Foley & Lardner LLP

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777 East Wisconsin Avenue
Milwaukee, WI 53202-5306, United States
Phone: 414.271.2400
Fax: 414.297.4900
Areas Of Practice
  • Agriculture
  • Alternative Dispute Resolution (ADR)
  • Antitrust & Trade Regulation
  • Appellate Practice
  • Art, Entertainment, & Sports Law
  • Bankruptcy
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Locations
Other U.S. Locations
  • California
  • Colorado
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Number of Attorneys
1,000+ Attorneys

What’s Next for Labor and Employment Laws in California?

The 2023 California Legislative session, which ended on September 14, 2023, saw a flurry of activity on labor and employment-related laws. Governor Newsom has until October 14, 2023, to sign, veto, or pocket veto (i.e., take no…more

Anti-Retaliation Provisions, Bereavement Leave, California, Corporate Counsel, Disciplinary Proceedings

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Tax Credits in the Inflation Reduction Act Aim to Build a More Equitable EV Market

In February of this year, it was high time for me to buy a new car. I had driven the same car since 2008, and getting this-or-that replaced was costing more and more every year. As a first-time car buyer, I had two criteria: I…more

Electric Vehicles, Free Trade Agreements, Inflation Reduction Act (IRA), Manufacturers, Rebates

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Diving Into SECURE 2.0: Changes for Small Employer Retirement Plans

The SECURE 2.0 Act of 2022 (SECURE 2.0) significantly changes the legal and administrative compliance landscape for U.S. retirement plans. Foley & Lardner LLP is authoring a series of articles that take a “deep dive” into key…more

Employee Benefits, Employees, Employer Liability Issues, Individual Retirement Account (IRA), Retirement Plan

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2023 Telemedicine & Digital Health Trends

Medicare telehealth post-Public Health Emergency (PHE): With the COVID-19 PHE concluding on May 11, 2023, many of the telehealth flexibilities the Centers for Medicare & Medicaid Services (CMS) implemented during the PHE will…more

Centers for Medicare & Medicaid Services (CMS), Controlled Substances, DEA, Department of Health and Human Services (HHS), Digital Health

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The Export Import Bank of the United States: Priorities and Programs Supporting U.S. Businesses and Jobs

The Export Import Bank of the United States (EXIM) issued its 2020 annual report highlighting EXIM’s results and priority initiatives in its mission to support American jobs by facilitating the export of U.S. goods and services…more

Annual Reports, China, Export-Import Bank of the US, Exports, Goods or Services

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Automation, Electrification, and Connectivity: The Auto Industry in the ITC

Automakers and their suppliers have long been participants in unfair trade investigations before the International Trade Commission (“ITC”), but the scope and subject matter of automotive-related investigations is evolving…more

Artificial Intelligence, Automation Systems, Automotive Industry, Copyright, Customs and Border Protection

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IP Toolbox Is Crucial In AI-Powered Drug Discovery

Navigating the complex landscape of drug discovery requires innovative strategies and interdisciplinary collaborations spanning biotechnology, pharmacology, medicine and engineering. As the cost of developing new drugs…more

Artificial Intelligence, Biopharmaceutical, Biotechnology, Copyright, Data Protection

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Caution Advised: Use of DEI Performance Goals in Incentive Compensation

Recent court decisions have ruled that certain race-based college admissions programs violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. While these decisions do not apply directly to…more

Affirmative Action, Civil Rights Act, College Admissions, Diversity, Environmental Social & Governance (ESG)

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Generative AI Systems Tee Up Fair Use Fight

The surge of generative artificial intelligence (“AI”) systems entering the market faces a barrage of intellectual property challenges in the courts. In one particular flavor, copyright holders allege that the generative AI…more

Andy Warhol Foundation for the Visual Arts Inc v Goldsmith, Artificial Intelligence, Authorship, Copyright, Copyright Infringement

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Supreme Court Reconsiders Decades-Old “Adverse Employment Action” Standard for Discriminatory Transfers Under Title VII

On December 6, 2023, the United States Supreme Court heard oral arguments in Muldrow v. City of St. Louis, Missouri, a case involving a St. Louis Police Department officer’s claim that she was subject to a discriminatory job…more

Adverse Employment Action, Civil Rights Act, Employee Transfers, Employment Discrimination, Muldrow v City of St Louis

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Successfully Navigating EV Product Roll-Outs: Manufacturers Balance Innovation and Legacy Needs

Automotive OEMs, suppliers, startups and other participants in the automotive ecosystem have a great deal to do in 2023 as manufacturers begin to move to diversify historical internal combustion engine (ICE) vehicle product…more

Electric Vehicles, Environmental Protection Agency (EPA), Greenhouse Gas Emissions, Inflation Reduction Act (IRA), Intellectual Property Protection

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April 1, 2018 is Fast Approaching – Are Your Disability Claims Procedures Ready?

The Department of Labor issued the final disability claims regulations on December 16, 2016. These regulations are effective for all claims filed on or after April 1, 2018. The Department felt the update was needed to provide…more

Claim Procedures, Conflicts of Interest, De Novo Standard of Review, Department of Labor (DOL), Disability

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Takeaways From USPTO's AI-Assisted Invention Guidance

Pursuant to efforts by the federal government to develop artificial intelligence in a safe, secure and trustworthy manner, the U.S. Patent and Trademark Office issued inventorship guidance for inventions developed with…more

Artificial Intelligence, Contribution Claims, Inventions, Inventors, New Guidance

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Federal Residential Evictions Moratorium Update

On September 4, 2020, to prevent the further spread of COVID-19, the Centers for Disease Control and Prevention (“CDC”) issued an Order under Section 361 of the Public Health Service Act to temporarily halt residential evictions…more

CARES Act, Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Criminal Penalties, Economic Impact Payments

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House Bill 569 Changes Florida's Campaign Finance Law

On May 1, 2013, Governor Rick Scott signed into law House Bill 569 (HB569), which enacts sweeping changes to Florida’s campaign finance laws. The changes will affect every elected official as well as any person who makes…more

Campaign Contributions, Campaign Finance Reform, Political Contributions

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NLRB Continues to Click “Dislike” on Social Media Policies

As the National Labor Relations Board (NLRB) continues its assault on employer personnel policies, certain policies seem to be getting particular attention. Various recent NLRB opinions have imposed a number of limitations on…more

Confidential Information, Disclaimers, Intellectual Property Protection, NLRB, Social Media Policy

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Preparing for Wisconsin’s New Uniform Limited Liability Company Law

Effective January 1, 2023, Wisconsin will have a new Uniform Limited Liability Company Law applicable to all Wisconsin limited liability companies (“LLCs”) unless existing LLCs opt out before December 31, 2022, with the…more

Access to Information (ATI), Fiduciary Duty, Financial Institutions, Limited Liability Company (LLC), Mergers

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Massachusetts DOER Announces COVID-19 SMART Program Extension; Releases Proposed Emergency Regulations for Public Comment

The Massachusetts Department of Energy Resources (DOER) recently unveiled new emergency regulations that double the capacity of the state’s solar incentive program and provide important relief to projects under development in…more

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NIST Launches New Trustworthy and Responsible AI Resource Center

On Thursday, March 30, 2023, the National Institute of Standards and Technology (NIST) launched its Trustworthy and Responsible Artificial Intelligence Resource Center (AIRC). This online resource is a one-stop-shop for NIST…more

Artificial Intelligence, NIST, Risk Management, Shareholders

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AI Regulatory and Legal Issues Today: A Conversation with Natasha Allen

As is the case with most emerging technologies, developments in artificial intelligence (AI) are quickly outpacing regulations, and with this comes a variety of important legal considerations. While there has been a push for…more

Artificial Intelligence, Business Development, Business Strategies, Early Stage Companies, Entrepreneurs

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Reminder to Employers: It’s Time to Post and/or Submit OSHA Injury Records

This is the first year that the Occupational Safety and Heath Administration’s (OSHA) expanded injury and illness reporting requirements take effect for employers in certain “high-hazard” industries. By March 2, 2024, covered…more

Employer Liability Issues, Health and Safety, OSHA, Reporting Requirements, Workplace Illness and Injury Reporting

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Florida 2022 General Election Results

While nothing compares to the Sunshine State’s white sandy beaches and emerald-green waters, Florida’s 2022 midterm election shores were filled with voters, pundits and national media watching the red tsunami surge across the…more

Constitutional Amendment, Florida, General Elections, Voter Registration

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Employment Compliance Trends: New Litigation Ruling Impacts Mexican Companies

In September 2016, there was a major shift in the Mexican Supreme Court’s approach to damages, where the highest court in the country ruled on the legality of punitive damages. In April 2020, federal courts made pivotal changes…more

Burden of Proof, Compliance, Employee Contributions, Federal Labor Laws, Mexico

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Fun with Roth IRAs: New Sixth Circuit Decision Blesses Aggressive Tax Planning

A recent decision by the Federal Sixth Circuit Court of Appeals expands the potential for Roth IRAs to be used to protect income from corporate and shareholder level tax…more

Appeals, Corporate Taxes, Dividends, Domestic International Sales Corporation, Holding Companies

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Hague Agreement Rules Published by USPTO Creating Strategic Considerations for Applicants

On April 2, 2015, the USPTO published its final rules to implement the Hague Agreement Concerning International Registration of Industrial Designs (Hague Agreement), with an effective date of May 13, 2015. The Hague Agreement…more

Design Patent, Hague Agreement, Patents, USPTO

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Top Legal Issues Facing the Manufacturing Sector in 2023

Agility and resiliency remain essential attributes for manufacturers in 2023. Manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past…more

Artificial Intelligence, Best Practices, Clawbacks, Compensation, Compliance

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EEOC Commits to its 2024 New Year’s Resolutions — Protecting Vulnerable Workers, Pregnant Workers, and More

If it’s a typical subject of a class action lawsuit, it’s likely one of the EEOC’s New Year’s resolutions. Just one month into 2024, some of us are already questioning whether we were a bit too ambitious with our New Year’s…more

Artificial Intelligence, Automated Decision Systems (ADS), Class Action, Equal Employment Opportunity Commission (EEOC), Equal Pay

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Why You Should Pay Attention to the Revised, Broadened ASTM Standard for Phase I Environmental Assessments

On December 15, 2022, the United States Environmental Protection Agency (EPA) published a notice of a Final Rule approving the use of a new American Society for Testing & Materials (ASTM) standard for conducting Phase I…more

ASTM, Environmental Assessments, Environmental Policies, Environmental Protection Agency (EPA), PFAS

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The United States Seeks Consultations with the Mexican Government Regarding Mexico Energy Policy under the USMCA

The United States of America has requested dispute settlement consultations with the Mexican Government under Chapter 31 of the United States–Mexico–Canada Agreement (USMCA). The consultations are linked to Mexico’s new energy…more

Arbitration, CPTPP, Energy Reform, Energy Regulatory Commission, Energy Sector

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Mexican Government Restricts Importation of Certain Fuels and Petrochemicals into Mexico

On October 23, 2023, the Mexican President published in the Official Gazette of the Federation a Decree under which the Mexican Government implements measures to combat the illicit trading of fuels, related to the importation of…more

Energy Regulatory Commission, Fossil Fuel, Imports, IRS, Mexico

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One Year of Action Since President Biden’s Executive Order on Competition

Earlier this month — July 9, 2022 — marked the one-year anniversary of President Biden’s Executive Order on Promoting Competition in the American Economy (Executive Order). The Executive Order was notable in its breadth and…more

Beverage Manufacturers, Biden Administration, Competition, Department of Justice (DOJ), Enforcement

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The Barbie Movie: The Power of Brand Placement and Partnerships

As highly anticipated, the new Barbie movie was the biggest hit this summer. Audiences were not only drawn to the empowering storyline and diverse characters, but as attorneys, we were also excited to see the incorporation of…more

Brand, Entertainment Industry, Fashion Branding, Marketing, Partnerships

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Doing Business With the Government With Reduced Risk

Entering into business with the U.S. Government provides companies, including those in the automotive industry, with the opportunity to expand their business base, with tremendous potential. Even with the current budget cuts and…more

Automotive Industry, Federal Budget, Federal Contractors, Sequestration

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New Florida Receivership Statute Gives Commercial Mortgage Lenders Potential Leverage

Amidst the growing uncertainty caused by the COVID-19 pandemic, Florida’s newly enacted receivership law, the Uniform Commercial Real Estate Receiver Act (“UCRERA”), codified in Chapter 714 of the Florida Statutes, endeavors to…more

Avoidable Transfer, Bankruptcy Code, Commercial Mortgages, Coronavirus/COVID-19, Foreclosure

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SEC Proposes Amendments to 13(D) And 13(G) Reporting Requirements – Accelerates Filing Deadlines and Addresses Group Formation Activity

On February 10, 2022, the U.S. Securities and Exchange Commission (“SEC”) announced proposed rule amendments to beneficial ownership reporting requirements under Sections 13(d) and 13(g) of the Securities Exchange Act of 1934…more

Beneficial Owner, Proposed Rules, Reporting Requirements, Securities and Exchange Commission (SEC), Securities Exchange Act

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Implications of DOJ’s New Safe Harbor for Disclosing Misconduct Uncovered During M&A Transactions

U.S. Deputy Attorney General Lisa Monaco recently announced that the Department of Justice (DOJ) is adopting a new safe harbor policy to incentivize corporations to voluntarily self-disclose criminal misconduct discovered during…more

Acquisitions, Compliance, Corporate Crimes, Corporate Misconduct, Department of Justice (DOJ)

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Sufficiently Conspicuous: Arbitration Agreements and Class Action Waivers for Subscription-Based Businesses

Since its enactment in 2010, California’s Automatic Renewal Law (ARL) has motivated an ever-increasing number of putative class action complaints. The latest surge is due in large part to amendments that went into effect last…more

Appellate Courts, Arbitration Agreements, Class Action, Class Action Arbitration Waivers, Duress

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Treasury and IRS Issue Guidance on Domestic Content Bonus Credit for Renewable Energy Projects

On May 12, 2023, the IRS and the Department of the Treasury issued highly anticipated guidance regarding the requirements to satisfy the domestic content bonus tax credit provisions for investment tax credits under Sections…more

Investment Tax Credits, IRS, New Guidance, Production Tax Credit, Renewable Energy

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SEC Adopts Amendments to Proxy Voting Advice Regulations

On July 13, 2022, the Securities and Exchange Commission (the “SEC”) finalized rule amendments (the “Amendments”), proposed in November 2021, updating regulations governing proxy voting advice. The Amendments, approved by the…more

Environmental Social & Governance (ESG), Institutional Shareholder Services (ISS), Mergers, New Amendments, Proxy Voting

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U.S. Supreme Court Rules That “Pure Omissions” Are Not Actionable Under Rule 10b-5

On April 12, 2024, the United States Supreme Court delivered an important decision on the issue of whether a failure to make disclosure required under Item 303 of Regulation S-K can support a Rule 10b-5 claim, even in the…more

Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements, Omissions, Private Right of Action

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New Freddie Mac Underwriting Guidelines for Condominium and Cooperative Projects

If you develop or manage condominium or cooperative projects, you need to be aware of new Freddie Mac underwriting requirements - Freddie Mac has promulgated new temporary underwriting requirements for mortgages secured by…more

Condominiums, Disclosure Requirements, Financing, Freddie Mac, Homeowners Association (HOA)

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A Snapshot Of The Evolving Restrictive Covenant Landscape

In recent months, noncompete agreements have become a hotly contested topic in the realm of employment law. It seems that new precedent emerges on this topic week after week, leaving employers and deal-makers alike concerned…more

Acquisitions, Employees, Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC)

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The SEC Renews its Emphasis on Compliance with the New Marketing Rule

On June 8, 2023, the Securities and Exchange Commission’s (“SEC”) Division of Examinations (“Division”) released a risk alert (the “Risk Alert”) outlining the SEC’s broadened examination priorities with respect to revised Rule…more

Advertising, Compliance, Endorsements, Form ADV, Investment Adviser

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IRA Brings Energy and Manufacturing Opportunities

President Biden has repeatedly discussed the need to onshore or re-shore U.S. manufacturing to improve national security and competitiveness. The war in Ukraine and worldwide supply chain issues created by the COVID-19 pandemic…more

Biden Administration, Climate Change, Energy Sector, Fossil Fuel, Individual Retirement Account (IRA)

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Webinar Key Takeaways: Feeling Insecure About SECURE 2.0? A Discussion for Retirement Plan Sponsors

SECURE 2.0 significantly changed the legal and administrative compliance landscape for retirement plans. Foley recently hosted a webinar where Leigh Riley, Kathleen Bardunias, and Kelsey O’Gorman discussed key provisions of…more

401k, Benefit Plan Sponsors, Compliance, EPCRS, Pensions

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CA Enacts 100% Carbon-Free Energy Standard

Governor Jerry Brown signed SB 100 into law on Monday, setting in place a 100% renewable electricity target for California by 2045. The law, which we discussed in our prior blog post, calls for a state-wide renewable energy…more

Carbon Emissions, Clean Energy, Climate Change, Electricity, Energy Policy

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Department of Justice and Apple Reach $25 Million Landmark Agreement

On November 9, 2023, the U.S. Department of Justice (DOJ) announced that it secured a landmark $25 million agreement with Apple, Inc. (“Apple”) to resolve allegations of discriminatory hiring and recruitment processes employed…more

Anti-Discrimination Policies, Apple, Back Pay, Civil Monetary Penalty, Department of Justice (DOJ)

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Significant Recent Decisions Relevant To Private Company M&A

In navigating the complex world of private company mergers and acquisitions (M&A), understanding recent legal decisions is paramount. This white paper serves as a guide, distilling intricate court rulings into digestible…more

Acquisitions, Bad Faith, Breach of Contract, Damages, Fiduciary Duty

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Thinking About Selling your Business? Now is the Time

The economic environment has mostly stabilized following the inflationary shocks of 2021-2022, and a strong Q4 2023 suggests that M&A may be in line for a comeback in 2024. The following trends demonstrate why now is likely a…more

Acquisitions, Capital Gains, Capital Gains Tax, EBITDA, Mergers

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FERC’s Generator Interconnection Reform Order No. 2023

The Federal Energy Regulatory Commission (“FERC” or “Commission”) unanimously issued its highly anticipated Order No. 2023, which requires many reforms to pro forma interconnection agreements and procedures under Open Access…more

Advanced Notice of Proposed Rulemaking (ANPRM), BOEM, Compliance, Electric Generation Suppliers, FERC

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Trump Administration Issues “Step Two” Rule Narrowing Federal Wetland Jurisdiction

On April 21, 2020, the United States Environmental Protection Agency (U.S. EPA) and the United States Army Corps of Engineers (USACE) published in the Federal Register the so-called “Step Two” rule revising the definition of the…more

Clean Water Act, Environmental Policies, Environmental Protection Agency (EPA), Land Developers, Mitigation Banking

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2019 Health Care Industry Outlook

A new wave of change is poised to disrupt the way health care is delivered in the United States. This time around, the disruption is coming not from lawmakers or the president, who have struggled to repeal or improve upon…more

Affordable Care Act, Artificial Intelligence, Centers for Medicare & Medicaid Services (CMS), Cybersecurity, Department of Veterans Affairs

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Foley’s Texas Government Solutions Team – Helping Drive Hydrogen Expansion

Recently, McKinsey published a study for the Center for Houston’s Future predicting that hydrogen could add an estimated $100 billion to Texas’ GDP, which is equivalent to 6% of Texas’ 2019 GDP. Texas is already the largest…more

Department of Energy (DOE), Energy Policy, Energy Storage, Exports, Hydrogen Power

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Massachusetts Employers May Need to Update Their PFML Policies in 2024

In November 2023, the Massachusetts Department of Family and Medical Leave (DFML) announced changes to its Paid Family and Medical Leave (PFML) program. With these changes, Massachusetts employers may need to revise their…more

Employee Benefits, Family Medical Leave, Labor Reform, Medical Leave, New Rules

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Trademark Law and Bankruptcy Considerations for Emerging Companies in the Renewable Energy Sector

As the renewable energy sector continues to experience significant growth and attract emerging companies, it becomes essential for entrepreneurs and business owners to understand the legal landscape surrounding trademarks and…more

Acquisitions, Automatic Stay, Corporate Branding, Debtors, Energy Sector

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Trademark Primer: Proactive Strategies for Avoiding Disputes and Consumer Confusion

Trademark disputes can be time-consuming and costly. By proactively assessing risks and taking steps to avoid infringement, emerging companies save time and money. At the crux of most trademark disputes is the claim that…more

Infringement, Trademark Application, Trademark Registration, Trademarks

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Fintiv Discretionary Denial of PTAB Proceedings Under the New Director

The new director of the U.S. Patent and Trademark Office, Katherine Vidal, recently issued a memorandum clarifying the Patent Trial and Appeal Board (PTAB) application of Fintiv to discretionary denial of PTAB proceedings, such…more

Inter Partes Review (IPR) Proceeding, International Trade Commission (ITC), Patent Ownership, Patent Trial and Appeal Board, Post-Grant Review

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Documenting Your Build-to-Suit Transaction: The Importance of the Request for Proposal

The Request for Proposal (RFP) is a critical document in a build-to-suit (BTS) transaction, but often does not get the attention it deserves. In addition to laying out the project scope, the RFP is the tenant’s opportunity to…more

