direct claims for breach of fiduciary duty by EMC shareholders challenging the merger of EMC and Dell, Inc…more

Breach of Duty, Bylaws, Dell, Dismissals, Exclusive Forum

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COVID-19: Main Street New and Expanded Loan Facilities

On April 9, 2020, the Federal Reserve announced actions to implement the Main Street Lending Program authorized under Section 13(3) of the Federal Reserve Act. The program consists of two credit facilities aimed at small and…more

CARES Act, Comment Period, Coronavirus/COVID-19, Credit Facilities, Federal Reserve

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Second Circuit Affirms Broad Immunity for Online Providers to Remove Third-Party Content from Their Websites

Earlier this month, in Domen v. Vimeo, Inc., a panel of the U.S. Court of Appeals for the Second Circuit held that a relatively unused subpart of Section 230 of the Communications Decency Act (CDA) - namely, 47 U.S.C. §…more

Appeals, Communications Decency Act, Corporate Counsel, Dismissals, Immunity

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A Divided Supreme Court Narrowly Upholds Auer Deference

On June 26, 2019, the US Supreme Court issued a decision in Kisor v. Wilkie. The question presented in Kisor was whether to overrule the Court’s prior decisions in Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole…more

Administrative Agencies, Ambiguous, Appeals, Auer Deference, Denial of Benefits

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“Decentralized Finance (DeFi),” Fintech, Regtech, and the Financial Services Industry (Ch. 8A)

Decentralized Finance (DeFi) is an umbrella term used to describe financial services provided outside of the traditional markets, that rely on blockchain technologies to create innovative products instead of relying on central…more

Anti-Money Laundering, Bank Secrecy Act, Blockchain, Broker-Dealer, CFTC

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International Comparative Legal Guide to International Arbitration 2019 - Chapter Three: Arbitrating in New York: The NYIAC Advantage

New York is one of the world’s leading arbitration centres. New York regularly ranks first in North America, and now third globally, among all arbitral sites for International Chamber of Commerce (ICC) arbitrations, and it is…more

American Arbitration Association, Arbitration, Arbitrators, International Arbitration, International Chamber of Commerce (ICC)

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Prop 65 Warnings for Glyphosate Found To Violate First Amendment

On November 7, 2023, the US Court of Appeals for the Ninth Circuit held that California’s Prop 65 warning for glyphosate—the active ingredient in the herbicide Roundup®—violates the First Amendment. The court determined that…more

Commercial Speech, First Amendment, Manufacturers, Permanent Injunctions, Proposition 65

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2021 M&A Report

The outbreak of COVID-19 in the first quarter of 2020 inflicted an unprecedented shock on the global economy. In the first half of the year, growth stalled, the US unemployment rate reached its highest level since the Great…more

Acquisitions, Corporate Governance, Information Reports, Mergers, Publicly-Traded Companies

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Le Précédent Procédural Dans La Pratique Des Tribunaux Arbitraux

La présente contribution se propose d’étudier l’apparition, en arbitrage international, de décisions procédurales formant un véritable corps de jurisprudence ou de précédents. Tandis que le sujet du précédent a d’ores et déjà…more

Arbitration, Arbitration Awards, France, ICSID, International Arbitration

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USPTO’s Notice of Proposed Rulemaking for Discretionary Denial Briefing, Section 325(d), Instituting Parallel and Serial Petitions, and Settlement Agreements

On April 19, 2024, the United States Patent and Trademark Office (USPTO) issued a notice of proposed rulemaking (NPRM) that proposes rules regarding the exercise of discretion to determine whether to institute an Inter Partes…more

America Invents Act, Comment Period, Inter Partes Review (IPR) Proceeding, NPRM, Patent Litigation

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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Proposed US Government Contracting Rule Seeks Anti-Trafficking Reporting Requirements For Air Carrier Contractors

On August 7, 2023, the US Department of Defense, General Services Administration, and the National Aeronautics and Space Administration proposed to amend the Federal Acquisition Regulation (“FAR”) to impose anti-trafficking…more

Air Carriers, Airline Passengers, Anti-Trafficking Statutes, Department of Homeland Security (DHS), Department of Transportation (DOT)

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Conducting Your Annual Meeting During a Health Pandemic

April, May and June are typically the most popular months for public companies to host their annual meetings of shareholders. This year, the unprecedented public health concern resulting from the coronavirus or COVID-19 pandemic…more

Annual Meeting, Bylaws, Compliance, Coronavirus/COVID-19, Corporate Governance

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FTC Targets "Dark Patterns" in Actions Against Amazon and Publishers Clearing House

The Federal Trade Commission (FTC) in recent years has made clear its intention to adopt a more aggressive enforcement posture toward so-called dark patterns. The FTC defines unlawful dark patterns to include any online “design…more

Amazon, CAN-SPAM Act, Enforcement Actions, Federal Trade Commission (FTC), FTC Act

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SEC Targets Inadequate Cyberbreach Disclosure in Yahoo! Settlement

On April 24, 2018, the Securities and Exchange Commission announced a settled enforcement proceeding against Altaba Inc. (formerly known as Yahoo! Inc.) arising out of data breaches suffered by Yahoo in 2014, 2015 and 2016. This…more

Cybersecurity, Data Breach, Disclosure Requirements, Enforcement Actions, Form 10-K

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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Year in Review: 2023 TCPA Litigation

This post is part of a series of articles we are doing on 2023 data protection litigation trends. The Telephone Communications Privacy Act (TCPA) has always been a hotbed for privacy litigation, especially given the…more

Auto-Dialed Calls, Data Protection, Facebook Inc v Duguid, Privacy Laws, Private Right of Action

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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COVID-19: CFTC Advances Regulatory Agenda Despite COVID-19 Pandemic

The Commodity Futures Trading Commission (CFTC or Commission) continues to advance its regulatory agenda amid the COVID-19 crisis. After an initial flurry of no-action letters that ameliorate compliance with a number of…more

CFTC, Coronavirus/COVID-19, Regulatory Agenda

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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In Case You Missed It: Launch Links - August 2021

Some interesting links we found across the web this week: Encourage Employees to Give Critical Feedback - It can be tough, even for the top executives, to share candid feedback if the stage is not properly set…more

Board of Directors, Corporate Culture, Early Stage Companies, Entrepreneurs, Remote Working

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2021 Venture Capital Report

Despite the arrival of the COVID-19 pandemic in early 2020 and the ensuing economic dislocation, venture capital financing proceeds, median amount raised, and median pre-money valuation all increased from 2019 levels, although…more

Acquisitions, Capital Raising, Corporate Financing, Early Stage Companies, Entrepreneurs

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Foreign Corrupt Practices Act Alert: Global Anti-Bribery Year-in-Review: 2018 Developments and Predictions for 2019

Despite predictions of a slow-down in enforcement under the Trump administration—and indications that enforcement in some areas has decreased in the past year1—2018 was yet again an active year for FCPA enforcement. The year…more

Anti-Bribery, Anti-Corruption, Brazil, Bribery, Chief Compliance Officers

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Supreme Court to Decide Future of Sports Betting: Implications for Tribal Casinos

The Supreme Court’s forthcoming decision in Christie v. National Collegiate Athletic Association (Nos. 16-476, 16-477) will have profound implications for sports betting in the United States and will potentially open the door to…more

Casinos, Christie v NCAA, Gambling, Indian Gaming, PASPA

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Supreme Court Halts OSHA's Vaccine or Test Mandate

Yesterday the Supreme Court stayed the Occupational Health and Safety Administration’s (OSHA) vaccination and testing emergency temporary standard (ETS), resolving months of legal uncertainty over its fate. In blocking the rule…more

Coronavirus/COVID-19, Employer Mandates, Lack of Authority, National Federation of Independent Business v Department of Labor and OSHA, OSHA

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New Massachusetts Non-Compete Law Requires Employers to Make Immediate Changes to Their Non-Competition Agreements

On August 10, 2018, Massachusetts Governor Charlie Baker signed a bill reforming Massachusetts law regarding non-competition agreements. This new law, which takes effect on October 1, 2018, will require employers to modify their…more

Confidential Information, Consideration, Employment Contract, Governor Baker, New Legislation

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Federal Circuit Addresses Scope of Medical Device and Drug Infringement Safe Harbor

On March 25, 2024, the Federal Circuit issued an opinion in Edwards Lifesciences Corp. v. Meril Life Sciences Pvt. Ltd., addressing whether the act of importing two heart valve systems for a medical conference was within the…more

Clinical Trials, Food and Drug Administration (FDA), Imports, Infringement, Medical Devices

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Anti-Money Laundering and Sanctions: Trends and Developments Emerging Under the Trump Administration

Bank Secrecy Act/anti-money laundering (BSA/AML) and sanctions matters continue to be a core focus of regulators, law enforcement agencies, policymakers and Congress, and the story of the Obama and Trump Administrations on AML…more

Anti-Money Laundering, BSA/AML, Cuba, Customer Due Diligence (CDD), Drug Trafficking

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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Proposed Changes to HSR Notification Form Would Intensify Scrutiny on Private Equity Funds: Some Thoughts on What to Expect and How to React

As described in our Client Alert of July 6, 2023, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) proposed on June 27, 2023, a massive overhaul of the Hart-Scott-Rodino Act (HSR) pre-merger notification…more

Antitrust Division, Comment Period, Department of Justice (DOJ), Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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What's in Biden's Infrastructure Plan?

On March 31, 2021, the Biden Administration released in broad brushstrokes its plan to address the country’s infrastructure. The “American Jobs Plan” calls for a grand total of more than $2 trillion in federal investment…more

Biden Administration, Budget Reconciliation, Clean Energy, Critical Infrastructure Sectors, Environmental Policies

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Treasury, Federal Reserve, and FDIC Take Actions to Protect Bank Depositors and Support Bank Liquidity to Conduct Operations

On Sunday evening, the Department of the Treasury (Treasury), Federal Reserve, and the Federal Deposit Insurance Corporation (FDIC) announced measures to (1) prevent losses to all depositors—including all uninsured…more

Banking Sector, Banks, Deposit Accounts, Deposit Insurance, FDIC

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Managing ANDA Venue Issues As Del. And NJ Filings Rise

In 2023, pharmaceutical patent owners filed nearly 250 infringement complaints against generic drug manufacturers. More than 90% of those cases were filed in the Districts of Delaware or New Jersey. This year's filings…more

Abbreviated New Drug Application (ANDA), Generic Drugs, Patent Infringement, Patent Litigation, Patents

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The Assertion of Extraterritorial Patent Jurisdiction in Europe

US patents have some extraterritorial effect. A party can be liable for patent infringement if it supplies components of a patented invention to a foreign country to be assembled there. In WesternGeco LLC v. ION Geophysical…more

Court of Justice of the European Union (CJEU), Damages, EU, Extraterritoriality Rules, Foreign Patent Applications

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2022 Proxy Season Review: Increased Shareholder Focus on Racial Justice

The 2022 proxy season has highlighted shareholders’ ever-growing focus on diversity, equity, and inclusion (DEI).  In 2021, a new trend emerged as 13 shareholder proposals were filed calling on companies to conduct “civil…more

Audits, Civil Rights Act, Corporate Governance, Diversity, Diversity and Inclusion Standards (D&I)

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FCA Enforcement Priorities in the Biden Administration

During a question-and-answer session following his opening remarks at the Federal Bar Association Qui Tam Conference earlier this year, Senator Chuck Grassley said that the government needed to “come down with a sledgehammer,…more

American Rescue Plan Act of 2021, Biden Administration, CARES Act, Cybersecurity, Department of Justice (DOJ)

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Federal Circuit Patent Watch: District Court’s “Seemingly Siloed and Inflexible Approach” to Obviousness “Ran Afoul” of KSR

Precedential and Key Federal Circuit Opinions - 1.  JANSSEN PHARMACEUTICALS, INC. v. TEVA PHARMACEUTICALS USA, INC. [OPINION] (2022-1258, 2022-1307, 4/1/2024) (Dyk, Prost, and Hughes) - Prost, J. The Court affirmed the…more

Abstract Ideas, Indefiniteness, Obviousness, Patent Litigation, Patent Trial and Appeal Board

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In Case You Missed It: Launch Links - November 2020 #3

Some interesting links we found across the web this week: World-Class Founders Avoid These 6 Behaviors In Their VC Pitch Meetings - Uninspired storytelling? Ingenuine passion? Lack of confidence or behavior? These are…more

Capital Raising, Early Stage Companies, Entrepreneurs, Startups, Venture Capital

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Federal Circuit Holds Petitioner Lacks Standing to Appeal Inter Partes Review Decision

On February 7, 2019, in Momenta Pharmaceuticals, Inc. v. Bristol-Myers Squibb Company, the Federal Circuit dismissed an appeal brought by a petitioner in an inter partes review (IPR) for lack of standing and mootness because the…more

Article III, Biosimilars, Bristol-Myers Squibb, Inter Partes Review (IPR) Proceeding, Momenta

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In Case You Missed It: Launch Links - January 2020 #2

Some interesting links we found across the web this week: 10 Predictions for the Tech Industry in 2020 - Have you started to wonder what 2020 might bring for tech startups? The predictions in this AlleyWatch article may…more

Capital Raising, Early Stage Companies, Entrepreneurs, Equity Compensation, Equity Securities

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German Cum/Ex-Trades: Enhanced Risks and Industry-Wide Challenges

The German and international financial industries and their advisors have come under new pressure to investigate so-called 'cum/ex' trades conducted between 2000 and 2012. For many years, tax authorities and criminal prosecutors…more

BaFin, Capital Gains, Capital Markets, Criminal Prosecution, Damages

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SEC Pauses Final Rules on Climate-Related Disclosures

On April 4, 2024, the SEC issued a stay of its final climate-related disclosure rules. The SEC adopted the long-awaited final rules in March after receiving more than 24,000 comment letters…more

Climate Change, Corporate Governance, Disclosure Requirements, Final Rules, Multidistrict Litigation

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Will Companies House powers clean up the register?

Companies House has been granted new powers to crack down on fraud, but whether it has the resources to take advantage of these and properly clean up the register of companies is questionable. Originally published by…more

Anti-Corruption, Corporate Crimes, Corporate Governance, Corporate Transparency Act, Financial Crimes

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Biden Administration Highlights Commitment to Addressing Climate Change at International Summit

In an extended Earth Day event, President Biden hosted the virtual Leaders Summit on Climate (“Summit”) on April 22 and 23, seeking to unite nations around the world in the goal of reducing global greenhouse gas (“GHG”)…more

Biden Administration, Brazil, Canada, Carbon Emissions, Clean Air Act

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Defense Contractors Will Face Higher Risks as Spending Increases

Ongoing geopolitical developments such as Russia’s war in Ukraine and tensions between China and Taiwan have continued to fuel higher US military spending. The demand for military weapons is the strongest it has been in…more

China, Compliance, Cybersecurity, Defense Contracts, Defense Sector

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Preparing For Congress' Oversight Of Chinese Trade In 2023

As Republicans assume control of the U.S. House of Representatives, China-related issues are poised to be a key caucus priority and likely a rare area of bipartisan cooperation in a narrowly divided and highly polarized…more

China, Congressional Committees, Congressional Oversight, Cybersecurity, Human Rights

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CFTC Anti-Fraud and Anti-Manipulation Authority: A Focus on Intermediaries

The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), significantly expanded the Commodity Futures Trading Commission’s (“CFTC” or “Commission”) anti-fraud and anti-manipulation statutory authority…more

Anti-Fraud Provisions, Anti-Manipulation Rule, CFTC, Civil Monetary Penalty, Commodity Exchange Act (CEA)

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SEC and CFTC Signal Push for Broader Authority Over Digital Asset Markets

The Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) recently announced enforcement actions that reflected sweeping, and previously unarticulated, views of their respective…more

CFTC, Decentralized Autonomous Organization (DAO), Designated Contract Markets (DCMs), Digital Assets, Enforcement Actions

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COVID-19: Rethinking Chapter 11 as an Asset Sale Strategy Distressed Asset Sales in the Crisis

When a company faces financial distress and seeks to sell its assets, both the seller and the buyer may prefer to implement the transaction through a Section 363 sale in a Chapter 11 bankruptcy case of the seller. A Chapter 11…more

363 Sales, Chapter 11, Commercial Bankruptcy, Coronavirus/COVID-19, Distressed Debt

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UK Supreme Court Ruling on Territorial Extent of SFO's Powers Impacts SFO’s Evidence Gathering Capabilities

On February 5, 2021 the Supreme Court handed down judgment in the case of R (on the application of KBR, Inc) v Director of the Serious Fraud Office, finding in favor of the Appellant, KBR, Inc (KBR). This high-profile case…more

Criminal Justice Act, Extraterritoriality Rules, Foreign Corporations, KBR (formerly Kellogg Brown & Root), Parent Corporation

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Binance Ruling Spotlights Muddled Post-Morrison Landscape

The March decision in Williams v. Binance from the U.S. Court of Appeals for the Second Circuit marks the latest chapter in the judiciary's struggle to apply the U.S. Supreme Court's 2010 decision in Morrison v. National…more

Asset Tokens, Blockchain, Broker-Dealer, Decentralized Finance (DeFi), Digital Assets

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Update: Supreme Court Dismisses Privilege Case after Hearing Arguments

Shortly after oral arguments on the correct standard for assessing the application of mixed-purpose communications in In re Grand Jury, the U.S. Supreme Court dismissed its writ of certiorari as improvidently granted.  To…more

Attorney-Client Privilege, Corporate Counsel, Dismissals, Dual Purpose, Primary Duty Test

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The Interplay: Key Decisions at the Intersection of Antitrust & Life Sciences - March 2024

Calls for Removal of Device Patents Listed in the Orange Book Continue. FTC and Congressional action scrutinizing allegedly “improper” Orange Book listings continued apace in the first few months of 2024…more

AbbVie, Antitrust Litigation, AstraZeneca, Boehringer, Class Action

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CFTC Enforcement and Regulatory Developments

On June 4, 2020, the Commodity Futures Trading Commission (CFTC) unanimously approved the adoption of a final rule (Final Rule) prohibiting a commodity pool operator (CPO) that has, or whose principals have, in its background…more

CFTC, Commodity Exchange Act (CEA), CPOs, Final Rules, Registration Requirement

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Crypto Currently: New York Department of Financial Services Issues Virtual Currency Custody Guidance

On January 23, the New York State Department of Financial Services (DFS or the Department) issued guidance clarifying its expectations for New York-based virtual currency businesses regarding the custody of customer assets…more

BitLicense, Cryptocurrency, Custody Rule, Financial Services Industry, New Guidance

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Hiding in Plain Sight: New Ukraine and Israel Aid Package Includes Significant Changes to US Sanctions and Export Control Laws

On April 24, 2024, President Biden signed into law H.R. 815, an emergency appropriations package billed as authorizing $95 billion in foreign aid to Ukraine and Israel (the Act). While the Ukraine and Israel aid provisions and…more

Appropriations Bill, Biden Administration, China, Economic Sanctions, EU

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Corporate Sustainability Due Diligence Directive: Final Sprint to the Finish Line

The EU legislature has finally reached an agreement on the text of the Corporate Sustainability Due Diligence Directive (CS3D) (see here our previous client alert). The CS3D profoundly affects the ways companies active in Europe…more

Corporate Governance, Corporate Social Responsibility, Due Diligence, Environmental Social & Governance (ESG), Human Rights

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2023 EU Merger Control Highlights and Looking to 2024

2023 saw some very significant decisions, investigations, court judgments and legislative developments in European Union merger control.eu …more

Acquisitions, Antitrust Litigation, Antitrust Provisions, Competition, Competition Authorities

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What District Courts Are Saying About Admissibility Of IPR

Six years after the America Invents Act created inter partes review proceedings, patent disputes increasingly involve parallel litigation, with at least one inter partes review proceeding in tandem with district court…more

Admissibility, America Invents Act, Inter Partes Review (IPR) Proceeding, Patent Infringement, Patent Litigation

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New York Legalizes Marijuana - Where Is the US Headed?

It’s been an eventful week for the marijuana industry. After years of false starts, New York legalized the use of recreational marijuana on March 31 - just hours later, New Mexico legislators passed a bill to do the same…more

Banking Sector, Canada, Coronavirus/COVID-19, Decriminalization of Marijuana, Financial Institutions

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Pros and Cons of Strategic Investors in Early-Stage Companies

When early stage companies look for sources of capital, they sometimes consider investments from strategic investors in addition to investments from venture capital firms. But what is a strategic investment and what are the…more

Capital Formation, Capital Raising, Early Stage Companies, Investors, Strategic Planning

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COVID-19: An Antitrust Checklist

Businesses around the world are actively working to address the global COVID-19 pandemic, including through novel types of collaborations. In the United States, federal and state agencies, including the Department of Justice…more

Antitrust Division, Antitrust Provisions, Collaboration, Competition, Coronavirus/COVID-19

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Sexism in the City

#MeToo is still moving across the pond. On March 8, 2024, the House of Commons Treasury Committee published a report entitled “Sexism in the City” (referenced as “Report” in this article), which found that the financial-services…more

Banking Sector, Diversity, Diversity and Inclusion Standards (D&I), Employment Policies, Financial Conduct Authority (FCA)

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Why SAFEs Can be Confusing

Entrepreneurs often raise capital with a combination of convertible notes and an agreement called a SAFE, or Simple Agreement for Future Equity. A SAFE seems like a no-nonsense DIY solution for early-stage companies—but there's…more

Convertible Debt, Early Stage Companies, Entrepreneurs, Equity Financing, SAFE

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Proposed Changes to CMS Regulations May Impact False Claims Act Liability for Medicare Overpayments

The Centers for Medicare & Medicaid Services (CMS) proposed a rule late last year that would impose standards on healthcare providers and suppliers to report and return overpayments from Medicare that mirror aspects of the False…more

Centers for Medicare & Medicaid Services (CMS), Comment Period, Corporate Liability, Failure to Report, False Claims Act (FCA)

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Federal Circuit Patent Watch: District Court’s “Seemingly Siloed and Inflexible Approach” to Obviousness “Ran Afoul” of KSR

Precedential and Key Federal Circuit Opinions - 1.  JANSSEN PHARMACEUTICALS, INC. v. TEVA PHARMACEUTICALS USA, INC. [OPINION] (2022-1258, 2022-1307, 4/1/2024) (Dyk, Prost, and Hughes) - Prost, J. The Court affirmed the…more

Abstract Ideas, Indefiniteness, Obviousness, Patent Litigation, Patent Trial and Appeal Board

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Weekly COVID-19 Oversight & Enforcement Report - June 2021 #2

On June 22, the House Select Subcommittee on the Coronavirus Crisis held a hearing titled “U.S. Economy On The Path To Strong Recovery.” Federal Reserve Chair Jerome Powell testified regarding the Fed’s emergency pandemic…more

Centers for Disease Control and Prevention (CDC), Congressional Committees, Congressional Oversight, Coronavirus/COVID-19, Economic Downturn

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SEC Adopts New Requirements for US Treasuries Clearing and Risk Management

On December 13, 2023, the Securities and Exchange Commission (SEC) voted (4-1) to adopt new requirements under the Securities Exchange Act of 1934 (Exchange Act), which will restructure the clearance and settlement of secondary…more

Amended Rules, CFTC, Clearing Agencies, Futures Commission Merchants (FCMs), Hedge Funds

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Biden Executive Order to Protect Americans’ Sensitive Personal Data and Related Rulemaking Could Impose Significant Restrictions on Certain Transfers of Sensitive Personal Information

On February 28, 2024, President Biden signed Executive Order 14117, “Preventing Access to Americans’ Bulk Sensitive Personal Data and U.S. Government-Related Data by Countries of Concern” (the EO), under the authority of the…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, China, Consumer Financial Protection Bureau (CFPB), Data Transfers

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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Using Country Conditions Evidence to Improve Appellate Review of Convention Against Torture Cases

While the Trump Administration’s transit ban was in force, many would-be asylum seekers had to turn to other forms of relief. In particular, many such individuals sought withholding of removal under the Convention Against…more

Appellate Review, Asylum, Convention Against Torture (CAT), Deportation, Immigration Procedures

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US Government Seeks Stakeholder Comments on Future Internet Governance Privacy and Emerging Technology Priorities

On June 5, the National Telecommunications and Information Administration (NTIA), within the US Department of Commerce, issued a notice requesting “comments and recommendations from all interested stakeholders on its…more

Comment Period, Data Privacy, General Data Protection Regulation (GDPR), Innovative Technology, Internet

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2024 IPO Report

Pessimism surrounding the Federal Reserve’s interest rate hikes, combined with subdued business and consumer confidence as well as geopolitical concerns, weighed heavily on the IPO market in 2023. With 117 IPOs in 2023…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Listing Rules, Publicly-Traded Companies

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CFTC Year in Review: 23 Takeaways From 2023 and Predictions for 2024

At an industry event in early 2023, Commodity Futures Trading Commission (CFTC or the Commission) Chairman Rostin Behnam set out a comprehensive agenda to include nearly three dozen rulemaking proposals as well as “business as…more

Asset Class, CFTC, Commodities, Compliance, Conflicts of Interest

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10 Patent Prosecution, Litigation Practice Trends From 2020

While 2020 was a year of unprecedented challenges, it also spurred ingenuity in the ways we practice and highlighted the centrality of intellectual property to the American economy. As we head into the promise of a new year, we…more

Antitrust Provisions, Artificial Intelligence, Coronavirus/COVID-19, Inter Partes Review (IPR) Proceeding, Patent Litigation

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Weekly COVID-19 Oversight & Enforcement Report - November 2020 #3

The Congressional Oversight Commission issued a statement on the Secondary Market Corporate Credit Facility (SMCCF), noting that the SMCCF “is still purchasing approximately $20 million worth of corporate bonds per day. The…more

Cal-OSHA, Congressional Committees, Coronavirus/COVID-19, Department of Justice (DOJ), Enforcement Actions

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Congress Should Change Agency In-House Courts’ Lax Evidence Rules

WilmerHale partners say the evidentiary standards that in-house agency courts use are more relaxed than the Federal Rules of Evidence, leading to questions of fundamental fairness in the results. Congress should change this,…more

Evidence, Evidentiary Standards, Jury Trial, Securities and Exchange Commission (SEC), Securities Fraud

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Federal Contractors Must Act Soon to Object to Planned Disclosure of EEO-1 Data

On August 19, 2022, the Office of Federal Contract Compliance Programs (OFCCP) within the US Department of Labor published a notice in the Federal Register alerting federal contractors that the agency had received a Freedom of…more

Administrative Procedure, Department of Labor (DOL), EEO-1, Federal Contractors, Objections

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What High Court Will Consider in Helsinn On-Sale Bar Case

The U.S. Supreme Court may soon resolve an issue that has sparked much debate since the enactment of the Leahy-Smith America Invents Act — namely, whether under the AIA, an inventor’s sale of an invention to a third party that…more

America Invents Act, On-Sale Bar, Oral Argument, Patent Litigation, Patents

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COVID-19: Resuming Jury Trials in Massachusetts

The jury trial is just one of the many aspects of American life that has been upended by the COVID-19 pandemic. On March 12, 2020, the US District Court for the District of Massachusetts entered an order postponing all jury…more

Coronavirus/COVID-19, Court Schedules, Judicial Proceedings, Jury Trial, Rules of Civil Procedure

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Major Decision on Major Questions Doctrine, Agency Regulatory Discretion

The Clean Power Plan is a program developed by the Environmental Protection Agency to reduce greenhouse gas emissions by forcing electric power generation to shift from coal-fired plants to renewable sources, such as wind and…more

Chevron Deference, Clean Air Act, Clean Power Plan, Climate Change, Environmental Protection Agency (EPA)

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European Parliament Committees Adopt Their Position on the Proposed EU Forced Labour Regulation

On October 16, 2023, the Committee on International Trade (INTA) and the Committee on Internal Market and Consumer Protection (IMCO) of the European Parliament adopted their position (the Committee Position; see here and here)…more

EU, European Commission, European Parliament, Exports, Forced Labor

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Supreme Court Invalidates Restriction on President’s Power to Remove the CFPB Director

On June 29, 2020, the Supreme Court issued its opinion in Seila Law LLC v. Consumer Financial Protection Bureau, slip op. No. 19-7. The decision resolves a long-disputed issue regarding the constitutionality of the structure of…more

Constitutional Challenges, Consumer Financial Protection Bureau (CFPB), Dodd-Frank, Removal For-Cause, Reversal

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Le Précédent Procédural Dans La Pratique Des Tribunaux Arbitraux

La présente contribution se propose d’étudier l’apparition, en arbitrage international, de décisions procédurales formant un véritable corps de jurisprudence ou de précédents. Tandis que le sujet du précédent a d’ores et déjà…more

Arbitration, Arbitration Awards, France, ICSID, International Arbitration

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ESG Asset Managers and Investment Funds - Near-Term SEC Enforcement Risk

The Securities and Exchange Commission (SEC) threw down the gauntlet after President Biden’s election and asserted its interest in greater regulation and policing of environmental, social, and governance (ESG) issues. One aspect…more

Asset Management, Corporate Governance, Environmental Social & Governance (ESG), Publicly-Traded Companies, SEC Examination Priorities

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10 Years On, SEC's Market Access Rule Still Lacks Clarity

The first 10 years of the U.S. Securities and Exchange Commission's Rule 15c3-5, known as the market access rule, have been a textbook example of the principle of regulation by enforcement, resulting in an informal patchwork of…more

Algorithmic Trading, Alternative Trading System (ATS), Broker-Dealer, Enforcement Actions, Financial Industry Regulatory Authority (FINRA)

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Real Estate Finance: Massachusetts

A Q&A guide to real estate finance law for borrowers and lenders in Massachusetts. This Q&A addresses state laws relating to security instruments, usury laws, limitations on personal liability, recording requirements and taxes,…more

Acquisition Finance, Commercial Loans, Construction Loans, Credit Facilities, Foreclosure

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Court Determines That Grocer's Website Not Used to Sell Goods Is Public Accommodation Under the ADA

Last week, following a bench trial, a federal district judge in Florida concluded that the grocery store and pharmacy chain Winn-Dixie violated Title III of the Americans with Disabilities Act (ADA) because its website is not…more

Americans with Disabilities Act (ADA), Disability Discrimination, Grocery Stores, Public Accommodation, Risk Management

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SEC Enforcement Director Warns Against AI Washing

On April 15, 2024, Gurbir S. Grewal, Director of the SEC’s Division of Enforcement, spoke at a compliance and enforcement conference regarding the challenges and potential missteps associated with the increased use of artificial…more

Artificial Intelligence, Corporate Governance, Cybersecurity, Disclosure Requirements, Registered Investment Advisors

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Leaders in Law: Ambassador Robert Kimmitt

Senior International Counsel Ambassador Robert Kimmitt joins In the Public Interest host Felicia Ellsworth to talk about his storied career in public service. Through his service as the first General Counsel of the National…more

Business Development, Content Strategy, Firm Leadership, Marketing Perspectives, Strategic Planning

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New Jersey’s Personal Information and Privacy Protection Act Signed into Law

On July 21, 2017, New Jersey Governor Chris Christie signed into law the Personal Information and Privacy Protection Act (the “Act”). The Act limits the purposes for which retail establishments may lawfully scan a person’s…more

Data Collection, Governor Christie, New Regulations, Personal Data, Retailers

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A Guide To West Texas Patent Cases Before Albright: Part 1

On Sept. 24, 2018, Alan Albright was sworn in as a U.S. district court judge — and the only U.S. district court judge — for the Waco Division of the U.S. District Court for the Western District of Texas. A former U.S…more

Claim Construction, Markman Hearing, Patent Infringement, Patent Litigation, Patents

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Foreign Corrupt Practices Act Enforcement in the Energy Sector

This is the sixth issue of WilmerHale’s 10-in-10 Hot Topics in Energy Series. Over the course of 10 weeks, our attorneys will share insights on current and emerging issues affecting the US energy sector…more

Brazil, Bribery, Compliance, Corruption, Criminal Prosecution

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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The European Parliament Adopts the AI Act

On March 13, 2024, the European Parliament adopted the Artificial Intelligence Act (AI Act). It is considered to be the world’s first comprehensive horizontal legal framework for AI. It provides for EU-wide rules on data…more

Artificial Intelligence, EU, European Commission, European Parliament, Extraterritoriality Rules

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FTC Steps Up Privacy Shield Enforcement Actions

This week the FTC announced yet another batch of enforcement actions against companies for misrepresenting their participation in the EU-US and US-Swiss Privacy Shield Frameworks.  Since the beginning of the year, the FTC has…more

Compliance, Corporate Counsel, Enforcement Actions, EU, EU-US Privacy Shield

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Public Company Stock Option Repricings: A Primer

Stock options are often a significant, and critical, component of a public company’s compensation and benefits programs as they align the interests of employees and stockholders—when the company’s stock price increases, option…more

Compensation & Benefits, Employee Benefits, Employee Stock Purchase Plans, Incentive Compensation, Incentive Stock Options

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Biden Administration Provides Guidance on Advancing Diversity in Higher Education Following the Supreme Courts Decision in Harvard/UNC Affirmative Action Cases

On August 14, 2023, the Biden Administration released its first guidance on how institutions of higher education may lawfully pursue efforts to recruit and admit diverse student bodies in light of the Supreme Court’s recent…more

Affirmative Action, Biden Administration, Civil Rights Act, Colleges, Department of Education

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Biden: The Fight Against Foreign and Transnational Corruption Is a National Security Interest

On June 3, 2021, President Biden issued a National Security Memorandum establishing the fight against corruption both at home and abroad as a core United States national security interest and directing the development of a…more

Anti-Corruption, Anti-Money Laundering, Biden Administration, Compliance, Corporate Governance

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Are Term Sheets Really Nonbinding?