Build-to-Suit, Commercial Leases, Commercial Property Owners, Commercial Real Estate Market, Commercial Tenants

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Sixth Circuit Refuses to Enforce Unilateral Changes to Arbitration Provision

While the United States Supreme Court has made clear that class action waivers in arbitration clauses can be enforced, plaintiffs’ counsel continue to find creative ways to challenge these types of arbitration agreements. Last…more

Arbitration, Breach of Contract, Class Action, Class Action Arbitration Waivers, Good Faith

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The Rubber Meets the Road on State and Federal Vehicle Emissions Strategies

March and April have been busy months for vehicle emission regulation in the U.S. On March 20 and March 29 respectively, the U.S. Environmental Protection Agency (U.S. EPA) issued a set of final emission rules setting stringent…more

Advanced Batteries, Automotive Industry, California, Clean Air Act, Electric Vehicles

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USPTO Expands Eligibility for Design Patent Practitioners

On Wednesday, November 15, the United States Patent and Trademark Office (USPTO) announced the implementation of a new design patent practitioner bar. While the existing patent bar has certain acceptable education criteria…more

Design Patent, USPTO

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DOJ Warns White Collar Bar It Is Coming After Individuals

On March 3, 2022, at the American Bar Association’s National Institute on White Collar Crime, Attorney General Merrick Garland emphasized in a keynote address the Biden Administration’s stated priority to increase corporate…more

American Bar Association (ABA), Biden Administration, Corporate Crimes, Department of Justice (DOJ), Enforcement

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PFAS Watch: Proposed New Drinking Water Limits and Likely Impacts

EPA is proposing nationally uniform and federally enforceable limits on six per- and polyfluoroalkyl substances (PFAS) in drinking water for the first time. This marks a key milestone in EPA's PFAS roadmap and establishes an…more

Contamination, Drinking Water, Enforcement, Environmental Protection Agency (EPA), PFAS

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Mexican Government Restricts Importation of Certain Fuels and Petrochemicals into Mexico

On October 23, 2023, the Mexican President published in the Official Gazette of the Federation a Decree under which the Mexican Government implements measures to combat the illicit trading of fuels, related to the importation of…more

Energy Regulatory Commission, Fossil Fuel, Imports, IRS, Mexico

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Preparing for Wisconsin’s New Uniform Limited Liability Company Law

Effective January 1, 2023, Wisconsin will have a new Uniform Limited Liability Company Law applicable to all Wisconsin limited liability companies (“LLCs”) unless existing LLCs opt out before December 31, 2022, with the…more

Access to Information (ATI), Fiduciary Duty, Financial Institutions, Limited Liability Company (LLC), Mergers

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California Supreme Court Limits Manageability Defense to PAGA Claims

On January 18, 2024, the California Supreme Court issued a highly anticipated decision in Estrada v. Royalty Carpet Mills, Inc., determining whether trial courts can dismiss Private Attorneys General Act (PAGA) claims as…more

Appeals, CA Supreme Court, California, Class Action, Labor & Workforce Development Agency (LWDA)

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Cancer Drugs: Antibody Drug Conjugates (ADCs) Keep Growing

Over the past few years economic headwinds have resulted in fewer deals, with companies and private equity firms alike reassessing where to spend money. But one portion of the pharmaceutical industry is bucking this trend in a…more

Cancer, Food and Drug Administration (FDA), Pharmaceutical Industry, Prescription Drugs

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Chicago Mayoral Runoff Recap

In one of the most closely watched races in the country, Chicago’s mayoral runoff election will see Cook County Commissioner Brandon Johnson sworn in on May 15 as the city’s 57th mayor. Johnson, the 47-year-old Cook County…more

City of Chicago, Mayors, State Elections

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Pay Frequency Claims Pass Muster in New York

After avoiding the limelight for decades, New York State’s manual worker pay frequency law has taken center stage. Specifically, New York Labor Law (NYLL) § 191(1)(a) requires private employers to pay manual workers weekly,…more

Employees, Employer Liability Issues, Employment Litigation, Legislative Agendas, New Legislation

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Infrastructure Investment and Jobs Act: January 1, 2022, Brings Opportunities with Two Types of Tax Exempt Bonds and Program Expansion

Executive Summary - On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (Public Law 117-58) (the “Act”). The Act provides for more than $550 billion in new infrastructure…more

Biden Administration, Broadband, Carbon Capture and Sequestration, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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Cannabis Mid-Year Update 2022

Well into the third year of the global pandemic, with record inflation and the uncertain outcomes of geopolitical issues roiling global markets, the cannabis industry has nevertheless continued upon a similar path as recent…more

Bankruptcy Court, Biden Administration, Cannabidiol (CBD) oil, Cannabis Products, DEA

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Another Fund Manager Sues IRS Over Application of “Limited Partner” Exception to Self-Employment Taxes

On August 11, 2023, Stamford, Connecticut-based hedge fund manager Point72 Asset Management (“Point72”) filed a petition with the Tax Court contesting the IRS’s position that its owner, billionaire and New York Mets team owner…more

Asset Management, FICA Taxes, Hedge Funds, IRS, Limited Partnerships

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Recent Union Success Should Wake Up Employers

After years of declining membership and tepid contract results, American unions are gaining momentum. In November 2023, following a six-week strike, the UAW (under the leadership of its president, Shawn Fein) secured historic…more

Contract Negotiations, Strike, UAW, Union Membership, Unions

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SEC Adopts Final Rules Regarding 10b5-1 Trading Plans and Disclosure of Insider Trading Policies and Related Matters

On December 14, 2022, the U.S. Securities and Exchange Commission (“SEC”) adopted final rules (1) adding new conditions applicable to Rule 10b5-1 trading plans, (2) requiring disclosure of insider trading policies and procedures…more

10b5-1 Plans, Cooling-Off Rule, Disclosure Requirements, Disparate Treatment, Equity Securities

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HIPAA and Part 2 Harmonized: What Health Care Organizations Need to Know

Substance Use Disorder (SUD) programs and HIPAA-regulated entities seeking to streamline their privacy and security practices and workflows received welcome news from the U.S. Department of Health & Human Services (HHS) last…more

Applicability Date, Breach Notification Rule, CARES Act, Consent, Department of Health and Human Services (HHS)

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Construction Project Executives Beware: The Massachusetts Prompt Pay Act Means Business

If you are an executive involved in a Massachusetts construction project, the routine pay applications you exchange in the ordinary course must now receive your utmost attention — as any failure to reject a pay application in…more

Appeals, Breach of Contract, Certifications, Construction Industry, Construction Project

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Roadmap to Prison: Lessons Learned from the Criminal Prosecution of Alpha Ambulance’s Leaders

No one running an ambulance company ever planned to go to prison for doing his or her job. But that is a real possibility if the government knocks on the door, and the owner or manager is dishonest in his or her response to the…more

Ambulance Providers, Audits, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), False Statements

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New California Law Requires Health Plans and Insurers to Cover COVID-19 Screening Tests and Preventative Treatments with No Cost Sharing

On October 8th, 2021, the Governor of California, Gavin Newsom, signed into law Senate Bill No. 510, which requires health care service plan contracts and disability insurance policies that provide coverage for hospital,…more

California, Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Disability Insurance, Insurance Industry

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Virtual Shareholder and Board Meetings: Important Considerations for New York Companies

In these unprecedented times of “shelter in home” orders, remote working, and other strategies Americans are taking to mitigate the risks associated with COVID-19, we anticipate that there will be a demand for more virtual…more

Coronavirus/COVID-19, Corporate Governance, Limited Liability Company (LLC), Shareholder Meetings, Virtual Meetings

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The Rapid Acceleration of Energy Convergence

Energy convergence is a rapidly growing macro trend within the Energy Sector. What is “energy convergence”? Historically, the vast majority of our energy needs have been supplied by hydrocarbons (e.g. oil & gas and coal). …more

Energy Projects, Energy Sector, Investment, Oil & Gas, Renewable Energy

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District Courts Apply Ninth Circuit Precedent to Dismiss Deceptive Labelling Claims

The Ninth Circuit Court of Appeals recently issued three noteworthy decisions holding that courts may consider information on the back or side of consumer product labels to clarify any ambiguous language on the front labels in…more

Deceptively Misdescriptive, Failure To State A Claim, False Advertising, Food and Drug Administration (FDA), Motion to Dismiss

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Key Takeaways Bank Receiverships Week Two

Foley & Lardner LLP is closely monitoring the rapidly changing landscape surrounding the recent bank insolvencies. On Tuesday, March 21, at 5:00 p.m. CT, Foley hosted a webinar where a panel of presenters discussed the…more

Acquisitions, Cyber Crimes, FDIC, Initial Public Offering (IPO), Mergers

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Electrifying a Fleet Presents Opportunities for Local Grid Stability and Revenue for Fleet Owners

In our March 15 article, EV Buses: Arriving Now and Here to Stay, we discussed the opportunities being created when fleet operators shift powertrains from internal combustion engines (ICE) to electric vehicle engines (EV). With…more

Batteries, Electric Vehicles, Energy Sector, Power Grid, Tesla

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Federal Circuit Finds Significant Contributions For Co-Inventorship

In Dana-Farber Cancer Institute, Inc. v. Ono Pharm. Co., Ltd., the Federal Circuit agreed with the district court that two inventors should be added to a family of PD-1 cancer treatment patents, even though their contributions…more

Inventions, Patent Applications, Patent-in-Suit, Patents

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What Happened to Texas’ Anti-Renewable Agenda? Legislators Fail to Pass Energy-Related Bills that Would Have Adversely Impacted Renewable Projects

The most recent Texas biennial legislative session ended on May 29, 2023. Before its close, legislators introduced a series of energy-related bills aimed at shaping the state’s energy landscape and addressing various…more

Energy Sector, Infrastructure, New Legislation, Proposed Legislation, Renewable Energy

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What’s Next in Washington? - April 2022

While Congress has a two-week recess in April, there are many priority items on the agenda this month. Less than two weeks after signing the Fiscal Year (FY) 2022 spending package, President Biden released his budget for FY 2023…more

America Competes Act, BsUFA, Budgets, Centers for Disease Control and Prevention (CDC), Department of Energy (DOE)

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California: Proposed Regulations Impacting the M&A Market in California

Below we outline what you need to know from the recently proposed regulations if you are a health care entity evaluating a transaction in California that is expected to close on or after April 1, 2024. Since the…more

Acquisitions, California, Fair Market Value, Health Care Providers, Mergers

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Clinical Trials: FDA Issues Finalized Charging Guidance for Investigational Drug Use 

In February 2024, the U.S. Food and Drug Administration (FDA) published its finalized guidance concerning its investigational drug charging regulations (found at 21 C.F.R. § 312.8). These regulations are applicable to…more

Clinical Trials, Cost Recovery, Final Guidance, Food and Drug Administration (FDA), New Regulations

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Unlocking the SAFE – An Alternative to Convertible Notes

With the increasing level of investment in emerging companies, entrepreneurs are being presented with a wider range of financing documents. One of the relatively newer financing instruments is the “SAFE” (simple agreement for…more

Conversion, Convertible Debt, Early Stage Companies, Emerging Growth Companies, Equity Financing

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“Be Kind to Yourself” – and Other Advice for New Lawyers Starting Their Career During a Pandemic

As law firms deal with the ongoing impact of COVID-19, those who recently graduated from law school are facing unique challenges. To help new lawyers navigate this challenging time, we asked members of the Foley family who…more

Coronavirus/COVID-19, Firm Leadership, Law Firm Associates, Law Practice Management, Mentors

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Utah Set to Become Fourth State to Pass Comprehensive Consumer Privacy Law

Utah is likely the next in line to pass a comprehensive consumer privacy law, joining the ranks of California, Colorado, and Virginia. Senate Bill 227, the Utah Consumer Privacy Act (UCPA), was passed by the Utah legislature and…more

California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), CDPA, Enforcement Actions, General Data Protection Regulation (GDPR)

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Minimizing National Labor Relations Act Liability for Employers with Non-Unionized Workforces

Employers with a non-unionized workforce often mistakenly believe that they are not covered by the National Labor Relations Act (NLRA or the “Act”). The NLRA is most commonly known as the law that guarantees employees the right…more

Collective Bargaining, Employee Benefits, Joint Employers, Liability, NLRA

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SEC Proposed Safeguarding Rule

On February 15th 2023, the Securities and Exchange Commission (the “SEC”, or the “Commission”) proposed a new safeguarding rule. Comments must be received by the SEC on or before 60 days after the rule’s publication in the…more

Banks, Brokers, Cryptoassets, Federal Savings Associations, Foreign Financial Institutions (FFI)

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What Recent Developments in the Fintech Space Mean for Our Future

The fintech industry has been changing rapidly. Digital assets, distributed ledger technology and central bank digital currencies are gaining momentum. Multi-trillion-dollar United States Federal Reserve System money creation…more

Bankers, Bitcoin, Blockchain, Bribery, Brokers

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USA v. Wang: Criminal & Civil Liability for Autonomous Vehicle IP & Trade Secrets Theft

A pending case involving a former engineer, his alleged theft of trade secret autonomous vehicle technology, and a midnight one-way escape flight to China is shedding light on efforts by the tech giant Apple to both develop and…more

China, Civil Liability, Criminal Liability, Defend Trade Secrets Act (DTSA), Driverless Cars

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USPTO Issues Updated Guidance on Obviousness

For the first time in nearly 15 years, the U.S. Patent and Trademark Office (USPTO) has issued “Updated Guidance for Making a Proper Determination of Obviousness” under the U.S. Supreme Court’s ruling in KSR Int’l Co. v…more

America Invents Act, Decision-Making Process, Ex Partes Reexamination, Graham Factors, Guidance Update

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SUV Sales Again Carrying the Auto Industry

If it seems like déjà vu, it’s not just you: SUVs are again leading the charge on new vehicle sales. Buoyed by low gas prices and growing millennial families, SUV sales have increased by 6 percent from 2016 to 2017 (through…more

Automotive Industry, Car Dealerships, Fuel Standards, Manufacturers, Motor Vehicles

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DOE RFI for Trump Executive Order on Bulk-Power System Grapples with National Security Implications of Evolving U.S. Electrical Grid

On July 8, 2020, the U.S. Department of Energy (“DOE”) released a Request for Information (“RFI”), requesting public comments by August 7 on Executive Order 13920 that President Trump issued on May 1, 2020, entitled: “Securing…more

Bulk Electric System, China, Department of Energy (DOE), Energy Sector, Executive Orders

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FQHCs: Medicaid Litigation Year in Review

Recent federally qualified health center (FQHC) litigation highlights the impact state Medicaid agencies have on FQHC reimbursement. The important decisions summarized below all involve FQHC disputes over state Medicaid agency…more

Centers for Medicare & Medicaid Services (CMS), FQHC, Medi-Cal, Medicaid, Outpatient Prospective Payment System (OPPS)

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Religious Accommodation for Employees: The Potential Impact and Likely (Unintended) Consequences of SCOTUS’ Groff v. DeJoy Decision

We recently wrote about Groff v. DeJoy, the Supreme Court decision reinterpreting the meaning of “undue hardship” for Title VII religious accommodations to actually mean “undue hardship,” as opposed to minimal costs. In this…more

Civil Rights Act, De Minimus Doctrine, Employer Liability Issues, Groff v DeJoy, Reasonable Accommodation

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A Divided FTC Approves Omnibus Resolutions to Step Up Enforcement Actions and Votes to Withdraw the 2020 Vertical Merger Guidelines

Last week saw two notable competition-related developments from the Federal Trade Commission (FTC). The first relates to the FTC’s approval of eight new compulsory process resolutions in high-priority areas. The second concerns…more

Biden Administration, Civil Investigation Demand, Common Ownership, Department of Justice (DOJ), Enforcement Actions

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SEC Proposes New Rules for SPACs: What will the future hold for SPACs?

On March 30, 2022, the U.S. Securities and Exchange Commission (the “Commission” or “SEC”) proposed new rules and amendments regarding special purpose acquisition companies (“SPACs”), shell companies, and disclosure related to…more

Corporate Counsel, Disclosure Requirements, Initial Public Offering (IPO), Investment Company Act of 1940, Non-GAAP Financial Measures

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Significant Recent Decisions Relevant To Private Company M&A

In navigating the complex world of private company mergers and acquisitions (M&A), understanding recent legal decisions is paramount. This white paper serves as a guide, distilling intricate court rulings into digestible…more

Acquisitions, Bad Faith, Breach of Contract, Damages, Fiduciary Duty

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The USPTO Joins WIPO GREEN

The United States Patent and Trademark Office (USPTO) has recently joined the WIPO GREEN technology exchange platform of the World Intellectual Property Organization…more

Clean Energy, Climate Change, Greenhouse Gas Emissions, Patents, Technology Sector

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Ripple Effect of Recent Bank Insolvencies on Real Estate

The closure of Silicon Valley Bank (SVB) and Signature Bank, and the subsequent receivership by the Federal Deposit Insurance Corporation (FDIC), has far-reaching effects, including to commercial real estate transactions in…more

Banking Sector, Commercial Leases, Construction Loans, FDIC, Insolvency

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Five Developments Identified in Criminal and Civil Enforcement of PPP Loans

Recently, the Beverly Hills Bar Association in California sponsored a panel presentation on “PPP Enforcement Trends,” whose panelists included a high-level prosecutor from the United States Attorney’s Office and other leading…more

Civil Monetary Penalty, Coronavirus/COVID-19, Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA)

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Design Patent Protection Remains a Valuable Tool for Automotive Manufacturers

Design patents for component parts are an appealing option for many automotive manufacturers. A design patent is a form of intellectual property right that protects “any new, original and ornamental design for an article of…more

Automotive Industry, Design Patent, Electric Vehicles, Intellectual Property Protection

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What Else Is Needed For Mass Market Adoption of Electric Vehicles?

The 1908 Model T was one of the first cars accessible to the masses. Car ownership continued to grow to the point where cars became a staple, so much so that by the 21st century, there were more vehicles in the United States…more

Automotive Industry, Charging Stations, Electric Vehicles, Infrastructure

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Solis v. Coty, Inc.: A Look at Article III Standing in PFAS Consumer Products False Advertising Cases

There has been a recent uptick in false advertising consumer protection lawsuits relating to the presence of Per- and Poly-fluoroalklyl Substances (PFAS) in consumer products. What, exactly, are PFAS? Nicknamed “forever…more

Article III, Corporate Counsel, False Advertising, Misrepresentation, PFAS

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5 Tips For Filing Gov't Notices After Insurance Producer M&A

Each state Department of Insurance requires that insurance producers — brokers and agents — keep their information up to date in the DOI's records by timely notifying the DOI of any changes to the producer's information, usually…more

Acquisitions, Agents, Brokers, Filing Requirements, Insurance Industry

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NACD Virtual Event: How to Navigate the Federal Trade Commission (FTC) in 2024 – Key takeaways

The first part of the webinar was led by Foley partner Ed Burbach, lead counsel to Neora, and Neora’s co-CEO Deborah Heisz as they shared learnings from Neora’s historic 7-and-a-half-year battle and eventual victory over the…more

Compliance, Federal Trade Commission (FTC), Investigations, Misrepresentation, National Association of Corporate Directors (NACD)

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The Role of AI in Health Care M&A: Driving Value in a Difficult Market

Health care merger and acquisition (M&A) activity reached a significant level in 2022, even if not matching 2021’s record-breaking standard. This reflects the overall economy’s holding pattern in which resources are still being…more

Acquisitions, Artificial Intelligence, Biotechnology, Healthcare, Mergers

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Managing Your Dealer Council to Avoid Antitrust Risks

Dealer groups and dealer councils can serve invaluable pro-competitive purposes but – if not staying within legal bounds – they can create significant antitrust risk. What’s more, that risk may extend beyond the participating…more

Data Collection, Dealers, General Motors, Manufacturers, Risk Management

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Texas Legislature Passes Bill Creating Specialized Business Trial Courts: 12 Things You Need To Know Now

On May 25, 2023, the Texas Legislature passed HB 19, legislation that creates specialized business courts. The bill now will make its way to the Governor’s desk for consideration. Here is what you need to know now:..…more

Appeals, Corporate Counsel, Governor Abbott, Jurisdiction, Limited Liability Company (LLC)

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New Legislation Extends California Noncompete Ban to Agreements Signed Outside the Golden State and May Impose Notice Obligations that Apply Retroactively

As we’ve previously written, California already takes a strong position against employee noncompete agreements. State law bans such agreements (with extremely limited exception) and imposes significant penalties on employers who…more

Attorney's Fees, Business & Professions Code, California, New Legislation, No-Poaching

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The Laws of Fashion: What's Trending in 2022

The fashion industry has certainly seen its fair share of change over the last year given consumer trends, geopolitical & public health issues, innovation in technology and legal developments and we don’t anticipate that…more

Acquisitions, Blockchain, CASE Act, Copyright, Cosmetics

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Trademark Primer: Proactive Strategies for Avoiding Disputes and Consumer Confusion

Trademark disputes can be time-consuming and costly. By proactively assessing risks and taking steps to avoid infringement, emerging companies save time and money. At the crux of most trademark disputes is the claim that…more