You’re in the thick of week two of negotiations on a term sheet with a potential investor and you can’t help but wonder why you’re spending so much time on a document that has “nonbinding” written all over it. While it is true…more

Confidentiality Agreements, Contract Negotiations, Contract Terms, Corporate Financing, Due Diligence

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DOL Issues Final Rule Raising Salary Threshold for Exempt Employees

On April 23, 2024, the U.S. Department of Labor (DOL) issued its much-anticipated final rule raising the salary threshold for employees to be exempt from federal overtime requirements under the Fair Labor Standards Act (FLSA)…more

Department of Labor (DOL), Exempt-Employees, Fair Labor Standards Act (FLSA), Final Rules, Highly Compensated Employees

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ICSID Publishes New Materials on Mediation in Investment Disputes

In the investor-State context, consensual alternative dispute resolution (ADR) has long been viewed as an aspirational endeavor. Where a foreign company or individual complains of mistreatment by a host State, the investor will…more

Arbitration, Bilateral Investment Treaties, Foreign Investment, ICSID, International Arbitration

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How Energy Firms Can Use The Defend Trade Secrets Act

Whether it's hydraulic fracturing fluid ingredients, customer lists, geologic and seismic data or employee know-how, energy companies routinely face trade secret issues. With the enactment of the federal Defend Trade Secrets Act…more

Defend Trade Secrets Act (DTSA), Energy Sector, Popular, Private Right of Action, Trade Secrets

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White House Orders New Rules on U.S. Outbound Investment

The Biden Administration has issued its long-awaited Executive Order on Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern (“EO”), which will create a new…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, China, Cybersecurity, Executive Orders

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Supreme Court Decides Extraterritorial Reach of the Lanham Act

On June 29, 2023, the Supreme Court decided Abitron Austria GMBH v. Hetronic Int’l, Inc., No. 21-1043, addressing the extraterritoriality of the Lanham Act. The Court held that §1114(1)(a) and §1125(a)(1) of the Lanham Act do…more

Abitron Austria GmbH v Hetronic International Inc, Extraterritoriality Rules, Foreign Sales, Intellectual Property Protection, Lanham Act

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Cox and Kings v. SAP India Pvt. Ltd. & Anr.: The Indian Supreme Court Revisits and Retains the Group of Companies Doctrine

In December 2023, a five-judge bench of the Indian Supreme Court issued its much-awaited decision on the “group of companies” doctrine in Cox and Kings v. SAP India Pvt. Ltd. & Anr. (“Cox and Kings”), confirming that the…more

Arbitration, Commercial Contracts, Dispute Resolution, India, International Arbitration

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Drafting Force Majeure Clauses in Light of the COVID-19 Pandemic

In a previous client alert, we described the contractual issues that companies should assess under force majeure clauses in their existing contracts in light of the COVID-19 pandemic caused by the novel coronavirus and…more

Contract Drafting, Contract Negotiations, Contract Terms, Coronavirus/COVID-19, Force Majeure Clause

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SPAC Transaction Explosion Drives SEC Enforcement Focus

In the face of volatile markets and a global pandemic, an old capital markets vehicle has been taking the markets by storm: special purpose acquisition companies (SPACs). Although SPACs have been around for many years, the…more

Acquisitions, Corporate Financing, Corporate Governance, Enforcement, Financial Industry Regulatory Authority (FINRA)

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Dewey Bozella on His Wrongful Conviction

This episode profiles Dewey Bozella, a former professional boxer and WilmerHale client who spent 26 years in prison for a crime he did not commit. Bozella is interviewed by WilmerHale Partner Ross Firsenbaum and former…more

Arrest, Criminal Convictions, Criminal Defense, Criminal Investigations, Criminal Prosecution

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‘One eye across the Atlantic’ - The UK SFO Director’s Maiden Speech and Recent Visits to the United States Underscore the Importance of Future UK-US Collaboration and the US Corporate Criminal Enforcement Model

The Director of the UK Serious Fraud Office (SFO), Nick Ephgrave QPM, delivered his maiden public speech on February, 13, 2024, closely followed by visits to key financial centres in the United States to meet with…more

Bribery, Collaboration, Corporate Crimes, Corporate Transparency Act, Corruption

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In Case You Missed It: Launch Links - January 2021 #4

Some interesting links we found across the web this week: Do You Have to Pay Taxes on Your PPP Loan? Since the Paycheck Protection Program (PPP) started in 2020, the Small Business Administration has issued more than 5…more

Business Taxes, Coronavirus/COVID-19, Entrepreneurs, Loan Forgiveness, Office Space

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Energy Sector Alert Series: Five Essentials for Managing Deal Risk

In this eight-week alert series, we are providing a broad look at current and emerging issues facing the energy sector. Attorneys from across the firm will discuss issues ranging from environmental disclosures and risk…more

Asset Valuations, Buyers, Due Diligence, Energy Sector, Environmental Protection Agency (EPA)

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Unprecedented European Commission Order to Unwind an Acquisition

On October 12, 2023, the European Commission (EC) ordered Illumina to unwind its already completed acquisition of the cancer-test provider GRAIL Inc. This is the first time that the EC has ordered a reversal of an acquisition…more

Corporate Counsel, Divestiture, EU, European Commission, European Merger Control Regulation

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Texas Claim of Immigration Invasion Buckles Under Constitution

Is Texas at “war”? And, if so, may Texas take immigration enforcement into its own hands in “self-defense”? These are among the provocative questions raised by United States v. Texas . Texas may not like the answers it’s likely…more

Appellate Review, Constitutional Challenges, Enforcement, Governor Abbott, Immigration Procedures

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3 Things To Know About New Calif. Labor Trafficking Law

California is the leading destination in the country for temporary foreign workers, and one of the nation’s top four destination states for trafficking in persons. Temporary foreign workers are often recruited by foreign labor…more

Foreign Workers, Human Trafficking, Labor Contractor, New Regulations

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Regulation of Forced Labor in Supply Chains: Why It Matters and How Companies Can Comply

Corporate Obligations to Address Forced Labor in Supply Chains Relevant to You? International organizations like the International Labor Organization, the Organization for Economic Cooperation and Development and the United…more

Child Labor, Compliance, Corporate Social Responsibility, Due Diligence, Forced Labor

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In Case You Missed It: Launch Links - November, 2018

Some interesting links we found across the web this week: The Disappearing Form D - Filing a Form D allows private companies raising capital to take advantage of an exemption from the cumbersome process of registration,…more

Artificial Intelligence, Early Stage Companies, Entrepreneurs, Form D Filing, Startups

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The Interplay: Key Decisions at the Intersection of Antitrust & Life Sciences - March 2024

Calls for Removal of Device Patents Listed in the Orange Book Continue. FTC and Congressional action scrutinizing allegedly “improper” Orange Book listings continued apace in the first few months of 2024…more

AbbVie, Antitrust Litigation, AstraZeneca, Boehringer, Class Action

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EU and Germany Move to Further Tighten FDI Screening Process

The past two weeks have seen two major developments in relation to the screening of foreign direct investment in the European Union (“EU”) for national security or public order reasons. First, on December 10, 2018, the EU…more

Acquisitions, CFIUS, China, Critical Infrastructure Sectors, EU

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In Case You Missed It: Launch Links - April 2022 #3

Some interesting links we found across the web this week: While Startup-to-Startup Acquisitions Remain Strong, Public Companies Pull Back - This year has seen public companies pulling back on their acquisitions of…more

Acquisitions, Artificial Intelligence, Cybersecurity, Early Stage Companies, Entrepreneurs

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The PTAB and New Grounds of Unpatentability

The Patent Trial and Appeal Board’s Precedential Opinion Panel issued its decision in Hunting Titan, Inc. v. DynaEnergetics Europe GmbH, No. IPR2018-00600, on July 6, 2020. The decision is only the fourth precedential opinion…more

Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board, Patent-Eligible Subject Matter, Patents

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2024 IPO Report

Pessimism surrounding the Federal Reserve’s interest rate hikes, combined with subdued business and consumer confidence as well as geopolitical concerns, weighed heavily on the IPO market in 2023. With 117 IPOs in 2023…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Listing Rules, Publicly-Traded Companies

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Final Decision in Lorenzo v. SEC

The Supreme Court yesterday took a significant step to expand the universe of actors who can be held liable for a false statement under the federal securities laws. The Supreme Court held in Lorenzo v. SEC that a person who did…more

Appeals, Enforcement Actions, False Statements, Fines, Intent to Defraud

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The Interplay: Key Decisions at the Intersection of Antitrust & Life Sciences - March 2024

Calls for Removal of Device Patents Listed in the Orange Book Continue. FTC and Congressional action scrutinizing allegedly “improper” Orange Book listings continued apace in the first few months of 2024…more

AbbVie, Antitrust Litigation, AstraZeneca, Boehringer, Class Action

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CPRA Qualifies for November Ballot in California

The California Privacy Rights and Enforcement Act (“CPRA”) - the latest ballot initiative spearheaded by Alastair MacTaggart and his group Californians for Consumer Privacy - has qualified for the November 3, 2020 ballot,…more

California Consumer Privacy Act (CCPA), Citizen Initiative Campaigns, Consumer Privacy Rights, Data Privacy, Personal Information

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SEC Proposes Monthly Short Sale Reporting and Aggregated Public Disclosure

On February 25, 2022, the Securities and Exchange Commission (SEC) proposed Rule 13f-2 under the Securities Exchange Act of 1934 (the Exchange Act) and the corresponding Form SHO, which, if adopted, would require institutional…more

Disclosure Requirements, Investment Management, Proposed Rules, Regulation SHO, Reporting Requirements

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Alstom UK Subsidiary Sentenced: Do the Incentives for Resolving Corporate Wrongdoing by Negotiated Settlement Always Stack Up?

On 25 November at a sentencing hearing at Southwark Crown Court, Alstom Network UK Limited (ANUK) – a subsidiary of French rail conglomerate Alstom – was fined £15m, plus £1.4m in costs, for conspiring to make corrupt payments…more

Alstom, Bribery, Corporate Fines, Corporate Misconduct, Criminal Conspiracy

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$1 Billion Ericsson Resolution, Three Jury Verdicts Cap Off Busy Fourth Quarter for US FCPA Enforcement

On December 6, 2019, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) agreed to resolve allegations that multinational telecommunications company Telefonaktiebolaget LM Ericsson (Ericsson or the…more

Accounting Controls, Bribery, Chief Compliance Officers, Civil Monetary Penalty, Compliance

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Combating Affirmative Defense Inflation

Earlier this month, a magistrate judge in the Northern District of California dealt another blow to the “kitchen sink” approach to pleading affirmative defenses. In Wesch v. Yodlee, Inc., Magistrate Judge Sallie Kim granted in…more

Affirmative Defenses, Article III, Data-Sharing, Failure To State A Claim, Laches

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International Arbitration Alert - Revision of the DIS Arbitration Rules

The German Institution of Arbitration (Deutsche Institution fu¨r Schiedsgerichtsbarkeit, or “DIS”) has revised its Arbitration Rules (“Rules”). The new Rules came into effect on 1 March 2018 and replace the 1998 DIS Rules. The…more

Administrative Procedure, Amended Regulation, Arbitration, Germany, International Arbitration

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Second Circuit Limits Government's Ability to Prosecute Foreign Persons and Companies for Conspiracy to Violate the FCPA

On August 24, 2018, the United States Court of Appeals for the Second Circuit issued a significant ruling regarding the reach of the U.S. Foreign Corrupt Practices Act (FCPA) over foreign companies and individuals in United…more

Aiding and Abetting, Alstom, Appeals, Bribery, Conspiracies

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United States Adopts Wide-Ranging China Restrictions

End-of-Year Sanctions Target Chinese Supply Chains and AI, Quantum Computing, and Biotechnology - Several US executive branch agencies and the US Congress have adopted wide-ranging end-of-year sanctions, export control and…more

Artificial Intelligence, Biden Administration, Biotechnology, Bureau of Industry and Security (BIS), China

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Failure to prevent bribery

On 14 April three individuals and three companies were sentenced for their role in a bribery scheme spanning nine years. The prosecution merits consideration because, as well as securing convictions for corruption and conspiracy…more

Bribery, Criminal Conspiracy, Criminal Convictions, Criminal Liability, Criminal Prosecution

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UK Government Tackles Greenwashing

Yesterday the UK’s Treasury Department announced the appointment of a Green Technical Advisory Group (GTAG), set up to advise and assist the UK Government in its development and implementation of a Green Taxonomy, aimed at…more

Corporate Governance, Financial Services Industry, Greenwashing, HM Treasury, UK

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President Trump Signs Executive Order on Plan for Reorganizing the Executive Branch

On March 13, 2017, President Trump signed an Executive Order setting forth the process by which the Trump Administration will consider the possible reorganization of the Executive Branch and the potential “eliminat[ion of]…more

Deregulation, Executive Orders, Government Reorganization, Trump Administration

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Global Anti-Bribery Year-in-Review: 2022 Developments and Predictions for 2023

While Foreign Corrupt Practices Act (FCPA) enforcement activity has not come close to returning to the heights seen a few years ago, 2022 reflected significant increases from the prior year in both the number of cases against…more

Anti-Bribery, Anti-Corruption, Bribery, CFTC, Compliance

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The Biden Administration: What to Expect From a Changing US-Mexico Relationship

With President Donald Trump’s departure from office and the inauguration of President Joe Biden comes the prospect of major shifts in the relationship between the United States and Mexico. President Biden has taken immediate…more

Biden Administration, Coronavirus/COVID-19, Criminal Investigations, Foreign Relations, Immigration

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White House Proposal Floats Pricing as a Basis for Allowing Alternative Manufacturers under "March-In" Rules

A new Biden Administration proposal would provide a path for federal agencies to cite high prices as a reason for giving alternative producers rights to make products covered by federally funded inventions. On December 7,…more

Bayh-Dole Act, Biden Administration, Manufacturers, March-in-Rights, Pharmaceutical Industry

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Unprecedented European Commission Order to Unwind an Acquisition

On October 12, 2023, the European Commission (EC) ordered Illumina to unwind its already completed acquisition of the cancer-test provider GRAIL Inc. This is the first time that the EC has ordered a reversal of an acquisition…more

Corporate Counsel, Divestiture, EU, European Commission, European Merger Control Regulation

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Cox and Kings v. SAP India Pvt. Ltd. & Anr.: The Indian Supreme Court Revisits and Retains the Group of Companies Doctrine

In December 2023, a five-judge bench of the Indian Supreme Court issued its much-awaited decision on the “group of companies” doctrine in Cox and Kings v. SAP India Pvt. Ltd. & Anr. (“Cox and Kings”), confirming that the…more

Arbitration, Commercial Contracts, Dispute Resolution, India, International Arbitration

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Antitrust Division’s Updated Leniency Policy Impacts Leniency for Acquirors

The Antitrust Division of the Department of Justice has quietly made a change to its Leniency Policy and Procedures (the “Leniency Policy”) that could impact companies involved in transactions that discover potential antitrust…more

Antitrust Division, Antitrust Provisions, Department of Justice (DOJ), Federal Trade Commission (FTC), Leniency Guidelines

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HSR Size-of-Transaction Threshold to Increase to $119.5 Million

On January 22, 2024, the Federal Trade Commission (FTC) announced revised thresholds for merger notifications under the Hart-Scott-Rodino (HSR) Act. Effective 30 days after the official publication date in the Federal Register,…more

Acquisitions, Antitrust Division, Department of Justice (DOJ), Federal Trade Commission (FTC), Filing Fees

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COVID-19: Employers Have Options to Provide Relief to Employees and their Communities

As the COVID-19 pandemic spreads, the economy has struggled significantly under its new burdens. The impact both domestically and globally has been staggering, and many employers are interested in finding creative solutions to…more

Coronavirus/COVID-19, Employee Assistance Programs, Employment Policies

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FinCEN Re-Proposes AML/CFT Requirements Covering Investment Advisers

On February 15, 2024, the U.S. Department of the Treasury’s (Treasury) Financial Crimes Enforcement Network (FinCEN) issued a long-anticipated Notice of Proposed Rulemaking (NPRM) to impose comprehensive anti-money laundering…more

AML/CFT, Anti-Money Laundering, Bank Secrecy Act, BSA/AML, Financial Institutions

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Proposed Changes to HSR Notification Form Would Intensify Scrutiny on Private Equity Funds: Some Thoughts on What to Expect and How to React

As described in our Client Alert of July 6, 2023, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) proposed on June 27, 2023, a massive overhaul of the Hart-Scott-Rodino Act (HSR) pre-merger notification…more

Antitrust Division, Comment Period, Department of Justice (DOJ), Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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Global Anti-Bribery Year-in-Review: 2023 Developments and Predictions for 2024

Publicly announced Foreign Corrupt Practices Act (FCPA) enforcement activity in 2023 did not return to the levels seen a few years ago, as indicated by both the total number of cases against corporate and individual defendants…more

Acquisitions, Anti-Bribery, Anti-Corruption, Clawbacks, Compliance

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Environmental Deconfliction 2021: the National Defense Authorization Act for FY 2021

As in prior years, the National Defense Authorization Act for Fiscal Year 2021 contains a variety of provisions setting U.S. Department of Defense priorities for energy, environmental, and natural resource issues. These include…more

Biden Administration, Climate Change, Conservation, Critical Infrastructure Sectors, Department of Defense (DOD)

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Debt Ceiling Law’s Permitting Reform Elements Promise Benefits for Project Applicants

Legislation recently enacted to raise the federal debt ceiling (the Fiscal Responsibility Act of 2023 or FRA) includes major permitting reforms with the potential to streamline federal environmental reviews under the National…more

Administrative Procedure, Debt Ceiling, Environmental Assessments, Environmental Impact Statements, Federal Budget

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Third Circuit Weighs In on Scope of Section 524(g)(4) Injunction

Summary: A recent Third Circuit decision has clarified the scope of the third-party injunction, including injunctions in favor of insurers that resolve insurance coverage in asbestos bankruptcy cases, that may be issued under…more

363 Sales, Appeals, Asbestos, Asbestos Litigation, Bankruptcy Code

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Federal Circuit Patent Watch: IPR disclaimers are binding in later proceedings but not in the proceeding in which it is made

Precedential Federal Circuit Opinions - 1.  VLSI TECHNOLOGY LLC v. INTEL CORPORATION [OPINION]  (2021-1826, 11/15/22) (Chen, Bryson, Hughes) - Bryson, J. Affirming in part, reversing in part, and remanding…more

Disclaimers, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patents, Precedential Opinion

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Corporate Transparency Act: What is a Reporting Company?

As we have previously noted, the Corporate Transparency Act (“CTA”) requires any entity that qualifies as a "reporting company" to submit a report disclosing certain beneficial ownership information (“BOI Report”) to the…more

Beneficial Owner, Corporate Entities, Corporate Transparency Act, FinCEN, Foreign Entities

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COVID-19: Rethinking Chapter 11 Bankruptcy Valuation Issues in the Crisis

Valuation is a critical and indispensable element of the Chapter 11 bankruptcy process. It drives many aspects of a Chapter 11 case, from petition to plan confirmation, in all circumstances…more

Asset Valuations, Bankruptcy Plans, Business Valuations, Chapter 11, Commercial Bankruptcy

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Hiding in Plain Sight: New Ukraine and Israel Aid Package Includes Significant Changes to US Sanctions and Export Control Laws

On April 24, 2024, President Biden signed into law H.R. 815, an emergency appropriations package billed as authorizing $95 billion in foreign aid to Ukraine and Israel (the Act). While the Ukraine and Israel aid provisions and…more

Appropriations Bill, Biden Administration, China, Economic Sanctions, EU

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Corporate Transparency Act: Entities Formed in Early January Must Comply with the CTA as Early as Today

As we have previously reported, under the Corporate Transparency Act (“CTA”), a reporting company that is formed or initially registered to do business in 2024 must file its initial beneficial ownership information reports (“BOI…more

Beneficial Owner, Compliance, Corporate Transparency Act, Filing Deadlines, Reporting Requirements

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DOJ Criminal Division Announces Pilot Program on Voluntary Self-Disclosure for Individuals

On April 15, 2024, the Criminal Division of the Department of Justice (DOJ) announced the Pilot Program on Voluntary Self-Disclosure for Individuals, providing transparency regarding the circumstances in which Criminal Division…more

Department of Justice (DOJ), Federal Pilot Programs, Non-Prosecution Agreements, Voluntary Disclosure, Whistleblower Protection Policies

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SEC Brings Two More “AI Washing” Enforcement Actions Against Investment Advisers, Continuing Its Pursuit of Misstatements Related to AI

On March 18, 2024, the Securities and Exchange Commission (SEC or the Commission) announced settled charges against two investment advisers, Delphia (USA) Inc. and Global Predictions, Inc., for making false and misleading…more

Artificial Intelligence, Civil Monetary Penalty, Enforcement Actions, Investment Adviser, Material Misstatements

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Open Questions Regarding the Patent Eligibility Restoration Act of 2023

United States Senators Thom Tillis (R-NC) and Chris Coons (D-DE) introduced the Patent Eligibility Restoration Act of 2023 (the “Act”) on June 22, 2023. The Act seeks to modify and clarify “patent eligibility jurisprudence…more

Abstract Ideas, Artificial Intelligence, Intellectual Property Protection, Patent Act, Patent-Eligible Subject Matter

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DOJ Tells Tech Companies to Develop "Responsible Encryption"

On November 29, 2018, in a speech at the Georgetown University Law School, Deputy Attorney General Rod Rosenstein renewed his call for tech companies to build into their products the means for law enforcement to legally access…more

Cybersecurity, Department of Justice (DOJ), Encryption, Law Enforcement, Technology

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Investigations in the Time of Coronavirus: Conducting FCPA Investigations during the Pandemic

Latin America has been especially hard hit in recent months by the ongoing COVID-19 pandemic. The resulting travel restrictions, physical safety precautions and public health concerns have created uncertainty for many companies…more

Compliance, Coronavirus/COVID-19, Cross-Border, Foreign Corrupt Practices Act (FCPA), Internal Investigations

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House Financial Services Committee Introduces Legislation to Overhaul SEC Waiver Process

Over the past several weeks, competing views have emerged from Capitol Hill and the SEC over how the Securities and Exchange Commission (“SEC” or “Commission”) should approach waivers of collateral consequences for parties that…more

Congressional Committees, Corporate Misconduct, Disqualification, Enforcement Actions, Financial Services Committee

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Biden Administration Announces Steps to Strengthen Critical Supply Chains

On June 8, the Biden Administration released reports on the supply chain reviews directed under Executive Order (E.O.) 14017, “America’s Supply Chains,” detailing key findings and next steps to strengthen the resilience of U.S…more

Biden Administration, China, Critical Infrastructure Sectors, Executive Orders, Manufacturers

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FTC Proposes Rule to Make Impersonating Government Entities and Businesses Unlawful

On February 15, 2024, the Federal Trade Commission (FTC) finalized its Government and Business Impersonation Rule (the Impersonation Rule, available here) prohibiting fraudulent impersonation of governments, businesses and their…more

Artificial Intelligence, Deep Fake, Federal Trade Commission (FTC), Final Rules, Fraud

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WilmerHale Eastern District of Texas Newsletter: September 2016

Data shows that although transfer motion filings in the Eastern District of Texas decreased 50% year-over-year from 2014 to 2015 (from 135 to 63), the percentage of successful motions increased from 34% to 43%. According to…more

Forum Selection, Jury Verdicts, Motion to Transfer, Transfer of Venue

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Protecting Common-Interest Privilege and Work-Product Protections: Guidance from Recent Decisions

Two recent decisions from Judge Laurie Selber Silverstein of the United States Bankruptcy Court for the District of Delaware address common-interest and attorney work-product protection issues that arose in the bankruptcy case…more

Attorney-Client Privilege, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Common-Interest Privilege

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President Biden’s Memorandum on Housing Discrimination

On Tuesday, January 26, President Biden signed a memorandum on discriminatory housing practices and policies. The memorandum is one of a series of recent executive actions focused on racial equity, representing the…more

Anti-Discrimination Policies, Biden Administration, Disparate Impact, Fair Housing Act (FHA), Housing Discrimination

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Federal Circuit Patent Watch: District Court’s “Seemingly Siloed and Inflexible Approach” to Obviousness “Ran Afoul” of KSR

Precedential and Key Federal Circuit Opinions - 1.  JANSSEN PHARMACEUTICALS, INC. v. TEVA PHARMACEUTICALS USA, INC. [OPINION] (2022-1258, 2022-1307, 4/1/2024) (Dyk, Prost, and Hughes) - Prost, J. The Court affirmed the…more

Abstract Ideas, Indefiniteness, Obviousness, Patent Litigation, Patent Trial and Appeal Board

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SEC Pauses Final Rules on Climate-Related Disclosures

On April 4, 2024, the SEC issued a stay of its final climate-related disclosure rules. The SEC adopted the long-awaited final rules in March after receiving more than 24,000 comment letters…more

Climate Change, Corporate Governance, Disclosure Requirements, Final Rules, Multidistrict Litigation

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In Case You Missed It: Launch Links - May 2022 #4

Some interesting links we found across the web this week: Turning the Tide on the Great Resignation - A staggering number of employees have re-evaluated their work priorities or even quit as a part of the so-called…more

Early Stage Companies, Employee Benefits, Entrepreneurs, Leadership, Startups

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Recent PCAOB Developments for Audit Committee and Companies

The Public Company Accounting Oversight Board (PCAOB) has had one of its busiest years in recent memory, including with respect to standard setting, inspections and enforcement. Below is a summary of notable developments that…more

American Bar Association (ABA), Audit Committee, Audited Financial Statements, Audits, Comment Period

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Preparing For Congress' Oversight Of Chinese Trade In 2023

As Republicans assume control of the U.S. House of Representatives, China-related issues are poised to be a key caucus priority and likely a rare area of bipartisan cooperation in a narrowly divided and highly polarized…more

China, Congressional Committees, Congressional Oversight, Cybersecurity, Human Rights

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FinCEN Re-Proposes AML/CFT Requirements Covering Investment Advisers

On February 15, 2024, the U.S. Department of the Treasury’s (Treasury) Financial Crimes Enforcement Network (FinCEN) issued a long-anticipated Notice of Proposed Rulemaking (NPRM) to impose comprehensive anti-money laundering…more

AML/CFT, Anti-Money Laundering, Bank Secrecy Act, BSA/AML, Financial Institutions

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FTC Bans Non-Competes: What’s at Stake and What Happens Next

On April 23, 2024, the Federal Trade Commission (FTC), in a highly anticipated vote, passed the Non-Compete Clause Rule, 16 CFR § 910 (the Rule), which purports to bar all non-competes in the United States, subject to limited…more

Chamber of Commerce, Constitutional Challenges, Employer Liability Issues, Employment Contract, Federal Bans

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Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48: UK Supreme Court clarifies approach to determining whether there is a valid arbitration agreement

In an important recent decision, the U.K. Supreme Court provided further guidance on how to determine the law that applies to an international arbitration agreement. In its unanimous decision in Kabab-Ji SAL v Kout Food…more

Arbitration, Arbitration Agreements, Choice-of-Law, Contract Disputes, France

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CFTC Enforcement Division Issues Compliance Program Guidance

On September 10, 2020, the Commodity Futures Trading Commission’s (CFTC, or the Commission) Division of Enforcement (Division) director issued a memorandum to Division staff setting forth a framework for evaluating the…more

CFTC, Civil Monetary Penalty, Compliance, Enforcement Actions, New Guidance

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USPTO’s Notice of Proposed Rulemaking for Discretionary Denial Briefing, Section 325(d), Instituting Parallel and Serial Petitions, and Settlement Agreements

On April 19, 2024, the United States Patent and Trademark Office (USPTO) issued a notice of proposed rulemaking (NPRM) that proposes rules regarding the exercise of discretion to determine whether to institute an Inter Partes…more

America Invents Act, Comment Period, Inter Partes Review (IPR) Proceeding, NPRM, Patent Litigation

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Combating Affirmative Defense Inflation

Earlier this month, a magistrate judge in the Northern District of California dealt another blow to the “kitchen sink” approach to pleading affirmative defenses. In Wesch v. Yodlee, Inc., Magistrate Judge Sallie Kim granted in…more

Affirmative Defenses, Article III, Data-Sharing, Failure To State A Claim, Laches

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Ranking Parallel Petitions Before the PTAB: A Survey

On November 10, 2018, Comcast Cable Communications, LLC (Comcast) filed six inter partes review (“IPR”) petitions, each challenging claims 1–28 of Rovi Guides, Inc.’s (Rovi’s) U.S. Patent No. 7,827,585. In an unprecedented move,…more

America Invents Act, Inter Partes Review (IPR) Proceeding, Patents, Popular, USPTO

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DOJ Announces Pilot Whistleblower Rewards Program and Increased AI Enforcement

On March 7, 2024, Deputy Attorney General Lisa Monaco announced Department of Justice (DOJ) initiatives to incentivize whistleblowers with payouts from civil or criminal forfeitures and to integrate artificial intelligence (AI)…more

Artificial Intelligence, CFTC, Corporate Crimes, Criminal Prosecution, Department of Justice (DOJ)

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Análisis Anual sobre Prácticas Anticorrupción en América Latina: Desarrollos del 2021 y Predicciones para el 2022

Aunque la cantidad de casos relacionados con la Ley de Prácticas Corruptas en el Extranjero (Foreign Corrupt Practices Act, FCPA) resueltos públicamente en el año 2021 fue relativamente baja en comparación con los años…more

Anti-Bribery, Anti-Corruption, Brazil, Compliance, Cooperation

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The EU Reaches a Political Agreement on the AI Act

On December 8, representatives from the European Commission, the European Parliament, and the Council of the European Union (EU) reached political agreement on the shape and contents of the EU’s AI Act (the “Act”), setting the…more

Artificial Intelligence, Cyber Incident Reporting, Cybersecurity, Data Privacy, Data Protection

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European Parliament Committees Adopt Their Position on the Proposed EU Forced Labour Regulation

On October 16, 2023, the Committee on International Trade (INTA) and the Committee on Internal Market and Consumer Protection (IMCO) of the European Parliament adopted their position (the Committee Position; see here and here)…more

EU, European Commission, European Parliament, Exports, Forced Labor

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The Drawbacks Of Banking Regulators' Merger Review Plans

The Federal Deposit Insurance Corp. and the Office of the Comptroller of the Currency recently announced proposals to update their approaches to evaluating bank mergers and other business combinations under the Bank Merger…more

Bank Merger Act, Banking Sector, Banks, Biden Administration, Executive Orders

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Inside WilmerHale’s Approach to Matter Management for IP

Matter management has become increasingly important for law firms and the clients that they serve. For clients, effective matter management can result in lower fees, more accurate estimates of costs, and better results, as their…more

Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Legal Project Management, Patent Prosecution, Patents

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Proposed Changes to HSR Notification Form Would Intensify Scrutiny on Private Equity Funds: Some Thoughts on What to Expect and How to React

As described in our Client Alert of July 6, 2023, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) proposed on June 27, 2023, a massive overhaul of the Hart-Scott-Rodino Act (HSR) pre-merger notification…more

Antitrust Division, Comment Period, Department of Justice (DOJ), Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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FTC Renews Focus on Digital Dark Patterns With Release of New Staff Report

The Federal Trade Commission (“FTC”) issued a report in September analyzing digital “dark patterns,” which are deceptive design practices that “trick or manipulate consumers into buying products or services or giving up their…more

Advertising, Data Privacy, Federal Trade Commission (FTC), Information Reports, Marketing

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Certification Under the EU-U.S. Data Privacy Framework

On July 10, 2023, the European Commission adopted an adequacy decision for the new EU-U.S. Data Privacy Framework (“EU-U.S. DPF”), the successor to the EU-U.S. Privacy Shield, which the Court of Justice of the European Union…more

Certification Requirements, Compliance, Compliance Monitoring, Department of Transportation (DOT), EU

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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Federal Circuit Adopts “Skilled Searcher” Standard for IPR Estoppel

On April 3, 2023, the Federal Circuit issued an opinion in Ironburg Inventions Ltd. v. Valve Corp., addressing the scope of what invalidity grounds are subject to estoppel pursuant to 35 U.S.C. § 315(e)(2) and the burden of…more

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

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COVID-19: Rethinking Administrative Expenses in Chapter 11: How Vendors and Landlords Will Be Affected by “Mothballed” Cases, Partial Freezes, and Critical Expenses in the COVID-19 Crisis

Historically, many companies seeking bankruptcy protection have attempted to streamline and shorten their Chapter 11 cases to reduce cost and risk. But the COVID-19 pandemic may be disrupting that trend, especially in industries…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Coronavirus/COVID-19, Creditors

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USPTO’s Notice of Proposed Rulemaking for Discretionary Denial Briefing, Section 325(d), Instituting Parallel and Serial Petitions, and Settlement Agreements

On April 19, 2024, the United States Patent and Trademark Office (USPTO) issued a notice of proposed rulemaking (NPRM) that proposes rules regarding the exercise of discretion to determine whether to institute an Inter Partes…more

America Invents Act, Comment Period, Inter Partes Review (IPR) Proceeding, NPRM, Patent Litigation

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Biden Administration to Propose Climate Disclosure Rules for Federal Contractors

The Biden Administration will propose a rule “in the very near future” requiring major vendors supplying products and services to the federal government to report their greenhouse gas emissions and other climate-related risks…more

Biden Administration, Climate Change, Disclosure Requirements, Federal Contractors

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A Look At The Feds' Extraordinary Reaction To SVB Collapse

On Sunday evening, the U.S. Department of the Treasury, Federal Reserve, and the Federal Deposit Insurance Corporation announced measures to (1) prevent losses to all depositors — including all uninsured depositors — after…more

Banking Sector, Banks, Biden Administration, Deposit Accounts, Deposit Insurance

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Leading Tech Firms Agree to White House's AI Safeguards

On Friday, July 21, 2023, the White House announced that seven US technology companies at the forefront of generative artificial intelligence (AI) agreed to eight voluntary commitments to “promote the safe, secure, and…more

Artificial Intelligence, Biden Administration, Code of Conduct, Congressional Investigations & Hearings, Cybersecurity

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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Proposed US Government Contracting Rule Seeks Anti-Trafficking Reporting Requirements For Air Carrier Contractors

On August 7, 2023, the US Department of Defense, General Services Administration, and the National Aeronautics and Space Administration proposed to amend the Federal Acquisition Regulation (“FAR”) to impose anti-trafficking…more

Air Carriers, Airline Passengers, Anti-Trafficking Statutes, Department of Homeland Security (DHS), Department of Transportation (DOT)

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The SEC Proposes Regulation Best Execution

On December 14, 2022, the Securities and Exchange Commission (the SEC or Commission) proposed Regulation Best Execution (Proposed Reg Best Ex), which would establish through Commission rules a federal best execution regulatory…more

Best Execution, Best Interest Standard, Broker-Dealer, Proposed Regulation, Securities and Exchange Commission (SEC)

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Financial Regulators Issue Proposed Rulemaking Revising Volcker Rule Restrictions and Compliance Requirements

The Board of Governors of the Federal Reserve System (FRB) unveiled a Notice of Proposed Rulemaking (NPRM) seeking comment on proposed revisions to the regulations implementing Section 13 of the Bank Holding Company Act,…more

Dodd-Frank, NPRM, Regulatory Agencies, Regulatory Agenda, Rulemaking Process

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China Tariffs: USTR Announces Opportunity to Comment

On October 17, the Office of the US Trade Representative (USTR) published a notice requesting public comments on Section 301 tariffs on products from China. This request is part of USTR’s statutory four-year review of the…more

China, Comment Period, Imports, Notice and Comment, Section 301

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2018 M&A Report

Despite generally favorable macroeconomic conditions, high levels of cash among strategic acquirers and low interest rates, the number of reported M&A transactions and deal value worldwide both declined for the second…more

Acquisitions, Cross-Border Transactions, Entire Fairness Standard, Foreign Corrupt Practices Act (FCPA), Mergers

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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SEC Proposes Rules to Modernize Share Repurchase Disclosures

On December 15, the same day it proposed amendments to Rule 10b5-1 under the Securities Exchange Act of 1934 (Exchange Act) that may blunt the use of the affirmative defense for insider trading, the Securities and Exchange…more

Amended Regulation, Closed-End Funds, Comment Period, Corporate Issuers, Disclosure Requirements

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Upcoming Midterms Carry Implications for Corporate ESG Efforts

Election Day is rapidly approaching, and control of both the US House of Representatives and the Senate is on the line. The Democrats have a razor-thin majority that could quickly shift as a result of the midterms…more

Climate Change, Corporate Governance, Environmental Social & Governance (ESG), General Elections, Inflation Adjustments

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Breaking (Down) the Debt Ceiling

Since 1960, Congress has raised, revised or extended the statutory debt ceiling 79 times. The United States reached its debt ceiling in January 2023, prompting a congressional showdown and sparking fears of extreme market…more

Debt Ceiling, Economic Downturn, Federal Reserve, Financial Crisis, Financial Markets

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DOE Study Lays Groundwork for Solar Energy Development

A new study by the U.S. Department of Energy supports a dramatic expansion in solar energy development, finding that solar energy could comprise as much as 40 percent of U.S. electricity supply within the next 15 years. The…more

Biden Administration, Clean Energy, Department of Energy (DOE), Electricity, Energy Sector

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Key Points From NY Regulators' Crypto Listing Update

On Sept. 18, the New York State Department of Financial Services issued proposed guidance for companies holding virtual currency business licenses and limited-purpose trust companies — collectively referred to as virtual…more

Cryptocurrency, Delisting, Digital Currency, Listing Standards, NYDFS

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European Commission adopts new Vertical Block Exemption Regulation

On May 10, 2022, the European Commission adopted the final text of the new Vertical Block Exemption Regulation (VBER) accompanied by the new Guidelines on Vertical Restraints (the VGL), which provide detail on interpretation and…more

Antitrust Provisions, Competition, Digital Platforms, EU, European Commission

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The Use of Applicant Admitted Prior Art in IPR Petitions

Admissions made by the patentee, either in the patent specification or during the course of prosecution, identifying a particular work as ‘‘prior art’’ can be relied upon for both anticipation and obviousness determinations…more

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

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COVID-19: New York Attorney General Signals Increased Attention on Price Gouging Across Industries During Period of Record Inflation

The coronavirus pandemic has led to increased attention from regulators - and in particular state attorneys general - concerning price increases for essential goods and services. Although COVID-19 case counts are currently…more

Advanced Notice of Proposed Rulemaking (ANPRM), Coronavirus/COVID-19, Price Gouging, State Attorneys General

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ADPPA Formally Introduced in the House and Modified

This week, the American Data Privacy and Protection Act (ADPPA), H.R. 8152, was formally introduced in the House by Representatives Frank Pallone (D-NJ), Cathy McMorris Rodgers (R-WA), Janice Schakowsky (D-IL), and Gus Bilirakis…more

Consumer Privacy Rights, Data Privacy, Data Protection, Privacy Laws, Proposed Legislation

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2021 IPO Report

Across the board, despite the pall cast by the COVID-19 pandemic, 2020 was a year of strong IPO deal flow and aftermarket performance, punctuated by a breathtaking surge in IPOs by special purpose acquisition companies…more

Corporate Governance, Information Reports, Initial Public Offering (IPO), Publicly-Traded Companies, Securities and Exchange Commission (SEC)

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What Reviving the TTIP Agreement Could Mean for the Future of Geographical Indications

Some of the most famous and luxurious brands (Champagne, Bordeaux, Port) around the world are geographical indications (GIs) and bring in substantial revenue for the United States and Europe. According to the European Commission…more

Bilateral Agreements, EU, Geographic Markets, Trump Administration, TTIP

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Opportunities and Risks in Municipal Underwritings and Derivatives

In the current economic climate, opportunities are expanding significantly for municipal underwriters and derivatives specialists as states and municipalities across the country clamor to pay for infrastructure and services,…more

Banks, Derivatives, Lenders, Municipal Advisers, Municipalities

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Government Investigations and COVID-19: Remain Engaged and Prepare for a Postcrisis Response

Although the response to the COVID-19 pandemic has significantly disrupted the courts and US prosecutors and regulators, that disruption will not last indefinitely. As government prosecutors and regulators adjust to these new…more

Coronavirus/COVID-19, Enforcement, Government Investigations

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Global Anti-Bribery Year-in-Review: 2020 Developments and Predictions for 2021

As was true in many areas of the law, Foreign Corrupt Practices Act (FCPA) enforcement in 2020 - and anti-corruption enforcement more generally - was affected by the COVID-19 pandemic, but perhaps not as much as was initially…more

Bribery, Compliance, Corporate Investigations, Criminal Investigations, Criminal Prosecution

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ESG Asset Managers and Investment Funds - Near-Term SEC Enforcement Risk

The Securities and Exchange Commission (SEC) threw down the gauntlet after President Biden’s election and asserted its interest in greater regulation and policing of environmental, social, and governance (ESG) issues. One aspect…more

Asset Management, Corporate Governance, Environmental Social & Governance (ESG), Publicly-Traded Companies, SEC Examination Priorities

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DOJ Criminal Division Announces Pilot Program on Voluntary Self-Disclosure for Individuals

On April 15, 2024, the Criminal Division of the Department of Justice (DOJ) announced the Pilot Program on Voluntary Self-Disclosure for Individuals, providing transparency regarding the circumstances in which Criminal Division…more

Department of Justice (DOJ), Federal Pilot Programs, Non-Prosecution Agreements, Voluntary Disclosure, Whistleblower Protection Policies

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Major Decision on Major Questions Doctrine, Agency Regulatory Discretion

The Clean Power Plan is a program developed by the Environmental Protection Agency to reduce greenhouse gas emissions by forcing electric power generation to shift from coal-fired plants to renewable sources, such as wind and…more

Chevron Deference, Clean Air Act, Clean Power Plan, Climate Change, Environmental Protection Agency (EPA)

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Sanctions Update: Global Jurisdictions Announce a Series of Wide-Ranging Russia Sanctions

We wanted to share an update on Russia sanctions developments in the United States, United Kingdom, and European Union that occurred between March 24 and April 8, 2022. Following new reports of atrocities committed by the…more

Economic Sanctions, EU, Financial Institutions, Foreign Investment, Military Conflict

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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Proposed Changes to Stark and Anti-Kickback Regulations May Provide New Flexibility for Healthcare Providers

On October 9, 2019, the Department of Health and Human Services (HHS) announced proposals for a number of new and revised exceptions to the Stark Law and safe harbors for the Anti-Kickback Statute (AKS) that are intended to…more

Anti-Kickback Statute, Comment Period, Cybersecurity, Department of Health and Human Services (HHS), Electronic Medical Records

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Investment in Iran After Implementation Day

January 16, 2016, marked the Implementation Day that recognised the certification by the International Atomic Energy Agency that Iran had met its obligations under the July 2015 Joint Comprehensive Plan of Action (JCPOA), a deal…more

Bilateral Investment Treaties, EU, Financial Services Industry, FIPPA, Foreign Investment

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“Decentralized Finance (DeFi),” Fintech, Regtech, and the Financial Services Industry (Ch. 8A)

Decentralized Finance (DeFi) is an umbrella term used to describe financial services provided outside of the traditional markets, that rely on blockchain technologies to create innovative products instead of relying on central…more

Anti-Money Laundering, Bank Secrecy Act, Blockchain, Broker-Dealer, CFTC

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UK Supreme Court Confirms Correct Approach to Application of Liquidated Damages Clauses When Work Not Completed

The UK Supreme Court has recently confirmed an important principle regarding the application of liquidated damages clauses. In Triple Point Technology, Inc v PTT Public Company Ltd, the Supreme Court confirmed that, as a general…more

Breach of Contract, Calculation of Damages, Commercial Contracts, Contract Disputes, Contract Terms

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La sede y el ordenamiento aplicable en el arbitraje internacional: enfoques cruzados

El carácter global de la Convención sobre el Reconocimiento y la Ejecución de las Sentencias Arbitrales Extranjeras (Convención de Nueva York) es una de las prerrogativas típicamente destacadas dentro de las ventajas del…more

Arbitration, Argentina, Brazil, Colombia, Jurisdiction

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Know Your Limits: Understanding Your Term Sheet’s Exclusivity Provision

Hollywood’s exclusive parties include only the hottest A-listers. Exclusive sales are advertised only to a boutique’s biggest spenders. The startup world has its own take on exclusivity: Investors and buyers routinely insert an…more

Acquisitions, Contract Terms, Corporate Financing, Due Diligence, Early Stage Companies

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U.S. Agencies Caution Foreign-Based Persons on Extraterritorial Reach of U.S. Sanctions and Export Control Regulations

On March 6, 2024, the U.S. Departments of the Treasury, Commerce, and Justice jointly issued a Tri-Seal Compliance Note titled “Obligations of Foreign-Based Persons to Comply with U.S. Sanctions and Export Control Laws”…more

Bureau of Industry and Security (BIS), Department of Justice (DOJ), Economic Sanctions, Export Controls, Exports

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FTC Bans Non-Competes: What’s at Stake and What Happens Next

On April 23, 2024, the Federal Trade Commission (FTC), in a highly anticipated vote, passed the Non-Compete Clause Rule, 16 CFR § 910 (the Rule), which purports to bar all non-competes in the United States, subject to limited…more

Chamber of Commerce, Constitutional Challenges, Employer Liability Issues, Employment Contract, Federal Bans

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Cox and Kings v. SAP India Pvt. Ltd. & Anr.: The Indian Supreme Court Revisits and Retains the Group of Companies Doctrine

In December 2023, a five-judge bench of the Indian Supreme Court issued its much-awaited decision on the “group of companies” doctrine in Cox and Kings v. SAP India Pvt. Ltd. & Anr. (“Cox and Kings”), confirming that the…more

Arbitration, Commercial Contracts, Dispute Resolution, India, International Arbitration

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Corporate Sustainability Due Diligence Directive: Final Sprint to the Finish Line

The EU legislature has finally reached an agreement on the text of the Corporate Sustainability Due Diligence Directive (CS3D) (see here our previous client alert). The CS3D profoundly affects the ways companies active in Europe…more

Corporate Governance, Corporate Social Responsibility, Due Diligence, Environmental Social & Governance (ESG), Human Rights

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COVID-19: CARES Act - Updates to Main Street Lending Program

On April 30, 2020, the Federal Reserve announced actions to expand the Main Street Lending Program authorized under Section 13(3) of the Federal Reserve Act. The expanded program now consists of three credit facilities (up from…more

CARES Act, Coronavirus/COVID-19, Credit Facilities, Federal Reserve, Financial Stimulus

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Potential Changes to PTAB Practice on Multiple IPR Petitions

An important set of factors the Patent Trial and Appeal Board considers when deciding whether to institute inter partes review concerns the filing of multiple petitions challenging the same patent. Part I of this two-part series…more

America Invents Act, Ex Partes Reexamination, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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FTC Proposes Rule to Make Impersonating Government Entities and Businesses Unlawful

On February 15, 2024, the Federal Trade Commission (FTC) finalized its Government and Business Impersonation Rule (the Impersonation Rule, available here) prohibiting fraudulent impersonation of governments, businesses and their…more

Artificial Intelligence, Deep Fake, Federal Trade Commission (FTC), Final Rules, Fraud

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Environmental Deconfliction 2021: the National Defense Authorization Act for FY 2021

As in prior years, the National Defense Authorization Act for Fiscal Year 2021 contains a variety of provisions setting U.S. Department of Defense priorities for energy, environmental, and natural resource issues. These include…more

Biden Administration, Climate Change, Conservation, Critical Infrastructure Sectors, Department of Defense (DOD)

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Anti–Money Laundering Alert: FinCEN Finalizes Beneficial Ownership and Customer Due Diligence Requirements

The Financial Crimes Enforcement Network (FinCEN) on May 11 released its long-awaited Final Rule (CDD Rule) that will require certain financial institutions to “look through” the nominal account holder to identify the account's…more

Anti-Money Laundering, Beneficial Owner, Covered Financial Institutions, Customer Due Diligence (CDD), Customer Identification Program (CIP)

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DOJ Announces Updates to Corporate Enforcement Policy

Assistant Attorney General Kenneth A. Polite, Jr. Announces Changes to Department of Justice Criminal Division’s Corporate Enforcement Policy - On January 17, 2023, Assistant Attorney General for the Criminal Division Kenneth…more

Compliance, Compliance Management Systems, Compliance Monitoring, Cooperation, Corporate Counsel

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“Computed Without Regard to Taxes Paid”: The Individual Tax Consequences of Compensation Clawbacks

Compensation clawbacks can raise difficult, and often adverse, tax issues for employees and other service providers. Specifically, for clawbacks that are effected on a gross (pretax) basis, questions arise as to how the clawback…more

C-Suite Executives, Clawbacks, Equity Compensation, Executive Compensation, Incentive Compensation

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COVID-19: Rethinking Administrative Expenses in Chapter 11: How Vendors and Landlords Will Be Affected by “Mothballed” Cases, Partial Freezes, and Critical Expenses in the COVID-19 Crisis

Historically, many companies seeking bankruptcy protection have attempted to streamline and shorten their Chapter 11 cases to reduce cost and risk. But the COVID-19 pandemic may be disrupting that trend, especially in industries…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Coronavirus/COVID-19, Creditors

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SEC’s Final Rules and Guidance on the Standards of Conduct for Broker-Dealers and Investment Advisers

On June 5, 2019, the Securities and Exchange Commission (“SEC” or “Commission”) in a divided 3-1 vote, approved a package of rulemakings and interpretations designed to enhance the quality and transparency of investors’…more

Best Interest Standard, Broker-Dealer, Conflicts of Interest, Dodd-Frank, Fiduciary Duty

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Officials Must Note Financial Conflict Of Interest Law

Earlier this year, Brenda Fitzgerald, the director of the U.S. Centers for Disease Control, was forced to resign because, shortly after taking the position, she had purchased stock in tobacco and pharmaceutical companies —…more

Administrative Resignation, Centers for Disease Control and Prevention (CDC), Conflicts of Interest, Ethics, Office of Government Ethics (OGE)

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Draft Bill for the Modernization of German Arbitration Law

Germany is in the process of renewing its arbitration law, which in its current version dates from 1997. In April 2023, the German Federal Ministry of Justice (the “Ministry”) published a Key Issues Paper, identifying potential…more

Arbitral Authority, Arbitration, Arbitration Agreements, Arbitration Awards, Commercial Arbitration

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New Federal Privacy Bill Draft Hits Congress

On April 7, Representative Cathy McMorris Rodgers (R-Wash.), Chair of the U.S. House Committee on Energy and Commerce Chair, and Senator Maria Cantwell (D-Wash.), Chair of the Senate Committee on Commerce, Science and…more

Consumer Privacy Rights, Data Privacy, Data Protection, Data Security, Federal Data Privacy

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Key Takeaways From Women in Energy and Infrastructure Powering the Future

On November 29, WilmerHale held its second annual Women in Energy and Infrastructure - Powering the Future conference in Washington DC. The event and pre-conference dinner provided a forum for women thought leaders to discuss…more

Arbitration, Compliance, Critical Infrastructure Sectors, Energy Sector, Environmental Policies

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The Corporate Crime Advisory Group Has Spoken: DOJ Revises Corporate Criminal Enforcement Policies

On September 15, 2022, the Department of Justice (Department) released a memorandum revising several key aspects of its corporate criminal enforcement policies. The new policy, titled Further Revisions to Corporate Criminal…more

Compliance, Compliance Monitoring, Cooperation, Corporate Crimes, Corporate Culture

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CFTC 2020 Enforcement and Regulatory Developments and a Look Forward

2020 saw continuity in CFTC leadership, programs, and direction from 2019. Overall, the Commission enjoyed an unusually heavy rulemaking calendar and continued the direction of its enforcement program from 2019. On the…more

Anti-Money Laundering, Bank Secrecy Act, CFTC, Civil Monetary Penalty, Compliance

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Five Things to Know About University Licensing

Earlier this year, WilmerHale Partners Dave Gammell, Barry Hurewitz and Jeff Johnson discussed the basics of licensing and legal considerations for university licensing agreements such as unique aspects of university licenses…more

Intellectual Property Protection, Inventors, License Agreements, Patent Prosecution, Patents

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COVID-19: Key Considerations for Corporate Insiders Who Trade During the Pandemic

In response to COVID-19, US companies have been forced to make major changes to their businesses in a short period of time. Demand has collapsed; supply chains have been disrupted; and transactions have been put off…more

Coronavirus/COVID-19, Corporate Governance, Insider Trading, Material Nonpublic Information, Publicly-Traded Companies

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Court Endorses False Claims Act Theory for Business and Work Visas

In a False Claims Act (FCA) case with implications for the use of business and work visas, the US District Court for the District of New Jersey refused on Tuesday to reconsider or allow an immediate appeal of its prior ruling…more

B-1, Corporate Counsel, False Claims Act (FCA), False Statements, H-1B

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Uyghur Forced Labor Prevention Act Goes Into Effect

On June 21, 2022, the Uyghur Forced Labor Prevention Act (UFLPA) came into force after being signed into law on December 23, 2021, by President Biden. The legislation reflects the US government’s commitment to combating forced…more

Biden Administration, China, Customs and Border Protection, Effective Date, Forced Labor

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COVID-19: A Second Look at Securities Act Litigation Amid COVID-19

This article follows an earlier Client Alert titled COVID-19: An Early Look at Securities Act Litigation Amid COVID-19. In that alert, we anticipated that there would be an increase in Securities Act filings involving claims…more

Class Action, Coronavirus/COVID-19, Corporate Counsel, Corporate Governance, Enforcement Actions

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Finding A Way Through A Tight Deal Space

Last year’s contentious U.S. presidential election is often blamed for the slowdown in dealmaking activity in the life sciences space. While the uncertainty surrounding that contest certainly had an impact, Stuart Falber and…more

Acquisitions, Corporate Financing, Early Stage Companies, Entrepreneurs, Initial Public Offering (IPO)

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Global Anti-Bribery Year-in-Review: 2022 Developments and Predictions for 2023

While Foreign Corrupt Practices Act (FCPA) enforcement activity has not come close to returning to the heights seen a few years ago, 2022 reflected significant increases from the prior year in both the number of cases against…more

Anti-Bribery, Anti-Corruption, Bribery, CFTC, Compliance

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Corporate Sustainability Due Diligence Directive: Final Sprint to the Finish Line

The EU legislature has finally reached an agreement on the text of the Corporate Sustainability Due Diligence Directive (CS3D) (see here our previous client alert). The CS3D profoundly affects the ways companies active in Europe…more

Corporate Governance, Corporate Social Responsibility, Due Diligence, Environmental Social & Governance (ESG), Human Rights

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SEC Proposes to Modernize Fund Communications

On August 5, 2020, the Securities and Exchange Commission (SEC) proposed amendments to the disclosure framework for mutual funds and exchange-traded funds (ETFs) and to the advertising rules applicable to investment companies…more

Advertising, Disclosure Requirements, ETFs, Exchange-Traded Products, Investment Companies

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California Privacy Protection Agency Issues First-Ever Enforcement Advisory

On April 2, the California Privacy Protection Agency (CPPA or “the Agency”) issued the Agency’s first-ever enforcement advisory. The advisory (“Applying Data Minimization to Consumer Requests”) reaffirms data minimization as a…more

California Consumer Privacy Act (CCPA), California Privacy Protection Agency (CPPA), Consumer Privacy Rights, Corporate Counsel, Data Privacy

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Year in Review: 2023 Web Tracking Litigation and Enforcement

This post is part of a series of articles we are doing on 2023 data protection litigation trends. 2023 saw a rise in class action litigation related to internet tracking technology employed by companies to enhance user…more

Consumer Privacy Rights, Cookies, Cybersecurity, Data Collection, Data Privacy

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Retroactivity and Title IX: Doe v. Rensselaer Polytechnic Institute

On October 16, 2020, the Northern District of New York, in Doe v. Rensselaer Polytechnic Institute, enjoined Rensselaer Polytechnic Institute (RPI) from applying its 2018 Sexual Misconduct Policy to a complaint concerning an…more

Colleges, Educational Institutions, Final Rules, Gender-Based Violence, OCR

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Why US Should Help European Efforts to Fix SEP Licensing

The U.S. Patent Office, the National Institute of Standards and the International Trade Administration are all currently seeking input to establish U.S. policy on foreign standard-essential patent licensing regulatory regimes —…more

EU, European Commission, FRAND, Intellectual Property Protection, International Trade Commission (ITC)

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Supreme Court Vacates Ninth Circuit Decision in Spokeo, Remands for Analysis of Concrete Harms

On May 16, 2016, the Supreme Court issued its decision in Spokeo v. Robins, which posed the question of whether Article III standing requires a plaintiff to have a concrete injury when alleging a statutory violation under the…more

Article III, Class Action, EFTA, Fair Credit Reporting Act (FCRA), FDCPA

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Supreme Court Invalidates Restriction on President’s Power to Remove the CFPB Director

On June 29, 2020, the Supreme Court issued its opinion in Seila Law LLC v. Consumer Financial Protection Bureau, slip op. No. 19-7. The decision resolves a long-disputed issue regarding the constitutionality of the structure of…more

Constitutional Challenges, Consumer Financial Protection Bureau (CFPB), Dodd-Frank, Removal For-Cause, Reversal

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Disinformation Litigation Lessons From Media Co. Losses

In 2022 and early 2023, voting machine companies and the parents of school shooting victims won a string of court rulings against the media companies and personalities that had allegedly spread defamatory, viral lies about them…more

Actual Malice, Affirmative Defenses, Anti-SLAPP, Damages, Deceptive Intent

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Massachusetts Paid Family and Medical Leave - Three Month Delay Is Made Official

In our most recent alert regarding the Massachusetts Paid Family and Medical Leave Act (PFML), we noted the possibility that the start of employer and employee contributions could be delayed. Earlier this week, state leaders…more

Delays, Employee Benefits, Employee Contributions, Employer Contributions, Governor Baker

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New Stock Buyback Tax: Some Questions Answered, Others Remain

One of the headline tax changes in the Inflation Reduction Act of 2022, Public Law 117-169, is a 1% excise tax on stock repurchases by public companies. New Section 4501 of the Internal Revenue Code applies a non-deductible 1%…more

De Minimus Doctrine, Dividends, Excise Tax, Fair Market Value, Inflation Reduction Act (IRA)

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Inflation Reduction Act: Environmental Provisions

The Inflation Reduction Act (IRA), the Biden Administration’s signature legislative achievement, includes several provisions aimed at fighting climate change by reducing greenhouse gas (GHG) emissions. The law represents the…more

Biden Administration, Carbon Capture and Sequestration, Clean Energy, Climate Change, Environmental Justice

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SEC Revisits Shareholder Proposal Rule

The Securities and Exchange Commission recently revisited two proxy-related matters by (a) adopting amendments to the proxy rules governing proxy voting advice and (b) proposing amendments to the shareholder proposal rule in…more

Comment Period, Corporate Governance, Proposed Amendments, Proposed Rules, Proxy Voting

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The U.S. Supreme Court Rules That U.S. Discovery Under 28 U.S.C. 1782 Is Unavailable For Use in Most International Arbitrations

On 13 June 2022, in ZF Automotive v. Luxshare, the U.S. Supreme Court held unanimously that 28 U.S.C. § 1782 does not allow discovery for use in most international arbitral proceedings. The Supreme Court held that only…more

28 U.S.C. § 1782, AlixPartners LLP v The Fund for Protection of Investors Rights in Foreign States, Arbitration, Business Disputes, Business Litigation

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Nestle USA, Inc. v. Doe: Supreme Court Clarifies US Corporate Liability for Human Rights Violations Overseas

In a decision issued June 17, the US Supreme Court further limited the ability of plaintiffs to seek redress in US courts for human rights abuses that occur overseas, but did not go as far in restricting those suits as some had…more

Alien Tort Statute, Cargill, Cargill Inc. v Doe I, Extraterritoriality Rules, Human Rights

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European Parliament Committees Adopt Their Position on the Proposed EU Forced Labour Regulation

On October 16, 2023, the Committee on International Trade (INTA) and the Committee on Internal Market and Consumer Protection (IMCO) of the European Parliament adopted their position (the Committee Position; see here and here)…more

EU, European Commission, European Parliament, Exports, Forced Labor

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Crypto Currently: California Enacts Landmark Crypto Licensing Law

On October 13, Governor Gavin Newsom signed into law a comprehensive licensing regime for digital asset companies operating in California. Until this point, California had refrained from taking a definitive position on whether a…more

Best Execution, Capital Requirements, Department of Financial Protection and Innovation (DFPI), Digital Assets, Disclosure Requirements

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Federal Circuit Patent Watch: District Court’s “Seemingly Siloed and Inflexible Approach” to Obviousness “Ran Afoul” of KSR

Precedential and Key Federal Circuit Opinions - 1.  JANSSEN PHARMACEUTICALS, INC. v. TEVA PHARMACEUTICALS USA, INC. [OPINION] (2022-1258, 2022-1307, 4/1/2024) (Dyk, Prost, and Hughes) - Prost, J. The Court affirmed the…more

Abstract Ideas, Indefiniteness, Obviousness, Patent Litigation, Patent Trial and Appeal Board

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The FTC’s New “Warning Letter” in Merger Reviews: More Waiting After the HSR Waiting Period?