Infringement, Trademark Application, Trademark Registration, Trademarks

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Mexican Government Promotes Nearshoring Through Tax Benefits

Taking advantage of the nearshoring effect, the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) issued a Decree that will provide tax benefits to key sectors of the export industry (the…more

Batteries, Exports, Fertilizers, Food Products ., Medical Equipment

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SEC Adopts New Private Funds Rules: Key Takeaways for Private Fund Advisers and Investors

During an open meeting on Wednesday, August 23, 2023, the U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) voted 3-2 along party lines to adopt new rules (collectively referred to as the “Private Funds…more

Audits, Borrowing Statutes, Capital Markets, Clawbacks, Compliance

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Trademark Primer: Proactive Strategies for Avoiding Disputes and Consumer Confusion

Trademark disputes can be time-consuming and costly. By proactively assessing risks and taking steps to avoid infringement, emerging companies save time and money. At the crux of most trademark disputes is the claim that…more

Infringement, Trademark Application, Trademark Registration, Trademarks

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The Equity Crowdfunding Rules: What You Need to Know

The SEC’s equity crowdfunding rules finally go into effect this month almost four years after Congress passed the JOBS Act, requiring the relaxing of certain rules on raising funds. So what does equity crowdfunding actually look…more

Accredited Investors, Capital Raising, Crowdfunding, Disclosure Requirements, Filing Requirements

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Employers Beware: The Potential Employment-Related Impacts of 303 Creative LLC v. Elenis

On the final day of the 2022-23 term, the U.S. Supreme Court issued its decision in 303 Creative LLC v. Elenis. In its decision, the Supreme Court held that forcing a single-member company to design websites for weddings of…more

303 Creative LLC v Elenis, Employer Liability Issues, First Amendment, Free Speech, Public Accommodation

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Impact of 2020 Election Results for Tax Planning (Webinar Recap)

On Tuesday, November 3rd, Americans went to the polls and cast votes for President, Senators, and House members. In some cases, the results are still being tabulated (or subject to challenge). However, the picture becomes a…more

Capital Gains, Estate-Tax Exemption, General Elections, Gift-Tax Exemption, Internal Revenue Code (IRC)

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2023 Going Digital Health’s Behavioral Health Tech Conference: Key Investment Takeaways

This year’s Going Digital Health’s Behavioral Health Tech Conference (GDBH) was well-attended and rife with insightful panel presentations and discussions featuring key players from across the behavioral health and substance use…more

Digital Health, Fundraisers, Investment, Investors, Mental Health

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Mexican Government Promotes Nearshoring Through Tax Benefits

Taking advantage of the nearshoring effect, the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) issued a Decree that will provide tax benefits to key sectors of the export industry (the…more

Batteries, Exports, Fertilizers, Food Products ., Medical Equipment

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IRA Brings Energy and Manufacturing Opportunities

President Biden has repeatedly discussed the need to onshore or re-shore U.S. manufacturing to improve national security and competitiveness. The war in Ukraine and worldwide supply chain issues created by the COVID-19 pandemic…more

Biden Administration, Climate Change, Energy Sector, Fossil Fuel, Individual Retirement Account (IRA)

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Key Takeaways from Foley & Lardner and NACD Northern California Crisis Management Tabletop

During this time of “permacrisis,” directors, no matter how experienced, must be ready and able to safeguard their organizations. As part of Foley & Lardner’s sponsorship of the NACD Northern California chapter, and…more

Auditors, California, Cyber Attacks, Disclosure Requirements, Human Resources Professionals

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Employment Compliance Trends: New Litigation Ruling Impacts Mexican Companies

In September 2016, there was a major shift in the Mexican Supreme Court’s approach to damages, where the highest court in the country ruled on the legality of punitive damages. In April 2020, federal courts made pivotal changes…more

Burden of Proof, Compliance, Employee Contributions, Federal Labor Laws, Mexico

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Contract Manufacturing Primer for Emerging Healthy F&B Companies

A contract manufacturer (also known as a “co-man” or “co-packer” and for brevity, we’ll use “co-man” from here on out) is a critical partner for most emerging companies in the healthy food and beverage (F&B) space. The co-man…more

Beverage Manufacturers, Business Strategies, Consumer Product Companies, Contract Negotiations, Emerging Growth Companies

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Legal Implications of Blockchain in Supply Chain: What’s Law Got to Do With It?

The advent of new technology brings along with it the murkiness of how the American legal system will treat such technology. Before the rise of blockchain for instance, businesses were uncertain how courts would treat…more

Blockchain, California Consumer Privacy Act (CCPA), Confidentiality Policies, E-SIGN, Force Majeure Clause

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Cannabis Mid-Year Update 2022

Well into the third year of the global pandemic, with record inflation and the uncertain outcomes of geopolitical issues roiling global markets, the cannabis industry has nevertheless continued upon a similar path as recent…more

Bankruptcy Court, Biden Administration, Cannabidiol (CBD) oil, Cannabis Products, DEA

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Estate Planning in 2020

In December 2017, President Trump signed the Tax Cuts and Jobs Act (“TCJA”) into law. As a result, the lifetime gifting and estate tax exemption (“Estate Tax Exemption”), as well as the generation-skipping transfer tax exemption…more

AFR, Coronavirus/COVID-19, Estate-Tax Exemption, Generation-Skipping Transfer, Gift-Tax Exemption

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“Keeping Trade Practices on Your Radar”: Examining the Increased Federal & State Use of Unfair and Deceptive Trade Practices Laws and Ways to Safeguard Against Them

State Attorney Generals (“State AGs”) and the federal government are capturing headlines for increasingly suing large corporations for unfair and deceptive trade practices. In some cases, these actions are tackling politically…more

Class Action, Data Privacy, Enforcement, Facebook, Federal Trade Commission (FTC)

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S.D.N.Y. Finds Arbitration Clause in Insurance Contract Unenforceable, Following Second Circuit Precedent that the McCarran-Ferguson Act Preempts the New York Convention

Two recent decisions from the United States District Court for the Southern District of New York highlight the split among circuits on whether state insurance laws that prohibit arbitration of insurance and reinsurance disputes…more

Arbitration, Foreign Arbitral Awards, Insurance Contracts, Insurance Industry, Insurance Litigation

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What Food & Beverage Companies Need to Know About the U.S. Consumer Product Safety Commission

Food and beverage companies may be surprised to learn that the U.S. Food and Drug Administration (“FDA”) is not the exclusive regulatory authority over the safety of foods and beverages. Indeed, other governmental authorities…more

Compliance, Consumer Product Safety Act (CPSA), Consumer Product Safety Commission (CPSC), Distributors, Food and Drug Administration (FDA)

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CMS Proposes to Ever-So-Slightly Expand Stark Law Exceptions for Compensation Arrangements

The Centers for Medicaid & Medicare Services (CMS) proposes to revise regulations issued pursuant to the Federal physician self-referrals Statute (Stark Law) to harmonize the regulations with the newly enacted Bipartisan Budget…more

Bipartisan Budget Act, Centers for Medicare & Medicaid Services (CMS), Comment Period, Department of Health and Human Services (HHS), Health Care Providers

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The “Joint-Employer” Saga Continues

Litigation continues over the standard for determining how and under what circumstances a joint-employer relationship can exist. On December 28, 2018, the United States Court of Appeals for the District of Columbia Circuit…more

Browning-Ferris Industries of California Inc., Employer Liability Issues, Employment Contract, Joint Employers, NLRB

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Texas Hydrogen Alliance – “All Things Hydrogen” Event Recap

On Thursday, January 11, 2024, the Texas Hydrogen Alliance (“THA”) hosted “All Things Hydrogen,” an in-person educational and networking reception held in Houston, Texas at the offices of Foley & Lardner LLP (“Foley”). The THA…more

Clean Energy, Department of Energy (DOE), Energy Projects, Energy Sector, Funding

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Wisconsin Legislative Update and State Revenue, Budget, and Election Insights

Like just about every other aspect of life over the past six months, the Wisconsin State Legislature has been impacted by COVID 19. The 2019/20 session was adjourned due to the virus and the unexpected quick end to the session…more

Coronavirus/COVID-19, Governor Walker, Presidential Elections, Redistricting, State Budgets

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OIG Opines on Subsidizing Medicare Cost-Sharing for Clinical Trials

In a recent Advisory Opinion No. 23-11 (Advisory Opinion), the Office of Inspector General (OIG) opined that it will not impose administrative sanctions against a clinical trial sponsor covering up to $2,000 of a clinical trial…more

Advisory Opinions, Anti-Kickback Statute, Beneficiary Inducement, Centers for Medicare & Medicaid Services (CMS), Clinical Trials

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Virtual Shareholder and Board Meetings: Important Considerations for Illinois Companies

In these unprecedented times of “shelter in home” orders, remote working, and other strategies Americans are taking to mitigate the risks associated with COVID-19, we anticipate that many organizations will decide to transition…more

Annual Meeting, Board of Directors, Coronavirus/COVID-19, Corporate Governance, For-Profit Corporations

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Selling Your Company With Cash in the Bank? U.S. Federal Income Tax Considerations for Structuring Pre-Closing Payments To Target Shareholders

Are you preparing to sell your company with cash in the bank? A common construct for valuation is on a cash-free and debt-free basis, such that seller can recover the cash in a pre-closing purchase price adjustment. A common…more

Acquisitions, Income Taxes, Shareholders

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Significant Recent Decisions Relevant To Private Company M&A

In navigating the complex world of private company mergers and acquisitions (M&A), understanding recent legal decisions is paramount. This white paper serves as a guide, distilling intricate court rulings into digestible…more

Acquisitions, Bad Faith, Breach of Contract, Damages, Fiduciary Duty

See all updates »

DOE RFI for Trump Executive Order on Bulk-Power System Grapples with National Security Implications of Evolving U.S. Electrical Grid

On July 8, 2020, the U.S. Department of Energy (“DOE”) released a Request for Information (“RFI”), requesting public comments by August 7 on Executive Order 13920 that President Trump issued on May 1, 2020, entitled: “Securing…more

Bulk Electric System, China, Department of Energy (DOE), Energy Sector, Executive Orders

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Supreme Court May Give Brand Owners an Easier Path to Trademark Damages

In a case that may have a major impact on trademark litigation across the country, the Supreme Court decided on June 28, 2019 to grant certiorari in Romag Fasteners, Inc., v. Fossil, Inc., et al., in which Romag has asked the…more

Certiorari, Corporate Branding, Corporate Counsel, Damages, Disgorgement

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Diving Into SECURE 2.0: New DOL Lost and Found, Updates to EPCRS, and Delayed Implementation of Roth Catch-up Requirement

The SECURE 2.0 Act of 2022 (SECURE 2.0) significantly changes the legal and administrative compliance landscape for U.S. retirement plans. Foley & Lardner LLP is authoring a series of articles that take a “deep dive” into key…more

403(b) Plans, Benefit Plan Sponsors, Department of Labor (DOL), Employee Contributions, Employer Contributions

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Dual-Hatted CEO and CCO Named Individually in SEC Settlement for Compliance Violations

On December 5, 2022, the SEC filed a settled action against investment advisory firm Two Point Capital Management Inc. (the Firm) and its chief executive officer, who also served as the Firm’s chief compliance officer until…more

CEOs, Chief Compliance Officers, Compliance, Corporate Counsel, Investment Adviser

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Key Takeaways Bank Receiverships Week Two

Foley & Lardner LLP is closely monitoring the rapidly changing landscape surrounding the recent bank insolvencies. On Tuesday, March 21, at 5:00 p.m. CT, Foley hosted a webinar where a panel of presenters discussed the…more

Acquisitions, Cyber Crimes, FDIC, Initial Public Offering (IPO), Mergers

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Three Options for Charitable Giving

The United States is continuing to grow as a philanthropic society that promotes individuals serving their communities through both time and money. As part of their lifetime and at-death philanthropic efforts, a donor can select…more

501(c)(3), Charitable Donations, Donor-Advised Funds (DAFs), Wills

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Supreme Court Maximizes Statute of Limitations for Relators Suing Under the False Claims Act

Health care providers, government contractors, and others who receive money from the federal government are at greater risk of suit under the False Claims Act (FCA), 31 U.S.C. §§ 3729 et seq., following the Supreme Court’s May…more

Appeals, Cause of Action Accrual, Cochise Consultancy Inc v United States ex rel Hunt, Dismissals, False Claims Act (FCA)

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Dueling Records: Are Statements in Your 510(k) Putting Your Patents at Risk?

Laboratory developed test (LDT) providers, previously exempt from U.S. Food and Drug Administration (FDA) oversight, under a new FDA proposal, must now consider if their LDTs constitute moderate-risk (Class II) or high-risk…more

510(k) RTA, CLIA, Clinical Laboratories, Diagnostic Tests, Due Diligence

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The Future of Venture Debt

Cash is the lifeblood of any business. Venture-backed companies without a financial history or proven track record are often unable to qualify for a more traditional loan with a big bank. Historically, venture-backed companies…more

Banking Sector, Banks, Debt, Debt Market, Default

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Electrified Industrial Policy: IRS Proposed Regulations on Section 30D EV Tax Credits & EV Manufacturing Grants

The Inflation Reduction Act of 2022 (the “IRA”) and the Infrastructure Investment and Jobs Act of 2021 (the “IIJA”) set in motion an ongoing series of changes that are aimed at transforming, among other things, the automotive…more

Automotive Industry, Batteries, Electric Vehicles, Grants, Inflation Reduction Act (IRA)

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The Future of Venture Debt

Cash is the lifeblood of any business. Venture-backed companies without a financial history or proven track record are often unable to qualify for a more traditional loan with a big bank. Historically, venture-backed companies…more

Banking Sector, Banks, Debt, Debt Market, Default

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A New Era of Technology in the Private Markets

The private markets are notorious for their outdated (or non-existent) technology stacks. However, a new era of innovation may finally unwind years of risk-avoidant behavior that has slowed technology adoption across the…more

Private Equity, Private Equity Firms, Shareholders, Third-Party Service Provider, Venture Capital

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Federal Circuit Clarifies Venue Rule for Foreign Defendants Post-TC Heartland

The Federal Circuit today in In re HTC Corp., Misc. 2018-130 (May 5, 2018), followed the holding of the Supreme Court in Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706 (1972), that venue is proper as to a…more

Foreign Corporations, Forum Shopping, Intellectual Property Protection, Manufacturers, Patent Infringement

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Health Care Private Equity: Senate Budget Committee Investigates Hospital Ownership 

On December 7, 2023, the Senate Budget Committee (the “Committee”) launched a bipartisan investigation into the reality of private equity ownership of hospitals in the United States. This investigation stems from concerns around…more

Centers for Medicare & Medicaid Services (CMS), False Claims Act (FCA), Healthcare, Hospitals, Investigations

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As Automation Expands, Driver Error Persists

At this phase in the development of vehicle automation technologies, and underscored by the persistence of driver error, automakers, suppliers and retailers continue to face significant litigation risk. While many expect…more

Automated Transportation, Automotive Industry, Car Accident, Connected Cars, Driverless Cars

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New NLRB Joint Employer Rule Stayed Until March 11, 2024

On October 26, 2023, the National Labor Relations Board (the NLRB or the “Board”) issued its heavily-anticipated final rule (the “New Rule”) addressing the standard for determining joint-employer status under the National Labor…more

Administrative Procedure Act, Browning-Ferris Industries of California Inc., Federal Labor Laws, Joint Employers, New Rules

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Solar Construction Costs Continue Historic Decline, Providing Cushion Against Trade Disputes

A recent report from the U.S. Energy Information Administration (EIA) confirmed significant cost curve progress for the U.S. solar industry, offering encouraging signs that developers will successfully weather international…more

EIA, Energy Market, Energy Projects, Energy Sector, Renewable Energy

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What’s Next in Washington? - January 2023 Edition

The dust from the 2022 Midterm Elections has settled and the 118th Congress has begun. Republicans were successfully able to flip control of the House and now have a 222-212 majority with one vacancy to be filled. Democratic…more

Child Tax Credit, Climate Change, Communications Decency Act, Congressional Review Act, Consolidated Appropriations Act (CAA)

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Michigan Supreme Court Overrules Longstanding Interpretation of “Blanket” Purchase Orders for Supply Contracts

For many years, Michigan has consistently interpreted “blanket” purchase orders as binding requirements contracts that could bind suppliers (and buyers) for many years — frequently, for the life of a particular OEM or buyer…more

Appeals, Buyers, Fraud, MI Supreme Court, OEM

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Reminder — New York Social Media Privacy Protections Go into Effect March 12, 2024

As we reported at the end of 2023, New York will soon join California, Colorado, Illinois, and a number of other states that protect employees’ and job applicants’ social media privacy. These protections are part of a bill that…more

Anti-Retaliation Provisions, Data Protection, Employee Rights, Employer Liability Issues, Job Applicants

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Innovation for Good Panel Discussion – A Recap

The Foley & Lardner team recently hosted a panel on Innovation for Good: Designing Products with Purpose, which was developed in collaboration with Parna Sarkar-Basu of B&B Consulting. The speakers were Matthew Anderson of A&K…more

Artificial Intelligence, Innovative Technology, Robotics, Small Business, Startups

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A Potential New Paradigm for Daily Fantasy Sports

Since the recent debut of mobile sports gambling in New York, citizens have started wagering on the production of skilled players to lead their bets to victory. More recently, however, “skilled” players of another kind scored a…more

Appeals, Fantasy Sports, Gambling, Games of Chance, Online Gaming

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Safeguarding AI Innovation in Stem Cell Therapy

The use of artificial intelligence (AI) to advance stem cell therapy has produced exciting results, with a key role in driving recent growth and innovation. Separated into three parts, this article provides an overview the…more

Alice/Mayo, Artificial Intelligence, Biotechnology, Innovation, Intellectual Property Protection

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SEC Greenlights Bitcoin ETFs: What Happened and What It Portends

On January 10, 2024, the U.S. Securities and Exchange Commission (SEC) approved the launch of several BTC Exchange-Traded Funds (ETFs).[1] The approval order resolves the critical legal and regulatory issues entailed in…more

Bitcoin, ETFs, Exchange-Traded Products, Investment Banks, Securities and Exchange Commission (SEC)

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U.S. Department of Transportation Finalizes EV Charging Infrastructure Rules

Effective as of March 30, 2023, the Federal Highway Administration (“FHWA”) within the U.S. Department of Transportation (“DOT”)  announced the National Electric Vehicle Infrastructure Standards and Requirements final rule  (the…more

Automotive Industry, Charging Stations, Department of Transportation (DOT), Electric Vehicles, Infrastructure

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Health Care Provider Director and Officer Liability: Important Takeaways from Clovis and Marchand

Health care provider boards of directors have been put on notice—given these two recent Delaware court decisions - Clovis and Marchand—that courts may be willing to significantly extend a corporate board’s Caremark duty to…more

Bad Faith, Board of Directors, Breach of Duty, Caremark claim, Compliance

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Treasury Releases Guidance on the Transition from Interbank Offer Rates to Other Reference Rates with Respect to the Interest Rates of a Foreign Bank

On June 30, 2023, the United States Department of the Treasury (“Treasury”) published Final Regulations as guidance on the transition from the use of the Interbank Offer Rate (IBOR) to the Secured Overnight Financing Rate…more

Foreign Banks, Interest Rates, IRS, Libor, New Guidance

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No Incentive Awards for Class Representatives — Eleventh Circuit Rejects Reconsideration En Banc of Its One-of-a-Kind Bar

Last week, the Eleventh Circuit declined, 7–4, to reconsider en banc a divided panel’s September 2020 decision barring incentive awards to class representatives for their work in class actions. As such, the Eleventh Circuit…more

Certiorari, Class Action, Corporate Counsel, En Banc Review, Incentive Awards

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Takeaways From USPTO's AI-Assisted Invention Guidance

Pursuant to efforts by the federal government to develop artificial intelligence in a safe, secure and trustworthy manner, the U.S. Patent and Trademark Office issued inventorship guidance for inventions developed with…more

Artificial Intelligence, Contribution Claims, Inventions, Inventors, New Guidance

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NLRB’s Latest Memo Serves as a Grinchy Reminder of Upcoming Changes for Representation Elections

As if it weren’t already clear that employers will be receiving only lumps of coal in their stockings from the National Labor Relations Board (NLRB) this year (see e.g., here and here), on December 8, 2023, the NLRB’s General…more

Cemex, Employees, NLRB, Oral Argument, Unfair Labor Practices

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Texas Court Strikes Down NLRB’s Latest Joint Employer Rule

As most employers are aware, last year the National Labor Relations Board (NLRB or “the Board”) published its final rule on joint employer status (the “Final Rule”). The Final Rule focuses on shared control, including indirect…more

Administrative Procedure Act, Appeals, Collective Bargaining, Final Rules, Implementation Day

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Solis v. Coty, Inc.: A Look at Article III Standing in PFAS Consumer Products False Advertising Cases

There has been a recent uptick in false advertising consumer protection lawsuits relating to the presence of Per- and Poly-fluoroalklyl Substances (PFAS) in consumer products. What, exactly, are PFAS? Nicknamed “forever…more

Article III, Corporate Counsel, False Advertising, Misrepresentation, PFAS

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SEC Voluntarily Stays Final Rule on Climate Disclosures