In an August 3 blog post, the Federal Trade Commission (FTC) announced a change to the FTC’s merger review process with potentially far-reaching effects. Emphasizing the agency’s constrained capacity resulting from a “tidal…more

Antitrust Division, Antitrust Investigations, Antitrust Provisions, Biden Administration, Federal Trade Commission (FTC)

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IRS Issues Proposed Regulations Under Code Section 162(m)

The 2017 Tax Cuts and Jobs Act (TCJA) significantly amended Internal Revenue Code Section 162(m), which generally disallows the deduction of compensation in excess of $1 million paid by a “publicly held corporation” to a…more

Acquisitions, Comment Period, Compensation & Benefits, Covered Employees, Executive Compensation

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New York Legalizes Marijuana - Where Is the US Headed?

It’s been an eventful week for the marijuana industry. After years of false starts, New York legalized the use of recreational marijuana on March 31 - just hours later, New Mexico legislators passed a bill to do the same…more

Banking Sector, Canada, Coronavirus/COVID-19, Decriminalization of Marijuana, Financial Institutions

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New Commerce Rule Covering ICTS Transactions Involving Foreign Parties

A new rule effective March 22, 2021 establishes a process for the US Department of Commerce to review commercial transactions between US and foreign parties for certain information and communications technology and services…more

Biden Administration, China, Covered Transactions, Critical Infrastructure Sectors, Cross-Border

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Leaders in Law: Ambassador Robert Kimmitt

Senior International Counsel Ambassador Robert Kimmitt joins In the Public Interest host Felicia Ellsworth to talk about his storied career in public service. Through his service as the first General Counsel of the National…more

Business Development, Content Strategy, Firm Leadership, Marketing Perspectives, Strategic Planning

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Oil States v. Greene’s Energy: IPR Here to Stay, For Now

The U.S. Supreme Court on April 24 issued its decision in the closely watched patent case Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (2018). The case addressed a constitutional challenge to…more

America Invents Act, Article III, Constitutional Challenges, Inter Partes Review (IPR) Proceeding, Oil States Energy Services v Greene's Energy Group

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PTAB/USPTO Update - December 2023

Patent Center Replaces EFS-Web and Private PAIR - On November 15, following a one-week delay, the legacy EFS-Web and Private Patent Application Information Retrieval (Private PAIR) systems were officially retired and fully…more

Intellectual Property Protection, Patent Infringement, Patent Litigation, Patent Trial and Appeal Board, Patents

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Tax Act: New Laws Affecting Tax-Exempt Organizations

The Tax Act contains a number of provisions that significantly affect tax-exempt organizations, in some cases to degrees not seen in decades. In addition, several provisions may indirectly affect tax-exempts, for example, by…more

Corporate Taxes, Educational Institutions, Remuneration, Tax Cuts and Jobs Act, Tax Exempt Entities

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What Nonprofits Should Learn From AG Lawsuits Against NRA

On Aug. 6, New York Attorney General Letitia James and D.C. Attorney General Karl Racine brought blockbuster lawsuits against the National Rifle Association and the National Rifle Association Foundation, alleging that these…more

501(c)(3), Internal Revenue Code (IRC), IRS, Popular, State Attorneys General

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DOJ and SEC Release Second Edition of the FCPA Resource Guide

On July 3, 2020, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) released the second edition of the Resource Guide to the U.S. Foreign Corrupt Practices Act (2020 Guide), the first update to the…more

Chief Compliance Officers, Compliance, Department of Justice (DOJ), Enforcement Authority, Enforcement Guidance

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Taking A Closer Look At Fed. Circ. Claim Construction Split

Despite the U.S. Court of Appeals for the Federal Circuit's en banc Phillips v. AWH Corp. decision in 2005 that purported to establish the definitive standard for claim construction, two disparate lines of claim construction…more

Claim Construction, Legal History, Patent Litigation, Patents, Split of Authority

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In Case You Missed It: Launch Links - December 2021 #2

Some interesting links we found across the web this week: Your best employee just quit. Should you extend a counteroffer? Often an employer views the leaving of a trusted employee as the cessation of their relationship,…more

Best Management Practices, Early Stage Companies, Entrepreneurs, Startups, Technology Sector

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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False Claims Act: 2015 Year-in-Review

In 2015, the Justice Department (DOJ) continued to give high priority to False Claims Act (FCA) investigations, bringing in nearly $3.6 billion in settlements and judgments. More than 630 qui tam suits were filed. DOJ's…more

Department of Justice (DOJ), False Claims Act (FCA), False Implied Certification Theory, Individual Accountability, Qui Tam

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Supreme Court Rejects Heightened Harm Requirement In Title VII Discrimination Case

On April 17, 2024, the U.S. Supreme Court ruled in Muldrow v. City of St. Louis, Missouri that an employee challenging a job transfer under Title VII of the Civil Rights Act of 1964, as amended, must show only that the transfer…more

Civil Rights Act, Employee Transfers, Employer Liability Issues, Employment Litigation, Hiring & Firing

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The European Commission publishes its proposal on the European Health Data Space (EHDS)

On May 3, 2022, the European Commission published a proposal for a Regulation on the European Health Data Space (EHDS) (“EHDS Regulation”, or “Proposal”). With the Proposal, the European Commission aims to make significant…more

Digital Health, Electronic Health Record Incentives, Electronic Protected Health Information (ePHI), EU, European Commission

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How Companies Can Respond to the Surge in Job Scams

The ubiquity of remote work and online hiring has led to a sharp rise in job scams across industries. In these swindles—sometimes called employment scams or recruitment scams—fraudsters impersonate job recruiters from real…more

Hiring & Firing, Popular, Remote Working, Risk Management, Scams

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Draft Bill for the Modernization of German Arbitration Law

Germany is in the process of renewing its arbitration law, which in its current version dates from 1997. In April 2023, the German Federal Ministry of Justice (the “Ministry”) published a Key Issues Paper, identifying potential…more

Arbitral Authority, Arbitration, Arbitration Agreements, Arbitration Awards, Commercial Arbitration

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CFTC Year in Review: 23 Takeaways From 2023 and Predictions for 2024

At an industry event in early 2023, Commodity Futures Trading Commission (CFTC or the Commission) Chairman Rostin Behnam set out a comprehensive agenda to include nearly three dozen rulemaking proposals as well as “business as…more

Asset Class, CFTC, Commodities, Compliance, Conflicts of Interest

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In Case You Missed It: Launch Links - June 2022 #2

Some interesting links we found across the web this week: As Venture Dollars Slow, Deal Terms Begin Trending Back Toward Investors - After years of free flowing venture dollars, inflation, interest rates and instability…more

Competition, Early Stage Companies, Entrepreneurs, Hiring & Firing, Investors

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German Cum/Ex-Trades: Enhanced Risks and Industry-Wide Challenges

The German and international financial industries and their advisors have come under new pressure to investigate so-called 'cum/ex' trades conducted between 2000 and 2012. For many years, tax authorities and criminal prosecutors…more

BaFin, Capital Gains, Capital Markets, Criminal Prosecution, Damages

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The Emergence of a Global Russia Sanctions Enforcement Regime

The year since Russia’s invasion of Ukraine has been marked by the development of a multi-jurisdictional, multi-agency sanctions regime in the United States, the United Kingdom and the European Union. Although coordination among…more

Asset Freeze, Asset Recovery, Compliance, Economic Sanctions, Enforcement

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COVID-19: Key Considerations for Corporate Insiders Who Trade During the Pandemic

In response to COVID-19, US companies have been forced to make major changes to their businesses in a short period of time. Demand has collapsed; supply chains have been disrupted; and transactions have been put off…more

Coronavirus/COVID-19, Corporate Governance, Insider Trading, Material Nonpublic Information, Publicly-Traded Companies

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White Collar Crime Year in Review

2023 has been a year of change at the SFO with a new Director, enhanced investigatory powers and new statutory regime that will make it easier to prosecute corporate criminal offenders. Dropped investigations and acquittals of…more

Corruption, Enforcement Actions, Serious Fraud Office (SFO), UK, White Collar Crimes

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Lessons From DOJ's Handling Of Rare Medicare Fraud Case

In October, the U.S. Department of Justice announced a rare criminal indictment involving the Medicare Advantage program — a contrast from the DOJ's more typical use of its civil enforcement authority to pursue similar issues…more

Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA), Fraud and Abuse, Health Care Providers

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PTAB/USPTO Update - April 2024

On March 8, the USPTO joined other intellectual property offices in celebrating International Women’s Day with a theme of “Invest in Women: Accelerate Progress.”…more

America Invents Act, Artificial Intelligence, Copyright, Copyright Office, Diversity

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First to the Finish Line: Governor Newsom Signs California’s Emissions Disclosure Law

On October 7, 2023, Governor Newsom signed into law California Senate Bill 253 (SB 253), the Climate Corporate Data Accountability Act. With the passage of SB 253, California takes the lead in implementing greenhouse gas…more

California Air Resources Board, Climate Change, Corporate Governance, Disclosure Requirements, Governor Newsom

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Antitrust Division’s Updated Leniency Policy Impacts Leniency for Acquirors

The Antitrust Division of the Department of Justice has quietly made a change to its Leniency Policy and Procedures (the “Leniency Policy”) that could impact companies involved in transactions that discover potential antitrust…more

Antitrust Division, Antitrust Provisions, Department of Justice (DOJ), Federal Trade Commission (FTC), Leniency Guidelines

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SEC Guidance for Private Fund Advisers

On June 23, 2020, the US Securities and Exchange Commission (SEC) Office of Compliance Inspections and Examinations (OCIE) issued a risk alert (Risk Alert) describing common deficiencies and compliance issues for SEC-registered…more

Conflicts of Interest, Corporate Governance, Hedge Funds, Investment Adviser, Investment Funds

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USPTO’s Notice of Proposed Rulemaking for Discretionary Denial Briefing, Section 325(d), Instituting Parallel and Serial Petitions, and Settlement Agreements

On April 19, 2024, the United States Patent and Trademark Office (USPTO) issued a notice of proposed rulemaking (NPRM) that proposes rules regarding the exercise of discretion to determine whether to institute an Inter Partes…more

America Invents Act, Comment Period, Inter Partes Review (IPR) Proceeding, NPRM, Patent Litigation

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FTC’s Third Open Meeting Brings New Changes to Agencies’ Approach for Health App Privacy, Petitions for Rulemaking, and Vertical Mergers

On September 16, 2021, the Federal Trade Commission (“FTC” or “Commission”) held its third Open Commission Meeting in as many months. The Commission addressed four items: (1) whether to issue a policy statement affirming that…more

Acquisitions, American Recovery and Reinvestment Act, Committee Meetings, Data Breach, Department of Justice (DOJ)

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Supreme Court Rejects Heightened Harm Requirement In Title VII Discrimination Case

On April 17, 2024, the U.S. Supreme Court ruled in Muldrow v. City of St. Louis, Missouri that an employee challenging a job transfer under Title VII of the Civil Rights Act of 1964, as amended, must show only that the transfer…more

Civil Rights Act, Employee Transfers, Employer Liability Issues, Employment Litigation, Hiring & Firing

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Criminal Indictment for Medicare Advantage Fraud

The U.S. Department of Justice (DOJ) recently announced a rare criminal indictment involving the Medicare Advantage program—a contrast from DOJ’s more typical use of its civil enforcement authority to pursue similar issues under…more

Centers for Medicare & Medicaid Services (CMS), Compliance, Cooperation, Criminal Prosecution, Declination

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Asia: The new battleground for gas price reviews?

The Asia-Pacific region is the largest importer of liquefied natural gas (LNG), comprising 53.6% of global supply in 2016. Japan is the world’s largest LNG importer (83.3MT imported in 2016), followed by South Korea (33.7MT in…more

Asia, Energy Contracts, Energy Sector, Liquid Natural Gas, Manufacturing Hubs

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The Corporate Crime Advisory Group Has Spoken: DOJ Revises Corporate Criminal Enforcement Policies

On September 15, 2022, the Department of Justice (Department) released a memorandum revising several key aspects of its corporate criminal enforcement policies. The new policy, titled Further Revisions to Corporate Criminal…more

Compliance, Compliance Monitoring, Cooperation, Corporate Crimes, Corporate Culture

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Broker-Dealers and Advisers Beware: The SEC’s “PDA” Proposal Could Upend Firms’ Interactions With Customers, Clients and Investors

On July 26, 2023, the Securities and Exchange Commission (SEC or Commission) narrowly approved (3-2) a proposed rulemaking under the Securities Exchange Act of 1934 (Exchange Act) and the Investment Advisers Act of 1940…more

Analytics, Broker-Dealer, Conflicts of Interest, Electronic Communications, Investment Adviser

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US Patent Office Issues Updated Guidance Regarding Patentable Subject Matter

On July 30, 2015, the United States Patent and Trademark Office (USPTO) issued updated guidance on subject-matter eligibility under 35 U.S.C. 101, intended to “assist examiners in applying the 2014 Interim Patent Eligibility…more

Guidance Update, Patent-Eligible Subject Matter, Patents, Section 101, USPTO

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Automotive Tech In 2018: Legal Trends And Developments

The legal landscape for the automotive sector continued its evolution in 2018 with the development of new technology becoming a focal point for litigation, patenting and regulation. As we did at the close of 2017, we look back…more

Automotive Industry, Defend Trade Secrets Act (DTSA), Design Patent, Driverless Cars, Intellectual Property Protection

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What's in Biden's Infrastructure Plan?

On March 31, 2021, the Biden Administration released in broad brushstrokes its plan to address the country’s infrastructure. The “American Jobs Plan” calls for a grand total of more than $2 trillion in federal investment…more

Biden Administration, Budget Reconciliation, Clean Energy, Critical Infrastructure Sectors, Environmental Policies

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Major Decision on Major Questions Doctrine, Agency Regulatory Discretion

The Clean Power Plan is a program developed by the Environmental Protection Agency to reduce greenhouse gas emissions by forcing electric power generation to shift from coal-fired plants to renewable sources, such as wind and…more

Chevron Deference, Clean Air Act, Clean Power Plan, Climate Change, Environmental Protection Agency (EPA)

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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Potential Impacts Of The EPA's Designation Of PFAS As Hazardous Substances

Designation of PFAS as Hazardous Substances - On September 6, 2022, the Environmental Protection Agency (EPA) designated two per- and polyfluoroalkyl substances (collectively, PFAS) as “hazardous substances” under the…more

CERCLA, Contaminated Properties, Environmental Policies, Environmental Protection Agency (EPA), Hazardous Substances

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DOL Issues Final Rule Raising Salary Threshold for Exempt Employees

On April 23, 2024, the U.S. Department of Labor (DOL) issued its much-anticipated final rule raising the salary threshold for employees to be exempt from federal overtime requirements under the Fair Labor Standards Act (FLSA)…more

Department of Labor (DOL), Exempt-Employees, Fair Labor Standards Act (FLSA), Final Rules, Highly Compensated Employees

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COVID-19: Planning Ahead at a Social Distance Considerations for Emerging Companies

COVID-19 continues to spread at an alarming rate, causing rippling effects throughout our daily lives and profoundly impacting our health, wellness, financial futures and families. For companies, and especially start-up and…more

CARES Act, Coronavirus/COVID-19, Early Stage Companies, Risk Management, Social Distancing

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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2024 IPO Report

Pessimism surrounding the Federal Reserve’s interest rate hikes, combined with subdued business and consumer confidence as well as geopolitical concerns, weighed heavily on the IPO market in 2023. With 117 IPOs in 2023…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Listing Rules, Publicly-Traded Companies

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DOJ Criminal Division Announces Pilot Program on Voluntary Self-Disclosure for Individuals

On April 15, 2024, the Criminal Division of the Department of Justice (DOJ) announced the Pilot Program on Voluntary Self-Disclosure for Individuals, providing transparency regarding the circumstances in which Criminal Division…more

Department of Justice (DOJ), Federal Pilot Programs, Non-Prosecution Agreements, Voluntary Disclosure, Whistleblower Protection Policies

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Regulation of Forced Labor in Supply Chains: Why It Matters and How Companies Can Comply

Corporate Obligations to Address Forced Labor in Supply Chains Relevant to You? International organizations like the International Labor Organization, the Organization for Economic Cooperation and Development and the United…more

Child Labor, Compliance, Corporate Social Responsibility, Due Diligence, Forced Labor

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Untangling The Legal Complexities Of Trade Secrets And AI

With broad adoption of generative artificial intelligence tools, some commentators have suggested that trade secret law is the best means for protecting innovations. Looking to trade secret law to protect AI is facially…more

Algorithms, Artificial Intelligence, Confidential Information, Defend Trade Secrets Act (DTSA), Innovation

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State Governments Move to Regulate AI in 2024

Recently, New York Governor Kathy Hochul proposed sweeping artificial intelligence (AI) regulatory measures intended to protect against untrustworthy and fraudulent uses of AI. Presented as part of her FY 2025 Executive Budget,…more

Algorithms, Artificial Intelligence, Biden Administration, Deep Fake, Executive Orders

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COVID-19: Federal Regulators Provide Limited AML Relief in Coronavirus Response, and Limited Support for the Use of Technology in Financial Crime Compliance Activities

In this alert, we summarize recent guidance from federal regulators and self-regulatory organizations - including the Financial Crimes Enforcement Network (FinCEN), the Office of Foreign Assets Control (OFAC), the Office of the…more

Anti-Money Laundering, Bank Secrecy Act, CARES Act, Compliance, Coronavirus/COVID-19

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Hallie Levin Shares Advice On Crafting Your Best Opening Statement

In an interview with the American Bar Association Journal, Partner Hallie Levin shares three tips she keeps in mind as she crafts and practices opening statements. Levin is a seasoned trial lawyer who serves as lead and co-lead…more

Trial Preparation

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SEC Issues Investor Alert on Initial Exchange Offerings

On January 14, 2020, the Securities and Exchange Commission’s (“SEC”) Office of Investor Education and Advocacy issued an Investor Alert urging investors to use caution before investing in “initial exchange offerings” (“IEOs”)…more

Broker-Dealer, Digital Assets, Due Diligence, Initial Coin Offering (ICOs), Initial Exchange Offering (IEO)

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Federal Trade Secret Law Incorporates California's Particularity Requirement

On October 15, 2020, the U.S. Court of Appeals for the Ninth Circuit held in InteliClear LLC v. ETC Global Holdings, Inc., that the federal Defend Trade Secrets Act (“DTSA”) requires trade secret plaintiffs to identify a trade…more

Appeals, Defend Trade Secrets Act (DTSA), Intellectual Property Protection, Trade Secrets

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Binance Ruling Spotlights Muddled Post-Morrison Landscape

The March decision in Williams v. Binance from the U.S. Court of Appeals for the Second Circuit marks the latest chapter in the judiciary's struggle to apply the U.S. Supreme Court's 2010 decision in Morrison v. National…more

Asset Tokens, Blockchain, Broker-Dealer, Decentralized Finance (DeFi), Digital Assets

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FTC Warns Companies of the Potentially Deceptive Uses of AI Tools

On March 20, 2023, the Federal Trade Commission (FTC) released a blog post advising companies to consider the potentially deceptive or unfair use of artificial intelligence (AI) tools to generate synthetic media. The FTC calls…more

Artificial Intelligence, Best Practices, Machine Learning, New Guidance, Unfair or Deceptive Trade Practices

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Colorado Poised to Become Third State With a Comprehensive Privacy Law, Joining California and Virginia

On June 7, 2021, the Colorado House of Representatives passed the Colorado Privacy Act (CPA), a comprehensive privacy law similar to the California Privacy Rights Act (CPRA) and California Consumer Privacy Act (CCPA), as well as…more

Business Associates, California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), Covered Entities, Data Controller

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COVID-19: Rethinking Chapter 11 Bankruptcy Valuation Issues in the Crisis

Valuation is a critical and indispensable element of the Chapter 11 bankruptcy process. It drives many aspects of a Chapter 11 case, from petition to plan confirmation, in all circumstances…more

Asset Valuations, Bankruptcy Plans, Business Valuations, Chapter 11, Commercial Bankruptcy

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DOJ’s “China Initiative” Falters

When Anming Hu, an engineering professor at the University of Tennessee, Knoxville (“UTK”) was indicted in February 2020 on charges related to his alleged failure to disclose ties to a state-run Chinese university, the case was…more

China, Colleges, Criminal Prosecution, Department of Justice (DOJ), Dismissals

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Enka v Chubb: U.K. Supreme Court Rules on Law Governing Arbitration Agreements

On 9 October 2020, the U.K. Supreme Court in Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb [2020] UKSC 38 ruled on the English law approach to determining the law governing an arbitration agreement. The Supreme Court’s…more

Appeals, Arbitration, Arbitration Agreements, Choice-of-Law, Forum

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USPTO Requests Comments Regarding AI's Impact

On April 30, 2024, the United States Patent and Trademark Office (USPTO) published a Request for Comments (RFC) seeking stakeholder input on fifteen questions regarding artificial intelligence (AI) and its impact on (1) prior…more

Artificial Intelligence, Information Requests, Patents, Prior Art, USPTO

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Pepe the Frog

WilmerHale Partner Louis Tompros and Counsel Stephanie Lin discuss the Pepe the Frog copyright infringement case with host John Walsh. Louis, Stephanie and a team from WilmerHale assisted Matt Furie, the creator of Pepe the…more

Copyright, Copyright Infringement, Copyright Litigation, Intellectual Property Protection, Internet Memes

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COVID-19: President Biden Announces Chief Prosecutor for Pandemic Fraud

Among the many important themes in his March 1, 2022, State of the Union address, President Joe Biden declared that “the watchdogs are back,” when he announced that the Department of Justice (DOJ) would appoint a Chief…more

Biden Administration, CARES Act, Coronavirus/COVID-19, Department of Justice (DOJ), Enforcement Priorities

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The Drawbacks Of Banking Regulators' Merger Review Plans

The Federal Deposit Insurance Corp. and the Office of the Comptroller of the Currency recently announced proposals to update their approaches to evaluating bank mergers and other business combinations under the Bank Merger…more

Bank Merger Act, Banking Sector, Banks, Biden Administration, Executive Orders

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Supreme Court Holding Emphasizes Importance of Building an Administrative Record Before an Agency

On April 1, 2021, in Federal Communications Commission v. Prometheus Radio Project, the Supreme Court unanimously held that a decision by the Federal Communications Commission (FCC) to repeal or modify three ownership rules…more

Administrative Procedure Act, FCC, FCC v Prometheus Radio Project, Government Agencies, Judicial Review

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White House Proposal Floats Pricing as a Basis for Allowing Alternative Manufacturers under "March-In" Rules

A new Biden Administration proposal would provide a path for federal agencies to cite high prices as a reason for giving alternative producers rights to make products covered by federally funded inventions. On December 7,…more

Bayh-Dole Act, Biden Administration, Manufacturers, March-in-Rights, Pharmaceutical Industry

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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China Finalizes Rules to Ease Data Export Compliance Burden

On March 22, 2024, the Cyberspace Administration of China (“CAC”) promulgated the final version of the Provisions on the Promotion and Regulation of Cross-Border Data Flows (the “Final Provisions”), bringing to conclusion the…more

China, Compliance, Consultation, Corporate Counsel, Cybersecurity

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CFTC Year in Review: 23 Takeaways From 2023 and Predictions for 2024

At an industry event in early 2023, Commodity Futures Trading Commission (CFTC or the Commission) Chairman Rostin Behnam set out a comprehensive agenda to include nearly three dozen rulemaking proposals as well as “business as…more

Asset Class, CFTC, Commodities, Compliance, Conflicts of Interest

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Corporate Sustainability Due Diligence Directive: Final Sprint to the Finish Line

The EU legislature has finally reached an agreement on the text of the Corporate Sustainability Due Diligence Directive (CS3D) (see here our previous client alert). The CS3D profoundly affects the ways companies active in Europe…more

Corporate Governance, Corporate Social Responsibility, Due Diligence, Environmental Social & Governance (ESG), Human Rights

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Crypto Currently: New York Department of Financial Services Issues Virtual Currency Custody Guidance

On January 23, the New York State Department of Financial Services (DFS or the Department) issued guidance clarifying its expectations for New York-based virtual currency businesses regarding the custody of customer assets…more

BitLicense, Cryptocurrency, Custody Rule, Financial Services Industry, New Guidance

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COVID-19: Planning Ahead at a Social Distance Considerations for Emerging Companies

COVID-19 continues to spread at an alarming rate, causing rippling effects throughout our daily lives and profoundly impacting our health, wellness, financial futures and families. For companies, and especially start-up and…more

CARES Act, Coronavirus/COVID-19, Early Stage Companies, Risk Management, Social Distancing

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Public Company Stock Option Repricings: A Primer

Stock options are often a significant, and critical, component of a public company’s compensation and benefits programs as they align the interests of employees and stockholders—when the company’s stock price increases, option…more

Compensation & Benefits, Employee Benefits, Employee Stock Purchase Plans, Incentive Compensation, Incentive Stock Options

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District Court Enjoins California's Unprecedented "Reverse Payment" Law

On December 8, 2021, a federal district court granted a preliminary injunction temporarily enjoining enforcement of the California state law Preserving Access to Affordable Drugs, which attempts to sanction reverse-payment…more

Article III, Constitutional Challenges, Dormant Commerce Clause, Patents, Pharmaceutical Industry

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Environmental Defender Romina Picolotti on Climate Justice and Human Rights

In the Public Interest welcomes renowned environmental activist and former Argentine Secretary of the Environment and Sustainable Development, Romina Picolotti, who speaks with WilmerHale Senior Associate Kelsey Quigley and…more

Climate Change, Environmental Policies, Human Rights

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The Interplay: Key Decisions at the Intersection of Antitrust & Life Sciences - March 2024

Calls for Removal of Device Patents Listed in the Orange Book Continue. FTC and Congressional action scrutinizing allegedly “improper” Orange Book listings continued apace in the first few months of 2024…more

AbbVie, Antitrust Litigation, AstraZeneca, Boehringer, Class Action

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Strategies For Navigating Compliance Monitorships

The imposition of an independent compliance monitor continues to be a favored tool of the government in resolving corporate enforcement matters. Indeed, in 2022, both the U.S. Department of Justice and the U.S. Securities…more

Chief Compliance Officers, Compliance, Compliance Monitoring, Department of Justice (DOJ), Risk Management

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Italy’s Privacy Regulator Takes Action Against ChatGPT

On March 31, 2023, Italy’s privacy regulator (the “Garante”), announced an immediate temporary limitation on the processing of data of individuals residing in Italy by OpenAI’s ChatGPT, the popular artificial intelligence…more

Artificial Intelligence, Corporate Counsel, Data Processors, Enforcement Actions, EU

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AI and Copyright

Over the last few months, the Federal Trade Commission (FTC) has voiced an increasing interest in AI-generated content and copyright law. In an August 2023 Business Blog entitled “Can’t Lose What You Never Had: Claims About…more

Artificial Intelligence, Copyright, Copyright Ownership, Federal Trade Commission (FTC), FTC Act

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The Relevance of Alternative Designs 16 Years After TrafFix

In 2001, the Supreme Court in TrafFix Devices, Inc. v. Marketing Displays, Inc. refined its test for determining whether a product design is functional—and thus ineligible for trade dress protection. 532 U.S. 23, 58 U.S.P.Q.2d…more

Functionality, Industrial Design, Infringement, Split of Authority, Trade Dress

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Recent Decision Raises Patent Eligibility Concerns Regarding Certain Gene Therapy-Related Inventions

This past Friday, a federal district court held that the mere fact of combining certain natural products – such as isolated, naturally occurring AAV sequences and a heterologous non-AAV sequence – and putting them into a…more

Alice/Mayo, Genetic Materials, Life Sciences, Patent Litigation, Patent-Eligible Subject Matter

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New York Governor Hochul Seeks to Strengthen and Expand State Consumer Protection Laws

In her State of the State address earlier this month, New York Governor Kathy Hochul proposed a significant expansion of New York’s consumer protection laws…more

B2B Transactions, Buy Now Pay Later (BNPL), Consumer Financial Products, Consumer Protection Laws, Financial Services Industry

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Pre-Claim Construction 101 Motions: Tips For Both Sides

Since the U.S. Supreme Court issued its decision in Alice Corp. Pty. v. CLS Bank Int’l on June 19, 2014, there have been a surge of motions filed and granted that have invalidated patent claims for claiming patent-ineligible…more

CLS Bank v Alice Corp, Federal Rule 12(b)(6), Litigation Strategies, Markman Hearing, Motion for Judgment

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Sexism in the City

#MeToo is still moving across the pond. On March 8, 2024, the House of Commons Treasury Committee published a report entitled “Sexism in the City” (referenced as “Report” in this article), which found that the financial-services…more

Banking Sector, Diversity, Diversity and Inclusion Standards (D&I), Employment Policies, Financial Conduct Authority (FCA)

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Análisis Anual sobre Prácticas Anticorrupción en América Latina: Desarrollos del 2021 y Predicciones para el 2022

Aunque la cantidad de casos relacionados con la Ley de Prácticas Corruptas en el Extranjero (Foreign Corrupt Practices Act, FCPA) resueltos públicamente en el año 2021 fue relativamente baja en comparación con los años…more

Anti-Bribery, Anti-Corruption, Brazil, Compliance, Cooperation

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PWG Report on Stablecoins - Implications for the Regulatory Environment

On November 1, 2021, the President’s Working Group on Financial Markets (PWG) - along with the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC) - published the Report on…more

Anti-Money Laundering, Blockchain, CFTC, Cross-Border, Cryptocurrency

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White House Orders New Rules on U.S. Outbound Investment

The Biden Administration has issued its long-awaited Executive Order on Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern (“EO”), which will create a new…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, China, Cybersecurity, Executive Orders

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10 Open Appellate Issues Following High Court Arthrex Ruling

On June 21, 2021 the U.S. Supreme Court issued its decision in U.S. v. Arthrex Inc. Two questions were before the court. First, are administrative patent judges principal officers who must be appointed by the president and…more

Administrative Patent Judges, Appointments Clause, Arthrex Inc v Smith & Nephew Inc, Constitutional Challenges, Executive Branch

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Energy Sector Alert Series: Supreme Court Cases to Watch

In this eight-week alert series, we are providing a broad look at current and emerging issues facing the energy sector. Lawyers from across the firm are discussing issues ranging from cybersecurity, antitrust and intellectual…more

Clean Water Act, Corporate Counsel, Endangered Species Act (ESA), Environmental Protection Agency (EPA), Land Parcels

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Immunity Under the Prep Act: When Does It Apply to Private Sector Efforts to Help Combat COVID-19?