On April 4, 2024, the U.S. Securities and Exchange Commission (SEC) issued an order staying the Final Rule for the Enhancement and Standardization of Climate-Related Disclosures for Investors (“Final Rule”) that it released not…more

Climate Change, Disclosure Requirements, Final Rules, Investors, Securities and Exchange Commission (SEC)

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Action Steps Health Plans Should Take Now In Response To New DOL Guidance on Mental Health Parity

The Consolidated Appropriations Act, 2021 (CAA) added a requirement for health plans to document their compliance with nonquantitative treatment limitations (NQTLs) under the Mental Health Parity and Addiction Equity Act…more

Consolidated Appropriations Act (CAA), Department of Labor (DOL), Employer Group Health Plans, Mental Health Parity Rule, MHPAEA

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Impact of 2020 Election Results for Tax Planning (Webinar Recap)

On Tuesday, November 3rd, Americans went to the polls and cast votes for President, Senators, and House members. In some cases, the results are still being tabulated (or subject to challenge). However, the picture becomes a…more

Capital Gains, Estate-Tax Exemption, General Elections, Gift-Tax Exemption, Internal Revenue Code (IRC)

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10 Tips Understanding Navigating Stress

The topic of mental health and well-being has been front and center for lawyers and law students in recent years after numerous studies have revealed high rates of substance use, addiction, and mental health disorders in the…more

Emotional Distress Damages, Mental Health, Stress Reduction, Work-Induced Stress

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Estate Planning in 2020

In December 2017, President Trump signed the Tax Cuts and Jobs Act (“TCJA”) into law. As a result, the lifetime gifting and estate tax exemption (“Estate Tax Exemption”), as well as the generation-skipping transfer tax exemption…more

AFR, Coronavirus/COVID-19, Estate-Tax Exemption, Generation-Skipping Transfer, Gift-Tax Exemption

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Reassessing Your Global Compliance Risk Profile

The unprecedented challenges created by the COVID-19 pandemic and resulting government lockdowns could strain even the most robust compliance programs. Companies have been appropriately focused on business preservation during…more

Audits, Business Interruption, Charitable Donations, Compliance, Coronavirus/COVID-19

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Utah Enacts H.B. 55, Impacting the Use of Confidentiality Clauses in Employment Settlement Agreements

On March 13, 2024, Governor Spencer Cox signed House Bill (H.B.) 55 into law, making Utah the latest state to restrict the use of certain nondisclosure and non-disparagement agreements relating to sexual assault or sexual…more

Anti-Discrimination Policies, Confidentiality Policies, Employees, Employer Liability Issues, Employment Litigation

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The Return of the Exit

Startups have found themselves pivoting significantly over the past year. Exit plans have either swiveled or been put on hold as valuations have remained low, and there has not been a huge market for M&A or IPOs. But there might…more

Acquisitions, Banking Sector, Capital Markets, Exit Planning, Initial Public Offering (IPO)

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TTAB Cancels Registration Due to Improper Assignment of Intent-to-Use Application

In a precedential decision issued last week, the Trademark Trial and Appeal Board (TTAB) cancelled a registration because it was based on an intent-to-use (ITU) application that had been the subject of an intra-corporate…more

Assignments, Intent-to-Use, Trademarks, USPTO

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Supply Chain Disruptions in the Energy Industry: Challenges with the Supply of Lithium-ion Batteries

With the push toward clean energy and increased demand for electric vehicles, manufacturers need batteries — specifically lithium-ion batteries — more than ever. Examples of the accelerating transition to battery powered…more

China, Department of Energy (DOE), Department of Transportation (DOT), Electric Vehicles, Energy Sector

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The Laws of Fashion: What's Trending in 2023

The fashion industry has experienced another year of continued change driven by consumer trends, innovation in technology, geopolitical and public health issues, and legal developments, and we don’t anticipate that stopping any…more

Blockchain, Class Action, Copyright Infringement, Fashion Industry, Jack Daniels Properties Inc v VIP Products LLC

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Insurers Must Pay Cost of Defending Case Stemming from Use of Famous Marathoner’s Name

Vibram – seller of the “FiveFinger” shoes – took an intellectual property insurance coverage dispute to the highest court of Massachusetts, and won. The Supreme Judicial Court of Massachusetts held that the insurers must pay…more

Advertising, Duty to Defend, Insurance Litigation, Intellectual Property Protection, Lanham Act

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HDHP/HSA First Dollar Coverage for Telehealth Extended

The Consolidated Appropriations Act, 2022, signed into law on March 15, 2022, extended relief first made available at the start of the pandemic which allowed first dollar coverage for telehealth services under a high deductible…more

Consolidated Appropriations Act (CAA), HDHP, HSA, IRS, Telehealth

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Cannabis Mid-Year Update 2022

Well into the third year of the global pandemic, with record inflation and the uncertain outcomes of geopolitical issues roiling global markets, the cannabis industry has nevertheless continued upon a similar path as recent…more

Bankruptcy Court, Biden Administration, Cannabidiol (CBD) oil, Cannabis Products, DEA

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Limitations of the WFDL: Distributor Bound by Choice-of-Law Provision

Dealers, take notice: Choice-of-law provisions may be more significant than they appear. A recent decision issued by the United States Court of Appeals for the Ninth Circuit held that contractual choice-of-law provisions are…more

Appeals, Choice-of-Law, Sales & Distribution Agreements

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Investing in Professional Sports Teams – How Sports Investments Differ from Traditional Models

On September 22, 2020, Foley & Lardner LLP’s Family Office and Sports & Entertainment Groups partnered to highlight various aspects regarding investing in professional sports franchises. The discussion was led by Foley’s Sports…more

Background Checks, Capital Requirements, Future Debt Restrictions, Investment, Minority Shareholders

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IRS Issues Guidance Regarding Net Operating Loss Carryback Waivers and Refunds Under the CARES Act | Blogs | Coronavirus Resource Center

On April 9, 2020, the IRS issued: Rev. Proc. 2020-24, which provides guidance under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) relating to relinquishment of certain net operating loss (NOL) carrybacks,…more

Alternative Minimum Tax, Business Assets, Business Taxes, C-Corporation, Capital Gains

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2023 Going Digital Health’s Behavioral Health Tech Conference: Key Investment Takeaways

This year’s Going Digital Health’s Behavioral Health Tech Conference (GDBH) was well-attended and rife with insightful panel presentations and discussions featuring key players from across the behavioral health and substance use…more

Digital Health, Fundraisers, Investment, Investors, Mental Health

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Managing the Commercial Impact of the Coronavirus: Top 5 Considerations When Operating in the Zone of Insolvency

Given the uncertainty of the effects of this pandemic on markets and industries in the U.S. and around the world, many businesses are now confronting significant and unique challenges which are causing financial distress among…more

Board of Directors, Coronavirus/COVID-19, Corporate Officers, Duty of Care, Duty of Loyalty

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Diving into SECURE 2.0: Incremental Enhancements to Encourage Defined Contribution Annuity Distribution Options

The SECURE 2.0 Act of 2022 (SECURE 2.0) significantly changes the legal and administrative compliance landscape for U.S. retirement plans. Foley & Lardner LLP is authoring a series of articles that take a “deep dive” into key…more

401k, Annuities, Compliance, Contract Negotiations, Distribution Rules

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Mitigating Bribery and FCPA Risks in the Time of COVID-19

The initial response to the global spread of COVID-19 has led to unprecedented changes in how we do business globally. There was a chaotic rush for supplies. As households struggled to find goods such as toilet paper and hand…more

Bribery, China, Coronavirus/COVID-19, Foreign Corrupt Practices Act (FCPA), Mexico

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SEC Adopts New Private Funds Rules: Key Takeaways for Private Fund Advisers and Investors

During an open meeting on Wednesday, August 23, 2023, the U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) voted 3-2 along party lines to adopt new rules (collectively referred to as the “Private Funds…more

Audits, Borrowing Statutes, Capital Markets, Clawbacks, Compliance

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CAA Compensation Disclosures: DOL’s New FAB Confirms the Scope is Broad

The Consolidated Appropriations Act, 2021, Public Law 116-260 (CAA) set forth new compensation disclosure requirements that apply to service providers who provide “brokerage services” or “consulting” to group health plans…more

Compensation, Consolidated Appropriations Act (CAA), Department of Labor (DOL), Disclosure Requirements, Employee Assistance Programs

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NACD Virtual Event: How to Navigate the Federal Trade Commission (FTC) in 2024 – Key takeaways

The first part of the webinar was led by Foley partner Ed Burbach, lead counsel to Neora, and Neora’s co-CEO Deborah Heisz as they shared learnings from Neora’s historic 7-and-a-half-year battle and eventual victory over the…more

Compliance, Federal Trade Commission (FTC), Investigations, Misrepresentation, National Association of Corporate Directors (NACD)

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COVID-19 and Texas Commercial Leases: A Review of Force Majeure and Impossibility of Performance

As the consequences of the COVID-19 outbreak continue to hit our economy, it is crucial that commercial landlords and tenants are aware of possible options for rent or other relief under any existing leases for commercial…more

Commercial Leases, Commercial Tenants, Coronavirus/COVID-19, Force Majeure Clause, Impossibility

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Eleventh Circuit Finds Volunteer Golf Attendants Not Entitled to Compensation Under the FLSA

On March 12, 2024, the U.S. Court of Appeals for the Eleventh Circuit (covering Alabama, Florida, and Georgia) affirmed the dismissal of a putative class action wage and hour lawsuit brought by three golf course attendants who…more

Alabama, Appeals, Employees, Employer Liability Issues, Fair Labor Standards Act (FLSA)

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The Future of Illinois Energy Policy: Renewable Energy Set to Expand

On September 15, 2021, Illinois Governor J.B. Pritzker signed into law the sweeping Climate and Equitable Jobs Act (SB2408), establishing the next steps for Illinois energy policy after years of negotiation. This legislation…more

Clean Energy, Electric Vehicles, Energy Sector, Governor Pritzker, Illinois

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Wisconsin Legislature Passes Bill Shielding Employers from Liability for COVID-19 Claims - Updated February 2021

On February 23, 2021, the Wisconsin State Legislature passed a bill with veto-proof majorities in both chambers that would shield employers from civil liability for “any act or failure to act resulting in or relating to a…more

Civil Liability, Coronavirus/COVID-19, Employer Liability Issues, Immunity, New Legislation

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New Freddie Mac Underwriting Guidelines for Condominium and Cooperative Projects

If you develop or manage condominium or cooperative projects, you need to be aware of new Freddie Mac underwriting requirements - Freddie Mac has promulgated new temporary underwriting requirements for mortgages secured by…more

Condominiums, Disclosure Requirements, Financing, Freddie Mac, Homeowners Association (HOA)

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Massachusetts DOER Announces COVID-19 SMART Program Extension; Releases Proposed Emergency Regulations for Public Comment

The Massachusetts Department of Energy Resources (DOER) recently unveiled new emergency regulations that double the capacity of the state’s solar incentive program and provide important relief to projects under development in…more

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Key Terms and Conditions for Buyers and Sellers in the Supply Chain

Commercial forms – such as quotations, purchase orders and invoices – and associated terms and conditions are ubiquitous in the supply chain and often the only contract that exists between a buyer and seller. When used…more

Breach of Warranty, Buyers, Contract Terms, Force Majeure Clause, Global Economy

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Employee charged with COVID relief fraud? Questions for GCs

The United States Department of Justice (DOJ) already has publicly charged almost 500 defendants with criminal offenses based on fraud schemes connected to the COVID-19 pandemic. Unfortunately, these prosecutions can have…more

American Rescue Plan Act of 2021, Biden Administration, Coronavirus/COVID-19, Department of Justice (DOJ), Employees

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SEC Steps Up Investigations of Political Intelligence Firms for Insider Trading

In the last few years, Congress, the U.S. Securities and Exchange Commission (SEC), and the courts have significantly increased their efforts to grapple with insider trading in the realm of political intelligence. In 2012,…more

Compliance, Insider Trading, Material Nonpublic Information, Political Intelligence, Securities and Exchange Commission (SEC)

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“Acute Hospital Care at Home”: Omnibus Bill Extends Flexibility Period to December 31, 2024

As part of the $1.7 million omnibus spending bill that became law December 29, 2022, the Centers for Medicare & Medicaid Services (CMS) extended, through December 31, 2024, the Acute Hospital Care at Home (H@H) initiative…more

Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Hospitals, Medicaid, Medicare

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Drafting Non-Competes in a Shifting Regulatory Landscape

As our readers are aware, we have been tracking the ongoing trend of restricting employee non-compete agreements by various states and the federal government, including the FTC and NLRB. In fact, some states — most notably…more

Employees, Employer Liability Issues, Employment Contract, New Legislation, Non-Compete Agreements

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Federal Residential Evictions Moratorium Update

On September 4, 2020, to prevent the further spread of COVID-19, the Centers for Disease Control and Prevention (“CDC”) issued an Order under Section 361 of the Public Health Service Act to temporarily halt residential evictions…more

CARES Act, Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Criminal Penalties, Economic Impact Payments

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Foley Automotive Update - April 2024 - 2

This update helps automotive suppliers inform their legal and operational decisions to help address challenges and opportunities. Key Developments - Recent pricing disputes with suppliers have resulted in production…more

Antitrust Division, Automation Systems, Automotive Industry, Department of Energy (DOE), Department of Justice (DOJ)

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ESG: Tips for the Oil & Gas Boardroom

ESG is increasingly vying for airtime in oil and gas boardrooms as leaders grapple with how best tackle environmental, social and governance challenges. This follows a trend of ESG support throughout all sectors of the U.S…more

Biden Administration, Climate Change, Environmental Social & Governance (ESG), Greenhouse Gas Emissions, Methane

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Federal Circuit Clarifies Conditions for Standard Essential Patents in LTE Technologies

Standard Essential Patents (SEP) are patents that claim inventions needed to comply with a technical standard e.g., the 3G or LTE standards in mobile telecommunications technology. A SEP can benefit the patentee when licensed to…more

Appeals, FRAND, International Trade Commission (ITC), Non-Discrimination Rules, Patents

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Congress Takes Steps to Revive Legislation Regulating Autonomous Vehicles

On July 26, 2023, the House Subcommittee on Innovation, Data, and Commerce hosted a legislative hearing entitled “Self-Driving Vehicle Legislative Framework: Enhancing Safety, Improving Lives and Mobility, and Beating China," as…more

Driverless Cars, NHTSA, Proposed Legislation, Safety Standards

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Cannabis Mid-Year Update 2022

Well into the third year of the global pandemic, with record inflation and the uncertain outcomes of geopolitical issues roiling global markets, the cannabis industry has nevertheless continued upon a similar path as recent…more

Bankruptcy Court, Biden Administration, Cannabidiol (CBD) oil, Cannabis Products, DEA

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Threat of Harm to Others — What’s an Employer to Do?

An employee who operates a forklift begins to act erratically. While he had always been a solid performer, his judgment is off, and he is quick to become angry. The supervisor fears he might injure someone. What should the…more

ADAAA, Americans with Disabilities Act (ADA), Equal Employment Opportunity Commission (EEOC), Healthcare, Mental Health

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How Timeshare Companies Should Prepare for a Comeback

There is no denying that COVID-19 has dealt an unprecedented blow to the timeshare industry. While timeshare companies face a months-long road to recovery, diligent preparation for a strong comeback should begin today. …more

Coronavirus/COVID-19, Health and Safety, Property Owners, Quarantine, Re-Opening Guidelines

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Dueling Records: Are Statements in Your 510(k) Putting Your Patents at Risk?

Laboratory developed test (LDT) providers, previously exempt from U.S. Food and Drug Administration (FDA) oversight, under a new FDA proposal, must now consider if their LDTs constitute moderate-risk (Class II) or high-risk…more

510(k) RTA, CLIA, Clinical Laboratories, Diagnostic Tests, Due Diligence

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Energy MarketTrends - March 2019, Issue 1

...Q1 has shown a marked escalation of private equity (PE) investment within the oil and gas sector; 2019 projections indicate that private equity buyers will be key players in both upstream and midstream endeavors. Some U.S…more

Acquisitions, Business Model, Capital Markets, Energy Sector, Energy Storage

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FDA: New Guidance for Non-interventional Studies of Drug Safety and Effectiveness

The U.S. Food and Drug Administration (FDA) has recently issued guidance for sponsors and investigators interested in submitting a non-interventional study, commonly known as an observational study, to contribute evidence of a…more

Analytics, Drug Safety, Food and Drug Administration (FDA)

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Form PF Changes Ahead – the SEC Keeps Its Focus on Private Fund Advisers

On January 26, 2022, the Securities and Exchange Commission (“SEC”) voted 3-1 to propose amendments to Form PF. The Form PF, which was initially adopted in 2011 and became effective on June 15, 2012, is a confidential report…more

Broker-Dealer, Comment Period, Filing Deadlines, Filing Requirements, Form PF

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New Florida Law Helps Shield Employers Who Assist Independent Contractors during Emergencies

When it comes to independent contractor classification, human resources professionals can often feel no good deed goes unpunished. While (depending on context and location) there are a variety of tests for independent contractor…more

Coronavirus/COVID-19, Corporate Counsel, Employee Definition, Florida, Governor DeSantis

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The Health AI Frontier: New Opportunities for Innovation Across the Health Care Sector

With the health care industry under pressure to improve patient outcomes while controlling costs, artificial intelligence (AI) and machine learning (ML) are quickly becoming indispensable tools. These technologies show promise…more

Artificial Intelligence, Data Protection, Healthcare, Innovation, Machine Learning

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Traditionally Employer Friendly Appeals Court Gives Employees Victory by Broadening What Conduct Qualifies as Discrimination

If you are a loyal reader of our blog (which you should be), you know that employee protections have been broadening in recent times — be it by changes to laws (federal and state), agency guidance (like the NLRB opinion…more

Anti-Discrimination Policies, Appeals, Employment Discrimination, NLRB, Sex Discrimination

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Top Eight Action Items for Educational Institutions to Avoid, Prepare for, and Resolve COVID-19 Class Actions

Dozens of class action lawsuits have been filed against educational institutions since March and more are expected. Although each lawsuit attacks a specific institution’s individualized response to the COVID-19 pandemic, the…more

Class Action, Coronavirus/COVID-19, Educational Institutions, Enrollment, Students

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Dueling Records: Are Statements in Your 510(k) Putting Your Patents at Risk?

Laboratory developed test (LDT) providers, previously exempt from U.S. Food and Drug Administration (FDA) oversight, under a new FDA proposal, must now consider if their LDTs constitute moderate-risk (Class II) or high-risk…more

510(k) RTA, CLIA, Clinical Laboratories, Diagnostic Tests, Due Diligence

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Nothing for Free: Federal Circuit Clarifies Commercial Success is All About Sales

In affirming final written decisions of the Patent Trial and Appeal Board (PTAB) in two inter partes reviews (IPRs), the Court of Appeals for the Federal Circuit (CAFC) ruled that only actual product sales count toward a showing…more

Appeals, CAFC, Inter Partes Review (IPR) Proceeding, Patent Ownership, Patent Trial and Appeal Board

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Remote Patient Monitoring: OIG Issues Consumer Alert

On November 22, 2023, while many were preparing for the Thanksgiving holiday, the Office of Inspector General (OIG) posted a consumer alert (Alert) warning the public about a fraud scheme involving monthly billing for remote…more

Criminal Investigations, Durable Medical Equipment, False Claims Act (FCA), Food and Drug Administration (FDA), Fraud

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SEC Greenlights Bitcoin ETFs: What Happened and What It Portends

On January 10, 2024, the U.S. Securities and Exchange Commission (SEC) approved the launch of several BTC Exchange-Traded Funds (ETFs).[1] The approval order resolves the critical legal and regulatory issues entailed in…more

Bitcoin, ETFs, Exchange-Traded Products, Investment Banks, Securities and Exchange Commission (SEC)

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The Laws of Fashion: What's Trending in 2023

The fashion industry has experienced another year of continued change driven by consumer trends, innovation in technology, geopolitical and public health issues, and legal developments, and we don’t anticipate that stopping any…more

Blockchain, Class Action, Copyright Infringement, Fashion Industry, Jack Daniels Properties Inc v VIP Products LLC

See all updates »

Ninth Circuit: Additional Information on Back of Packaging can Defeat Deceptive Labelling Claim

On June 9, 2023, the Ninth Circuit in McGinity v. The Procter & Gamble Company, No. 22-15080 (9th Cir. 2023) held that a food manufacturer could rely on an ingredients list panel located on the back of the challenged product…more

CLRA, False Advertising, Food Labeling, Food Manufacturers, Unfair Competition

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Pulp Fiction: The “Food Court” Squeezes Statutory Damages Request by Class of Defrauded “Joint Juice” Health Supplement Buyers

Joint Juice, according to its labelling and advertising, promoted “healthy and happy,” if not pain free, joints. A jury apparently thought it was closer to snake oil, finding the product’s marketing false, misleading, and…more

Class Action, Class Certification, Corporate Counsel, Due Process, Fraud

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States with Pending Legislation to Ban Employee Noncompetes: Maine Poised to be Next State to Enact a Ban

As we continue to report, noncompete agreements are an area of ever-increasing scrutiny and limitation. Last year we wrote about states with civil and criminal penalties for violations of noncompete law, which is just one aspect…more

Civil Monetary Penalty, Corporate Counsel, Criminal Penalties, Labor Law Violations, Non-Compete Agreements

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Insurance Law Update: Insurance Circular Letter No. 6

On July 17, 2023, the New York Department of Financial Services (DFS) issued Insurance Circular Letter No. 6 (2023) (“Letter No. 6”) and a concurrent press release seeking to clarify, and in our opinion repeal, earlier guidance…more

Annuities, Enforcement, Insurance Industry, Life Insurance, New Guidance

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The NIL Presumption: Is the Newest NCAA Measure a Boon for Enforcement or the Next Front for Legal Challenge?

The Name, Image, and Likeness (“NIL”) era of college sports has brought headlines, rumors, and dollar signs, but little in the way of NCAA enforcement. The NCAA’s seeming reluctance to take action against perceived violators of…more

Alston v NCAA, Antitrust Provisions, College Athletes, Enforcement Actions, Name and Likeness

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What Every Multinational Company Should Know About . . . The Foreign Trade Antitrust Improvements Act

The United States Department of Justice (DOJ) actively enforces the Sherman Act within the U.S. and internationally. Generally described, the Sherman Act is a powerful statutory scheme designed to prohibit anti-competitive…more

Anti-Competitive, Antitrust Investigations, Collusion, Department of Justice (DOJ), Federal Trade Commission (FTC)

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Spring 2013 Eye on China Newsletter

Legal News: Eye on China Quarterly Newsletter offers companies helpful insight as they successfully navigate China’s complex and ever-changing legal and regulatory environment. In this issue, we focus on the following…more

Anti-Bribery, Anti-Corruption, China, Compliance, Copyright

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Building Safe Playgrounds for the Legal Metaverse

The success of any Metaverse project over the medium-term will be defined by its ability to maintain law, order, privacy and safety for all, particularly the target audience, especially where children under 16 are involved…more

Biometric Information, Consent, Data Collection, Data Privacy, Metaverse

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Is the "Food Court" Closing?

For years the United States District Court for the Northern District of California has been known as the “Food Court.” It acquired the name because both plaintiffs and defendants viewed it as pro-plaintiff in class action food…more

All Natural, Class Action, False Advertising, Food Labeling, Food Manufacturers

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Brexit’s Exit: The Beginning of the End or the End of the Beginning?

Four and One-Half Years! January 1, 2021 … at last … at long last as some might celebrate… or, as others might lament, a day which should have never come. Brexit is finally arriving. Four and one-half years have passed since…more

Automotive Industry, EU, European Court of Justice (ECJ), Financial Services Industry, Free Movement

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Senate Passes the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)

As the coronavirus outbreak continues to wreak havoc on markets and industries in the United States and around the world, businesses are now confronting significant and unique challenges. Successful navigation of these…more

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

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Internal Investigations and Privileges: Two More Courts Rule

Despite the global pandemic, the federal judiciary continues to issue rulings. In the last week, two courts provided guidance about when self-disclosures to the government waive the attorney-client privilege, underscoring the…more

Board of Directors, Compliance, Continuing Legal Education, Coronavirus/COVID-19, Corporate Counsel

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What Every Multinational Company Should Know About . . . The Foreign Trade Antitrust Improvements Act

The United States Department of Justice (DOJ) actively enforces the Sherman Act within the U.S. and internationally. Generally described, the Sherman Act is a powerful statutory scheme designed to prohibit anti-competitive…more

Anti-Competitive, Antitrust Investigations, Collusion, Department of Justice (DOJ), Federal Trade Commission (FTC)

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Delaware Affirms Limitation of Vicarious Liability Within Global Networks

In a win for the accounting profession and other member firm networks, the Delaware Court of Chancery clarified the limits of vicarious liability within such networks. On August 21, 2020, the Court held in Otto Candies, LLC v…more

Corporate Counsel, Delaware, Fraud, Vicarious Liability, Wrongful Acts

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SEC Proposed Safeguarding Rule

On February 15th 2023, the Securities and Exchange Commission (the “SEC”, or the “Commission”) proposed a new safeguarding rule. Comments must be received by the SEC on or before 60 days after the rule’s publication in the…more

Banks, Brokers, Cryptoassets, Federal Savings Associations, Foreign Financial Institutions (FFI)

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Foley’s Top 10 Tips for Brands Entering Influencer Marketing Contracts

In 2022, the influencer marketing industry was valued at US$16.4 billion, and that number is expected to grow to US$21.1 billion by the end of 2023. For brands who have not yet taken advantage of marketing through influencers…more

Compensation, Confidentiality Agreements, Contract Terms, Enforceability, Exclusivity

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ESG Best Practices regarding Social Washing from the Loan Syndications and Trading Association

As Environmental, Social and Governance (“ESG”) trends continue to evolve, the industry continues to publish best practices and guidance to aid in the development of this rapidly growing market. Most recently, the Loan…more

Bank Loan Markets, Best Practices, Bond Markets, Environmental Social & Governance (ESG), Green Loans

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Top Legal Issues Facing the Manufacturing Sector in 2023

Agility and resiliency remain essential attributes for manufacturers in 2023. Manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past…more

Artificial Intelligence, Best Practices, Clawbacks, Compensation, Compliance

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New Reporting Requirements under the Corporate Transparency Act

The Corporate Transparency Act (the “CTA”), which went into effect January 1, 2024, requires “reporting companies” in the United States to disclose information regarding its beneficial owners, i.e., the individuals who…more

Beneficial Owner, Corporate Transparency Act, Financial Crimes, FinCEN, Penalties

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USPTO Launches Cancer Moonshot Expedited Examination Pilot Program

To support the National Cancer Moonshot initiative, the USPTO launched the Cancer Moonshot Expedited Examination Pilot Program on February 1, 2023. The new program replaces the Cancer Immunotherapy Pilot Program, which expedited…more

Patent Applications, Patent-Eligible Subject Matter, Patents, Pharmaceutical Patents, USPTO

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Hidden Treasures in U.S. Funding Programs (and Clues to Find Them) for USMCA Manufacturers

With the push to accelerate electric vehicle production in the U.S. comes concurrent acceleration of an electric vehicle charging network, as well as increasing speed of electric battery manufacturing, clean energy and…more

Advanced Batteries, Buy American Act, Charging Stations, Clean Energy, Electric Vehicles

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The Laws of Fashion: What's Trending in 2023

The fashion industry has experienced another year of continued change driven by consumer trends, innovation in technology, geopolitical and public health issues, and legal developments, and we don’t anticipate that stopping any…more

Blockchain, Class Action, Copyright Infringement, Fashion Industry, Jack Daniels Properties Inc v VIP Products LLC

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Corporate Venture Funds: Friend or Foe?

Many large corporations have set up, or are in the process of setting up, in-house venture funds. At the same time, early and later-stage companies are looking for “smart money” investors – funds that bring strategic and…more

Corporate Professional Investors, Early Stage Companies, Emerging Growth Companies, Fund Managers, Infringement

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“PowerOn!” – Women in Energy Network’s 2022 Annual Conference

Foley was a Silver Power Sponsor of the WEN 2022 Conference, which was held in person in Fort Worth from April 3-5, 2022. A number of Foley team members attended the conference along with over 500 attendees from various areas…more

Carbon Capture and Sequestration, Cybersecurity, Diversity, Energy Sector, Environmental Social & Governance (ESG)

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Seventh Circuit Emphasizes “Rigorous Analysis” to Certify Class against University for Its Decision to Cancel Classes during the Pandemic

In Eddlemon v. Bradley University, 65 F.4th 335 (7th Cir. 2023), the Seventh Circuit underscored that evidence, not allegations, control the court’s class certification analysis. At issue in Eddlemon were claims stemming…more

Appeals, Breach of Contract, Class Action, Class Certification, Coronavirus/COVID-19

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Florida’s CADRA a Powerful New Data Protection

Florida businesses will soon have an important and powerful new legal cause of action to combat unauthorized access to protected computer systems or data by employees, former employees, directors, officers, and others. Florida's…more

Attorney's Fees, Corporate Officers, Cybersecurity, Damages, Data Privacy

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FTC Issues Warning on the Use of Algorithms to Recommend or Set Prices

The U.S. Federal Trade Commission (FTC) recently published a blog post warning that the use of algorithms to assist in determining prices may violate federal antitrust laws, regardless of the business or industry. The FTC blog…more

Algorithms, Corporate Counsel, Department of Justice (DOJ), Federal Trade Commission (FTC), Putative Class Actions

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CMS Reports Medicare Shared Savings Program Saved Medicare $1.66 Billion in 2021

On August 30, 2022, the Centers for Medicare & Medicaid Services (CMS) announced that the Medicare Shared Savings Program (MSSP) had saved the Medicare program $1.66 billion in 2021 as compared to spending targets, while…more

ACOs, Affordable Care Act, Centers for Medicare & Medicaid Services (CMS), Medicare, Medicare Shared Savings Program

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Using Upfront IP Licensing to Reduce Future Supply Chain Disruptions

Companies often enter into supply agreements for component parts that are covered by or produced using a supplier's intellectual property (IP) rights, but do not give enough thought to IP licensing. In the face of supply chain…more

Conditional Use Permit, Coronavirus/COVID-19, Enforcement, Escrow Agreements, Exclusive Use

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Co-Investment Vehicles Under the Final Carried Interest Regulations

As a result of final Treasury Regulations issued by the IRS under Section 1061, fund sponsors should consider investing capital through a commingled fund with other investors as opposed to using its own investment vehicle to…more

Capital Investments, IRS, Treasury Regulations, U.S. Treasury

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The Tax Man Cometh: Tax Perils in Physician Recapitalization Transactions

Physician recapitalization transactions are complex by nature and often present myriad issues. At Foley, in our representation of both investors in, and sellers of, physician practices, we note how often tax issues become gating…more

C-Corporation, EBITDA, Employer Identification Number (EIN), Internal Revenue Code (IRC), Investors

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Five Compliance Checks Every Multinational Company Should Consider for … Being an Importer of Record

As an accompaniment to our biweekly series on “What Every Multinational Company Should Know About” various international trade, enforcement, and compliance topics, below find an update to our series on compliance checks that…more

Compliance, Customs, Enforcement, Multinationals, Recordkeeping Requirements

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Diving into SECURE 2.0: More Changes That Will Help Make 401(k) Plan Administration Simpler and Other Possible Changes of Which to Be Aware Of

The SECURE 2.0 Act of 2022 (SECURE 2.0) significantly changes the legal and administrative compliance landscape for U.S. retirement plans. Foley & Lardner LLP is authoring a series of articles that take a “deep dive” into key…more

401k, Benefit Plan Sponsors, Distribution Rules, Employee Contributions, Employer Contributions

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Justices Craft Their Own Remedy for Violation of Constitution’s Appointments Clause

On Monday, the justices ruled 5-4 that the “unreviewable authority” of administrative patent judges meant those APJs were appointed in violation of the Constitution’s appointments clause. The justices then ruled 7-2 that the…more

Administrative Patent Judges, Appointments Clause, Arthrex Inc v Smith & Nephew Inc, Executive Branch, Executive Powers

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Supplier Alert: Key Changes in Stellantis/FCA New Terms and Conditions - Update

In December 2021, FCA US LLC and Stellantis N.V. (“Stellantis”) issued new purchase order terms and conditions, that significantly changed the default terms between Stellantis and its suppliers. The supply base found many of the…more

Compliance, Suppliers, Supply Chain, Terms and Conditions

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Navigating the AI Frontier: Legal and Operational Insights Into Generative AI

In our ever-changing technological environment, artificial intelligence (AI) is beginning to exert its influence on numerous sectors, revolutionizing our approach to work. As businesses and organizations worldwide adopt…more

Anti-Discrimination Policies, Artificial Intelligence, Automated Decision Systems (ADS), Bias, Biotechnology

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Rams Jerseys "Sew" Seeds for Uniform Ads

On May 13, the Los Angeles Rams unveiled their new uniforms for the 2020 NFL season. The club’s official Twitter account tweeted a 41-second video accompanied by the caption “A new era in Los Angeles.” While NFL fans and…more

Advertising, NBA, NFL, Nike, Sponsors

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Construction Project Executives Beware: The Massachusetts Prompt Pay Act Means Business

If you are an executive involved in a Massachusetts construction project, the routine pay applications you exchange in the ordinary course must now receive your utmost attention — as any failure to reject a pay application in…more

Appeals, Breach of Contract, Certifications, Construction Industry, Construction Project

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Web IP Ruling Illustrates Ways To Clear Hurdles To Eligibility

Since the U.S. Supreme Court's 2014 Alice Corp. v. CLS Bank International ruling, patentees attempting to enforce their patents in the software arts have encountered a more significant hurdle for patent eligibility that has led…more

Abstract Ideas, CLS Bank v Alice Corp, Federal Rule 12(b)(6), Patent Infringement, Patent-Eligible Subject Matter

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So You Comply with New York Reg. 500: Now What?

In March of 2017, the New York Department of Financial Services (DFS) implemented 23 NYCRR §500 (NY Reg. 500). In doing so, it became the first state regulatory authority to impose regulations that address cybersecurity concerns…more

Certification Requirements, Covered Entities, Cybersecurity, Insurance Industry, NAIC

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Combatting Supply Chain Cyber Threats: Safeguarding Data and Protecting Digital Supply Chains

As supply chains have become more digitized and interconnected, they have also become more vulnerable to a range of cyber threats. These threats not only pose risks to the direct operations of companies but also to the extensive…more

Cyber Threats, Cybersecurity, Data Protection, Hardware, Incident Response Plans

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Hidden Treasures in U.S. Funding Programs (and Clues to Find Them) for USMCA Manufacturers

With the push to accelerate electric vehicle production in the U.S. comes concurrent acceleration of an electric vehicle charging network, as well as increasing speed of electric battery manufacturing, clean energy and…more

Advanced Batteries, Buy American Act, Charging Stations, Clean Energy, Electric Vehicles

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IRS Cannabis Tax Guidance

The IRS recently issued tax guidance to the cannabis industry in the form of frequently asked questions (FAQs). These FAQs were followed up with the announcement by the IRS of a marijuana industry website that provides…more

Cannabis-Related Businesses (CRBs), Compliance, Income Taxes, Internal Revenue Code (IRC), IRS

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Finally 190! Years in the Making: CFTC Proposes New Bankruptcy Rules for FCMs and DCOs

On April 14, by unanimous vote of the Commissioners, the Commodity Futures Trading Commission (“CFTC” or “Commission”) approved a notice of proposed rulemaking to update comprehensively its Part 190 Rules governing a commodity…more

American Bar Association (ABA), Bankruptcy Code, Broker-Dealer, CFTC, Chapter 7

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Top 5 Rules for Medicare 2024 Remote Patient Monitoring and Remote Therapeutic Monitoring: What Companies Need to Know

On November 2, 2023, the Centers for Medicare & Medicaid Services (CMS) finalized new policies related to remote physiologic monitoring (RPM) and remote therapeutic monitoring (RTM) services reimbursed under the Medicare…more

Centers for Medicare & Medicaid Services (CMS), Data Collection, Final Rules, FQHC, Health Technology

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DOJ Issues Guidelines for Enforcement Related to Off-Label Promotion

On February 28, 2018, Ethan P. Davis, the Deputy Assistant Attorney General for the Consumer Protection Branch, addressed the life sciences community regarding off-label promotion. In his remarks, Deputy Assistant Attorney…more

Anti-Kickback Statute, Attorney General, CGMP, Department of Justice (DOJ), Enforcement Guidance

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Federal COVID Relief Bill passed by Congress - December 2020

On December 21, 2020, Congress passed a long-anticipated additional round of COVID relief legislation as part of the Bipartisan-Bicameral Omnibus COVID Relief Deal. This relief bill provides much-needed stimulus to individuals,…more

Aviation Industry, CARES Act, Child Care, Coronavirus/COVID-19, Eviction

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Introduction: What is Supply Chain Management?

Share on Twitter Print Share by Email Share Back to top In recent years, viral videos featuring a surprising topic have racked up millions of views on social media. Not videos of a celebrity doing something outrageous, a…more

Artificial Intelligence, Automation Systems, Blockchain, Collaboration, Coronavirus/COVID-19

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DOE Announces Transmission Facilitation Program

On May 6, 2022, the U.S. Department of Energy (“DOE”) issued a Notice of Intent and Request for Information (“Notice”) regarding establishment of a Transmission Facilitation Program (“TFP”) to support the construction of…more

Department of Energy (DOE), Energy Projects, Infrastructure Investment and Jobs Act (IIJA), Interest Rates, Notice of Intent

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CMS’ Making Care Primary (MCP) Model: Applications Due November 30, 2023

The Centers for Medicare and Medicaid Services’ (CMS) new program Making Care Primary (MCP), is anticipated to begin July 1, 2024. In a previous blog post Foley breaks down major highlights of the new model. On…more

Applications, Centers for Medicare & Medicaid Services (CMS), Federal Health Care Programs (FHCP), Health Care Providers, Medicare

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The Laws of Fashion: What's Trending in 2023

The fashion industry has experienced another year of continued change driven by consumer trends, innovation in technology, geopolitical and public health issues, and legal developments, and we don’t anticipate that stopping any…more

Blockchain, Class Action, Copyright Infringement, Fashion Industry, Jack Daniels Properties Inc v VIP Products LLC

See all updates »

Motion to Strike Damages Expert Leads to Denial of Class Certification

A recent decision denying class certification in the Northern District of Illinois highlights the importance for class action defendants of challenging a named plaintiff’s damages expert as part of a strategy for opposing class…more

Class Action, Class Certification, Consumer Fraud, Damages, GEICO

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Congress Takes Steps to Revive Legislation Regulating Autonomous Vehicles

On July 26, 2023, the House Subcommittee on Innovation, Data, and Commerce hosted a legislative hearing entitled “Self-Driving Vehicle Legislative Framework: Enhancing Safety, Improving Lives and Mobility, and Beating China," as…more

Driverless Cars, NHTSA, Proposed Legislation, Safety Standards

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Federal Circuit Applies Safe Harbor to Imported Medical Device Samples

The “safe harbor” of 35 USC § 271(e)(1) shields certain acts from liability for patent infringement if they are conducted “solely for uses reasonably related” to obtaining U.S. Food and Drug Administration (FDA) approval to…more

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

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Generative AI Systems Tee Up Fair Use Fight

The surge of generative artificial intelligence (“AI”) systems entering the market faces a barrage of intellectual property challenges in the courts. In one particular flavor, copyright holders allege that the generative AI…more

Andy Warhol Foundation for the Visual Arts Inc v Goldsmith, Artificial Intelligence, Authorship, Copyright, Copyright Infringement

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Florida’s Recovery and Reopening Plan - Phase 1

Florida Governor Ron DeSantis announced Phase 1 of Florida’s reopening plan, titled “Safe. Smart. Step-by-Step. Plan for Florida’s Recovery,” on April 29, 2020. Subsequently, the Governor issued Executive Order 20-111 (a…more

Centers for Disease Control and Prevention (CDC), Child Care, Coronavirus/COVID-19, Governor DeSantis, Personal Protective Equipment

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Ninth Circuit Rules Washington Suppliers and Manufacturers Can Contract to Permit Termination of the Distributor Relationship Without Cause and to Limit Remedies for Such Termination

The Ninth Circuit has recently vacated a preliminary injunction prohibiting the termination of a beer distribution agreement. In City Beverages, LLC v. Crown Imports, LLC, City Beverages sued Crown Imports when Crown Imports…more

Distributors, Fair Market Value, Franchise Investment Acts, Manufacturers, Suppliers

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Five Developments Identified in Criminal and Civil Enforcement of PPP Loans

Recently, the Beverly Hills Bar Association in California sponsored a panel presentation on “PPP Enforcement Trends,” whose panelists included a high-level prosecutor from the United States Attorney’s Office and other leading…more

Civil Monetary Penalty, Coronavirus/COVID-19, Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA)

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FDA Allows Pharmacists to Prescribe the COVID-19 Antiviral Paxlovid

On July 6, the U.S. Food and Drug Administration (FDA) revised its emergency use authorization (EUA) for the COVID-19 antiviral treatment PaxlovidTM (nirmatrelvir and ritonavir) to allow prescribing by pharmacists for quicker…more

Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Emergency Use Authorization (EUA), Food and Drug Administration (FDA), National Institute of Health (NIH)

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Eleventh Circuit Reminds Employers – Administrative Exemption Requires More than Just Exercising Discretion Over Significant Matters

A recent case decided by the United States Court of Appeals for the Eleventh Circuit (covering Alabama, Georgia, and Florida) analyzed whether property damage investigators were appropriately classified as overtime-exempt…more

Administrative Exemption, Appeals, Broadband, Business Operations, Exempt-Employees

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New Freddie Mac Underwriting Guidelines for Condominium and Cooperative Projects

If you develop or manage condominium or cooperative projects, you need to be aware of new Freddie Mac underwriting requirements - Freddie Mac has promulgated new temporary underwriting requirements for mortgages secured by…more

Condominiums, Disclosure Requirements, Financing, Freddie Mac, Homeowners Association (HOA)

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The Dutch Decision on Shell’s Carbon Emissions – Should U.S. Companies Be Worried?