America’s response to the COVID-19 pandemic will require widespread coordination between the public and private sectors. There is a pressing need for more testing kits and test sites, new treatment and isolation facilities,…more

Coronavirus/COVID-19, Medical Equipment, Public Private Partnerships (P3s), Public Readiness and Emergency Preparedness Act (PREP Act)

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A Guide To West Texas Patent Cases Before Albright: Part 2

Our earlier Law360 guest article highlighted the rapid rise in prominence of the Waco Division of the U.S. District Court for the Western District of Texas since U.S. District Judge Alan Albright was appointed to that court…more

Federal Rule 12(b)(1), Federal Rule 12(b)(6), Intellectual Property Protection, Patent Infringement, Patent Litigation

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Ongoing SEC Marketing Rule Enforcement Sweep Results in Charges Against Investment Advisers

On September 11, 2023, the Securities and Exchange Commission (SEC) charged and settled proceedings with nine registered investment advisers for misrepresenting hypothetical performance of advisory products in connection with an…more

Compliance, Enforcement Actions, Investment Adviser, Investment Advisers Act of 1940, Marketing

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Third Circuit Weighs In on Scope of Section 524(g)(4) Injunction

Summary: A recent Third Circuit decision has clarified the scope of the third-party injunction, including injunctions in favor of insurers that resolve insurance coverage in asbestos bankruptcy cases, that may be issued under…more

363 Sales, Appeals, Asbestos, Asbestos Litigation, Bankruptcy Code

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Supreme Court Miniseries: Religious Accommodation at Work

In the Public Interest is excited to continue our miniseries examining landmark decisions recently issued by the United States Supreme Court. The fourth episode examines the Court’s decision in Groff v. DeJoy, a case centered…more

Civil Rights Act, De Minimus Doctrine, Employer Liability Issues, Equal Employment Opportunity Commission (EEOC), Groff v DeJoy

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CFTC 2022 Enforcement and Regulatory Developments and a Look Forward

The year 2022 was a historic year for the Commodity Futures Trading Commission (“CFTC” or the “Commission”). Just four days into the new year, on January 4, 2022, Rostin Behnam was sworn in as the CFTC’s 15th Chairman. Three…more

CFTC, Cryptoassets, Decentralized Finance (DeFi), Enforcement, Enforcement Actions

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Ongoing SEC Marketing Rule Enforcement Sweep Results in Charges Against Investment Advisers

On September 11, 2023, the Securities and Exchange Commission (SEC) charged and settled proceedings with nine registered investment advisers for misrepresenting hypothetical performance of advisory products in connection with an…more

Compliance, Enforcement Actions, Investment Adviser, Investment Advisers Act of 1940, Marketing

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USDA Releases Interim Hemp Regulations

On October 31, 2019, the US Department of Agriculture (USDA) released its long-awaited regulations governing hemp. Those regulations provide critical guidance to the hemp industry following the Agriculture Improvement Act of…more

Agricultural Sector, Cannabidiol (CBD) oil, Cannabis-Related Businesses (CRBs), Comment Period, Controlled Substances Act

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AICPA Releases New COVID-19 Checklist of “Essential Considerations” for Audit Committees

The Association of International Certified Professional Accountants (AICPA) has released an Audit Committee Checklist for COVID-19 that provides questions  for audit committee members to consider as they perform their oversight,…more

AICPA, Audit Committee, Audits, Coronavirus/COVID-19, Corporate Governance

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Supreme Court Suggests Claim Preclusion May Be Less Relevant to Trademark Cases and Questions Its Applicability to a Defense Rather than a Claim

On May 14, 2020, the U.S. Supreme Court decided Lucky Brand Dungarees, Inc., et al. v. Marcel Fashions Group, Inc., No. 18-1086, addressing the subjects of claim and issue preclusion. The Court held that claim preclusion (or res…more

Claim Preclusion, Collateral Estoppel, Counterclaims, Defense Preclusion, Fashion Branding

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Hiding in Plain Sight: New Ukraine and Israel Aid Package Includes Significant Changes to US Sanctions and Export Control Laws

On April 24, 2024, President Biden signed into law H.R. 815, an emergency appropriations package billed as authorizing $95 billion in foreign aid to Ukraine and Israel (the Act). While the Ukraine and Israel aid provisions and…more

Appropriations Bill, Biden Administration, China, Economic Sanctions, EU

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FTC Targets "Dark Patterns" in Actions Against Amazon and Publishers Clearing House

The Federal Trade Commission (FTC) in recent years has made clear its intention to adopt a more aggressive enforcement posture toward so-called dark patterns. The FTC defines unlawful dark patterns to include any online “design…more

Amazon, CAN-SPAM Act, Enforcement Actions, Federal Trade Commission (FTC), FTC Act

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2018 M&A Report

Despite generally favorable macroeconomic conditions, high levels of cash among strategic acquirers and low interest rates, the number of reported M&A transactions and deal value worldwide both declined for the second…more

Acquisitions, Cross-Border Transactions, Entire Fairness Standard, Foreign Corrupt Practices Act (FCPA), Mergers

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FCPA Risks for Renewable Energy in Latin America

Recent Renewable Energy Developments in Latin America - The renewable energy market in Latin America is booming, and the region’s natural resources make it one of the most attractive areas in the world for investment. Latin…more

Brazil, Chile, Energy Projects, Energy Sector, Foreign Corrupt Practices Act (FCPA)

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7 Tips for Biotech Companies Seeking Capital in a Volatile Market

Last year was a remarkable year for biotech companies going public. Not only did an unusually large number of biotech companies go public, but a significant number of early-stage biotech companies went public at premium…more

Biotechnology, Early Stage Companies, Initial Public Offering (IPO)

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Antitrust Review of Defense Mergers: DOD Gets its Own Production of Parties’ Materials in HSR Merger Reviews

Parties contemplating transactions in the defense sector need to know about a new obligation to provide materials to the Department of Defense (DOD) that will substantially affect their obligations for transactions that are…more

Antitrust Investigations, Antitrust Provisions, Competition, Defense Sector, Department of Defense (DOD)

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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CAFC Patent Cases - February 2021 #2

Precedential Federal Circuit Opinions - CHUDIK v. HIRSHFELD [OPINION]  (2020-1833, 2/8/2021) (Taranto, Bryson, Hughes) - Taranto, J.  Affirming PTO decision regarding length of patent term adjustment. The statutory…more

Appeals, CAFC, Patent Litigation, Patents, USPTO

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The Biden Administration’s Guidance on Risks to Privacy of Reproductive Health Information Post-Dobbs

Following the Supreme Court’s ruling overturning Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, the Biden Administration has outlined a framework for federal executive action designed to protect access to…more

Biden Administration, Covered Entities, Department of Health and Human Services (HHS), Dobbs v. Jackson Women’s Health Organization, Executive Orders

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Outlier or Trend? A Possible Narrowing of the Border Search Exception for Electronic Devices

As we wrote in a note back in December 2020, the border search exception to the Fourth Amendment is a powerful investigative tool relied on by law enforcement to gather critical physical and digital evidence because it allows…more

Admissible Evidence, Border Searches, Cell Phones, Customs and Border Protection, Department of Homeland Security (DHS)

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Leaders in Law: Brendan McGuire

In this episode of In the Public Interest, host Felicia Ellsworth interviews Brendan McGuire, who recently rejoined WilmerHale after serving as chief counsel to New York City Mayor Eric Adams and City Hall. McGuire discusses his…more

Business Development, Law Practice Management, Thought Leadership

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Debt Ceiling Law’s Permitting Reform Elements Promise Benefits for Project Applicants

Legislation recently enacted to raise the federal debt ceiling (the Fiscal Responsibility Act of 2023 or FRA) includes major permitting reforms with the potential to streamline federal environmental reviews under the National…more

Administrative Procedure, Debt Ceiling, Environmental Assessments, Environmental Impact Statements, Federal Budget

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EU Foreign Subsidies Regulation: Publication of Draft Implementing Rules

On February 6, 2023, the European Commission (EC) published a draft Implementing Regulation (the Implementing Regulation) setting out rules and procedures for the application of the Foreign Subsidies Regulation (FSR)…more

Draft Guidance, EU, European Commission, Foreign Subsidies, Implementing Decrees

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SPAC Transaction Explosion Drives SEC Enforcement Focus

In the face of volatile markets and a global pandemic, an old capital markets vehicle has been taking the markets by storm: special purpose acquisition companies (SPACs). Although SPACs have been around for many years, the…more

Acquisitions, Corporate Financing, Corporate Governance, Enforcement, Financial Industry Regulatory Authority (FINRA)

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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Hiding in Plain Sight: New Ukraine and Israel Aid Package Includes Significant Changes to US Sanctions and Export Control Laws

On April 24, 2024, President Biden signed into law H.R. 815, an emergency appropriations package billed as authorizing $95 billion in foreign aid to Ukraine and Israel (the Act). While the Ukraine and Israel aid provisions and…more

Appropriations Bill, Biden Administration, China, Economic Sanctions, EU

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An Introduction to the Foreign Agents Registration Act for Firms Assisting Foreign Clients in the United States

After decades in which the Foreign Agents Registration Act (FARA) received relatively little attention, a confluence of recent events has given the statute newfound prominence. Together, these developments compound the…more

Advisory Opinions, Department of Justice (DOJ), Enforcement Actions, Exemptions, Foreign Agents

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Environmental Justice in the Biden Administration

The Biden Administration is seeking to advance “environmental justice” (EJ) through its policy and regulatory priorities in a way that no administration has before. Environmental justice - which seeks to address disproportionate…more

Biden Administration, Black Lives Matter, Climate Change, Corporate Governance, Department of Labor (DOL)

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German Antitrust Law Amendment Entered into Force: "Digitalization Act" Establishes New Antitrust Rules for the Digital Economy

The 10th amendment to the German Act against Restraints of Competition (ARC) - also called the “Digitalization Act” - became effective on January 19, 2021. In a previous alert, we discussed the key aspects of the Digitalization…more

Abuse of Dominance, Antitrust Provisions, Competition, Digital Marketplace, Digital Service Providers

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Rulemaking To Update Land-Into-Trust Process For Tribes And Individual Indians

On December 5, 2022, the Interior Department’s Bureau of Indian Affairs (BIA) published proposed revisions to 25 C.F.R. Part 151—the regulations governing the United States’ discretionary acquisition of land in trust for the…more

Administrative Procedure, Bureau of Indian Affairs, Department of the Interior, Economic Development, Indian Reorganization Act

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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FTC Bans Non-Competes: What’s at Stake and What Happens Next

On April 23, 2024, the Federal Trade Commission (FTC), in a highly anticipated vote, passed the Non-Compete Clause Rule, 16 CFR § 910 (the Rule), which purports to bar all non-competes in the United States, subject to limited…more

Chamber of Commerce, Constitutional Challenges, Employer Liability Issues, Employment Contract, Federal Bans

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ESG Asset Managers and Investment Funds - Near-Term SEC Enforcement Risk

The Securities and Exchange Commission (SEC) threw down the gauntlet after President Biden’s election and asserted its interest in greater regulation and policing of environmental, social, and governance (ESG) issues. One aspect…more

Asset Management, Corporate Governance, Environmental Social & Governance (ESG), Publicly-Traded Companies, SEC Examination Priorities

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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Looking Forward After the SEC’s Victory in “Shadow Trading” Case

This month the SEC secured a jury trial victory in its much-discussed “shadow trading” case in SEC v. Panuwat. As we have described in a prior alert, the term “shadow trading” has been used to refer to trading in the securities…more

Breach of Duty, Insider Trading, Jury Trial, Material Nonpublic Information, Pfizer

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2018 Venture Capital Report

The venture capital market rebounded in 2017, with an uptick in deal flow, an increase in financing sizes, soaring proceeds and a record high median premoney valuation. The $73.2 billion invested into the US venture capital…more

Capital Raising, Corporate Financing, Debt-Equity, Entrepreneurs, Equity Financing

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FTC Signals Additional Coordination With State AGs

The Federal Trade Commission (FTC) has brought far more consumer protection enforcement actions in conjunction with state attorneys general’s offices this year, and the trend shows no signs of slowing down. For example, in…more

Advertising, AMG Capital Management LLC v FTC, Consumer Financial Protection Bureau (CFPB), Consumer Protection Laws, Enforcement Actions

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In Case You Missed It: Launch Links - July 2021 #3

Some interesting links we found across the web this week: Ready to Start a Business? Consider These 5 Tips First. Young, eager entrepreneurs are eyeing an unprecedented environment for fundraising and getting startups off…more

Acquisitions, Business Plans, Business Strategies, Capital Raising, Corporate Culture

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COVID-19: Massachusetts and Neighboring States Begin to Reopen

On May 18, 2020, Massachusetts announced a four-phase reopening plan, parts of which took immediate effect. Phase 1 is the “Start” phase, during which “limited industries [may] resume operations with severe restrictions.”…more

Coronavirus/COVID-19, Governor Baker, Non-Essential Businesses, Re-Opening Guidelines

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Court Sides with SEC in Blocking Distribution of Telegram's Grams

On March 24, 2020, Judge P. Kevin Castel of the Southern District of New York granted the U.S. Securities Exchange Commission (“SEC”) an injunction to prevent Telegram Group Inc. and TON Issuer Inc. (collectively, “Telegram”)…more

Blockchain, Cryptocurrency, Howey, Injunctions, Preliminary Injunctions

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2021 Venture Capital Report

Despite the arrival of the COVID-19 pandemic in early 2020 and the ensuing economic dislocation, venture capital financing proceeds, median amount raised, and median pre-money valuation all increased from 2019 levels, although…more

Acquisitions, Capital Raising, Corporate Financing, Early Stage Companies, Entrepreneurs

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Department of Justice Launches New Initiative to Combat Sexual Harassment in the Workplace

On February 28, 2018, the Department of Justice's (DOJ) Civil Rights Division announced a new Sexual Harassment in the Workplace Initiative (SHWI) that will focus on combating workplace sexual harassment in the public sector…more

Department of Justice (DOJ), Department of Labor (DOL), Discrimination, Enforcement Guidance, Equal Employment Opportunity Commission (EEOC)

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LIBOR Fallback to Prime May Increase Corporate Loan Costs

The London Interbank Offered Rate (LIBOR) officially ceased to be published on June 30, 2023. The change comes after almost 40 years of LIBOR serving as the principal benchmark rate for trillions of dollars of various financial…more

Benchmarks, Commercial Loans, Financial Institutions, Financial Markets, Interest Rates

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The SEC Issues Statement and Requests Comment Regarding the Custody of Digital Asset Securities by Special Purpose Broker-Dealers

On December 23, 2020, the Securities and Exchange Commission (SEC or Commission) issued a statement (Statement) regarding the custody of digital assets that are “securities” under the federal securities laws. The Statement sets…more

Broker-Dealer, Chain of Custody, Comment Period, Custody, Digital Assets

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Government Setback “Resulting From” Another Court Adopting the “But For” Causation Standard for False Claims Act Cases Furthering Court Split

The U.S. District Court for the District of Massachusetts recently weighed in on the burgeoning court split in False Claims Act (FCA) cases, adopting an approach that puts a higher burden on the government to prove Medicare…more

Anti-Kickback Statute, But For Causation, Causation, False Claims Act (FCA), Healthcare Fraud

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Tax-related Measures in Investor-State Arbitration

The right to tax constitutes a core attribute of State sovereignty. As U.S. Supreme Court Justice Oliver Wendell Holmes Jr. said, “Taxes are the price we pay for civilization.” However, States may voluntarily limit their…more

Arbitration, Contract Disputes, Corporate Taxes, International Arbitration, Investor-State Arbitration

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PFAS Milestones: EPA Sets Drinking Water Standard, Labels Two Compounds Hazardous Substances

The Environmental Protection Agency’s (EPA) recent rulemakings for per- and polyfluoroalkyl substances (PFAS) have far-reaching implications for a broad range of industries, regulated entities, and regulatory bodies. First, on…more

CERCLA, Contamination, Discharge of Pollutants, Drinking Water, Environmental Policies

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COVID-19: 15 Key Workforce Considerations for Business Reopening

In response to the lifting or relaxing of shelter in place orders in a number of states, many businesses plan to resume certain operations during the pendency of the COVID-19 pandemic. The health, safety, and well-being of…more

Coronavirus/COVID-19, Employer Responsibilities, Re-Opening Guidelines, Workplace Safety

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Lessons From DOJ's Handling Of Rare Medicare Fraud Case

In October, the U.S. Department of Justice announced a rare criminal indictment involving the Medicare Advantage program — a contrast from the DOJ's more typical use of its civil enforcement authority to pursue similar issues…more

Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA), Fraud and Abuse, Health Care Providers

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PTAB/USPTO Update - April 2024

On March 8, the USPTO joined other intellectual property offices in celebrating International Women’s Day with a theme of “Invest in Women: Accelerate Progress.”…more

America Invents Act, Artificial Intelligence, Copyright, Copyright Office, Diversity

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Congress Amends Exchange Act, Expanding SEC Enforcement Power

On January 1, 2021, amendments to Section 21(d) of the Securities Exchange Act of 1934 (Exchange Act) codifying and expanding the power of the Securities and Exchange Commission (SEC or Commission) to obtain disgorgement in…more

Disgorgement, Enforcement Actions, Equitable Relief, Kokesh v SEC, Liu v Securities and Exchange Commission

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COVID-19: Criminal Antitrust Risks Arising from the Crisis

In this rapidly changing environment of the COVID-19 crisis, the need to understand how your industry is tackling business disruptions and the ensuing economic impact is more critical than ever. This Alert provides practical…more

Antitrust Division, Antitrust Provisions, Collaboration, Competition, Coronavirus/COVID-19

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Antitrust Division’s Updated Leniency Policy Impacts Leniency for Acquirors

The Antitrust Division of the Department of Justice has quietly made a change to its Leniency Policy and Procedures (the “Leniency Policy”) that could impact companies involved in transactions that discover potential antitrust…more

Antitrust Division, Antitrust Provisions, Department of Justice (DOJ), Federal Trade Commission (FTC), Leniency Guidelines

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DOJ Announces Pilot Whistleblower Rewards Program and Increased AI Enforcement

On March 7, 2024, Deputy Attorney General Lisa Monaco announced Department of Justice (DOJ) initiatives to incentivize whistleblowers with payouts from civil or criminal forfeitures and to integrate artificial intelligence (AI)…more

Artificial Intelligence, CFTC, Corporate Crimes, Criminal Prosecution, Department of Justice (DOJ)

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In Case You Missed It: Launch Links - January 2021 #3

Some interesting links we found across the web this week: Democratic FTC Commissioner Merger Dissents: A Roadmap for the Future? With inauguration this week, there has been a lot of attention on changes the new…more

Advisory Board, Biden Administration, Entrepreneurs, Ethics, Federal Trade Commission (FTC)

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Massachusetts SJC Rules that Employers are Strictly Liable for Treble Damages for Delayed Wage Payments

Overturning nearly 20 years of lower-court precedent, on April 4, 2022, the Massachusetts Supreme Judicial Court (SJC) issued a landmark decision holding that an employer is strictly liable for treble damages for any late wage…more

Employer Liability Issues, Employment Litigation, Interest Payments, Labor Law Violations, MA Supreme Judicial Court

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2022 Proxy Season Review: Increased Shareholder Focus on Racial Justice

The 2022 proxy season has highlighted shareholders’ ever-growing focus on diversity, equity, and inclusion (DEI).  In 2021, a new trend emerged as 13 shareholder proposals were filed calling on companies to conduct “civil…more

Audits, Civil Rights Act, Corporate Governance, Diversity, Diversity and Inclusion Standards (D&I)

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SEC Proposes Rules to Modernize Share Repurchase Disclosures

On December 15, the same day it proposed amendments to Rule 10b5-1 under the Securities Exchange Act of 1934 (Exchange Act) that may blunt the use of the affirmative defense for insider trading, the Securities and Exchange…more

Amended Regulation, Closed-End Funds, Comment Period, Corporate Issuers, Disclosure Requirements

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New Federal Privacy Bill Draft Hits Congress

On April 7, Representative Cathy McMorris Rodgers (R-Wash.), Chair of the U.S. House Committee on Energy and Commerce Chair, and Senator Maria Cantwell (D-Wash.), Chair of the Senate Committee on Commerce, Science and…more

Consumer Privacy Rights, Data Privacy, Data Protection, Data Security, Federal Data Privacy

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The Corporate Crime Advisory Group Has Spoken: DOJ Revises Corporate Criminal Enforcement Policies

On September 15, 2022, the Department of Justice (Department) released a memorandum revising several key aspects of its corporate criminal enforcement policies. The new policy, titled Further Revisions to Corporate Criminal…more

Compliance, Compliance Monitoring, Cooperation, Corporate Crimes, Corporate Culture

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CFTC Year in Review: 23 Takeaways From 2023 and Predictions for 2024

At an industry event in early 2023, Commodity Futures Trading Commission (CFTC or the Commission) Chairman Rostin Behnam set out a comprehensive agenda to include nearly three dozen rulemaking proposals as well as “business as…more

Asset Class, CFTC, Commodities, Compliance, Conflicts of Interest

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Recent Pay-to-Play Settlement: Notwithstanding a Strong Dissent Over 206(4)-5 Overbreadth, the Need for Strong Compliance Policies Persists

With political campaign activity ramping up as the fall elections approach, the Securities and Exchange Commission (SEC) has indicated it will continue stringent enforcement of Investment Advisers Act Rule 206(4)-5 (the…more

Broker-Dealer, Compliance, Enforcement, Enforcement Actions, Investment Adviser

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PTAB/USPTO Update - April 2024

On March 8, the USPTO joined other intellectual property offices in celebrating International Women’s Day with a theme of “Invest in Women: Accelerate Progress.”…more

America Invents Act, Artificial Intelligence, Copyright, Copyright Office, Diversity

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SEC Adopts New Rules That Will Require More Market Participants to Register as Dealers

On February 6, 2024, by a vote of 3-2 along party lines, the Securities and Exchange Commission (the SEC or the Commission) adopted Rules 3a5-4 and 3a44-2 under the Securities Exchange Act of 1934 (the Exchange Act), which will…more

Dealers, Government Securities, Liquidity, Market Participants, New Rules

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Justice Department Issues Memo Limiting Use of Agency Guidance in Affirmative Civil Enforcement Suits

On January 25, Associate Attorney General Rachel Brand issued a memorandum to all components of the Department of Justice with civil litigating authority limiting the use of agency guidance documents in affirmative civil…more

Department of Justice (DOJ), Dismissals, Enforcement Actions, False Claims Act (FCA), New Guidance

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SEC Adopts New Rules That Will Require More Market Participants to Register as Dealers

On February 6, 2024, by a vote of 3-2 along party lines, the Securities and Exchange Commission (the SEC or the Commission) adopted Rules 3a5-4 and 3a44-2 under the Securities Exchange Act of 1934 (the Exchange Act), which will…more

Dealers, Government Securities, Liquidity, Market Participants, New Rules

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OFAC Enforcement Actions Highlight Risks to Software Providers & MSBs

On April 29, 2021, the US Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced two settlements of potential civil liability with two companies over their apparent violations of its regulations. The…more

Bureau of Industry and Security (BIS), Civil Monetary Penalty, Compliance, Department of Justice (DOJ), Due Diligence

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Time to Prepare For Congressional Subpoenas in a Republican House

With a narrow Republican margin in the House of Representatives this coming year, constituencies in the caucus are likely to extract concessions in key areas, including committee assignments and rules, as well as resources and…more

Congressional Investigations & Hearings, Congressional Oversight, Congressional Subpoenas, Political Parties

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SEC Holiday Reading List: Four Rule Proposals That Would Overhaul Market Structure and How Retail Orders Are Executed

On December 14, 2022, the Securities and Exchange Commission (“SEC” or “Commission”) released four sweeping rulemaking proposals that would change market structure as we currently know it and introduce a new federal standard for…more

Amended Rules, Best Execution, Broker-Dealer, Disclosure Requirements, Investment Adviser

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2021 Venture Capital Report

Despite the arrival of the COVID-19 pandemic in early 2020 and the ensuing economic dislocation, venture capital financing proceeds, median amount raised, and median pre-money valuation all increased from 2019 levels, although…more

Acquisitions, Capital Raising, Corporate Financing, Early Stage Companies, Entrepreneurs

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“Computed Without Regard to Taxes Paid”: The Individual Tax Consequences of Compensation Clawbacks

Compensation clawbacks can raise difficult, and often adverse, tax issues for employees and other service providers. Specifically, for clawbacks that are effected on a gross (pretax) basis, questions arise as to how the clawback…more

C-Suite Executives, Clawbacks, Equity Compensation, Executive Compensation, Incentive Compensation

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2024 IPO Report

Pessimism surrounding the Federal Reserve’s interest rate hikes, combined with subdued business and consumer confidence as well as geopolitical concerns, weighed heavily on the IPO market in 2023. With 117 IPOs in 2023…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Listing Rules, Publicly-Traded Companies

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Department of Justice Issues Voluntary Self-Disclosure Policy for Corporate Criminal Enforcement Applicable to U.S. Attorneys’ Offices Nationwide

On February 22, 2023, the Department of Justice (DOJ) issued a Voluntary Self-Disclosure Policy (VSDP) which, effective immediately, applies to all U.S. Attorneys’ Offices (USAOs) nationwide with respect to corporate criminal…more

Compliance, Corporate Criminal Fines, Corruption, Department of Justice (DOJ), Enforcement

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FRAND Quarterly: Navigating the Global SEP Landscape - April 2024

This marks the second issue of WilmerHale’s FRAND Quarterly: Navigating the Global SEP Landscape, a bulletin that will highlight developments about the licensing, litigation, and regulation of patents that are or are claimed to…more

China, EU, FRAND, India, Intellectual Property Protection

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Recent SEC Enforcement Activity Serves as a Reminder That Rule 12b-25 Requires Substantive Disclosures

On August 22, the Securities and Exchange Commission announced settled enforcement actions against five companies for violations of Exchange Act Rule 12b-25, which requires a notification to be filed whenever a company does not…more

Cease and Desist Orders, Civil Monetary Penalty, Corporate Governance, Enforcement Actions, Failure To Disclose

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Real Parties-in-Interest Discovery In Post-Grant Proceedings

The America Invents Act of 2011 requires petitioners in post-grant proceedings—including in all inter partes reviews (IPRs) and covered business method (CBM) reviews—to identify each ‘‘real party-in-interest’’ (i.e., ‘‘the party…more

Covered Business Method Proceedings, Discovery, Garmin Factors, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board

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Antitrust Division’s Updated Leniency Policy Impacts Leniency for Acquirors

The Antitrust Division of the Department of Justice has quietly made a change to its Leniency Policy and Procedures (the “Leniency Policy”) that could impact companies involved in transactions that discover potential antitrust…more

Antitrust Division, Antitrust Provisions, Department of Justice (DOJ), Federal Trade Commission (FTC), Leniency Guidelines

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COVID-19: CARES Act - Updates to Main Street Lending Program

On April 30, 2020, the Federal Reserve announced actions to expand the Main Street Lending Program authorized under Section 13(3) of the Federal Reserve Act. The expanded program now consists of three credit facilities (up from…more

CARES Act, Coronavirus/COVID-19, Credit Facilities, Federal Reserve, Financial Stimulus

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Supreme Court Holds That False Claims Act Requires Subjective Inquiry

On June 1, 2023, the Supreme Court decided a pair of closely watched False Claims Act (FCA) cases, U.S. ex rel. Schutte v. SuperValu Inc., No. 21-1326, and U.S. ex rel. Proctor v. Safeway, Inc., No. 22-111…more

Drug Pricing, False Claims Act (FCA), Materiality, Medicaid, Medicare

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European Parliament Committees Adopt Their Position on the Proposed EU Forced Labour Regulation

On October 16, 2023, the Committee on International Trade (INTA) and the Committee on Internal Market and Consumer Protection (IMCO) of the European Parliament adopted their position (the Committee Position; see here and here)…more

EU, European Commission, European Parliament, Exports, Forced Labor

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New Federal Privacy Bill Draft Hits Congress

On April 7, Representative Cathy McMorris Rodgers (R-Wash.), Chair of the U.S. House Committee on Energy and Commerce Chair, and Senator Maria Cantwell (D-Wash.), Chair of the Senate Committee on Commerce, Science and…more

Consumer Privacy Rights, Data Privacy, Data Protection, Data Security, Federal Data Privacy

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The Relevance of Alternative Designs 16 Years After TrafFix

In 2001, the Supreme Court in TrafFix Devices, Inc. v. Marketing Displays, Inc. refined its test for determining whether a product design is functional—and thus ineligible for trade dress protection. 532 U.S. 23, 58 U.S.P.Q.2d…more

Functionality, Industrial Design, Infringement, Split of Authority, Trade Dress

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SEC Pauses Final Rules on Climate-Related Disclosures

On April 4, 2024, the SEC issued a stay of its final climate-related disclosure rules. The SEC adopted the long-awaited final rules in March after receiving more than 24,000 comment letters…more

Climate Change, Corporate Governance, Disclosure Requirements, Final Rules, Multidistrict Litigation

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Does a Right to a Physical Hearing Exist in International Arbitration? - Austria Report

The Austrian Code of Civil Procedure (“ZPO”) contains a special part dedicated to arbitral proceedings (Sections 577 to 618 ZPO). This forms the Austrian lex arbitri. Section 598 ZPO provides that each party in arbitration…more

Arbitration, Austria, International Arbitration, Rules of Civil Procedure

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EU and Germany Move to Further Tighten FDI Screening Process

The past two weeks have seen two major developments in relation to the screening of foreign direct investment in the European Union (“EU”) for national security or public order reasons. First, on December 10, 2018, the EU…more

Acquisitions, CFIUS, China, Critical Infrastructure Sectors, EU

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PFAS Milestones: EPA Sets Drinking Water Standard, Labels Two Compounds Hazardous Substances

The Environmental Protection Agency’s (EPA) recent rulemakings for per- and polyfluoroalkyl substances (PFAS) have far-reaching implications for a broad range of industries, regulated entities, and regulatory bodies. First, on…more

CERCLA, Contamination, Discharge of Pollutants, Drinking Water, Environmental Policies

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Brexit - Competition Law in the UK During the Transition Period and After

The United Kingdom (UK) left the European Union (EU) on 31 January 2020. Since then, under the EU-UK Withdrawal Agreement, a transition period has been in force, in principle until 1 January 2021. During this period most EU law,…more

Antitrust Provisions, EU, Time Extensions, Transitional Arrangements, UK Brexit

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SEC Adopts New Rules That Will Require More Market Participants to Register as Dealers

On February 6, 2024, by a vote of 3-2 along party lines, the Securities and Exchange Commission (the SEC or the Commission) adopted Rules 3a5-4 and 3a44-2 under the Securities Exchange Act of 1934 (the Exchange Act), which will…more

Dealers, Government Securities, Liquidity, Market Participants, New Rules

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Recent Appellate Decision Overturns Revocations of Broad Institute CRISPR-Cas9 Patents

This past Thursday, the Board of Appeals of the European Patent Office released the minutes of oral proceedings in which the Board rendered a decision in closely watched appeals relating to Broad patents directed to CRISPR-Cas9…more

CRISPR, EU, European Patent Office, Life Sciences, Patent Litigation

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False Claims Act: 2015 Year-in-Review

In 2015, the Justice Department (DOJ) continued to give high priority to False Claims Act (FCA) investigations, bringing in nearly $3.6 billion in settlements and judgments. More than 630 qui tam suits were filed. DOJ's…more

Department of Justice (DOJ), False Claims Act (FCA), False Implied Certification Theory, Individual Accountability, Qui Tam

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Keeping It Simple? EC Adopts Package to “Simplify” Merger Review

On 20 April 2023, the European Commission (EC) adopted a package of measures to “simplify” its merger control procedures. The reform expands the scope of the EU’s simplified merger control procedure, introduces a new…more

Corporate Counsel, EU, European Commission, European Merger Control Regulation, Merger Controls

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Trump Administration Suspends Work Visa Program for Highly Skilled and Other Workers

On June 22, 2020, President Trump issued a “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” that will suspend entry to the United States for H-1B, H-2B, J…more

Executive Orders, Foreign Nationals, Green Cards, H-1B, H-2B

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Supreme Court Halts OSHA's Vaccine or Test Mandate

Yesterday the Supreme Court stayed the Occupational Health and Safety Administration’s (OSHA) vaccination and testing emergency temporary standard (ETS), resolving months of legal uncertainty over its fate. In blocking the rule…more

Coronavirus/COVID-19, Employer Mandates, Lack of Authority, National Federation of Independent Business v Department of Labor and OSHA, OSHA

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COVID-19: Assessing Seller-Initiated M&A Litigation Amid the Pandemic

The economic disruption caused by the COVID-19 pandemic has caused certain companies to rethink previously agreed-upon strategic transactions. Other companies, determined to close, have filed suit to compel wavering…more

Acquisitions, Contract Terms, Coronavirus/COVID-19, Material Adverse Effects, Mergers

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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DOJ Criminal Division Announces Pilot Program on Voluntary Self-Disclosure for Individuals

On April 15, 2024, the Criminal Division of the Department of Justice (DOJ) announced the Pilot Program on Voluntary Self-Disclosure for Individuals, providing transparency regarding the circumstances in which Criminal Division…more

Department of Justice (DOJ), Federal Pilot Programs, Non-Prosecution Agreements, Voluntary Disclosure, Whistleblower Protection Policies

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Untangling The Legal Complexities Of Trade Secrets And AI

With broad adoption of generative artificial intelligence tools, some commentators have suggested that trade secret law is the best means for protecting innovations. Looking to trade secret law to protect AI is facially…more

Algorithms, Artificial Intelligence, Confidential Information, Defend Trade Secrets Act (DTSA), Innovation

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Ukraine’s Reduction in Renewable Energy Feed-In Tariffs: A Preview of Coming Disputes

To promote the production of clean energy, many countries have introduced incentives to encourage investment in the renewable energy sector. These incentives have often included feed-in tariffs (“FiTs”), which generally involve…more

Contract Disputes, Electricity, Energy Sector, Feed-in-Tariffs, Foreign Investment

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FRAND Quarterly: Navigating the Global SEP Landscape - April 2024

This marks the second issue of WilmerHale’s FRAND Quarterly: Navigating the Global SEP Landscape, a bulletin that will highlight developments about the licensing, litigation, and regulation of patents that are or are claimed to…more

China, EU, FRAND, India, Intellectual Property Protection

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Securing Your Series A Round in 2017: Five Things to Do Now

A total of $11 billion was invested across 1,222 Series A investments in the United States in 2016, according to CB Insights. The last quarter of 2016 saw the lowest number of Series A deals since Q1 of 2011, and even though the…more

Entrepreneurs, Seed Financing, Series A

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D.C. Circuit Forfeiture Holding Highlights Importance of Involving Litigation Counsel in the Early Stages of Administrative Agency Proceedings

On February 26, 2021, in Springsteen-Abbott v. Securities and Exchange Commission, a panel of the U.S. Court of Appeals for the D.C. Circuit held that a petitioner challenging sanctions imposed by the Financial Institutions…more

Administrative Proceedings, Appeals, Appointments Clause, Constitutional Challenges, Due Process

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Supreme Court Limits Scope of Omission Liability Under Section 10(b)

On April 12, 2024, the U.S. Supreme Court took a significant step to curb securities fraud suits based on alleged omissions in SEC filings. The Supreme Court held in Macquarie Infrastructure Corporation v. Moab Partners, L.P…more

Disclosure Requirements, Macquarie Infrastructure Corp v Moab Partners LP, Omissions, Regulation S-K, Rule 10(b)

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Coronavirus (COVID-19) - practical tips for conducting teleconferences and videoconferences in arbitral hearings

What practical steps need to be considered in advance of a hearing conducted by telecon-ference? Teleconferences are frequently used for and are particularly suitable for resolving procedural and preliminary issues, including…more

Arbitration, Arbitration Procedural Rules, Coronavirus/COVID-19, State of Emergency, Teleconferences

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PTAB/USPTO Update - April 2024

On March 8, the USPTO joined other intellectual property offices in celebrating International Women’s Day with a theme of “Invest in Women: Accelerate Progress.”…more

America Invents Act, Artificial Intelligence, Copyright, Copyright Office, Diversity

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The Constitutionality of Criminalizing False Speech Made on Social Networking Sites in a Post-Alvarez, Social Media-Obsessed World

The emergence of social media led to profound changes in the way we interact with technology and each other. Every day — often without thinking — we use social media platforms for myriad purposes, including to keep family and…more

Criminal Prosecution, False Statements, First Amendment, Free Speech, Political Speech

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Eleventh Circuit Concludes FTC Data Security Order Unenforceable Because Standards Not Specific Enough

On June 6, the U.S. Court of Appeals for the Eleventh Circuit vacated a cease-and-desist order by the Federal Trade Commission (FTC) issued against LabMD, Inc. (LabMD) arising from an FTC enforcement action alleging that LabMD’s…more

Administrative Law Judge (ALJ), Appeals, Cease and Desist Orders, Data Breach, Data Security

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Predicting the Future: International Arbitration in the Wake of COVID-19

The COVID-19 pandemic has had a profound impact on all of us. Most tragically, it has already resulted in the deaths of more than 400,000 people around the world, including more than 100,000 Americans, of whom more than 30,000…more

Arbitration, Coronavirus/COVID-19, International Arbitration, Remote Hearings, Teleconferences

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COVID-19: SEC Grants Temporary Relief to Mutual Funds from Borrowing and Lending Restrictions

On March 23, 2020, the SEC issued an order (the “Order”) granting registered open-end funds and insurance company variable annuity separate accounts expanded capability to borrow from their affiliates to satisfy redemption…more

Annuities, Coronavirus/COVID-19, Mutual Funds, Relief Measures, Securities and Exchange Commission (SEC)

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USDA Releases Interim Hemp Regulations

On October 31, 2019, the US Department of Agriculture (USDA) released its long-awaited regulations governing hemp. Those regulations provide critical guidance to the hemp industry following the Agriculture Improvement Act of…more

Agricultural Sector, Cannabidiol (CBD) oil, Cannabis-Related Businesses (CRBs), Comment Period, Controlled Substances Act

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SEC Charges SolarWinds and CISO with Fraud and Internal Controls Failures

On October 30, 2023, the Securities and Exchange Commission (“SEC”), filed a complaint against SolarWinds Corp. (“SolarWinds” or the “Company”) for fraud and internal and disclosure controls failures relating to allegedly known…more

Chief Information Security Officer (CISO), Compliance, Cyber Attacks, Cybersecurity, Enforcement Actions

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The Effect of Brexit on UK Intellectual Property Protection and the Unified Patent Court and Practical Steps to Be Taken Now and in the Future

The UK has voted to leave the European Union. This will not affect the UK’s position as one of the most important IP jurisdictions in Europe. However, leaving the European Union will have an impact on substantive IP law in the…more

EU, European Economic Area (EEA), Intellectual Property Protection, UK, UK Brexit

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Supreme Court Suggests Claim Preclusion May Be Less Relevant to Trademark Cases and Questions Its Applicability to a Defense Rather than a Claim

On May 14, 2020, the U.S. Supreme Court decided Lucky Brand Dungarees, Inc., et al. v. Marcel Fashions Group, Inc., No. 18-1086, addressing the subjects of claim and issue preclusion. The Court held that claim preclusion (or res…more

Claim Preclusion, Collateral Estoppel, Counterclaims, Defense Preclusion, Fashion Branding

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Life and Annuity Series: Class Certified in an ERISA “Unreasonable Compensation” Case

The Colorado federal court concluded last summer, in Teets v. Great-West Life & Ann. Ins. Co., that an insurer could be subject to ERISA liability for receiving unreasonable compensation in connection with a stable value fund,…more

Best Interest Standard, Class Action, Class Certification, Compensation Agreements, Employee Retirement Income Security Act (ERISA)

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‘One eye across the Atlantic’ - The UK SFO Director’s Maiden Speech and Recent Visits to the United States Underscore the Importance of Future UK-US Collaboration and the US Corporate Criminal Enforcement Model

The Director of the UK Serious Fraud Office (SFO), Nick Ephgrave QPM, delivered his maiden public speech on February, 13, 2024, closely followed by visits to key financial centres in the United States to meet with…more

Bribery, Collaboration, Corporate Crimes, Corporate Transparency Act, Corruption

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2021 IPO Report

Across the board, despite the pall cast by the COVID-19 pandemic, 2020 was a year of strong IPO deal flow and aftermarket performance, punctuated by a breathtaking surge in IPOs by special purpose acquisition companies…more

Corporate Governance, Information Reports, Initial Public Offering (IPO), Publicly-Traded Companies, Securities and Exchange Commission (SEC)

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Análisis Anual sobre Prácticas Anticorrupción en América Latina: Desarrollos del 2021 y Predicciones para el 2022

Aunque la cantidad de casos relacionados con la Ley de Prácticas Corruptas en el Extranjero (Foreign Corrupt Practices Act, FCPA) resueltos públicamente en el año 2021 fue relativamente baja en comparación con los años…more

Anti-Bribery, Anti-Corruption, Brazil, Compliance, Cooperation

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USPTO Requests Comments Regarding AI's Impact

On April 30, 2024, the United States Patent and Trademark Office (USPTO) published a Request for Comments (RFC) seeking stakeholder input on fifteen questions regarding artificial intelligence (AI) and its impact on (1) prior…more

Artificial Intelligence, Information Requests, Patents, Prior Art, USPTO

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What to Expect in Licensing and Litigation as the Internet of Things Comes to the Automotive Industry

As outlined in prior articles in this series, the Internet of Things (IoT), or the connection of a variety of devices to collect and exchange data through the internet, has broad potential to impact the automotive industry. The…more

Automotive Industry, Connected Cars, EU, FRAND, Intellectual Property Litigation

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Biden Executive Order to Protect Americans’ Sensitive Personal Data and Related Rulemaking Could Impose Significant Restrictions on Certain Transfers of Sensitive Personal Information

On February 28, 2024, President Biden signed Executive Order 14117, “Preventing Access to Americans’ Bulk Sensitive Personal Data and U.S. Government-Related Data by Countries of Concern” (the EO), under the authority of the…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, China, Consumer Financial Protection Bureau (CFPB), Data Transfers

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Federal Circuit Patent Watch: District Court’s “Seemingly Siloed and Inflexible Approach” to Obviousness “Ran Afoul” of KSR

Precedential and Key Federal Circuit Opinions - 1.  JANSSEN PHARMACEUTICALS, INC. v. TEVA PHARMACEUTICALS USA, INC. [OPINION] (2022-1258, 2022-1307, 4/1/2024) (Dyk, Prost, and Hughes) - Prost, J. The Court affirmed the…more

Abstract Ideas, Indefiniteness, Obviousness, Patent Litigation, Patent Trial and Appeal Board

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RAV Bahamas and another v Therapy Beach Club Incorporated (Bahamas): Judicial Committee of the Privy Council Rules on “Substantial Injustice” Requirement in Serious Irregularity Challenges

On 19 April 2021, the Judicial Committee of the Privy Council (“Privy Council”) rendered its decision in RAV Bahamas and another v Therapy Beach Club Incorporated (Bahamas) on the requirement under Section 90 of the Bahamas…more

Appeals, Arbitration, Arbitration Award Challenges, Arbitration Awards, Bahamas

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SEC No-Action Letter Opens the Door to Innovation for Securities Clearance and Settlement

On October 28, 2019, Paxos Trust Company, LLC (Paxos) received a time-limited (two-year) No-Action Letter from the Division of Trading and Markets of the U.S. Securities and Exchange Commission (SEC). This No-Action Letter…more

Blockchain, Digital Assets, Distributed Ledger Technology (DLT), FinTech, Investment Contract

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Hiding in Plain Sight: New Ukraine and Israel Aid Package Includes Significant Changes to US Sanctions and Export Control Laws

On April 24, 2024, President Biden signed into law H.R. 815, an emergency appropriations package billed as authorizing $95 billion in foreign aid to Ukraine and Israel (the Act). While the Ukraine and Israel aid provisions and…more

Appropriations Bill, Biden Administration, China, Economic Sanctions, EU

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COVID-19: A Second Look at Securities Act Litigation Amid COVID-19

This article follows an earlier Client Alert titled COVID-19: An Early Look at Securities Act Litigation Amid COVID-19. In that alert, we anticipated that there would be an increase in Securities Act filings involving claims…more

Class Action, Coronavirus/COVID-19, Corporate Counsel, Corporate Governance, Enforcement Actions

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Supreme Court Halts OSHA's Vaccine or Test Mandate

Yesterday the Supreme Court stayed the Occupational Health and Safety Administration’s (OSHA) vaccination and testing emergency temporary standard (ETS), resolving months of legal uncertainty over its fate. In blocking the rule…more

Coronavirus/COVID-19, Employer Mandates, Lack of Authority, National Federation of Independent Business v Department of Labor and OSHA, OSHA

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Practice Tips for Patentees Asserting Method-of-Treatment Claims Involving Divided Infringement

Do physicians ‘‘condition participation’’ of drug therapy based on patients’ compliance with drug manufacturer instructions regarding how to take drugs? Do physicians withhold medically necessary drug therapy from patients when…more

Divided Infringement, Eli Lilly, Limelight v Akamai, Patent Infringement, Patents

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HSR Size-of-Transaction Threshold to Increase to $119.5 Million

On January 22, 2024, the Federal Trade Commission (FTC) announced revised thresholds for merger notifications under the Hart-Scott-Rodino (HSR) Act. Effective 30 days after the official publication date in the Federal Register,…more

Acquisitions, Antitrust Division, Department of Justice (DOJ), Federal Trade Commission (FTC), Filing Fees

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Clearing the Air on Criminal Enforcement of Hydrofluorocarbon Importation Laws

The Biden Administration’s focus on climate change mitigation is showcased in a prosecution recently announced by the U.S. Attorney’s Office, Southern District of Cali- fornia against Michael Hart, who is accused of smuggling…more

Biden Administration, Clean Air Act, Climate Change, Consolidated Appropriations Act (CAA), Criminal Penalties

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COVID-19: Healthcare Fraud in a Public Health Emergency

This is the third in a series of client alerts addressing the likely role of the False Claims Act in the wake of the massive federal government response to the COVID-19 pandemic. The healthcare industry is no stranger to…more

CARES Act, Coronavirus/COVID-19, False Claims Act (FCA), Health Care Providers, Healthcare Fraud

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False Claims Act Alert - An Escobar Roundup: Falsity, Materiality, and Scienter

In its June 2016 decision in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), the Supreme Court held that implied certification claims are viable under the False Claims Act (FCA), but…more

False Claims Act (FCA), False Implied Certification Theory, Federal Contractors, Implied Certification, Materiality

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German and Austrian Competition Authorities Publish Draft Guidelines on New Transaction Value Merger Control Thresholds

In the wake of the Facebook/WhatsApp deal, Germany and Austria amended their respective competition laws in 2017 and supplemented the traditional turnover threshold test for pre-merger control notification with a…more

Amended Regulation, Austria, Competition, European Merger Control Regulation, Facebook

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DOJ Announces Updates to Corporate Enforcement Policy

Assistant Attorney General Kenneth A. Polite, Jr. Announces Changes to Department of Justice Criminal Division’s Corporate Enforcement Policy - On January 17, 2023, Assistant Attorney General for the Criminal Division Kenneth…more

Compliance, Compliance Management Systems, Compliance Monitoring, Cooperation, Corporate Counsel

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SPAC Transaction Explosion Drives SEC Enforcement Focus

In the face of volatile markets and a global pandemic, an old capital markets vehicle has been taking the markets by storm: special purpose acquisition companies (SPACs). Although SPACs have been around for many years, the…more

Acquisitions, Corporate Financing, Corporate Governance, Enforcement, Financial Industry Regulatory Authority (FINRA)

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CFTC Year in Review: 23 Takeaways From 2023 and Predictions for 2024

At an industry event in early 2023, Commodity Futures Trading Commission (CFTC or the Commission) Chairman Rostin Behnam set out a comprehensive agenda to include nearly three dozen rulemaking proposals as well as “business as…more

Asset Class, CFTC, Commodities, Compliance, Conflicts of Interest

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PFAS Milestones: EPA Sets Drinking Water Standard, Labels Two Compounds Hazardous Substances

The Environmental Protection Agency’s (EPA) recent rulemakings for per- and polyfluoroalkyl substances (PFAS) have far-reaching implications for a broad range of industries, regulated entities, and regulatory bodies. First, on…more

CERCLA, Contamination, Discharge of Pollutants, Drinking Water, Environmental Policies

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Final Adoption of the EU's Foreign Subsidies Regulation

On November 28, 2022, the Council of the European Union (Council) gave its final approval to the proposed Regulation on Foreign Subsidies (Regulation), concluding seven months of negotiations with the EU Parliament. Under this…more

EU, European Commission, Foreign Direct Investment, Foreign Subsidies, International Trade

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Crypto Currently: California Enacts Landmark Crypto Licensing Law

On October 13, Governor Gavin Newsom signed into law a comprehensive licensing regime for digital asset companies operating in California. Until this point, California had refrained from taking a definitive position on whether a…more

Best Execution, Capital Requirements, Department of Financial Protection and Innovation (DFPI), Digital Assets, Disclosure Requirements

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Corporate Transparency Act: What is a Reporting Company?

As we have previously noted, the Corporate Transparency Act (“CTA”) requires any entity that qualifies as a "reporting company" to submit a report disclosing certain beneficial ownership information (“BOI Report”) to the…more

Beneficial Owner, Corporate Entities, Corporate Transparency Act, FinCEN, Foreign Entities

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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COVID-19: SEC Provides Additional Relief and Guidance for Public Companies

In further recognition of the challenges to conducting business during the COVID-19 pandemic: ..On March 25, 2020, the Securities and Exchange Commission extended through July 1, 2020, and clarified the conditions for, the…more

Coronavirus/COVID-19, Corporate Governance, Disclosure Requirements, Publicly-Traded Companies, Relief Measures

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FinCEN Re-Proposes AML/CFT Requirements Covering Investment Advisers

On February 15, 2024, the U.S. Department of the Treasury’s (Treasury) Financial Crimes Enforcement Network (FinCEN) issued a long-anticipated Notice of Proposed Rulemaking (NPRM) to impose comprehensive anti-money laundering…more

AML/CFT, Anti-Money Laundering, Bank Secrecy Act, BSA/AML, Financial Institutions

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PFAS Milestones: EPA Sets Drinking Water Standard, Labels Two Compounds Hazardous Substances

The Environmental Protection Agency’s (EPA) recent rulemakings for per- and polyfluoroalkyl substances (PFAS) have far-reaching implications for a broad range of industries, regulated entities, and regulatory bodies. First, on…more

CERCLA, Contamination, Discharge of Pollutants, Drinking Water, Environmental Policies

See all updates »

Betamax Ltd v State Trading Corporation (Mauritius) [2021] UKPC 14: Public Policy Challenge Does Not Allow Reopening of Decided Issues of Fact or Law

On 14 June 2021, the Privy Council of the United Kingdom (“Privy Council”) handed down judgment in Betamax Ltd (“Betamax”) v State Trading Corporation (Mauritius) (“STC”). The judgment provides important guidance on the setting…more

Arbitration Awards, International Arbitration, Mauritius, Public Policy, Public Procurement Policies

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Antitrust Division’s Updated Leniency Policy Impacts Leniency for Acquirors

The Antitrust Division of the Department of Justice has quietly made a change to its Leniency Policy and Procedures (the “Leniency Policy”) that could impact companies involved in transactions that discover potential antitrust…more

Antitrust Division, Antitrust Provisions, Department of Justice (DOJ), Federal Trade Commission (FTC), Leniency Guidelines

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A Primer on FTC Expectations for Your Partner and Vendor Relationships: Enforcement Shows You Are Your Brother’s Keeper

With all of the privacy and data security enforcement actions brought by the Federal Trade Commission in recent years, and with all of the guidance distributed by the FTC in that time frame, it is easy to get caught up in making…more

Best Practices, Due Diligence, Federal Trade Commission (FTC), Risk Mitigation, Security and Privacy Controls

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Fifth Circuit Hears Argument on Nasdaq Board Diversity Rule

On Monday, August 29, the U.S. Court of Appeals for the Fifth Circuit heard oral argument on a challenge to the Nasdaq Board Diversity Rule (the “Rule”). The Rule requires Nasdaq-listed companies to publicly disclose Board…more

Board of Directors, Corporate Governance, Diversity and Inclusion Standards (D&I), Listing Rules, Nasdaq

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COVID-19: Speaker Pelosi Announces Expanded Congressional Oversight of Coronavirus Relief Funds

On April 2, House Speaker Nancy Pelosi (D-CA) announced that Majority Whip James Clyburn (D-SC) will chair a bipartisan House select committee overseeing the government’s coronavirus expenditures. Approval is subject to a House…more

CARES Act, Congressional Oversight, Coronavirus/COVID-19, Economic Stimulus

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2021 Venture Capital Report

Despite the arrival of the COVID-19 pandemic in early 2020 and the ensuing economic dislocation, venture capital financing proceeds, median amount raised, and median pre-money valuation all increased from 2019 levels, although…more

Acquisitions, Capital Raising, Corporate Financing, Early Stage Companies, Entrepreneurs

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Life and Annuity Series: Class Certified in an ERISA “Unreasonable Compensation” Case

The Colorado federal court concluded last summer, in Teets v. Great-West Life & Ann. Ins. Co., that an insurer could be subject to ERISA liability for receiving unreasonable compensation in connection with a stable value fund,…more

Best Interest Standard, Class Action, Class Certification, Compensation Agreements, Employee Retirement Income Security Act (ERISA)

See all updates »

COVID-19: CARES Act - Updates to Main Street Lending Program

On April 30, 2020, the Federal Reserve announced actions to expand the Main Street Lending Program authorized under Section 13(3) of the Federal Reserve Act. The expanded program now consists of three credit facilities (up from…more

CARES Act, Coronavirus/COVID-19, Credit Facilities, Federal Reserve, Financial Stimulus

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Getting Ready for Amended Rule 10b5-1 and Other New SEC Requirements Relating to Insider Trading

In December 2022, the Securities and Exchange Commission (SEC) adopted amendments to Exchange Act Rule 10b5-1, the rule that provides an affirmative defense to claims of insider trading for persons acquiring or disposing of…more

10b5-1 Plans, Affirmative Defenses, Amended Regulation, Corporate Governance, Disclosure Requirements

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California Enacts Nation’s First Anti-Bot Law

On September 28, California Governor Jerry Brown signed into law S.B. 1001, which makes it illegal “for any person to use a bot to communicate or interact with another person in California online, with the intent to mislead the…more

Advertising, Bots, First Amendment, Internet, New Regulations

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IRS Indicates Indefinite Extension of Electronic Signature Relief

On October 17, 2023, the Internal Revenue Service (IRS) updated the electronic signature guidance in its Internal Revenue Manual (IRM) to reflect the electronic signature relief that the IRS provided to taxpayers during the…more

Coronavirus/COVID-19, E-Signatures, Internal Revenue Code (IRC), IRS, Relief Measures

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Onboarding for Service Providers at Early-Stage Companies

For startups and early-stage companies, the onboarding of service providers is both a strategic necessity and a legal challenge. In this blog post, we will discuss the key considerations, best practices and other valuable…more

Consultants, Early Stage Companies, Hiring & Firing, Inventions, Non-Disclosure Agreement

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COVID-19: Colorado Transitions to "Safer at Home"

Colorado’s stay-at-home order expired on Sunday, April 26. It has been replaced by a new order, issued April 26, reflecting the state’s transition into the next phase of its COVID-19 response, termed “Safer at Home.” Colorado…more

Coronavirus/COVID-19, Executive Orders, Governor Polis, Public Health, Re-Opening Guidelines

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CFTC Year in Review: 23 Takeaways From 2023 and Predictions for 2024

At an industry event in early 2023, Commodity Futures Trading Commission (CFTC or the Commission) Chairman Rostin Behnam set out a comprehensive agenda to include nearly three dozen rulemaking proposals as well as “business as…more

Asset Class, CFTC, Commodities, Compliance, Conflicts of Interest

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2023 Venture Capital Report

US Market Review and Outlook - Venture capital financing and liquidity activity contracted in 2022 from the record-breaking levels of the prior year, in the face of declining equity markets, rising interest rates and…more

Acquisitions, Capital Raising, Convertible Notes, Corporate Financing, Early Stage Companies

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Second Circuit Limits Reach of FCPA’s Anti-Bribery Provisions Charged Under Agency Principles

On August 12, 2022, the US Court of Appeals for the Second Circuit issued another decision in a long-running criminal action that holds significant implications for the reach of the US Foreign Corrupt Practices Act (FCPA) over…more

Agents, Alstom, Anti-Bribery, Bribery, Compliance

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Recent Appellate Decision Overturns Revocations of Broad Institute CRISPR-Cas9 Patents

This past Thursday, the Board of Appeals of the European Patent Office released the minutes of oral proceedings in which the Board rendered a decision in closely watched appeals relating to Broad patents directed to CRISPR-Cas9…more

CRISPR, EU, European Patent Office, Life Sciences, Patent Litigation

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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NLRB Restricts Use of Confidentiality and Non-Disparagement Provisions

On February 21, 2023, the National Labor Relations Board (the “Board”) issued a decision restricting the use of confidentiality and non-disparagement provisions in severance agreements with departing employees…more

Confidentiality Agreements, Contract Terms, Employer Liability Issues, Hiring & Firing, NLRA

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Considerations for Submission of Experimental Evidence to the Patent Trial and Appeal Board

Experimental evidence can be a powerful tool in succeeding in an inter partes review proceeding, particularly in the case where inherent properties of prior art are at issue. As indicated by the requirements of 37 C.F.R. §…more

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

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Biden Executive Order to Protect Americans’ Sensitive Personal Data and Related Rulemaking Could Impose Significant Restrictions on Certain Transfers of Sensitive Personal Information

On February 28, 2024, President Biden signed Executive Order 14117, “Preventing Access to Americans’ Bulk Sensitive Personal Data and U.S. Government-Related Data by Countries of Concern” (the EO), under the authority of the…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, China, Consumer Financial Protection Bureau (CFPB), Data Transfers

See all updates »

Hiding in Plain Sight: New Ukraine and Israel Aid Package Includes Significant Changes to US Sanctions and Export Control Laws

On April 24, 2024, President Biden signed into law H.R. 815, an emergency appropriations package billed as authorizing $95 billion in foreign aid to Ukraine and Israel (the Act). While the Ukraine and Israel aid provisions and…more

Appropriations Bill, Biden Administration, China, Economic Sanctions, EU

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State Comprehensive Privacy Law Update - April 2024

The opening weeks of spring have seen comprehensive privacy law proposals continue to progress in state legislatures across the country. Since our last update, the Kentucky Consumer Data Protection Act (HB 15) received a House…more

Consumer Privacy Rights, Corporate Counsel, Data Privacy, New Legislation, Pending Legislation

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The Biden-Harris Administration’s Environmental Justice Policy Agenda: What Companies Need to Know

In its first six months, the Biden Administration has taken tangible steps to advance environmental justice (EJ) across the federal government. The US Environmental Protection Agency (EPA) and Department of Justice (DOJ) have…more

Biden Administration, Climate Change, Department of Justice (DOJ), Enforcement, Environmental Justice

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Supreme Court Rejects Heightened Harm Requirement In Title VII Discrimination Case

On April 17, 2024, the U.S. Supreme Court ruled in Muldrow v. City of St. Louis, Missouri that an employee challenging a job transfer under Title VII of the Civil Rights Act of 1964, as amended, must show only that the transfer…more

Civil Rights Act, Employee Transfers, Employer Liability Issues, Employment Litigation, Hiring & Firing

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Global Jurisdictions Adopt New Price Cap on Russian Petroleum Products - New Guidance Creates Additional Compliance Expectations

Effective February 5, 2023, the Price Cap Coalition (the Coalition), consisting of the G7 nations, the European Union (EU) and Australia, set a price cap of $45 per barrel for “Discount to Crude” petroleum products of Russian…more

Australia, Biden Administration, Crude Oil, Economic Sanctions, EU

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DOJ Criminal Division Announces Pilot Program on Voluntary Self-Disclosure for Individuals

On April 15, 2024, the Criminal Division of the Department of Justice (DOJ) announced the Pilot Program on Voluntary Self-Disclosure for Individuals, providing transparency regarding the circumstances in which Criminal Division…more

Department of Justice (DOJ), Federal Pilot Programs, Non-Prosecution Agreements, Voluntary Disclosure, Whistleblower Protection Policies

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FCA Business Plan: Firms Should Expect Assertive Supervision, Enforcement on Financial Crime as 2022-2025 Strategy Enters Final Year

The UK Financial Conduct Authority (FCA) is entering the final year of its 2022-2025 strategy, which features a commitment to be more innovative, assertive and adaptable. Its 2024/25 Business Plan outlines how the regulator…more

Anti-Money Laundering, Consultation, Enforcement, Enforcement Priorities, Environmental Social & Governance (ESG)

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A Look Ahead into Corporate Enforcement in the Biden Administration

Just one year after President Biden’s election, senior administration officials have signaled in public remarks that the federal government will amplify enforcement pressure on corporations and their employees through increased…more

Advisory Board, Biden Administration, CFTC, Compliance, Compliance Monitoring

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La sede y el ordenamiento aplicable en el arbitraje internacional: enfoques cruzados

El carácter global de la Convención sobre el Reconocimiento y la Ejecución de las Sentencias Arbitrales Extranjeras (Convención de Nueva York) es una de las prerrogativas típicamente destacadas dentro de las ventajas del…more

Arbitration, Argentina, Brazil, Colombia, Jurisdiction

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What the CARES Act Means for Tribes

On March 27, the Coronavirus Aid, Relief, and Economic Security, or CARES, Act was signed into law, setting in motion the distribution of funds and other relief mechanisms to counteract the economic fallout from the coronavirus…more

CARES Act, Coronavirus/COVID-19, Federal Loans, Financial Stimulus, Native American Issues

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Getting Ready for Amended Rule 10b5-1 and Other New SEC Requirements Relating to Insider Trading

In December 2022, the Securities and Exchange Commission (SEC) adopted amendments to Exchange Act Rule 10b5-1, the rule that provides an affirmative defense to claims of insider trading for persons acquiring or disposing of…more

10b5-1 Plans, Affirmative Defenses, Amended Regulation, Corporate Governance, Disclosure Requirements

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False Claims Act: 2015 Year-in-Review

In 2015, the Justice Department (DOJ) continued to give high priority to False Claims Act (FCA) investigations, bringing in nearly $3.6 billion in settlements and judgments. More than 630 qui tam suits were filed. DOJ's…more

Department of Justice (DOJ), False Claims Act (FCA), False Implied Certification Theory, Individual Accountability, Qui Tam

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A Secret On Sale: When Trade Secrecy and Invention Disclosure Collide

You have invented a process for manufacturing a high-potency artificial sweetener. You are now faced with a critical business decision: how do you protect your intellectual property? You could keep your process a closely guarded…more

Administrative Law Judge (ALJ), America Invents Act, Intellectual Property Protection, International Trade Commission (ITC), On-Sale Bar

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New SFO Pre-Investigation Powers Come into Force

On 15 January 2024, legislation came into force that enhances the Serious Fraud Office’s (SFO) compulsory information-gathering powers and streamlines the investigative process whilst imposing fresh obligations on companies on…more

Bribery, Corporate Transparency Act, Corruption, Criminal Investigations, Criminal Prosecution

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Prop 65 Warnings for Glyphosate Found To Violate First Amendment

On November 7, 2023, the US Court of Appeals for the Ninth Circuit held that California’s Prop 65 warning for glyphosate—the active ingredient in the herbicide Roundup®—violates the First Amendment. The court determined that…more

Commercial Speech, First Amendment, Manufacturers, Permanent Injunctions, Proposition 65

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Tax-related Measures in Investor-State Arbitration

The right to tax constitutes a core attribute of State sovereignty. As U.S. Supreme Court Justice Oliver Wendell Holmes Jr. said, “Taxes are the price we pay for civilization.” However, States may voluntarily limit their…more