On May 26, 2021, a Dutch court ordered Royal Dutch Shell Plc (“Shell”) to cut its greenhouse gas emissions by 45% (from 2019 levels) by 2030. Shell had previously pledged to reduce its emissions by 20% (from 2016 levels) by 2030…more

Carbon Emissions, Environmental Protection Agency (EPA), EU, Fiduciary Duty, Greenhouse Gas Emissions

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Software Companies Sued For Patent Infringement May Seek Speedy Dismissals

Patent infringement litigation can be expensive, last multiple years, and be a huge distraction for a company’s efforts in the marketplace. While fighting an infringement accusation through trial to final judgement can be…more

CLS Bank v Alice Corp, Failure To State A Claim, Federal Rules of Civil Procedure, Hoffman LaRoche, Patent Infringement

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FTC Issues Warning on the Use of Algorithms to Recommend or Set Prices

The U.S. Federal Trade Commission (FTC) recently published a blog post warning that the use of algorithms to assist in determining prices may violate federal antitrust laws, regardless of the business or industry. The FTC blog…more

Algorithms, Corporate Counsel, Department of Justice (DOJ), Federal Trade Commission (FTC), Putative Class Actions

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“PowerOn!” – Women in Energy Network’s 2022 Annual Conference

Foley was a Silver Power Sponsor of the WEN 2022 Conference, which was held in person in Fort Worth from April 3-5, 2022. A number of Foley team members attended the conference along with over 500 attendees from various areas…more

Carbon Capture and Sequestration, Cybersecurity, Diversity, Energy Sector, Environmental Social & Governance (ESG)

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The CPSC Seeks Information on Gas Stove Hazards

The Consumer Product Safety Commission (CPSC) appears to have moved its investigation into gas stove emissions off the back burner. After Commissioner Richard Trumka’s comments in early January that a gas stove ban was “on the…more

Consumer Product Safety Commission (CPSC), Federal Register, Greenhouse Gas Emissions, Natural Gas, Request For Information

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The CARES Act Paycheck Protection Program Intercreditor Considerations for Borrowers and Lenders

The Paycheck Protection Program (PPP) under Title I of the CARES Act was established on March 27, 2020 to provide financial relief for small businesses adversely affected by COVID-19. The CARES Act initially allocated $349…more

CARES Act, Coronavirus/COVID-19, EBITDA, Financial Stimulus, Main Street Lending Programs

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Seventh Circuit Revives Franchise No-Poach Case, Holds Per Se Treatment Possible

A recent opinion by the U.S. Court of Appeals for the Seventh Circuit reinstates allegations against McDonald’s that no-poach provisions in the company’s franchise agreements violate the antitrust laws, holding that such…more

Appeals, Franchises, No-Poaching, Sherman Act

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A Review of Recent Whistleblower Developments - October 2023

Eleventh Circuit Adopts “Totality of the Circumstances” Test for Showing Protected Activity Under SOX and Denies Whistleblower Petition for Review - In Ronnie v. Office Depot, LLC, --- F.4th ----, 2023 WL 6210623 (11th Cir…more

Appeals, Civil Monetary Penalty, Fraud, Internal Controls, Investment Adviser

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CARES Act – Federal Reserve Main Street Loan Facilities - Updated June 12, 2020

The Main Street Lending Program, authorized under the CARES Act and Section 13(3) of the Federal Reserve Act, is designed to provide financial assistance to small and medium sized businesses. There will be three Main Street loan…more

Banks, Borrowers, CARES Act, Coronavirus/COVID-19, Debt

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States Continue to Adopt NAIC Liquidity Stress Test Updates

In December 2020, the National Association of Insurance Commissioners (the NAIC) adopted revisions to the Insurance Holding Company System Regulatory Act (the “Model Law”) that require large life insurers to report the results…more

Health Insurance, Insurance Holding Company, Liquidity, NAIC, Stress Tests

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Review of Recent Whistleblower Developments - October 2021

Whistleblower Developments is a periodic report covering significant cases, decisions, proposals, and legislation related to whistleblower statutes and how they may impact your business... SEC to Study Amended Whistleblower…more

Confidentiality Agreements, Dodd-Frank, Enforcement Actions, Retaliation, Rulemaking Process

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A Review of Recent Whistleblower Developments

Whistleblower Developments is a periodic report covering significant cases, decisions, proposals, and legislation related to whistleblower statutes and how they may impact your business. Recent developments include: Court…more

Confidentiality Agreements, First Amendment, Securities and Exchange Commission (SEC), Settlement Agreements, Whistleblower Awards

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Federal Court Issues Permanent Injunction on Federal Oil and Gas Leasing “Pause”

On August 18, 2022, a federal court in Louisiana permanently enjoined President Biden and other governmental officials and agencies from stopping the sale of onshore and offshore oil and gas leases. The order comes just one day…more

Biden Administration, Executive Orders, Inflation Reduction Act (IRA), Louisiana, Mineral Leases

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Remote Working in the Coronavirus Economy Reveals Potential GDPR and CCPA Compliance Issues

Remote Operations/Work from Home - One of the most familiar aspects of how Coronavirus (COVID-19) has changed the economy is the widespread application of work-from-home protocols (WFH). WFH has allowed businesses to…more

California, California Consumer Privacy Act (CCPA), Compliance, Coronavirus/COVID-19, Data Collection

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Facilities Siting: The Right Considerations Lead to the Right Choice

According to the research, manufacturers are on the move. The questions and considerations listed below are a great starting point for any company opening or relocating a manufacturing facility…more

Manufacturers, Manufacturing Facilities

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Wisconsin Supreme Court Clarifies Required Assessment Methodology for Section 42 Housing

Regency West concerned the 2012 and 2013 assessments of a newly constructed 72-unit Section 42 housing development. For 2012 (the first tax year following completion of construction), the city assessed the property at…more

Appeals, Assessment, Low Income Housing, Property Valuation, Real Estate Development

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A Brief Legal Guide To Buying and Selling Shares of Private Company Stock

What to expect in a secondary market transaction - You formed and financed an emerging growth company or startup, you hold unregistered shares of a private company not listed on a national securities exchange—but you need…more

Hart-Scott-Rodino Act, Internal Revenue Code (IRC), Liquidity, Private Company Shares, Secondary Markets

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The Laws of Fashion: What's Trending in 2022

The fashion industry has certainly seen its fair share of change over the last year given consumer trends, geopolitical & public health issues, innovation in technology and legal developments and we don’t anticipate that…more

Acquisitions, Blockchain, CASE Act, Copyright, Cosmetics

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EEOC Announces Strategic Plan Through 2023: Enforcement of Conciliation Agreements is Top of Mind

On August 22, 2023, the Equal Employment Opportunity Commission (EEOC) announced it approved its Strategic Plan for the Fiscal Years 2022-2026. The Strategic Plan sets forth the EEOC’s strategies and objectives for achieving its…more

Anti-Discrimination Policies, Compliance, Conciliation, Employment Discrimination, Enforcement

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Colorado’s New Automatic Renewal Law

If you use automatically renewing contracts in Colorado, you need to be aware of the effects of a new law - Colorado’s new law governing automatic renewal clauses in contracts, C.R.S. 6-1-732, went into effect January 1,…more

Automatic Renewals, Colombia, New Legislation, Opt-Outs, Subscription Services

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IRS Releases Proposed Regulations for Section 45V Hydrogen Production Credit

Last week, the Internal Revenue Service (“IRS”) and Department of the Treasury published proposed regulations (the “Proposed Regulations”) relating to the tax credit for production of clean hydrogen under Section 45V of the…more

Anti-Abuse Rule, Apprenticeships, Compliance, Department of Energy (DOE), Greenhouse Gas Emissions

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How Rights Owners Can Be Proactive With CBP Enforcement

Ever since the U.S. Customs and Border Protection designated intellectual property rights, or IPRs, as a priority trade issue, the agency has seized billions of dollars in counterfeit goods. In 2021 and 2022, CBP seized…more

Counterfeiting, Customs and Border Protection, Enforcement, Intellectual Property Protection, International Trade Commission (ITC)

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FTC Issues Warning on the Use of Algorithms to Recommend or Set Prices

The U.S. Federal Trade Commission (FTC) recently published a blog post warning that the use of algorithms to assist in determining prices may violate federal antitrust laws, regardless of the business or industry. The FTC blog…more

Algorithms, Corporate Counsel, Department of Justice (DOJ), Federal Trade Commission (FTC), Putative Class Actions

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Health Care Providers: Considerations with Green Bonds Issuance

As “Green Bond” designations become more prevalent in the public finance market, many health care providers are asking: Are Green Bonds Right for Me? Not all transactions are able to achieve designation as Green Bonds, because…more

Environmental Social & Governance (ESG), Green Bonds, Health Care Providers, International Capital Markets Association (ICMA)

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Acetaminophen MDL: Judge Excludes All of Plaintiffs’ Causation Experts Pursuant to Newly-Amended FRE Rule 702

On December 1, 2023, amendments to Federal Rule of Evidence (FRE) 702 geared toward emphasizing and explaining the responsibility of the judge as a “gatekeeper” for expert testimony took effect. On December 18, 2023, one of the…more

Causation, Daubert Standards, Federal Rules of Evidence, Medical Devices, Multidistrict Litigation

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Virtual Stockholder and Board Meetings: Important Considerations for Delaware Companies

In these unprecedented times of “shelter in home” orders, remote working, and other strategies Americans are taking to mitigate the risks associated with COVID-19, we anticipate that many organizations will decide to transition…more

Coronavirus/COVID-19, Corporate Governance, Governor Carney, Limited Liability Company (LLC), Shareholder Meetings

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Credit Crunch: An Update for Borrowers

The collapse of Silicon Valley Bank and Signature Bank on March 10 and 12, 2023, respectively, sent shockwaves through the venture capital, entrepreneur, technology innovation, and life sciences communities, as well as those…more

Borrowers, Bridge Banks, FDIC, Insuretech Sector, Life Sciences

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HHS OIG: New “General Compliance Program Guidance” Provides Voluntary Steps Towards Increased Effectiveness

In connection with the November 2023 Health Care Compliance Association’s (HCCA) Healthcare Enforcement Compliance Conference, and with acknowledgment by the Chief Counsel to the Inspector General, Rob DeConti, of the long…more

Advisory Opinions, Anti-Kickback Statute, Audits, Civil Monetary Penalty, Compliance

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HHS Updates Pixels and Trackers Guidance for HIPAA Regulated Entities

Pixels, cookies, and trackers continue to be front of mind for HIPAA regulated entities seeking clarity on their ability to advertise, market, and engage with existing and prospective patients. On March 18, 2024, the U.S…more

Cybersecurity, Data Security, Department of Health and Human Services (HHS), Health Information Technologies, Health Insurance Portability and Accountability Act (HIPAA)

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What Every Multinational Company Should Know About … The False Claims Act

Multinational companies should be alert to legal exposure under the False Claims Act (FCA). The FCA is a civil statute that can be quite damaging to a multinational company for several reasons: The FCA has extremely broad…more

Department of Justice (DOJ), False Claims Act (FCA), False Statements, Financial Obligations, Fraud

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Health-Related Social Needs: Three Trends in Leveraging Community Partnerships

Leading health authorities have increasingly emphasized how non-medical factors such as socioeconomic status, education, employment, housing, food security, and community support have an outsized impact on health outcomes. By…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA)

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Helping Clients Identify Estate Planning Opportunities in a Low Interest Rate and Depressed Value Environment

Today’s historically low interest rates and depressed asset values make this an excellent time to engage in various estate planning techniques. Current conditions present several planning opportunities for transferring wealth at…more

Estate Planning, Estate Tax, Family Businesses, Gift Tax, IRS

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Deadline Passes for Illinois Equal Pay Registration Certificate Applications

Back in 2021, the Illinois General Assembly amended the state’s Equal Pay Act (the “Amendment”) to include a new certification requirement for Illinois employers. Upon passage of the Amendment, covered Illinois employers were…more

Compliance, Department of Labor (DOL), EEO-1, Equal Pay, Filing Deadlines

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What Every Multinational Company Should Know About . . . The Foreign Trade Antitrust Improvements Act

The United States Department of Justice (DOJ) actively enforces the Sherman Act within the U.S. and internationally. Generally described, the Sherman Act is a powerful statutory scheme designed to prohibit anti-competitive…more

Anti-Competitive, Antitrust Investigations, Collusion, Department of Justice (DOJ), Federal Trade Commission (FTC)

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A Summary of Certain Recent Enforcement and Non-Enforcement Actions

Sender Primary Liability for Misstatements in PPMs and Prospectuses: Lorenzo v. SEC (No. 17-1077 -- U.S. – 2019). On March 27th, the Supreme Court issued a 1934 Act Rule 10b-5 opinion that will have implications for sponsors…more

Corporate Officers, Custody Rule, Digital Assets, Directors, Enforcement Actions

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Preparing for Expected Changes to Exempt Salary Threshold

As summer looms near, employers of salaried workers would be wise to prepare for anticipated increases to the salary basis threshold for certain categories of exempt employees under the Fair Labor Standards Act (FLSA). As a…more

Department of Labor (DOL), Exempt-Employees, Fair Labor Standards Act (FLSA), Highly Compensated Employees, Internal Audit Functions

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Top Legal Issues Facing the Manufacturing Sector in 2023

Agility and resiliency remain essential attributes for manufacturers in 2023. Manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past…more

Artificial Intelligence, Best Practices, Clawbacks, Compensation, Compliance

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SEC Adopts Final Rules Regarding Share Repurchase Disclosure

On May 3, 2023, the U.S. Securities and Exchange Commission (“SEC”) adopted final rules requiring (1) issuers to disclose daily quantitative repurchase data at the end of every quarter in their Form 10-Qs and 10-Ks, (2) foreign…more

10b5-1 Plans, Disclosure Requirements, Final Rules, Regulation S-K, Securities and Exchange Commission (SEC)

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Business Considerations of Force Majeure: Unintended Consequences

No doubt by now your inbox has been filled with questions, recommendations, and articles about the use of force majeure clauses in response to the COVID-19 pandemic. With all of the focus on whether force majeure clauses can be…more

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

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Employers Take Note: OSHA Publishes Final “Walkaround” Rules

On April 1, 2024, the U.S. Department of Labor (DOL) published its final rule on who is allowed to be present for an OSHA inspection. The rule becomes effective on May 31, 2024. By way of background, both the employer and…more

Compliance, Department of Labor (DOL), Employee Representatives, Final Rules, Inspections

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Coronavirus Impact on Construction of Energy Projects (Updated)

The U.S. Renewable Energy Industry, including its construction market, like every sector of the economy, is being affected by the outbreak of coronavirus. A number of announcements have been made beginning mid-March imposing…more

Business Closures, Construction Industry, Construction Project, Coronavirus/COVID-19, Critical Infrastructure Sectors

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New IRS Determination Letter Approval Procedures for 403(b) Plans

The IRS has had a determination letter process for qualified plans under Code section 401(a), like 401(k) and other defined contribution plans, for many years. A favorable IRS determination letter would give the sponsoring…more

401k, 403(b) Plans, Employee Retirement Income Security Act (ERISA), Employer Identification Number (EIN), IRS

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It Is Not Too Late to Consider Updating Your Employee Handbook for 2019

Employee handbooks are an often neglected and underappreciated company document. Preparing, maintaining, and updating a handbook that reflects the policies of your company and your operations takes time and expertise. A…more

#MeToo, Anti-Harassment Policies, Complaint Procedures, Corporate Culture, Employee Handbooks

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A New Regulatory Landscape for Consumer Products Containing Button Cell or Coin Batteries

New regulations from the Consumer Product Safety Commission (CPSC) are set to go into effect on March 19, 2024, for manufacturers and importers of consumer products containing button cell and coin batteries (or products intended…more

Batteries, Consumer Product Safety Act (CPSA), Consumer Product Safety Commission (CPSC), Labeling, Manufacturers

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IP Considerations in Protecting Autonomous Vehicle Software with Patents and Copyrights

As autonomous vehicles and associated software become more commonplace in the automotive industry, it is important to recognize which forms of intellectual property grant protection within quickly evolving areas of technology…more

Copyright, Design Patent, Driverless Cars, Innovation, Intellectual Property Protection

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Florida 2022 General Election Results

While nothing compares to the Sunshine State’s white sandy beaches and emerald-green waters, Florida’s 2022 midterm election shores were filled with voters, pundits and national media watching the red tsunami surge across the…more

Constitutional Amendment, Florida, General Elections, Voter Registration

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Kraken Settles SEC Charge That Its SAAS Model Was an Illegal Securities Offering

On February 9, 2023, the SEC announced that Kraken had settled charges alleging that it violated securities laws by failing to register the offer and sale of its “crypto asset staking-as-a-service program.” To settle the charges…more

Blockchain, Cryptoassets, Disclosure Requirements, SaaS, Securities

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FTC Strengthens Data Security Requirements

The Federal Trade Commission (FTC) recently published changes to data security requirements for financial institutions by revising the Safeguards Rule (Rule) under the Gramm-Leach-Bliley Act (GLBA). The law is designed to…more

Data Privacy, Data Security, Federal Register, Federal Trade Commission (FTC), Financial Institutions

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A Review of Recent Whistleblower Developments - October 2023

Eleventh Circuit Adopts “Totality of the Circumstances” Test for Showing Protected Activity Under SOX and Denies Whistleblower Petition for Review - In Ronnie v. Office Depot, LLC, --- F.4th ----, 2023 WL 6210623 (11th Cir…more

Appeals, Civil Monetary Penalty, Fraud, Internal Controls, Investment Adviser

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Bump in the Road: Federal Judge Selectively Halts Enforcement of the Pregnant Workers Fairness Act in Texas

In a recent decision, a federal judge in the U.S. District Court for the Northern District of Texas suspended enforcement of the Pregnant Workers Fairness Act (PWFA) with respect to public employers in the state. This…more

Americans with Disabilities Act (ADA), Consolidated Appropriations Act (CAA), Enforcement, Merrick Garland, Pregnant Workers Fairness Act

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Past and Future: How Prior IPR Representations Can Haunt Your Future Patent Infringement Complaint

Judge Albright of the U.S. District Court for the Western District of Texas granted, in part, Meta Platforms, Inc.’s (“Meta”) 12(b)(6) motion to dismiss (“Motion”) in Grecia Estate Holdings LLC v. Meta Platforms, Inc…more

Digital Rights, Dismissal With Prejudice, Inter Partes Review (IPR) Proceeding, Motion to Dismiss, Patent Infringement

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LeTip World Franchise LLC v. Long Island Social Media Group LLC

In LeTip World Franchise LLC v. Long Island Social Media Group LLC, the U.S. District of Court for the District of Arizona granted a temporary restraining order in favor of a franchisor, LeTip World Franchise LLC (“LeTip”)…more

Breach of Contract, Burden of Proof, Franchise Agreements, Franchisee, Franchisors

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What You Need to Know about the Corporate Transparency Act’s Final Rule

The Final Rule issued under the Corporate Transparency Act (CTA) is, as forecast, a sweeping and significant update to the U.S. anti-money laundering laws, estimated to affect over 32 million entities by requiring new reports of…more

Beneficial Owner, Corporate Transparency Act, Exemptions, Federal Register, Final Rules

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Private Investment Diligence and Fraud Prevention: Will New Regulations Change the Game?