Arbitration, Contract Disputes, Corporate Taxes, International Arbitration, Investor-State Arbitration

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Proxy Advisory Firm Policy Updates for the 2023 Proxy Season

In preparation for the 2023 proxy season, proxy advisory firms Glass Lewis and Institutional Shareholder Services (ISS) announced updates to their voting guidelines for investors, effective on January 1, 2023, and February 1,…more

Audits, Climate Change, Corporate Governance, Corporate Social Responsibility, Environmental Social & Governance (ESG)

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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Le Précédent Procédural Dans La Pratique Des Tribunaux Arbitraux

La présente contribution se propose d’étudier l’apparition, en arbitrage international, de décisions procédurales formant un véritable corps de jurisprudence ou de précédents. Tandis que le sujet du précédent a d’ores et déjà…more

Arbitration, Arbitration Awards, France, ICSID, International Arbitration

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Board Oversight of Cybersecurity

Cybersecurity is one of the highest priority issues for public company executives and directors. This note shares our views—developed over our involvement in the aftermath of many cybersecurity events as well as counseling on…more

Board of Directors, Corporate Governance, Corporate Officers, Cybersecurity, Disclosure Requirements

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COVID-19: Resuming Jury Trials in Massachusetts

The jury trial is just one of the many aspects of American life that has been upended by the COVID-19 pandemic. On March 12, 2020, the US District Court for the District of Massachusetts entered an order postponing all jury…more

Coronavirus/COVID-19, Court Schedules, Judicial Proceedings, Jury Trial, Rules of Civil Procedure

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COVID-19: Massachusetts and Neighboring States Begin to Reopen

On May 18, 2020, Massachusetts announced a four-phase reopening plan, parts of which took immediate effect. Phase 1 is the “Start” phase, during which “limited industries [may] resume operations with severe restrictions.”…more

Coronavirus/COVID-19, Governor Baker, Non-Essential Businesses, Re-Opening Guidelines

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State Taxation of Qualified Small Business Stock: Federal Tax Exclusion Not Always Replicated at State Level

In the event of an M&A transaction, many stockholders plan to take advantage of the exclusion from federal taxable income of gain realized from the sale or exchange of “qualified small business stock” (QSB stock). Section 1202…more

Acquisitions, C-Corporation, Capital Gains, Federal Taxes, Gain Exclusion

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FTC Bans Non-Competes: What’s at Stake and What Happens Next

On April 23, 2024, the Federal Trade Commission (FTC), in a highly anticipated vote, passed the Non-Compete Clause Rule, 16 CFR § 910 (the Rule), which purports to bar all non-competes in the United States, subject to limited…more

Chamber of Commerce, Constitutional Challenges, Employer Liability Issues, Employment Contract, Federal Bans

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DOL Issues Final Rule Raising Salary Threshold for Exempt Employees

On April 23, 2024, the U.S. Department of Labor (DOL) issued its much-anticipated final rule raising the salary threshold for employees to be exempt from federal overtime requirements under the Fair Labor Standards Act (FLSA)…more

Department of Labor (DOL), Exempt-Employees, Fair Labor Standards Act (FLSA), Final Rules, Highly Compensated Employees

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Supreme Court Halts OSHA's Vaccine or Test Mandate

Yesterday the Supreme Court stayed the Occupational Health and Safety Administration’s (OSHA) vaccination and testing emergency temporary standard (ETS), resolving months of legal uncertainty over its fate. In blocking the rule…more

Coronavirus/COVID-19, Employer Mandates, Lack of Authority, National Federation of Independent Business v Department of Labor and OSHA, OSHA

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Update: Supreme Court Dismisses Privilege Case after Hearing Arguments

Shortly after oral arguments on the correct standard for assessing the application of mixed-purpose communications in In re Grand Jury, the U.S. Supreme Court dismissed its writ of certiorari as improvidently granted.  To…more

Attorney-Client Privilege, Corporate Counsel, Dismissals, Dual Purpose, Primary Duty Test

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COVID-19: Examining State Work-From-Home and Shelter-in-Place Orders - Issues and Trends As We Enter Month Two

In response to the COVID-19 pandemic, governors of 49 states have issued executive orders restricting operations or closing categories of businesses and/or requiring residents to shelter-in-place. These orders vary…more

Business Closures, Coronavirus/COVID-19, Enforcement, Remote Working, Shelter-In-Place

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COVID-19: The Virus Creates New Regulatory Priorities and Litigation Risks for Public Companies and Market Participants

COVID-19 has had an unprecedented effect on the securities and derivatives markets. Public companies and market participants face significant operational challenges and unpredictability, including evolving and novel regulatory…more

CFTC, Corporate Governance, Derivatives, Enforcement, Publicly-Traded Companies

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SEC Holiday Reading List: Four Rule Proposals That Would Overhaul Market Structure and How Retail Orders Are Executed

On December 14, 2022, the Securities and Exchange Commission (“SEC” or “Commission”) released four sweeping rulemaking proposals that would change market structure as we currently know it and introduce a new federal standard for…more

Amended Rules, Best Execution, Broker-Dealer, Disclosure Requirements, Investment Adviser

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SEC Charges SolarWinds and CISO with Fraud and Internal Controls Failures

On October 30, 2023, the Securities and Exchange Commission (“SEC”), filed a complaint against SolarWinds Corp. (“SolarWinds” or the “Company”) for fraud and internal and disclosure controls failures relating to allegedly known…more

Chief Information Security Officer (CISO), Compliance, Cyber Attacks, Cybersecurity, Enforcement Actions

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False Claims Act: 2015 Year-in-Review

In 2015, the Justice Department (DOJ) continued to give high priority to False Claims Act (FCA) investigations, bringing in nearly $3.6 billion in settlements and judgments. More than 630 qui tam suits were filed. DOJ's…more

Department of Justice (DOJ), False Claims Act (FCA), False Implied Certification Theory, Individual Accountability, Qui Tam

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Supreme Court Limits Scope of Omission Liability Under Section 10(b)

On April 12, 2024, the U.S. Supreme Court took a significant step to curb securities fraud suits based on alleged omissions in SEC filings. The Supreme Court held in Macquarie Infrastructure Corporation v. Moab Partners, L.P…more

Disclosure Requirements, Macquarie Infrastructure Corp v Moab Partners LP, Omissions, Regulation S-K, Rule 10(b)

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Draft Bill for the Modernization of German Arbitration Law

Germany is in the process of renewing its arbitration law, which in its current version dates from 1997. In April 2023, the German Federal Ministry of Justice (the “Ministry”) published a Key Issues Paper, identifying potential…more

Arbitral Authority, Arbitration, Arbitration Agreements, Arbitration Awards, Commercial Arbitration

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Judgment of the Court of Justice of the European Union of July 25, 2018, in Case C-528/16 Confédération paysanne and Others

On July 25, 2018, the Court of Justice (Court), sitting in a Grand Chamber, issued its judgment in Confédération paysanne and Others, by which it found that (a) organisms obtained by mutagenesis techniques are to be considered…more

Court of Justice of the European Union (CJEU), EU, EU Directive, Genetic Materials, GMO

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Beware Change to RCE Practice Hidden in USPTO’s Final Rules for Hague Agreement Implementation

Summary: Effective May 13, 2015, a US national stage application for which an inventor’s oath or declaration (or substitute statement, as applicable) has not been filed is not eligible for an RCE filing. On April 2, 2015,…more

Design Patent, Final Rules, Hague Agreement, Industrial Design, Patent Applications

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Argentina and Uruguay: A New Hope for Arbitration

In July 2018, both Argentina and Uruguay passed new arbitration laws governing arbitrations seated in the respective countries, WilmerHale counsel Rina See and visiting foreign lawyer Tomas Ambrosini offer a comparison on the…more

Arbitration, Argentina, Dispute Resolution, International Arbitration, The Model Law

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COVID-19: Employers Have Options to Provide Relief to Employees and their Communities

As the COVID-19 pandemic spreads, the economy has struggled significantly under its new burdens. The impact both domestically and globally has been staggering, and many employers are interested in finding creative solutions to…more

Coronavirus/COVID-19, Employee Assistance Programs, Employment Policies

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COVID-19: Updating Risk Factor Disclosure in SEC Filings

As the COVID-19 pandemic evolves, companies are experiencing a host of adverse consequences and gaining insight into additional potential risks of the pandemic to their businesses. At the same time, general uncertainty continues…more

Coronavirus/COVID-19, Corporate Governance, Disclosure Requirements, Publicly-Traded Companies, Risk Assessment

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Open Questions Regarding the Patent Eligibility Restoration Act of 2023

United States Senators Thom Tillis (R-NC) and Chris Coons (D-DE) introduced the Patent Eligibility Restoration Act of 2023 (the “Act”) on June 22, 2023. The Act seeks to modify and clarify “patent eligibility jurisprudence…more

Abstract Ideas, Artificial Intelligence, Intellectual Property Protection, Patent Act, Patent-Eligible Subject Matter

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From Niche to Standard? M&A Transactions Under Scrutiny by the German Foreign Direct Investment Regime

The German federal government recently passed the 17th amendment to the Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung—AWV), which considerably expands the scope of foreign direct investment (FDI) screening in…more

Acquisition Agreements, Artificial Intelligence, Critical Infrastructure Sectors, Cybersecurity, EU

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Global Anti-Bribery Year-in-Review: 2023 Developments and Predictions for 2024

Publicly announced Foreign Corrupt Practices Act (FCPA) enforcement activity in 2023 did not return to the levels seen a few years ago, as indicated by both the total number of cases against corporate and individual defendants…more

Acquisitions, Anti-Bribery, Anti-Corruption, Clawbacks, Compliance

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Recent Appellate Decision Overturns Revocations of Broad Institute CRISPR-Cas9 Patents

This past Thursday, the Board of Appeals of the European Patent Office released the minutes of oral proceedings in which the Board rendered a decision in closely watched appeals relating to Broad patents directed to CRISPR-Cas9…more

CRISPR, EU, European Patent Office, Life Sciences, Patent Litigation

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Update: Supreme Court Dismisses Privilege Case after Hearing Arguments

Shortly after oral arguments on the correct standard for assessing the application of mixed-purpose communications in In re Grand Jury, the U.S. Supreme Court dismissed its writ of certiorari as improvidently granted.  To…more

Attorney-Client Privilege, Corporate Counsel, Dismissals, Dual Purpose, Primary Duty Test

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HSR Size of Transaction Threshold to Decrease to $92 Million

On February 2, 2021, the Federal Trade Commission (FTC) announced revised thresholds for merger notifications under the Hart-Scott-Rodino (HSR) Act. Effective March 4, 2021, the lowest size-of-transaction filing threshold (also…more

Federal Trade Commission (FTC), Hart-Scott-Rodino Act, Mergers, Size of Persons Test, Size of Transaction Test

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COVID-19: A Review of the Second Wave of Securities Fraud Enforcement Actions

As COVID-19 has continued to spread across the United States, the Securities and Exchange Commission (SEC) has remained keenly focused on monitoring the market “for frauds, illicit schemes and other misconduct affecting U.S…more

Coronavirus/COVID-19, Corporate Governance, Disclosure Requirements, Enforcement Actions, Publicly-Traded Companies

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FTC and DOJ Release New Merger Guidelines

On December 18, 2023, the Federal Trade Commission and the Department of Justice jointly released their final Merger Guidelines. The Guidelines “identify the procedures and enforcement practices [the agencies] most often use to…more

Acquisitions, Antitrust Provisions, Competition, Department of Justice (DOJ), Federal Trade Commission (FTC)

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Hiding in Plain Sight: New Ukraine and Israel Aid Package Includes Significant Changes to US Sanctions and Export Control Laws

On April 24, 2024, President Biden signed into law H.R. 815, an emergency appropriations package billed as authorizing $95 billion in foreign aid to Ukraine and Israel (the Act). While the Ukraine and Israel aid provisions and…more

Appropriations Bill, Biden Administration, China, Economic Sanctions, EU

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Supreme Court Expands the Government Edicts Doctrine to Legislators

The law – judicial opinions, statutes, and regulations – cannot be copyrighted. In Georgia v. Public.Resource.Org, Inc., No.18-1150 (April 21, 2020), the US Supreme Court was presented with the question whether annotations,…more

Annotated Case Law, Appeals, Copyright, Copyright Infringement, Copyrightable Subject Matter

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COVID-19: COBRA Subsidy Under the American Rescue Plan Act of 2021 - Important Deadlines Approaching

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA), which subsidizes fully paid post-employment healthcare coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) for…more

American Rescue Plan Act of 2021, Biden Administration, COBRA, Coronavirus/COVID-19, Employee Benefits

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When Is a Bait-and-Switch Not a Bait-and-Switch? When Key Personnel Ignore Their Non-Compete Agreements

Can a disappointed offeror successfully challenge an award by demonstrating that it had signed non-compete agreements with the awardee’s proposed key personnel? Not necessarily…more

Bid Protests, Breach of Contract, Federal Contractors, GAO, Non-Compete Agreements

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Real Parties-in-Interest Discovery In Post-Grant Proceedings

The America Invents Act of 2011 requires petitioners in post-grant proceedings—including in all inter partes reviews (IPRs) and covered business method (CBM) reviews—to identify each ‘‘real party-in-interest’’ (i.e., ‘‘the party…more

Covered Business Method Proceedings, Discovery, Garmin Factors, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board

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Crypto Currently: New York Department of Financial Services Issues Virtual Currency Custody Guidance

On January 23, the New York State Department of Financial Services (DFS or the Department) issued guidance clarifying its expectations for New York-based virtual currency businesses regarding the custody of customer assets…more

BitLicense, Cryptocurrency, Custody Rule, Financial Services Industry, New Guidance

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Corporate Basics - Part II

This post is the second in a series looking at what founders should think about when getting ready to launch a company, read part one here. Founders often wonder who actually controls the corporation they create – is it…more

Corporate Governance, Early Stage Companies, Entrepreneurs, Startups, Strategic Planning

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FRAND Quarterly: Navigating the Global SEP Landscape - April 2024

This marks the second issue of WilmerHale’s FRAND Quarterly: Navigating the Global SEP Landscape, a bulletin that will highlight developments about the licensing, litigation, and regulation of patents that are or are claimed to…more

China, EU, FRAND, India, Intellectual Property Protection

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Trends In Automotive Technology: 2017 and the Road Ahead

This has been a year in which automotive technology and the legal issues surrounding it have come increasingly to the forefront, both in legal circles and public perception. Given the many new entrants in the autonomous vehicle…more

Automotive Industry, Connected Cars, Department of Transportation (DOT), Design Patent, DRIVE Act

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Looking Forward After the SEC’s Victory in “Shadow Trading” Case

This month the SEC secured a jury trial victory in its much-discussed “shadow trading” case in SEC v. Panuwat. As we have described in a prior alert, the term “shadow trading” has been used to refer to trading in the securities…more

Breach of Duty, Insider Trading, Jury Trial, Material Nonpublic Information, Pfizer

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Judgment of the Court of Justice of the European Union of July 25, 2018, in Case C-528/16 Confédération paysanne and Others

On July 25, 2018, the Court of Justice (Court), sitting in a Grand Chamber, issued its judgment in Confédération paysanne and Others, by which it found that (a) organisms obtained by mutagenesis techniques are to be considered…more

Court of Justice of the European Union (CJEU), EU, EU Directive, Genetic Materials, GMO

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D.C. Circuit Invalidates Portion of FCC's 2015 Declaratory Ruling & Order Implementing the TCPA

On March 16, 2018, the D.C. Circuit issued its long-awaited ruling in ACA International, et al. v. FCC, et al., No. 15-1211, resolving a series of challenges to the July 10 2015 Declaratory Ruling & Order of the Federal…more

Administrative Procedure Act, Auto-Dialed Calls, Declaratory Rulings, FCC, Mobile Devices

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The EU Updates the Way It Defines Markets

On February 8, 2024, the European Commission (Commission) adopted its revised Market Definition Notice (Notice), replacing a version that was nearly 30 years old. The Notice is not binding, but it provides guidance on how the…more

Acquisitions, Competition, EU, European Commission, European Merger Control Regulation

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Applicability of the Biden Administration’s Regulatory Freeze to Independent Agencies

On January 20, 2021, White House Chief of Staff Ron Klain issued a memorandum ordering a temporary freeze of new or pending rules in order “to ensure that the President’s appointees or designees have the opportunity” to review…more

Biden Administration, CFTC, Consumer Financial Protection Bureau (CFPB), FDIC, Federal Reserve

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Increasing Role of Objective Indicia of Nonobviousness in AIA Proceedings

During inter partes review (IPR) proceedings, a patent owner facing a challenge to a patent’s claims on the basis of obviousness may seek to counter this challenge by presenting evidence of objective indicia of nonobviousness,…more

America Invents Act, Evidence, Inter Partes Review (IPR) Proceeding, Nonobvious, Patent Litigation

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Strategies For Navigating Compliance Monitorships

The imposition of an independent compliance monitor continues to be a favored tool of the government in resolving corporate enforcement matters. Indeed, in 2022, both the U.S. Department of Justice and the U.S. Securities…more

Chief Compliance Officers, Compliance, Compliance Monitoring, Department of Justice (DOJ), Risk Management

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Potential Changes to PTAB Practice on Multiple IPR Petitions

An important set of factors the Patent Trial and Appeal Board considers when deciding whether to institute inter partes review concerns the filing of multiple petitions challenging the same patent. Part I of this two-part series…more

America Invents Act, Ex Partes Reexamination, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board

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COVID-19: A Second Look at Securities Act Litigation Amid COVID-19

This article follows an earlier Client Alert titled COVID-19: An Early Look at Securities Act Litigation Amid COVID-19. In that alert, we anticipated that there would be an increase in Securities Act filings involving claims…more

Class Action, Coronavirus/COVID-19, Corporate Counsel, Corporate Governance, Enforcement Actions

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SEC Brings Two More “AI Washing” Enforcement Actions Against Investment Advisers, Continuing Its Pursuit of Misstatements Related to AI

On March 18, 2024, the Securities and Exchange Commission (SEC or the Commission) announced settled charges against two investment advisers, Delphia (USA) Inc. and Global Predictions, Inc., for making false and misleading…more

Artificial Intelligence, Civil Monetary Penalty, Enforcement Actions, Investment Adviser, Material Misstatements

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USPTO Requests Comments Regarding AI's Impact

On April 30, 2024, the United States Patent and Trademark Office (USPTO) published a Request for Comments (RFC) seeking stakeholder input on fifteen questions regarding artificial intelligence (AI) and its impact on (1) prior…more

Artificial Intelligence, Information Requests, Patents, Prior Art, USPTO

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NIST Issues Artificial Intelligence Risk Management Framework (AI RMF 1.0)

On January 26, 2023, the National Institute of Standards and Technology (NIST) issued the Risk Management Framework for the use of artificial intelligence, or AI, in a trustworthy manner. The Risk Management Framework provides…more

Artificial Intelligence, Cybersecurity, Cybersecurity Framework, FinTech, NIST

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A Look At The Legal Intersection Of AI And Life Sciences

This article was not written by ChatGPT. Will all articles have to start with a statement like this? And will any statement like this be true? ChatGPT uses artificial intelligence, or AI, to develop written work product…more

Artificial Intelligence, Big Data, Compliance, Intellectual Property Protection, Life Sciences

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The Interplay: Key Decisions at the Intersection of Antitrust & Life Sciences - March 2024

Calls for Removal of Device Patents Listed in the Orange Book Continue. FTC and Congressional action scrutinizing allegedly “improper” Orange Book listings continued apace in the first few months of 2024…more

AbbVie, Antitrust Litigation, AstraZeneca, Boehringer, Class Action

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5 Questions To Ask Before Entering Joint-Representation AFA

One growing trend is for clients to enter into alternative fee arrangements in which one law firm represents multiple parties who “share” fees and costs in a related matter. For example, a law firm might represent co-defendants…more

Alternative Fee Arrangements, Client Services, Joint Clients, Legal Fees, Legal Project Management

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2018 Venture Capital Report

The venture capital market rebounded in 2017, with an uptick in deal flow, an increase in financing sizes, soaring proceeds and a record high median premoney valuation. The $73.2 billion invested into the US venture capital…more

Capital Raising, Corporate Financing, Debt-Equity, Entrepreneurs, Equity Financing

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Unprecedented State Law on Pharmaceutical “Reverse Payments” Goes Into Effect

A new California law, Preserving Access to Affordable Drugs, AB-824 (the Act), which is aimed at curbing reverse-payment patent settlements, took effect on January 1. The Act codifies a presumption that any transfer of value…more

Actavis Inc., Anti-Competitive, Appeals, Biosimilars, Burden-Shifting

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Supreme Court Holds That False Claims Act Requires Subjective Inquiry

On June 1, 2023, the Supreme Court decided a pair of closely watched False Claims Act (FCA) cases, U.S. ex rel. Schutte v. SuperValu Inc., No. 21-1326, and U.S. ex rel. Proctor v. Safeway, Inc., No. 22-111…more

Drug Pricing, False Claims Act (FCA), Materiality, Medicaid, Medicare

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State Attorneys General in the Age of COVID-19: What Prior Crises Tell Us About Their Likely Responses

The novel coronavirus - and our federal system of government’s response to it - has thrust states and their leaders into the spotlight. Governors ordinarily eclipsed by federal officials are now the focus of unprecedented…more

Coronavirus/COVID-19, Enforcement Authority, Popular, State Attorneys General

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Federal Trade Secret Law Incorporates California's Particularity Requirement

On October 15, 2020, the U.S. Court of Appeals for the Ninth Circuit held in InteliClear LLC v. ETC Global Holdings, Inc., that the federal Defend Trade Secrets Act (“DTSA”) requires trade secret plaintiffs to identify a trade…more

Appeals, Defend Trade Secrets Act (DTSA), Intellectual Property Protection, Trade Secrets

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New Commerce Rule Covering ICTS Transactions Involving Foreign Parties

A new rule effective March 22, 2021 establishes a process for the US Department of Commerce to review commercial transactions between US and foreign parties for certain information and communications technology and services…more

Biden Administration, China, Covered Transactions, Critical Infrastructure Sectors, Cross-Border

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In Case You Missed It: Launch Links - February 2021 #4

Some interesting links we found across the web this week: Yes, 2021 Is Shaping Up as a Wild Year for Supergiant Rounds. We Break Down Where the Money Is Going - Just when we thought things might slow down in the venture…more

Capital Raising, Early Stage Companies, Entrepreneurs, Startups, Technology Sector

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Department of Justice Issues Voluntary Self-Disclosure Policy for Corporate Criminal Enforcement Applicable to U.S. Attorneys’ Offices Nationwide

On February 22, 2023, the Department of Justice (DOJ) issued a Voluntary Self-Disclosure Policy (VSDP) which, effective immediately, applies to all U.S. Attorneys’ Offices (USAOs) nationwide with respect to corporate criminal…more

Compliance, Corporate Criminal Fines, Corruption, Department of Justice (DOJ), Enforcement

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Congress Enacts the Foreign Extortion Prevention Act Targeting Foreign Officials' Conduct

On December 14, 2023, the U.S. Congress (Congress) passed the Foreign Extortion Prevention Act (FEPA), as a part of the Fiscal Year 2024 National Defense Authorization Act. The FEPA, which received bipartisan support, makes it a…more

Anti-Bribery, Anti-Corruption, Department of Justice (DOJ), Extortion, FEPA

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New California Non-Compete Laws Add Teeth to State’s Non-Competition Prohibition

2023 has seen its fair share of headlines with respect to developments in non-competition law: in January, the Federal Trade Commission proposed a rule that would ban most non-competes; in May, the National Labor Relations…more

Business & Professions Code, Effective Date, Employer Liability Issues, Employment Contract, New Legislation

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COVID-19: Planning Ahead at a Social Distance Considerations for Emerging Companies

COVID-19 continues to spread at an alarming rate, causing rippling effects throughout our daily lives and profoundly impacting our health, wellness, financial futures and families. For companies, and especially start-up and…more

CARES Act, Coronavirus/COVID-19, Early Stage Companies, Risk Management, Social Distancing

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USPTO Issues Revised Patent Subject Matter Eligibility Guidance and Guidance for Examining Computer-Implemented Functional Claims under Section 112

The USPTO has issued updated guidance for examiners and administrative patent judges (APJs) relating to subject matter eligibility under 35 U.S.C. 101 and examining computer-implemented functional claim limitations under 35…more

Abstract Ideas, Administrative Patent Judges, Alice Corporation, Claim Construction, Computer-Related Inventions

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German Cum/Ex-Trades: Enhanced Risks and Industry-Wide Challenges

The German and international financial industries and their advisors have come under new pressure to investigate so-called 'cum/ex' trades conducted between 2000 and 2012. For many years, tax authorities and criminal prosecutors…more

BaFin, Capital Gains, Capital Markets, Criminal Prosecution, Damages

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FTC Bans Non-Competes: What’s at Stake and What Happens Next

On April 23, 2024, the Federal Trade Commission (FTC), in a highly anticipated vote, passed the Non-Compete Clause Rule, 16 CFR § 910 (the Rule), which purports to bar all non-competes in the United States, subject to limited…more

Chamber of Commerce, Constitutional Challenges, Employer Liability Issues, Employment Contract, Federal Bans

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USPTO’s Notice of Proposed Rulemaking for Discretionary Denial Briefing, Section 325(d), Instituting Parallel and Serial Petitions, and Settlement Agreements

On April 19, 2024, the United States Patent and Trademark Office (USPTO) issued a notice of proposed rulemaking (NPRM) that proposes rules regarding the exercise of discretion to determine whether to institute an Inter Partes…more

America Invents Act, Comment Period, Inter Partes Review (IPR) Proceeding, NPRM, Patent Litigation

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Congress Enacts Law Clarifying Reach of Warrants for Overseas Data

On Friday, March 23, President Trump signed into law the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), which amends the Stored Communications Act (SCA), 18 U.S.C. § 2701, et seq., to require providers of electronic…more

Amended Regulation, Corporate Counsel, Electronic Communications, Extraterritoriality Rules, Foreign Governments

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CFPB Insights On Alternative Data Use In Credit Scoring

The growing utilization of alternative data in credit decisions and scoring models continues to attract the attention of regulators. Although clear and practical guidance from regulators remains elusive, regulator pronouncements…more

Consumer Financial Products, Consumer Financial Protection Bureau (CFPB), Credit Rating Agencies, Credit Ratings, Data Collection

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Where Do We Stand on COVID-19? A Conversation with Andy Slavitt

Over the last two years, one topic has dominated headlines and conversation across the world: the COVID-19 pandemic. Since the beginning of the pandemic, new variants of the coronavirus have emerged, but so too have vaccines,…more

Coronavirus/COVID-19, Infectious Diseases, Public Health, State and Local Government

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Hiding in Plain Sight: New Ukraine and Israel Aid Package Includes Significant Changes to US Sanctions and Export Control Laws

On April 24, 2024, President Biden signed into law H.R. 815, an emergency appropriations package billed as authorizing $95 billion in foreign aid to Ukraine and Israel (the Act). While the Ukraine and Israel aid provisions and…more

Appropriations Bill, Biden Administration, China, Economic Sanctions, EU

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A Constitutional Analysis of the Affordable Housing Credit Improvement Act of 2019

This article considers the constitutionality of certain provisions of proposed legislation, the Affordable Housing Credit Improvement Act of 2019. One provision of the bill - apparently offered in legislative response to a…more

Affordable Housing, Constitutional Challenges, Internal Revenue Code (IRC), LIHTC, Nonprofits

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AI Can Almost Generate Evidence Of Patent Obviousness

For a patent to be valid, the critical question often is whether its invention was obvious, namely whether the differences between the invention and what existed before, i.e., the prior art, would have been obvious to a person…more

Artificial Intelligence, Obviousness, Patents, Prior Art

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Automotive Tech In 2018: Legal Trends And Developments

The legal landscape for the automotive sector continued its evolution in 2018 with the development of new technology becoming a focal point for litigation, patenting and regulation. As we did at the close of 2017, we look back…more

Automotive Industry, Defend Trade Secrets Act (DTSA), Design Patent, Driverless Cars, Intellectual Property Protection

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Defense Contractors Will Face Higher Risks as Spending Increases

Ongoing geopolitical developments such as Russia’s war in Ukraine and tensions between China and Taiwan have continued to fuel higher US military spending. The demand for military weapons is the strongest it has been in…more

China, Compliance, Cybersecurity, Defense Contracts, Defense Sector

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Potential Impact of the SEC’s Rulemaking Agenda on Crypto

The current SEC administration has expressed the view that most crypto assets are offered and sold as securities and has proposed several rules that address “digital asset securities” or “crypto asset securities.” In this…more

Alternative Trading System (ATS), Best Execution, Broker-Dealer, Cryptoassets, Custody Rule

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FTC Proposes Rule to Make Impersonating Government Entities and Businesses Unlawful

On February 15, 2024, the Federal Trade Commission (FTC) finalized its Government and Business Impersonation Rule (the Impersonation Rule, available here) prohibiting fraudulent impersonation of governments, businesses and their…more

Artificial Intelligence, Deep Fake, Federal Trade Commission (FTC), Final Rules, Fraud

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FRAND Quarterly: Navigating the Global SEP Landscape - April 2024

This marks the second issue of WilmerHale’s FRAND Quarterly: Navigating the Global SEP Landscape, a bulletin that will highlight developments about the licensing, litigation, and regulation of patents that are or are claimed to…more

China, EU, FRAND, India, Intellectual Property Protection

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FRAND Quarterly: Navigating the Global SEP Landscape - April 2024

This marks the second issue of WilmerHale’s FRAND Quarterly: Navigating the Global SEP Landscape, a bulletin that will highlight developments about the licensing, litigation, and regulation of patents that are or are claimed to…more

China, EU, FRAND, India, Intellectual Property Protection

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State Governments Move to Regulate AI in 2024

Recently, New York Governor Kathy Hochul proposed sweeping artificial intelligence (AI) regulatory measures intended to protect against untrustworthy and fraudulent uses of AI. Presented as part of her FY 2025 Executive Budget,…more

Algorithms, Artificial Intelligence, Biden Administration, Deep Fake, Executive Orders

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FTC/DOJ Guidance to Human Resource Professionals - Enforcement Scrutiny of Employment-Related Conduct

Last month, the Federal Trade Commission (FTC) and Department of Justice (DOJ) issued their Antitrust Guidance for Human Resource Professionals. The HR Guidance reflects the agencies' enhanced scrutiny in a realm that may not…more

Antitrust Violations, Criminal Prosecution, Department of Justice (DOJ), Federal Trade Commission (FTC), Hiring & Firing

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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2023 Proxy Season Update: Shareholder Activism on “E” Topics

What a difference a year makes. A highlight of the 2022 proxy season was the increased shareholder focus on a number of ESG topics, including more than 100 “E”-related shareholder proposals related to climate change,…more

Climate Change, Corporate Governance, Disclosure Requirements, Environmental Justice, Environmental Social & Governance (ESG)

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The U.S. Supreme Court Rules That U.S. Discovery Under 28 U.S.C. 1782 Is Unavailable For Use in Most International Arbitrations

On 13 June 2022, in ZF Automotive v. Luxshare, the U.S. Supreme Court held unanimously that 28 U.S.C. § 1782 does not allow discovery for use in most international arbitral proceedings. The Supreme Court held that only…more

28 U.S.C. § 1782, AlixPartners LLP v The Fund for Protection of Investors Rights in Foreign States, Arbitration, Business Disputes, Business Litigation

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Congress Enacts the Foreign Extortion Prevention Act Targeting Foreign Officials' Conduct

On December 14, 2023, the U.S. Congress (Congress) passed the Foreign Extortion Prevention Act (FEPA), as a part of the Fiscal Year 2024 National Defense Authorization Act. The FEPA, which received bipartisan support, makes it a…more

Anti-Bribery, Anti-Corruption, Department of Justice (DOJ), Extortion, FEPA

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Wetlands and WOTUS: Implications of Sackett v. EPA

On May 25, 2023, the United States Supreme Court held that the term “waters of the United States” (“WOTUS”)—as used in the federal Clean Water Act (“CWA”), 33 U.S.C. § 1362(7)—means “streams, oceans, rivers, and lakes” and…more

Clean Water Act, Environmental Policies, Environmental Protection Agency (EPA), Federal Jurisdiction, Inland Waterways

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SEC Insider Trading Enforcement Highlights from 2021

The Securities and Exchange Commission’s (SEC or Commission) actions in 2021 demonstrate that insider trading remains a key enforcement priority. While the absolute number of insider trading enforcement actions brought by the…more

10b5-1 Plans, Affirmative Defenses, Corporate Governance, Dark Web, Enforcement Actions

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Supreme Court Decides Extraterritorial Reach of the Lanham Act

On June 29, 2023, the Supreme Court decided Abitron Austria GMBH v. Hetronic Int’l, Inc., No. 21-1043, addressing the extraterritoriality of the Lanham Act. The Court held that §1114(1)(a) and §1125(a)(1) of the Lanham Act do…more

Abitron Austria GmbH v Hetronic International Inc, Extraterritoriality Rules, Foreign Sales, Intellectual Property Protection, Lanham Act

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Fourth Circuit’s Decision Bolsters Trend Toward Objective Scienter Standard Under the False Claims Act

On January 25, 2022, in United States ex rel. Sheldon v. Allergan Sales, LLC, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that a defendant accused of violating the False Claims Act (FCA) by knowingly…more

Appeals, Centers for Medicare & Medicaid Services (CMS), False Claims Act (FCA), Medicaid Drug Rebate Program, Misrepresentation

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Recent Enforcement Actions Signal FTC Focus on Protecting Location Data

On January 9, 2024, the Federal Trade Commission (FTC) issued its first ever prohibition on the use, sale and disclosure of sensitive location data against X- Mode Social and Outlogic (“X-Mode”), a location data broker. Only 9…more

Data Brokers, Data Collection, Data Deletion, Data Processors, Data Retention

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State Governments Move to Regulate AI in 2024

Recently, New York Governor Kathy Hochul proposed sweeping artificial intelligence (AI) regulatory measures intended to protect against untrustworthy and fraudulent uses of AI. Presented as part of her FY 2025 Executive Budget,…more

Algorithms, Artificial Intelligence, Biden Administration, Deep Fake, Executive Orders

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Looking Forward After the SEC’s Victory in “Shadow Trading” Case

This month the SEC secured a jury trial victory in its much-discussed “shadow trading” case in SEC v. Panuwat. As we have described in a prior alert, the term “shadow trading” has been used to refer to trading in the securities…more

Breach of Duty, Insider Trading, Jury Trial, Material Nonpublic Information, Pfizer

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Proposed Changes to HSR Notification Form Would Intensify Scrutiny on Private Equity Funds: Some Thoughts on What to Expect and How to React

As described in our Client Alert of July 6, 2023, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) proposed on June 27, 2023, a massive overhaul of the Hart-Scott-Rodino Act (HSR) pre-merger notification…more

Antitrust Division, Comment Period, Department of Justice (DOJ), Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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Confidential Treatment Process Gets Easier

The SEC has approved rule changes that significantly simplify the process for public companies to redact confidential information from the exhibits required to be filed as part of SEC reports and registration statements. These…more

Amended Rules, Confidential Information, Corporate Governance, Disclosure Requirements, Filing Requirements

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Public Lands Management in the Biden Era

As the 2020 presidential campaign made clear, President-elect Biden plans to usher in a sharp shift in policy priorities across the federal government. We anticipate significant changes in the management of federal public lands…more

Arctic National Wildlife Refuge, Biden Administration, Bureau of Land Management, Climate Change, Congressional Review Act

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Drafting Force Majeure Clauses in Light of the COVID-19 Pandemic

In a previous client alert, we described the contractual issues that companies should assess under force majeure clauses in their existing contracts in light of the COVID-19 pandemic caused by the novel coronavirus and…more

Contract Drafting, Contract Negotiations, Contract Terms, Coronavirus/COVID-19, Force Majeure Clause

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The Assertion of Extraterritorial Patent Jurisdiction in Europe

US patents have some extraterritorial effect. A party can be liable for patent infringement if it supplies components of a patented invention to a foreign country to be assembled there. In WesternGeco LLC v. ION Geophysical…more

Court of Justice of the European Union (CJEU), Damages, EU, Extraterritoriality Rules, Foreign Patent Applications

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US Government Reviews Record Foreign Investments for National Security Risk

The Committee on Foreign Investment in the United States (CFIUS) reviewed a record number of transactions for national security risks in 2022: 440 covered transactions, up from 436 transactions in 2021, according to its Annual…more

Annual Reports, CFIUS, Foreign Investment, Mitigation, National Security

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2021 M&A Report

The outbreak of COVID-19 in the first quarter of 2020 inflicted an unprecedented shock on the global economy. In the first half of the year, growth stalled, the US unemployment rate reached its highest level since the Great…more

Acquisitions, Corporate Governance, Information Reports, Mergers, Publicly-Traded Companies

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COVID-19: New York Implements New “Winter Plan” Micro-Cluster Strategy for Coronavirus Restrictions

With coronavirus transmission rates again rising rapidly, New York Governor Andrew Cuomo announced on November 30 the state’s “Winter Plan” to combat COVID-19. This plan builds on the “Micro-Cluster Strategy” set forth in…more

Coronavirus/COVID-19, Emergency Management Plans, Executive Orders, Governor Cuomo, Public Health Emergency

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Ongoing SEC Marketing Rule Enforcement Sweep Results in Charges Against Investment Advisers

On September 11, 2023, the Securities and Exchange Commission (SEC) charged and settled proceedings with nine registered investment advisers for misrepresenting hypothetical performance of advisory products in connection with an…more

Compliance, Enforcement Actions, Investment Adviser, Investment Advisers Act of 1940, Marketing

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FRAND Quarterly: Navigating the Global SEP Landscape - April 2024

This marks the second issue of WilmerHale’s FRAND Quarterly: Navigating the Global SEP Landscape, a bulletin that will highlight developments about the licensing, litigation, and regulation of patents that are or are claimed to…more

China, EU, FRAND, India, Intellectual Property Protection

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10 Patent Prosecution, Litigation Practice Trends From 2020

While 2020 was a year of unprecedented challenges, it also spurred ingenuity in the ways we practice and highlighted the centrality of intellectual property to the American economy. As we head into the promise of a new year, we…more

Antitrust Provisions, Artificial Intelligence, Coronavirus/COVID-19, Inter Partes Review (IPR) Proceeding, Patent Litigation

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State Governments Move to Regulate AI in 2024

Recently, New York Governor Kathy Hochul proposed sweeping artificial intelligence (AI) regulatory measures intended to protect against untrustworthy and fraudulent uses of AI. Presented as part of her FY 2025 Executive Budget,…more

Algorithms, Artificial Intelligence, Biden Administration, Deep Fake, Executive Orders

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Corporate Sustainability Due Diligence Directive: Final Sprint to the Finish Line

The EU legislature has finally reached an agreement on the text of the Corporate Sustainability Due Diligence Directive (CS3D) (see here our previous client alert). The CS3D profoundly affects the ways companies active in Europe…more

Corporate Governance, Corporate Social Responsibility, Due Diligence, Environmental Social & Governance (ESG), Human Rights

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A Divided Supreme Court Narrowly Upholds Auer Deference

On June 26, 2019, the US Supreme Court issued a decision in Kisor v. Wilkie. The question presented in Kisor was whether to overrule the Court’s prior decisions in Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole…more

Administrative Agencies, Ambiguous, Appeals, Auer Deference, Denial of Benefits

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Outlier or Trend? A Possible Narrowing of the Border Search Exception for Electronic Devices

As we wrote in a note back in December 2020, the border search exception to the Fourth Amendment is a powerful investigative tool relied on by law enforcement to gather critical physical and digital evidence because it allows…more

Admissible Evidence, Border Searches, Cell Phones, Customs and Border Protection, Department of Homeland Security (DHS)

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Considerations for Founders When Negotiating a Term Sheet

A term sheet first summarizes the material terms of a financing transaction. Term sheets are normally not legally binding (with certain exceptions, such as confidentiality and exclusivity) but they are generally thought of as…more

Contract Negotiations, Contract Terms, Entrepreneurs, Investors, Negotiations

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USPTO Seeks Comments From Tribes on Genetic Resources, Traditional Knowledge, and Cultural Expressions

On October 24, 2023, the US Patent and Trademark Office (“USPTO”), which is a component of the Department of Commerce, published two notices in the Federal Register seeking input from Tribal Nations regarding intellectual…more

Cultural Artifacts, Genetic Markers, Genetic Materials, Heritage & Culture, Tribal Governments

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FTC Bans Non-Competes: What’s at Stake and What Happens Next

On April 23, 2024, the Federal Trade Commission (FTC), in a highly anticipated vote, passed the Non-Compete Clause Rule, 16 CFR § 910 (the Rule), which purports to bar all non-competes in the United States, subject to limited…more

Chamber of Commerce, Constitutional Challenges, Employer Liability Issues, Employment Contract, Federal Bans

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In Case You Missed It: Launch Links - February 2016 #3

Some interesting links we found across the web this week: Ask For Permission Or Beg For Forgiveness? A Primer For Startups Dealing With Regulators - Possible regulatory obstacles should be on the mind of all…more

Early Stage Companies, Emerging Markets, EU, Investors, Spinoffs

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CFTC 2020 Enforcement and Regulatory Developments and a Look Forward

2020 saw continuity in CFTC leadership, programs, and direction from 2019. Overall, the Commission enjoyed an unusually heavy rulemaking calendar and continued the direction of its enforcement program from 2019. On the…more

Anti-Money Laundering, Bank Secrecy Act, CFTC, Civil Monetary Penalty, Compliance

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Breaking (Down) the Debt Ceiling

Since 1960, Congress has raised, revised or extended the statutory debt ceiling 79 times. The United States reached its debt ceiling in January 2023, prompting a congressional showdown and sparking fears of extreme market…more

Debt Ceiling, Economic Downturn, Federal Reserve, Financial Crisis, Financial Markets

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IRS Indicates Indefinite Extension of Electronic Signature Relief

On October 17, 2023, the Internal Revenue Service (IRS) updated the electronic signature guidance in its Internal Revenue Manual (IRM) to reflect the electronic signature relief that the IRS provided to taxpayers during the…more

Coronavirus/COVID-19, E-Signatures, Internal Revenue Code (IRC), IRS, Relief Measures

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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FRAND Quarterly: Navigating the Global SEP Landscape - April 2024

This marks the second issue of WilmerHale’s FRAND Quarterly: Navigating the Global SEP Landscape, a bulletin that will highlight developments about the licensing, litigation, and regulation of patents that are or are claimed to…more

China, EU, FRAND, India, Intellectual Property Protection

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Retroactivity and Title IX: Doe v. Rensselaer Polytechnic Institute

On October 16, 2020, the Northern District of New York, in Doe v. Rensselaer Polytechnic Institute, enjoined Rensselaer Polytechnic Institute (RPI) from applying its 2018 Sexual Misconduct Policy to a complaint concerning an…more

Colleges, Educational Institutions, Final Rules, Gender-Based Violence, OCR

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In Case You Missed It: Launch Links - October, 2018 #2

Some interesting links we found across the web this week: ICOs vs. STOs: How to Know Which One Is Right for Your Business - Thinking of an ICO? Unless it’s a pure consumer token, one way to remove regulatory ambiguity is…more

Cryptocurrency, Entrepreneurs, Initial Coin Offering (ICOs), Offerings, Recessions

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Global Jurisdictions Adopt New Price Cap on Russian Petroleum Products - New Guidance Creates Additional Compliance Expectations

Effective February 5, 2023, the Price Cap Coalition (the Coalition), consisting of the G7 nations, the European Union (EU) and Australia, set a price cap of $45 per barrel for “Discount to Crude” petroleum products of Russian…more

Australia, Biden Administration, Crude Oil, Economic Sanctions, EU

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2021 Venture Capital Report

Despite the arrival of the COVID-19 pandemic in early 2020 and the ensuing economic dislocation, venture capital financing proceeds, median amount raised, and median pre-money valuation all increased from 2019 levels, although…more

Acquisitions, Capital Raising, Corporate Financing, Early Stage Companies, Entrepreneurs

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The Assertion of Extraterritorial Patent Jurisdiction in Europe

US patents have some extraterritorial effect. A party can be liable for patent infringement if it supplies components of a patented invention to a foreign country to be assembled there. In WesternGeco LLC v. ION Geophysical…more

Court of Justice of the European Union (CJEU), Damages, EU, Extraterritoriality Rules, Foreign Patent Applications

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Biden Administration Provides Guidance on Advancing Diversity in Higher Education Following the Supreme Courts Decision in Harvard/UNC Affirmative Action Cases

On August 14, 2023, the Biden Administration released its first guidance on how institutions of higher education may lawfully pursue efforts to recruit and admit diverse student bodies in light of the Supreme Court’s recent…more

Affirmative Action, Biden Administration, Civil Rights Act, Colleges, Department of Education

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FTC Bans Non-Competes: What’s at Stake and What Happens Next

On April 23, 2024, the Federal Trade Commission (FTC), in a highly anticipated vote, passed the Non-Compete Clause Rule, 16 CFR § 910 (the Rule), which purports to bar all non-competes in the United States, subject to limited…more

Chamber of Commerce, Constitutional Challenges, Employer Liability Issues, Employment Contract, Federal Bans

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Global Anti-Bribery Year-in-Review: 2020 Developments and Predictions for 2021

As was true in many areas of the law, Foreign Corrupt Practices Act (FCPA) enforcement in 2020 - and anti-corruption enforcement more generally - was affected by the COVID-19 pandemic, but perhaps not as much as was initially…more

Bribery, Compliance, Corporate Investigations, Criminal Investigations, Criminal Prosecution

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FinCEN Re-Proposes AML/CFT Requirements Covering Investment Advisers

On February 15, 2024, the U.S. Department of the Treasury’s (Treasury) Financial Crimes Enforcement Network (FinCEN) issued a long-anticipated Notice of Proposed Rulemaking (NPRM) to impose comprehensive anti-money laundering…more

AML/CFT, Anti-Money Laundering, Bank Secrecy Act, BSA/AML, Financial Institutions

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United States Court of Appeals for the District of Columbia Denies Petition for Mandamus Seeking to Protect Privilege When Company Shared Information Developed in Internal Investigations with Company Auditors

A mandamus petition is an extraordinary remedy that seeks to compel a lower court to take action in extraordinary cases. The U. S. Court of Appeals for the District of Columbia has twice granted mandamus petitions vacating…more

Appeals, Attorney-Client Privilege, Department of Justice (DOJ), Discovery, General Services Administration (GSA)

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In Case You Missed It: Launch Links - March 2021

Some interesting links we found across the web this week: How to Protect and Retain Control Over Your Business - It’s very common for founders to be worried about losing control of their company as it grows. However,…more

Biden Administration, Coronavirus/COVID-19, Cryptocurrency, Early Stage Companies, Entrepreneurs

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SEC Proposes to Expand Reg SCI

The Securities and Exchange Commission (SEC) proposes to amend Regulation Systems Compliance and Integrity (Reg SCI) to update and expand the regulatory oversight of the core technology of the U.S. securities markets.1 The SEC…more

Alternative Trading System (ATS), Broker-Dealer, Clearing Agencies, Comment Period, Cryptoassets

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New York Governor Hochul Seeks to Strengthen and Expand State Consumer Protection Laws

In her State of the State address earlier this month, New York Governor Kathy Hochul proposed a significant expansion of New York’s consumer protection laws…more

B2B Transactions, Buy Now Pay Later (BNPL), Consumer Financial Products, Consumer Protection Laws, Financial Services Industry

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Regulation of Forced Labor in Supply Chains: Why It Matters and How Companies Can Comply

Corporate Obligations to Address Forced Labor in Supply Chains Relevant to You? International organizations like the International Labor Organization, the Organization for Economic Cooperation and Development and the United…more

Child Labor, Compliance, Corporate Social Responsibility, Due Diligence, Forced Labor

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

Acquisitions, Books & Records, Corporate Governance, Mergers, Privately Held Corporations

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2024 Venture Capital Report

Venture capital financing activity in 2023 contracted for the second consecutive year in the face of rising interest rates, concerns regarding the trajectory of the economy and continued geopolitical tension. VC-backed…more

Capital Markets, Corporate Financing, Financing, Interest Rates, Investment

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Keeping Trade Secrets Secret: The Stuttgart Court of Appeal on the Protection of an Undertaking’s Most Valuable Information

The effective protection of trade secrets is essential to the continued economic success of most undertakings. On 26 April 2019, after much debate and significant delays the new German Law on the Protection of Trade Secrets…more

Appeals, EU, Germany, Intellectual Property Litigation, Trade Secrets

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A Secret On Sale: When Trade Secrecy and Invention Disclosure Collide

You have invented a process for manufacturing a high-potency artificial sweetener. You are now faced with a critical business decision: how do you protect your intellectual property? You could keep your process a closely guarded…more

Administrative Law Judge (ALJ), America Invents Act, Intellectual Property Protection, International Trade Commission (ITC), On-Sale Bar

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PCAOB Seeks Public Input on Strategic Priorities

The last of the five new members of the Public Company Accounting Oversight Board was sworn in earlier this month. The reconstituted Board’s first major public initiative is to seek input into its strategic planning process…more

Audit Committee, PCAOB, Surveys

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Teething Problems: The SFO’s Annual Report and Leadership Review

Last month, the SFO published its Annual Report for the year ended 31 March 2019 (the Annual Report), the first since Lisa Osofsky began her tenure as Director in August 2018. The Annual Report was swiftly followed by the…more

Annual Reports, Serious Fraud Office (SFO), UK

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SEC Adopts Cybersecurity Disclosure Rules

On July 26, 2023, in a 3-2 vote, the Securities and Exchange Commission (the “SEC”) adopted new rules for public companies that will require disclosures regarding cybersecurity incidents, as well as cybersecurity risk…more

Corporate Governance, Cyber Attacks, Cyber Incident Reporting, Cybersecurity, Disclosure Requirements

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Antitrust Division’s Updated Leniency Policy Impacts Leniency for Acquirors

The Antitrust Division of the Department of Justice has quietly made a change to its Leniency Policy and Procedures (the “Leniency Policy”) that could impact companies involved in transactions that discover potential antitrust…more

Antitrust Division, Antitrust Provisions, Department of Justice (DOJ), Federal Trade Commission (FTC), Leniency Guidelines

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Justice Overdue: Reinvestigating the Murder of Malcolm X

In late February of 1965, Malcolm X was murdered at the Audubon Ballroom in Harlem, New York. In the days after the famous civil rights leader’s assassination, three men were arrested and charged with his murder. All three men…more

Criminal Justice Reform, Murder, The Innocence Project

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Extractive Issuer Disclosures - Understanding the SEC's New Rule

On December 16, 2020, the Securities and Exchange Commission (SEC) voted to approve a Final Rule requiring companies to annually disclose information about payments they made to the U.S. government or any foreign government in…more

Corporate Governance, Disclosure Requirements, Dodd-Frank, Final Rules, Mineral Extraction

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False Claims Act: 2015 Year-in-Review

In 2015, the Justice Department (DOJ) continued to give high priority to False Claims Act (FCA) investigations, bringing in nearly $3.6 billion in settlements and judgments. More than 630 qui tam suits were filed. DOJ's…more

Department of Justice (DOJ), False Claims Act (FCA), False Implied Certification Theory, Individual Accountability, Qui Tam

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Justice Department Issues Memo Limiting Use of Agency Guidance in Affirmative Civil Enforcement Suits

On January 25, Associate Attorney General Rachel Brand issued a memorandum to all components of the Department of Justice with civil litigating authority limiting the use of agency guidance documents in affirmative civil…more

Department of Justice (DOJ), Dismissals, Enforcement Actions, False Claims Act (FCA), New Guidance

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The Drawbacks Of Banking Regulators' Merger Review Plans

The Federal Deposit Insurance Corp. and the Office of the Comptroller of the Currency recently announced proposals to update their approaches to evaluating bank mergers and other business combinations under the Bank Merger…more

Bank Merger Act, Banking Sector, Banks, Biden Administration, Executive Orders

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SEC Enforcement Director Warns Against AI Washing

On April 15, 2024, Gurbir S. Grewal, Director of the SEC’s Division of Enforcement, spoke at a compliance and enforcement conference regarding the challenges and potential missteps associated with the increased use of artificial…more

Artificial Intelligence, Corporate Governance, Cybersecurity, Disclosure Requirements, Registered Investment Advisors

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Tax-related Measures in Investor-State Arbitration

The right to tax constitutes a core attribute of State sovereignty. As U.S. Supreme Court Justice Oliver Wendell Holmes Jr. said, “Taxes are the price we pay for civilization.” However, States may voluntarily limit their…more

Arbitration, Contract Disputes, Corporate Taxes, International Arbitration, Investor-State Arbitration

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New York Governor Hochul Seeks to Strengthen and Expand State Consumer Protection Laws

In her State of the State address earlier this month, New York Governor Kathy Hochul proposed a significant expansion of New York’s consumer protection laws…more

B2B Transactions, Buy Now Pay Later (BNPL), Consumer Financial Products, Consumer Protection Laws, Financial Services Industry

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Foreign Corrupt Practices Act Alert: Global Anti-Bribery Year-in-Review: 2018 Developments and Predictions for 2019

Despite predictions of a slow-down in enforcement under the Trump administration—and indications that enforcement in some areas has decreased in the past year1—2018 was yet again an active year for FCPA enforcement. The year…more

Anti-Bribery, Anti-Corruption, Brazil, Bribery, Chief Compliance Officers

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SEC Enforcement Director Warns Against AI Washing

On April 15, 2024, Gurbir S. Grewal, Director of the SEC’s Division of Enforcement, spoke at a compliance and enforcement conference regarding the challenges and potential missteps associated with the increased use of artificial…more

Artificial Intelligence, Corporate Governance, Cybersecurity, Disclosure Requirements, Registered Investment Advisors

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Executive Order On Diversity Training and Promotion of “Divisive Concepts” - Implications for Universities

On September 22, 2020, President Trump issued a new executive order intended “to combat offensive and anti-American race and sex stereotyping.” The order aims to shape how diversity training is conducted not only within the…more

Bias, Civil Rights Act, Colleges, Deregulation, Diversity

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Liu v SEC: The US Supreme Court Upholds the SECs Power To Obtain Disgorgement in Civil Actions But With Important Limitations

On June 22, the Supreme Court held in Liu v. SEC that the SEC may obtain disgorgement in federal court cases, as long as the disgorgement does not exceed a wrongdoer’s “net profits and is awarded for victims.” The Court’s…more

15 U.S.C. § 78u(d)(5), Administrative Authority, Business Expenses, Calculation of Damages, Corporate Misconduct

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Infrastructure Series: Border Wall Litigation Update

This is the sixth issue of WilmerHale's 10-in-10 Infrastructure Series. In this series, our attorneys share insights on current and emerging issues affecting infrastructure project developers in the United States. Attorneys from…more

Constitutional Challenges, Department of Homeland Security (DHS), Due Process, Environmental Protection Act, Executive Orders

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Government Investigations and COVID-19: Remain Engaged and Prepare for a Postcrisis Response

Although the response to the COVID-19 pandemic has significantly disrupted the courts and US prosecutors and regulators, that disruption will not last indefinitely. As government prosecutors and regulators adjust to these new…more

Coronavirus/COVID-19, Enforcement, Government Investigations

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FTC and DOJ Target Healthcare and Life Sciences Industries - Urgent Care: Current Antitrust Enforcement Trends in the Healthcare Industry

The healthcare industry remains a focal point of President Biden’s antitrust agenda. The president’s July 2021 Executive Order on Promoting Competition in the American Economy called on federal agencies to focus antitrust…more

Antitrust Provisions, Antitrust Violations, Competition, Department of Health and Human Services (HHS), Department of Justice (DOJ)

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CFTC Year in Review: 23 Takeaways From 2023 and Predictions for 2024

At an industry event in early 2023, Commodity Futures Trading Commission (CFTC or the Commission) Chairman Rostin Behnam set out a comprehensive agenda to include nearly three dozen rulemaking proposals as well as “business as…more

Asset Class, CFTC, Commodities, Compliance, Conflicts of Interest

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2021 M&A Report

The outbreak of COVID-19 in the first quarter of 2020 inflicted an unprecedented shock on the global economy. In the first half of the year, growth stalled, the US unemployment rate reached its highest level since the Great…more

Acquisitions, Corporate Governance, Information Reports, Mergers, Publicly-Traded Companies

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2024 IPO Report

Pessimism surrounding the Federal Reserve’s interest rate hikes, combined with subdued business and consumer confidence as well as geopolitical concerns, weighed heavily on the IPO market in 2023. With 117 IPOs in 2023…more

Capital Markets, Capital Raising, Initial Public Offering (IPO), Listing Rules, Publicly-Traded Companies

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China Expands Access to Scientific Data Domestically, Impose Restrictions on Export of Scientific Data

China has issued a new regulation which imposes potentially severe restrictions on the export of scientific data while at the same time calling for wider access to such data within the country. The General Office of the State…more

China, Cybersecurity, Data-Sharing, Exports, Intellectual Property Protection

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Taking A Closer Look At Fed. Circ. Claim Construction Split

Despite the U.S. Court of Appeals for the Federal Circuit's en banc Phillips v. AWH Corp. decision in 2005 that purported to establish the definitive standard for claim construction, two disparate lines of claim construction…more

Claim Construction, Legal History, Patent Litigation, Patents, Split of Authority

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COVID-19: Speaker Pelosi Announces Expanded Congressional Oversight of Coronavirus Relief Funds

On April 2, House Speaker Nancy Pelosi (D-CA) announced that Majority Whip James Clyburn (D-SC) will chair a bipartisan House select committee overseeing the government’s coronavirus expenditures. Approval is subject to a House…more

CARES Act, Congressional Oversight, Coronavirus/COVID-19, Economic Stimulus

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The Interplay: Key Decisions at the Intersection of Antitrust & Life Sciences - March 2024

Calls for Removal of Device Patents Listed in the Orange Book Continue. FTC and Congressional action scrutinizing allegedly “improper” Orange Book listings continued apace in the first few months of 2024…more

AbbVie, Antitrust Litigation, AstraZeneca, Boehringer, Class Action

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President Biden’s Executive Order Sets Ambitious Agenda for AI Development and Use

Our initial thoughts on the Biden Executive Order first appeared on WilmerHale’s Privacy and Cybersecurity Blog the day that the Executive Order was released. On October 30, 2023, the Biden Administration issued its highly…more

Artificial Intelligence, Biden Administration, Cybersecurity, Department of Education, Department of Labor (DOL)

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Global Anti-Bribery Year-in-Review: 2023 Developments and Predictions for 2024

Publicly announced Foreign Corrupt Practices Act (FCPA) enforcement activity in 2023 did not return to the levels seen a few years ago, as indicated by both the total number of cases against corporate and individual defendants…more

Acquisitions, Anti-Bribery, Anti-Corruption, Clawbacks, Compliance

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2024 M&A Report

While the 2022 M&A market was buoyed by deal carryover from 2021 and more conducive market conditions in the first half of the year, the 2023 M&A market felt the impact of the Federal Reserve’s most aggressive interest rate…more

Acquisitions, Antitrust Provisions, Capital Markets, Competition, Department of Justice (DOJ)

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United States Court of Appeals for the District of Columbia Denies Petition for Mandamus Seeking to Protect Privilege When Company Shared Information Developed in Internal Investigations with Company Auditors

A mandamus petition is an extraordinary remedy that seeks to compel a lower court to take action in extraordinary cases. The U. S. Court of Appeals for the District of Columbia has twice granted mandamus petitions vacating…more

Appeals, Attorney-Client Privilege, Department of Justice (DOJ), Discovery, General Services Administration (GSA)

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Managing ANDA Venue Issues As Del. And NJ Filings Rise

In 2023, pharmaceutical patent owners filed nearly 250 infringement complaints against generic drug manufacturers. More than 90% of those cases were filed in the Districts of Delaware or New Jersey. This year's filings…more

Abbreviated New Drug Application (ANDA), Generic Drugs, Patent Infringement, Patent Litigation, Patents

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Criminal Vs. Civil Liability Amid Growing Crypto Enforcement

The emergence of digital assets has brought new risks and challenges, including the potential exploitation of the technology to facilitate financial crime. The U.S. Department of Justice has committed to work with its law…more

Bank Secrecy Act, Civil Liability, Criminal Liability, Cryptoassets, Department of Justice (DOJ)

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FRAND Quarterly: Navigating the Global SEP Landscape - January 2024

This marks the first issue of WilmerHale’s FRAND Quarterly: Navigating the Global SEP Landscape, a bulletin that will highlight developments about the licensing, litigation, and regulation of patents that are or are claimed to…more

Apple, China, Ericsson, EU, FRAND

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D.C. Circuit Invalidates Portion of FCC's 2015 Declaratory Ruling & Order Implementing the TCPA

On March 16, 2018, the D.C. Circuit issued its long-awaited ruling in ACA International, et al. v. FCC, et al., No. 15-1211, resolving a series of challenges to the July 10 2015 Declaratory Ruling & Order of the Federal…more

Administrative Procedure Act, Auto-Dialed Calls, Declaratory Rulings, FCC, Mobile Devices

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Governor Cuomo Proposes Significant Expansion of Powers of New York Department of Financial Services

In legislative language accompanying his proposed budget, New York Governor Andrew M. Cuomo proposes to significantly expand the powers of the New York Department of Financial Services (DFS), the state’s banking and insurance…more

Banking Sector, Enforcement Authority, Financial Services Industry, Governor Cuomo, Insurance Industry

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New CA Law on Nondisclosure Provisions: Bars Restricting Employee Disclosure of Workplace Harassment or Discrimination

On October 7, 2021, California Governor Gavin Newsom signed into law Senate Bill 331 (S.B. 331), which prohibits employers from including in settlement agreements or separation agreements certain provisions that bar employees…more

#MeToo, Cal Code of Civil Procedure, Contract Terms, Employment Discrimination, Governor Newsom

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Hiding in Plain Sight: New Ukraine and Israel Aid Package Includes Significant Changes to US Sanctions and Export Control Laws

On April 24, 2024, President Biden signed into law H.R. 815, an emergency appropriations package billed as authorizing $95 billion in foreign aid to Ukraine and Israel (the Act). While the Ukraine and Israel aid provisions and…more

Appropriations Bill, Biden Administration, China, Economic Sanctions, EU

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Contemplating an ICO? It’s All Fun and Excitement Until the SEC Comes to Call

‘‘Everybody’s doing it.’’ ‘‘No one’s getting hurt.’’ ‘‘You’re ruining all the fun.’’ Those retorts sound like the arguments a teen makes when her parents forbid her from attending a concert or a party. They’re also what some…more

Crowdfunding, Initial Coin Offering (ICOs), Initial Public Offering (IPO), Securities and Exchange Commission (SEC), Unregistered Securities

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2023 M&A Report

Market Review and Outlook - Slowing economic growth, equity market volatility, stubborn inflation, rising interest rates and geopolitical tensions combined to create a hostile environment for M&A activity in 2022, with deal…more

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JD Supra Privacy Policy

Updated: Dec 28, 2021:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and companies and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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