Venture capital and other private funding sources continue to be an important pathway for financing early-stage companies. Unfortunately some startups that raised money did so by misrepresentation and in certain cases fraud,…more

Capital Investments, Due Diligence, Fraud Prevention, Investment Adviser, New Regulations

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Artificial Intelligence, the SEC, and What the Future May Hold

With the growing use of artificial intelligence (AI) in financial markets, broker-dealers and investment advisers need to pay attention to the risks posed by AI on firms’ compliance with federal securities laws. While machine…more

Algorithms, Artificial Intelligence, Broker-Dealer, Compliance, Conflicts of Interest

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Foley Manufacturing Update - November 2022

The most recent article in Foley & Lardner’s Supply Chain Disruption Series provides background on a number of key terms and conditions for buyers and sellers in the supply chain to consider in commercial forms. Click here to…more

China, Cybersecurity, Environmental Protection Agency (EPA), Greenhouse Gas Emissions, International Trade

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States Continue to Adopt NAIC Liquidity Stress Test Updates

In December 2020, the National Association of Insurance Commissioners (the NAIC) adopted revisions to the Insurance Holding Company System Regulatory Act (the “Model Law”) that require large life insurers to report the results…more

Health Insurance, Insurance Holding Company, Liquidity, NAIC, Stress Tests

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Democrats Introduce Tax Proposals

The House of Representatives Ways and Means Committee Chairman introduced new tax proposals on Monday that would raise more than $2 trillion in tax revenue as part of the Democrats’ effort to roll back the Trump administration…more

Capital Gains Tax, Corporate Taxes, Estate-Tax Exemption, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts

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Patenting Software in AI, VR, and 3D Printing

With rapid changes, pressure to innovate, and acceleration of implementation of advanced technology across all stages of the supply chain over the past year, there are important intellectual property (IP) considerations that…more

3D Printing, Artificial Intelligence, Computer-Related Inventions, Popular, Software Patents

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Five Compliance Checks Every Multinational Company Should Consider for … Being an Importer of Record

As an accompaniment to our biweekly series on “What Every Multinational Company Should Know About” various international trade, enforcement, and compliance topics, below find an update to our series on compliance checks that…more

Compliance, Customs, Enforcement, Multinationals, Recordkeeping Requirements

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Arizona House Introduces Potential General Franchise Law

The Arizona House of Representatives recently introduced a bill, HB 2404, designed to insulate in-state dealers from market competition that, if enacted, will create a general franchise relationship law in Arizona. Currently,…more

Anti-Waiver Provisions, Arizona, Disclosure Requirements, Franchises, Proposed Legislation

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New Florida Law Highlights Renewed Interest in Child Labor

Articles dealing with child labor often involve minors working in sweatshop-type conditions outside of the United States. The conditions outlined in such articles are usually horrid — and rightfully condemned. In contrast,…more

Child Labor, Compliance, Fair Labor Standards Act (FLSA), Florida, New Legislation

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2023 Telemedicine & Digital Health Trends

Medicare telehealth post-Public Health Emergency (PHE): With the COVID-19 PHE concluding on May 11, 2023, many of the telehealth flexibilities the Centers for Medicare & Medicaid Services (CMS) implemented during the PHE will…more

Centers for Medicare & Medicaid Services (CMS), Controlled Substances, DEA, Department of Health and Human Services (HHS), Digital Health

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Michigan Supreme Court Overrules Longstanding Interpretation of “Blanket” Purchase Orders for Supply Contracts

For many years, Michigan has consistently interpreted “blanket” purchase orders as binding requirements contracts that could bind suppliers (and buyers) for many years — frequently, for the life of a particular OEM or buyer…more

Appeals, Buyers, Fraud, MI Supreme Court, OEM

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Colorado’s Consumer Right to Repair Agriculture Equipment Act

On April 12, 2023, the Colorado legislature passed the Consumer Right to Repair Agriculture Equipment Act (the “Act”). Under the Act, manufacturers of “agricultural equipment” will be required to provide independent repair shops…more

Colorado, Heavy Equipment, Proposed Legislation, Right to Repair, Trade Secrets

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Commercial Leasing Update Due to the Coronavirus – Practical Next Steps for Landlords and Tenants

As the coronavirus outbreak enters another month, now is the time for all parties under commercial leases to consider and take appropriate response actions to help mitigate their risk and prepare for how they will deal with the…more

Commercial Leases, Commercial Tenants, Coronavirus/COVID-19, Landlords

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Physician Practice Transactions: NY’s Proposed Review and Monitoring Increases Visibility and Adds Deal Risk

New York Governor Kathy Hochul unveiled a proposal, set forth in the Health and Mental Hygiene Article VII Legislation associated with the proposed State Executive Budget for FY2024 (see Article 45-A) (Executive Budget), that…more

Healthcare, Investors, Mergers, New York, State Health Departments

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Blockchain for Capital Equipment in a Machine-as-a-Service Model

Subscription-based services, embraced by the software industry as an alternative to traditional models of selling product, provide a steady income stream to providers. Software-as-a-Service, along with the related…more

Automation Systems, Blockchain, Export Controls, Right to Repair, Uniform Commercial Code (UCC)

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7-Eleven’s Recent Federal Court Victory Illustrates Best Practices When Terminating Franchisees

A federal court in Michigan recently allowed well-known franchisor 7-Eleven to terminate a franchise relationship when the franchisee serially breached their franchise agreement. 7-Eleven’s procedures leading up to termination…more

7-Eleven, Breach of Contract, Franchise Agreements, Franchises

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The Great Trick Play: The Dartmouth College Men’s Basketball Team Votes to Unionize

Did you hear the news? The members of the Dartmouth College men’s basketball team have been deemed employees of the school and voted to unionize under federal labor law. How could you miss it? The crush of media reports has…more

Antitrust Litigation, Collective Bargaining, College Athletes, Employee Rights, Employees

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Mexico increases import tariffs for non-Free Trade Agreement countries

The August 15, 2023 Mexican Federal Official Gazette contains a Presidential Decree (the Decree) that for the following two years -August 16, 2023 through July 31, 2025-, increases import duties in the range of 5% to 25% to…more

Imports, Mexico, Tariffs, Trade Relations

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Takeaways from 2023 Smart Fabrics Summit

The annual Smart Fabrics Summit was held again this year at the Wilson College of Textiles of North Carolina State University, sponsored by the Advanced Textiles Association (ATA, formerly the Industrial Fabrics Association…more

Customs, Data Privacy, Fabrics, Fashion Industry, Foreign Trade Regulations

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What Every Multinational Company Should Know About . . . Navigating Economic Downturns through Racial Equity Audits

A strong correlation exists between a multinational company’s Diversity, Equity & Inclusion (DEI) efforts and the company’s financial performance. Racial equity audits often are utilized to measure the precise quality and…more

Audits, Diversity, Economic Downturn, Equity, Investors

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Federal Circuit Considers Patentability of Overlapping Ranges

In UCB Inc. v. Actavis Laboratories UT Inc., the Federal Circuit affirmed the district court’s judgement of invalidity on obviousness grounds but reversed the finding of anticipation. In reaching its decision on anticipation,…more

Abbreviated New Drug Application (ANDA), Food and Drug Administration (FDA), Patent Invalidity, Patentability Search, Patents

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California: Proposed Regulations Impacting the M&A Market in California

Below we outline what you need to know from the recently proposed regulations if you are a health care entity evaluating a transaction in California that is expected to close on or after April 1, 2024. Since the…more

Acquisitions, California, Fair Market Value, Health Care Providers, Mergers

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COVID-19: Provider Relief Funds for Assisted Living Facilities

On September 1, 2020, the U.S. Department of Health and Human Services (HHS) announced that assisted living facilities (ALFs) may now apply for funding under the Provider Relief Fund (PRF) Phase 2 General Distribution…more

Assisted Living Facilities (ALFs), CARES Act, Coronavirus/COVID-19, Department of Health and Human Services (HHS), Health Care Providers

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Infrastructure Investment and Jobs Act: January 1, 2022, Brings Opportunities with Two Types of Tax Exempt Bonds and Program Expansion

Executive Summary - On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (Public Law 117-58) (the “Act”). The Act provides for more than $550 billion in new infrastructure…more

Biden Administration, Broadband, Carbon Capture and Sequestration, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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Price Transparency: Federal Government Issues Final Rule for Hospitals and Proposed Rule for Group Health Plans and Health Insurers

On November 15, 2019, the Federal Government issued two rules: one in final form and one in proposed form, both designed to increase price transparency in health care. The rules follow on the Executive Order announced by…more

Affordable Care Act, Comment Period, Department of Health and Human Services (HHS), Employer Group Health Plans, Final Rules

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The Fifth Circuit Strikes a Blow to the Constitutionality of SEC Administrative Proceedings

On Wednesday, in a 2-1 decision, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled in Jarkesy v. SEC that proceedings before an SEC administrative law judge were unconstitutional. Notably, the circuit…more

Administrative Proceedings, Appeals, Securities Act of 1933, Securities and Exchange Commission (SEC), Securities Exchange Act of 1934

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Time Is Running Out For The EPO’s 10-Day Rule

Stakeholders accustomed to having “ten more days” to respond to a communication from the European Patent Office will have to update their calendaring systems for documents dated on or after November 1, 2023. This is because the…more

Deadlines, European Patent Office, Shareholders, USPTO

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New Legislation Extends California Noncompete Ban to Agreements Signed Outside the Golden State and May Impose Notice Obligations that Apply Retroactively

As we’ve previously written, California already takes a strong position against employee noncompete agreements. State law bans such agreements (with extremely limited exception) and imposes significant penalties on employers who…more

Attorney's Fees, Business & Professions Code, California, New Legislation, No-Poaching

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Successfully Navigating EV Product Roll-Outs: Manufacturers Balance Innovation and Legacy Needs

Automotive OEMs, suppliers, startups and other participants in the automotive ecosystem have a great deal to do in 2023 as manufacturers begin to move to diversify historical internal combustion engine (ICE) vehicle product…more

Electric Vehicles, Environmental Protection Agency (EPA), Greenhouse Gas Emissions, Inflation Reduction Act (IRA), Intellectual Property Protection

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My Healthy Food Product is Ready to Go to Market – What About its Packaging?

After formulating an exciting new healthy food or beverage, the packaging it comes in may feel like an afterthought.  It should not be.   Food packaging has become an increasingly hot topic among federal and state regulators, as…more

Beverage Manufacturers, Code of Federal Regulations (CFR), Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA), Food Manufacturers

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Top Legal Issues Facing the Manufacturing Sector in 2023

Agility and resiliency remain essential attributes for manufacturers in 2023. Manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past…more

Artificial Intelligence, Best Practices, Clawbacks, Compensation, Compliance

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Texas Executive Order to Prohibit COVID-19 Vaccine Mandate

As you undoubtedly know, there has been an enormous amount of media attention given to the recent efforts by the Governor of Texas to prohibit COVID vaccine mandates in Texas. As could be expected, we have received a number of…more

Coronavirus/COVID-19, Executive Orders, Federal Contractors, Governor Abbott, OSHA

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New False Claims Act Stats Show Jump in DOJ-Driven Investigations

The Department of Justice’s (DOJ) annual False Claims Act (FCA) press release revealed that it increased self-initiated investigations for the federal fiscal year ending September 30, 2023, by 1.5 times over the prior year. The…more

Cybersecurity, Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA), Healthcare Fraud

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Ensuring Your Independent Contractors Don’t ‘Deliver’ Wisconsin Unemployment Insurance Tax Liability

Those doing business in the Badger State should take note — in a recent case, the Wisconsin Court of Appeals determined that delivery drivers who were paid as independent contractors were improperly classified as such. By…more

Appeals, Department of Labor (DOL), Independent Contractors, Tax Liability, Unemployment Insurance

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Texas Legislature Passes Decommissioning Statutory Requirements on Wind Energy Land Leases

The Texas legislature recently passed House Bill 2845 modifying Section 301 of Title 6 of the Texas Utilities Code to impose statutory decommissioning requirements on any person (“Wind Developer”) that leases property from a…more

Contract Terms, Decommissioned Facilities, Ground Leases, Pending Legislation, Wind Power

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Texas Legislature Passes Bill Creating Specialized Business Trial Courts: 12 Things You Need To Know Now

On May 25, 2023, the Texas Legislature passed HB 19, legislation that creates specialized business courts. The bill now will make its way to the Governor’s desk for consideration. Here is what you need to know now:..…more

Appeals, Corporate Counsel, Governor Abbott, Jurisdiction, Limited Liability Company (LLC)

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Supreme Court Overturns FCA Scienter Cases

The Supreme Court today issued its ruling on one of the most significant False Claims Act (FCA) cases it has considered in the last several years. In the consolidated cases of United States ex rel. Schutte et al. v. SuperValu…more

False Claims Act (FCA), Healthcare, Pharmaceutical Industry, Pharmacies, Prescription Drugs

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Round Two - FDA Issues Emergency Use Authorization for Moderna’s COVID-19 Vaccine

What You Need to Know: On December 18, 2020, the Food and Drug Administration issued the second emergency use authorization (“EUA”) for a vaccine for the prevention of COVID-19 in individuals 18 years of age and older. Under…more

Coronavirus/COVID-19, Emergency Use Authorization (EUA), Food and Drug Administration (FDA), Moderna Inc., Pharmaceutical Industry

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Democrats Introduce Tax Proposals

The House of Representatives Ways and Means Committee Chairman introduced new tax proposals on Monday that would raise more than $2 trillion in tax revenue as part of the Democrats’ effort to roll back the Trump administration…more

Capital Gains Tax, Corporate Taxes, Estate-Tax Exemption, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts

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SEC Updates Electronic Filing Requirements

On June 3, 2022, the Securities and Exchange Commission (the “SEC”) announced its adoption of rule and form amendments expanding the requirement of electronic filing to include certain documents that are currently permitted to…more

Annual Reports, EDGAR, Electronic Filing, Federal Register, Filing Requirements

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Key Impacts and Strategies for Suppliers Affected by the Ongoing UAW Strike

The United Auto Workers Union strike against the Detroit Three automakers that began on September 15th continues with no immediate resolution in sight. The UAW expanded the strike on Friday September 22nd when some 5,500 UAW…more

Automotive Industry, Contract Terms, Ford Motor, General Motors, Strike

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Inflation Woes: Four Key Ways for Companies to Address Inflation in the Supply Chain

The U.S. economy is grappling with the highest inflation in decades, with extensive inflation in the supply chain affecting companies worldwide. Supply chain disruptions undoubtedly have contributed to rising inflation, as…more

Consumer Price Index, Contract Amendments, Force Majeure Clause, Price Inflation, Supply Chain

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Navigating the AI Frontier: Legal and Operational Insights Into Generative AI

In our ever-changing technological environment, artificial intelligence (AI) is beginning to exert its influence on numerous sectors, revolutionizing our approach to work. As businesses and organizations worldwide adopt…more

Anti-Discrimination Policies, Artificial Intelligence, Automated Decision Systems (ADS), Bias, Biotechnology

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OFCCP AAP Certification Contractor Portal is NOW OPEN

On March 25, 2024, the U.S. Department of Labor (DOL) issued its annual notice that the Office of Federal Contract Compliance Programs (OFCCP) Contractor Portal, for certification of contractor affirmative action program…more

Affirmative Action, Audits, Contractors, Department of Labor (DOL), Executive Orders

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Building Biotech with Brains: Strategies for Maximizing Value of AI-Driven Biotechnology Inventions

The rapid rise of artificial intelligence (AI) and machine learning (ML) in biotechnology products and services is becoming a driver of the personalized medicine and health care sectors. While this integration can require…more

Alice/Mayo, Artificial Intelligence, Biotechnology, Inventions, Machine Learning

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SEC Adopts New Rules Requiring Universal Proxy Cards in Contested Director Elections

On November 17, 2021, the U.S. Securities Exchange Commission (the “Commission”) announced the adoption of new rules requiring the use of universal proxy cards in contested director elections. With the Commission calling it “an…more

Dissident Shareholders, New Rules, Securities and Exchange Commission (SEC), Shareholder Meetings, Universal Proxy Cards

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Illinois Insurance Law Update: H.B. 579 and H.B. 2296 Signed Into Law; Significant Changes On The Horizon For Illinois Health Insurance Industry

On June 29, 2023, Governor J.B. Pritzker signed House Bills 579 and 2296 into law, enacting sweeping changes to Illinois health insurance law that grants the Illinois Department of Insurance (IDOI) expanded regulatory powers…more

Benefit Plan Sponsors, Employee Benefits, Employer Group Health Plans, Enrollment, Health Insurance

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Michigan Supreme Court Overrules Longstanding Interpretation of “Blanket” Purchase Orders for Supply Contracts

For many years, Michigan has consistently interpreted “blanket” purchase orders as binding requirements contracts that could bind suppliers (and buyers) for many years — frequently, for the life of a particular OEM or buyer…more

Appeals, Buyers, Fraud, MI Supreme Court, OEM

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[Event] Check, Raise, or Fold: The Risky Business of IP - Sept. 18th, Chicago, IL

This event is intended for in-house counsel and business executives only. New decisions. New rules. New strategies. In the world of IP, the hand your business is dealt is ever-changing.* The more intertwined your IP assets…more

Continuing Legal Education, Events, Intellectual Property Litigation, Intellectual Property Protection, Patents

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SEC Proposes New Rules on Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure

On March 9, 2022, the U.S. Securities Exchange Commission (the Commission) announced proposed amendments to its rules regarding cybersecurity risk management, strategy, governance, and incident reporting by public companies to…more

Corporate Governance, Cybersecurity, Data Privacy, Disclosure Requirements, Foreign Private Issuers

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CFPB Brings RESPA Reminder To Mortgage Comparison Sites

The Consumer Financial Protection Bureau ended a more than decadelong hiatus since the last formal guidance regarding Section 8 of the Real Estate Settlement Procedures Act on Feb. 7 by issuing its advisory opinion aimed at…more

Consumer Financial Protection Bureau (CFPB), Digital Marketplace, Kickbacks, Mortgages, New Guidance

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Increased Gift and Estate Tax Exemption Amounts for 2023

The gift tax annual exclusion and the gift and estate tax exemption increased significantly for 2023. Effective January 1, 2023, the following amounts may be helpful in considering estate planning options for the new year: …more

Estate Planning, Estate-Tax Exemption, Gift-Tax Exemption, Tax Exemptions

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The Florida Legislature: A Look Ahead at the 2023 Legislative Session

Complete with traditional pomp and circumstance, the Florida Legislature convened Tuesday for the purposes of organizational session. The 160 member body was sworn-in before friends, family, state dignitaries and staff. This…more

Environmental Social & Governance (ESG), Florida, Insurance Industry, Price Inflation, Tax Reform

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Please Remain Standing: 11th Circuit Rejects $35 Million GoDaddy Settlement Due to Absent Class Members Lack of Standing

Class actions for money damages that involve class members who do not have Article III standing in the Eleventh Circuit are improper even if such members would have standing in other jurisdictions. In a unanimous decision late…more

Article III, Attorney's Fees, CAFA, Class Action, Federal Rules of Civil Procedure

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Illinois Governor Pritzker Announces Stay at Home Order

Illinois Governor JB Pritzker announced that, effective tomorrow, March 21 at 5:00 pm through April 7, all residents of Illinois are subject to a stay at home order. All nonessential business operations have been ordered to…more

Business Closures, Coronavirus/COVID-19, Governor Pritzker, Operators of Essential Services

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Availability of RICO Claims to Foreign Holders of Arbitral Awards

The United States Supreme Court may soon provide to foreign holders of arbitral awards a powerful tool to enforce the awards in the United States against recalcitrant parties and their enablers — a claim under the Racketeer…more

Declaratory Judgments, Dispute Resolution, Domestic Injury, Enforcement of Foreign Judgments, Financial Institutions

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2013 Water Technology US Patent Landscape Anual Report

Foley’s Green Energy Technologies (GET) team has released its latest annual analysis of the water technology landscape titled "2013 Water Technology U.S. Patent Landscape Annual Report." The 2013 Report was created by…more

Groundwater, Licenses, Patents, Technology, Water

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Offshore Wind Developers Race to Compete for Lucrative Government Leases

The desire to get in on the ground floor of offshore wind development in the U.S is at an all-time high. Following the announcement by President Biden of a goal of producing 30 gigawatts of offshore wind energy by 2030 and a tax…more

Biden Administration, Energy Sector, Green Energy, Ground Leases, Offshore Wind

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Artificial Intelligence, the SEC, and What the Future May Hold

With the growing use of artificial intelligence (AI) in financial markets, broker-dealers and investment advisers need to pay attention to the risks posed by AI on firms’ compliance with federal securities laws. While machine…more

Algorithms, Artificial Intelligence, Broker-Dealer, Compliance, Conflicts of Interest

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Cannabis Mid-Year Update 2022

Well into the third year of the global pandemic, with record inflation and the uncertain outcomes of geopolitical issues roiling global markets, the cannabis industry has nevertheless continued upon a similar path as recent…more

Bankruptcy Court, Biden Administration, Cannabidiol (CBD) oil, Cannabis Products, DEA

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Takeaways From USPTO's AI-Assisted Invention Guidance

Pursuant to efforts by the federal government to develop artificial intelligence in a safe, secure and trustworthy manner, the U.S. Patent and Trademark Office issued inventorship guidance for inventions developed with…more

Artificial Intelligence, Contribution Claims, Inventions, Inventors, New Guidance

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USPTO Issues Updated Guidance on Obviousness

For the first time in nearly 15 years, the U.S. Patent and Trademark Office (USPTO) has issued “Updated Guidance for Making a Proper Determination of Obviousness” under the U.S. Supreme Court’s ruling in KSR Int’l Co. v…more

America Invents Act, Decision-Making Process, Ex Partes Reexamination, Graham Factors, Guidance Update

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Automotive MarketTrends - June 2019, Issue 2

Welcome to Foley’s Automotive MarketTrends newsletter. In each edition, we will focus on a different aspect of the automotive sector and highlight key trends in the industry. In this issue, we focus on collaboration and the…more

Automotive Industry, Bankruptcy Code, Chapter 11, Data Collection, Data-Sharing

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Senate Bill 218: California’s proposal to remedy defective corporate acts

Since its enactment in 2014, Section 204 of the Delaware General Corporation Law (DGCL) has provided direct mechanisms for a corporation's board of directors and stockholders to ratify defective corporate acts. Other states,…more

California, Defective Corporate Acts, Delaware, Noncompliance, Proposed Legislation

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ORI Proposes New Rulemaking for Research Misconduct Regulations

On October 5, 2023, the Office of Research Integrity (ORI) of the Department of Health and Human Services (HHS) issued a notice of proposed rulemaking to update the Public Health Service (PHS) Policies on Research Misconduct…more

Administrative Law Judge (ALJ), Confidential Information, Department of Health and Human Services (HHS), False Claims Act (FCA), Plagiarism

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EEOC Reminds Employers How to Handle Applicants and Employees With Hearing Disabilities

There is no doubt that the COVID-19 pandemic continues to have a lasting impact on our society. Of the various changes we have experienced so far, the prevalence of remote or hybrid workplaces has had — and will continue to have…more

AFA, Disability Discrimination, EEOC Commissioner, Job Applicants

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Tired of Waiting on the SEC, California Adopts Extensive Climate Disclosure Laws

California recently has passed three climate disclosure laws, with yet another still pending. These new laws are aimed at increasing transparency and consistency in climate-related disclosures, including greenhouse gas (GHG)…more

California, Carbon Capture and Sequestration, Climate Change, Disclosure Requirements, Greenhouse Gas Emissions

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SEC Adopts New Cybersecurity Disclosure Rules

On July 26, 2023, the U.S. Securities Exchange Commission (“SEC”) adopted final rules regarding cybersecurity risk management, strategy, governance, and incident reporting by public companies. The final rules require registrants…more

Annual Reports, Customer Proprietary Network Information (CPNI), Cybersecurity, Disclosure Requirements, FBI

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How Coronavirus Is Effecting the Construction Industry: An Evolving Tracker of Construction Shutdowns Across the United States (Updated April 17, 2020))

Updated Friday, April 17, 2020 @ 5:00pm EST The U.S. construction market has been upended by the COVID-19 pandemic. Rapidly evolving state and local orders governing business closures, limitations on social gatherings, and…more

Business Closures, Construction Industry, Coronavirus/COVID-19

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Supreme Court Narrows TCPA Ban on Autodialers

The Supreme Court on Thursday issued its long-awaited ruling on what constitutes an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA), in Facebook Inc. v. Duguid, Case No. 19-511. The…more

ATDS, Auto-Dialed Calls, Facebook Inc v Duguid, SCOTUS, TCPA

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OTE, NCAA, or G League? A wealth of options to chart a path to the NBA

Pretend, for a moment, that you are 17 years old and the top-ranked high-school basketball player in the United States. Your ultimate goal is to play in the best league in the world, the National Basketball Association. But…more

Alston v NCAA, Collective Bargaining Agreements (CBA), Eligibility, Name and Likeness, NBA

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Enforcing Arbitration Delegation in the Ninth Circuit

On December 5, 2023, the Ninth Circuit in Bielski, et al. v. Coinbase, Inc., No. 22-15566 (9th Cir. 2023) concluded that federal courts can look to the parties’ agreement as a whole when determining whether the delegation…more

Arbitration, Arbitration Agreements, Coinbase Inc v Bielski, Enforcement Actions, Motion to Compel

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What’s Next in Washington? - January 2023 Edition

The dust from the 2022 Midterm Elections has settled and the 118th Congress has begun. Republicans were successfully able to flip control of the House and now have a 222-212 majority with one vacancy to be filled. Democratic…more

Child Tax Credit, Climate Change, Communications Decency Act, Congressional Review Act, Consolidated Appropriations Act (CAA)

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FERC Issues NOPR to Reduce Small Generator Grid Interconnection Time and Cost

On January 17, 2013, FERC issued a Notice of Proposed Rulemaking (NOPR) that would revise the pro forma Small Generator Interconnection Procedures (SGIP) and Small Generator Interconnection Agreement (SGIA) in order to lessen…more

Electricity, Fast Track Process, FERC, SGIA, SGIP

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Unlocking Stock Options: Employee Loans and Considerations

When it comes to employee compensation, companies constantly explore innovative ways to align their workforce’s interests with the organization’s success. One strategy gaining traction is the extension of loans to employees to…more

Employees, Employer Liability Issues, Initial Public Offering (IPO), Loans, Risk Management

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Medicare Issues Final Rules for Hospital Outpatient and Ambulatory Surgery Center Payment Systems

On November 15, 2012, the Centers for Medicare and Medicaid Services (CMS) published in the Federal Register final rules that would, among other things, update payment policies and rates under the Outpatient Prospective Payment…more

Centers for Medicare & Medicaid Services (CMS), Medicaid, Medicare

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The NBA “G” League—the “G” stands for Growth

Recently, the projected No. 1 overall pick in the 2021 NBA Draft—Jalen Green—shocked basketball fans around the world. Green, like other 18-year-old superstars who are graduating high school, decided how he would spend his…more

Athletes, Basketball, NBA, NCAA

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Legal Updates: Proposed Legislation for Private Foundation Minimum Distribution Requirements

A number of philanthropic leaders have voiced support for proposed legislation to increase the amount of distributions from private foundations and donor advised funds. Named the “Initiative to Accelerate Charitable Giving”,…more

Americans for Prosperity Foundation (AFP) v. Bonta, Charitable Deductions, Disclosure Requirements, Distribution Rules, Donor-Advised Funds (DAFs)

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CMS Changes Medicare Advantage and Part D Plans’ Agent/Broker/TPMO Compensation Landscape

In its November 2023 Proposed Rule and in its recently issued Final Rule that will be published in the Federal Register later this month, the Centers for Medicare & Medicaid Services (CMS) addressed concerns related to agent and…more

Brokers, Centers for Medicare & Medicaid Services (CMS), Compensation, Contract Renewal, Enrollment

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NIH Funded Research Centers Support Precision Medicine Research

Somatic mosaicisms are post-conception changes to cellular DNA that lead to genetic variation among cells in an organism. These changes can account for variation among individuals’ health or disease progression. Therefore, an…more

Innovation, Medical Research, National Institute of Health (NIH), Precision Medicine Initiative (PMI), Strategic Planning

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Workplace Violence — Tips for Minimizing Liability Risks

The specter of workplace violence is certainly one of the top concerns that keep employers awake at night. Workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive…more

Employer Liability Issues, Employment Policies, Enforcement Actions, Labor Reform, Labor Regulations

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Acetaminophen MDL: Judge Excludes All of Plaintiffs’ Causation Experts Pursuant to Newly-Amended FRE Rule 702

On December 1, 2023, amendments to Federal Rule of Evidence (FRE) 702 geared toward emphasizing and explaining the responsibility of the judge as a “gatekeeper” for expert testimony took effect. On December 18, 2023, one of the…more

Causation, Daubert Standards, Federal Rules of Evidence, Medical Devices, Multidistrict Litigation

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Opportunity Zones: Should Your Startup Make One Its Home?

A Qualified Opportunity Zone (QOZ) is an economically distressed community where new investments, under certain conditions, may be eligible for preferential tax treatment. The U.S. federal government created this tax incentive…more

Capital Gains, Infrastructure, Investment, IRS, Qualified Opportunity Funds

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New False Claims Act Stats Show Jump in DOJ-Driven Investigations

The Department of Justice’s (DOJ) annual False Claims Act (FCA) press release revealed that it increased self-initiated investigations for the federal fiscal year ending September 30, 2023, by 1.5 times over the prior year. The…more

Cybersecurity, Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA), Healthcare Fraud

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VIX Manipulation Class Actions - Part II: Venue and Consolidation

In our previous update, we informed you that Atlantic Trading USA LLC had filed the first class action complaint in Chicago federal court against various numerous unnamed market maker trading firms, alleging manipulation of the…more

Case Consolidation, CBOE, Class Action, Market Manipulation, Multidistrict Litigation

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Proposed Consumer Advocacy and Protection Act Could Remove the Cap on Civil Penalties the Consumer Product Safety Commission Can Impose

On January 25, 2024, Representative Jan Schakowsky (D-IL-09), Ranking Member of the House Innovation, Data, and Commerce Subcommittee and former Chairwoman of the Consumer Protection Subcommittee of the House Energy and Commerce…more

Consumer Product Safety Act (CPSA), Consumer Product Safety Commission (CPSC), Consumer Protection Laws, Enforcement

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New False Claims Act Stats Show Jump in DOJ-Driven Investigations

The Department of Justice’s (DOJ) annual False Claims Act (FCA) press release revealed that it increased self-initiated investigations for the federal fiscal year ending September 30, 2023, by 1.5 times over the prior year. The…more

Cybersecurity, Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA), Healthcare Fraud

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5 Cost-Saving Tips For Corporate IP Counsel Amid COVID-19

Even prior to the COVID-19 pandemic, many corporate legal departments were operating with constrained financial budgets. The COVID-19 pandemic has only exacerbated this issue. So what can corporate patent counsel do to reduce…more

Coronavirus/COVID-19, Foreign Patent Applications, Patent Portfolios

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Dual-Hatted CEO and CCO Named Individually in SEC Settlement for Compliance Violations

On December 5, 2022, the SEC filed a settled action against investment advisory firm Two Point Capital Management Inc. (the Firm) and its chief executive officer, who also served as the Firm’s chief compliance officer until…more

CEOs, Chief Compliance Officers, Compliance, Corporate Counsel, Investment Adviser

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What Every Multinational Company Needs to Know About...Implementing an International Compliance Program (Part III)

We have received several requests for a list of the compliance policies that make sense for every multinational company. So, as a follow-up to our earlier two posts providing “twelve steps to international compliance” (see here…more

Anti-Corruption, Anti-Discrimination Policies, Anti-Harassment Policies, Anti-Retaliation Provisions, Antitrust Provisions

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A Summary of Certain Recent Enforcement and Non-Enforcement Actions

Sender Primary Liability for Misstatements in PPMs and Prospectuses: Lorenzo v. SEC (No. 17-1077 -- U.S. – 2019). On March 27th, the Supreme Court issued a 1934 Act Rule 10b-5 opinion that will have implications for sponsors…more

Corporate Officers, Custody Rule, Digital Assets, Directors, Enforcement Actions

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Medicare Advantage: OIG Report Finds Improper Denials

On April 27,2022, the Office of Inspector General of the Department of Health and Human Services (OIG), Office of Evaluations and Inspections, issued a report on the performance of Medicare Advantage Organizations (MAOs) in…more

Audits, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), False Claims Act (FCA), Medicare

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Changes to General Obligation Notes Borrowing in Wisconsin: Benefits to Municipalities

Municipalities issuing general obligation promissory notes under section 67.12 (12) of the Wisconsin Statutes may now take advantage of a statutory maximum maturity date of 20 years. 2023 Wisconsin Act 128 (the “Act”) took…more

Debt, Municipal Bonds, Municipalities, New Legislation, Promissory Notes

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2024 Predictions: Unveiling the future of healthcare mergers and acquisitions

Today, a tale of two markets are seen in healthcare mergers and acquisition (M&A): the present (as reflected in the data about declining dealmaking) and the future (reflected in the increasingly positive outlook by dealmakers). …more

Acquisitions, Artificial Intelligence, Digital Health, Divestiture, Health Care Providers

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Key Takeaways Bank Receiverships Week Two

Foley & Lardner LLP is closely monitoring the rapidly changing landscape surrounding the recent bank insolvencies. On Tuesday, March 21, at 5:00 p.m. CT, Foley hosted a webinar where a panel of presenters discussed the…more

Acquisitions, Cyber Crimes, FDIC, Initial Public Offering (IPO), Mergers

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Top Legal Issues Facing the Manufacturing Sector in 2023

Agility and resiliency remain essential attributes for manufacturers in 2023. Manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past…more

Artificial Intelligence, Best Practices, Clawbacks, Compensation, Compliance

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The Laws of Fashion: What's Trending in 2023

The fashion industry has experienced another year of continued change driven by consumer trends, innovation in technology, geopolitical and public health issues, and legal developments, and we don’t anticipate that stopping any…more

Blockchain, Class Action, Copyright Infringement, Fashion Industry, Jack Daniels Properties Inc v VIP Products LLC

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AI and Carbon Credits: How the Emergence of AI Tools and Technologies Facilitates the Use of Carbon Credits

A carbon credit is a form of instrument or permit that represents one ton of carbon dioxide removed from the atmosphere. While these carbon credits can be purchased by an individual (think Taylor Swift or Floyd Mayweather, who…more

Artificial Intelligence, Carbon Emissions, Greenhouse Gas Emissions

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California Establishes Fund to Combat Wildfire Threats

On July 11, 2019, the California Legislature passed, and Governor Gavin Newsome quickly signed into law, Assembly Bill 1054, which creates the potential for a $21 billion fund to assist Californian utilities with their liability…more

New Legislation, PG&E, Southern California Edison, State Funding, Utilities Sector

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CFPB Brings RESPA Reminder To Mortgage Comparison Sites

The Consumer Financial Protection Bureau ended a more than decadelong hiatus since the last formal guidance regarding Section 8 of the Real Estate Settlement Procedures Act on Feb. 7 by issuing its advisory opinion aimed at…more

Consumer Financial Protection Bureau (CFPB), Digital Marketplace, Kickbacks, Mortgages, New Guidance

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Supreme Court Redefines “Undue Hardship” when Addressing Religious Accommodation Requests under Title VII

On June 29, 2023, in a unanimous opinion, the U.S. Supreme Court issued a much-anticipated decision in Groff v. DeJoy, clarifying employers’ obligations to accommodate employees’ religious practices. The Court reinterpreted the…more

Appeals, Civil Rights Act, De Minimus Doctrine, Employer Liability Issues, Equal Employment Opportunity Commission (EEOC)

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SEC Greenlights Bitcoin ETFs: What Happened and What It Portends

On January 10, 2024, the U.S. Securities and Exchange Commission (SEC) approved the launch of several BTC Exchange-Traded Funds (ETFs).[1] The approval order resolves the critical legal and regulatory issues entailed in…more

Bitcoin, ETFs, Exchange-Traded Products, Investment Banks, Securities and Exchange Commission (SEC)

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The Laws of Fashion: What's Trending in 2023

The fashion industry has experienced another year of continued change driven by consumer trends, innovation in technology, geopolitical and public health issues, and legal developments, and we don’t anticipate that stopping any…more

Blockchain, Class Action, Copyright Infringement, Fashion Industry, Jack Daniels Properties Inc v VIP Products LLC

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SEC vs. Ripple: Reading the NFTea Leaves

Judge Analisa Torres has now told the world that whether a cryptocurrency token is involved in an investment contract and therefore a security depends on how it is sold - i.e., is the nature and specifics of that sale…more

Cryptocurrency, Digital Assets, Investment, Non-Fungible Tokens (NFTs), Ripple

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Privacy: What the World Has to Say About It

Let’s face it: technology has made the world smaller. It’s no longer extraordinary for what was once termed a “mid-sized” or “regional” company to trade and outsource in foreign markets. Indeed, the Internet has made it…more

Data Protection, EU, EU Data Protection Laws, Privacy Laws, Privacy Policy

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CARES Act – Summary of Tax Provision

The Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which was signed by the President on March 27, 2020, includes several provisions affecting taxes. SEC. 2201. 2020 Recovery Rebates for Individuals…more

Business Closures, Business Interruption, CARES Act, Coronavirus/COVID-19, Federal Loans

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Motion to Strike Damages Expert Leads to Denial of Class Certification

A recent decision denying class certification in the Northern District of Illinois highlights the importance for class action defendants of challenging a named plaintiff’s damages expert as part of a strategy for opposing class…more

Class Action, Class Certification, Consumer Fraud, Damages, GEICO

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A Look at the Venture Capital Landscape in Q1 2024

With the first quarter of 2024 behind us, analysts are now taking a look at the dealmaking landscape so far this year. CB Insights has released their State of Venture Q1’24 report, showing a “mixed bag” for VC dealmaking to…more

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

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Wisconsin Legislative Update and State Revenue, Budget, and Election Insights

Like just about every other aspect of life over the past six months, the Wisconsin State Legislature has been impacted by COVID 19. The 2019/20 session was adjourned due to the virus and the unexpected quick end to the session…more

Coronavirus/COVID-19, Governor Walker, Presidential Elections, Redistricting, State Budgets

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New SEC Staff Legal Bulletin Eases Path for Rule 14a-8 Shareholder Proposals on Environmental, Social, and Governance Issues

On November 3, 2021, the staff of the U.S. Securities and Exchange Commission, Division of Corporation Finance (the “Division Staff”) issued Staff Legal Bulletin No. 14L (CF) (“SLB 14L”), rescinding Staff Legal Bulletin Nos…more

Environmental Social & Governance (ESG), Securities and Exchange Commission (SEC), Securities Exchange Act, Shareholders

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Post-COVID M&A Transactions Guidebook

The COVID-19 pandemic has had far-reaching effects to date, including economic uncertainty and widespread business interruptions. This environment may raise unique considerations for parties contemplating an M&A transaction…more

Alternative Fee Arrangements, Alternative Financing and Procurement (AFP), Business Interruption, CARES Act, Coronavirus/COVID-19

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Infrastructure Investment and Jobs Act: January 1, 2022, Brings Opportunities with Two Types of Tax Exempt Bonds and Program Expansion

Executive Summary - On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (Public Law 117-58) (the “Act”). The Act provides for more than $550 billion in new infrastructure…more

Biden Administration, Broadband, Carbon Capture and Sequestration, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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Should I Stay or Should I Go: Supreme Court to Consider Whether Federal Courts Can Dismiss or Must Stay Cases Pending Arbitration

On January 12, 2024, the U.S. Supreme Court granted certiorari in Smith, et al. v. Spizzirri, et al., No. 22-1218 to consider whether a district court must stay a case — rather than dismiss it — when presented with an…more

Arbitration, Arbitration Agreements, Dismissals, Federal Arbitration Act, Judicial Proceedings

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2023 Going Digital Health’s Behavioral Health Tech Conference: Key Investment Takeaways

This year’s Going Digital Health’s Behavioral Health Tech Conference (GDBH) was well-attended and rife with insightful panel presentations and discussions featuring key players from across the behavioral health and substance use…more

Digital Health, Fundraisers, Investment, Investors, Mental Health

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Top Legal Issues Facing the Manufacturing Sector in 2022

As the global economy faces the third year of the pandemic, manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past few years to become…more

Artificial Intelligence, Audits, BPA, China, Climate Change

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The Ghost of Robinson-Patman Rises at the FTC

As part of the Biden Administration’s enhanced antitrust enforcement efforts, the Federal Trade Commission (FTC) is taking a new look at the Robinson-Patman Act (RPA).  Several investigations are already underway, with calls for…more

Antitrust Provisions, Biden Administration, Department of Justice (DOJ), Enforcement, Federal Trade Commission (FTC)

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Wetlands No More? U.S. Supreme Court Limits Federal Regulation of Wetlands in Sackett v. EPA Decision

On May 25, 2023, the Supreme Court issued a decision in Sackett v. EPA,effectively narrowing the scope of federally protected wetlands to which the Clean Water Act (CWA) applies. The CWA provides the U.S. Army Corp of Engineers…more

Clean Water Act, Environmental Policies, Environmental Protection Agency (EPA), Federal Jurisdiction, Inland Waterways

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An Introduction to the EU Sustainable Financial Disclosure Regime and the Draft EU Corporate Sustainability Due Diligence Directive

SFDR and Asset Allocators. The European Green Deal declared climate change and environmental degradation as existential threats to Europe and the world. The European Union (EU) has set out to mobilize private financial…more

AIFM, Climate Change, Corporate Governance, Disclosure Requirements, Due Diligence

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Buying, Selling, and Investing in Telehealth Companies: Navigating Structural and Compliance Issues

A multi-part series highlighting the unique health regulatory aspects of Telemedicine mergers and acquisitions, and financing transactions - Investors in the telehealth space and buyers and sellers of telehealth companies…more

Acquisitions, Compliance, Coronavirus/COVID-19, Department of Health and Human Services (HHS), Financing

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Doubling Down in the Second City: Chicago Adopts Expanded Paid Leave Benefits for All Employees

Over the objections of the business community, Chicago’s City Council last week adopted one of Mayor Brandon Johnson’s signature policy goals of his young mayorship, doubling paid leave benefits for nearly all employees working…more

Paid Leave, Paid Time Off (PTO), Wage and Hour

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When Can a Company Be Liable for Its Vendor’s Copyright or Patent Infringement?: Hollywood Studios’ IP Headache

The case of Rearden LLC et al. v. The Walt Disney Company et al., Nos. 3:17-cv-04006, 04191 & 04192 (N.D. Cal.), has been covered more in the Hollywood Reporter than in legal publications, but it is both a “Hollywood story” and…more

3-D Technology, Copyright, Copyright Infringement, Direct Infringement, Due Diligence

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U.S. Supreme Court Rules That “Pure Omissions” Are Not Actionable Under Rule 10b-5

On April 12, 2024, the United States Supreme Court delivered an important decision on the issue of whether a failure to make disclosure required under Item 303 of Regulation S-K can support a Rule 10b-5 claim, even in the…more

Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements, Omissions, Private Right of Action

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“If It’s Not Broken, Don’t Fix Break It”— The FTC Targets the Franchise Business Model

Historically, the Federal Trade Commission (FTC) has shied away from regulating the substance of franchisor-franchisee relationships. A recent FTC press release, however, suggests this may soon change. If so, it is by no means…more

Antitrust Provisions, Enforcement, Federal Trade Commission (FTC), Franchise Disclosure Document, Franchisee

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Business Considerations of Force Majeure: Unintended Consequences

No doubt by now your inbox has been filled with questions, recommendations, and articles about the use of force majeure clauses in response to the COVID-19 pandemic. With all of the focus on whether force majeure clauses can be…more

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

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. License Agreement Not Enough for Standing on Appeal of an IPR Apple Inc. v. Qualcomm Inc.

In a precedential decision, the Federal Circuit held that Apple lacked standing to appeal from its loss as petitioner in a couple of inter partes reviews (IPRs) against patent owner Qualcomm. Background - Qualcomm sued…more

Appeals, Apple, En Banc Review, Inter Partes Review (IPR) Proceeding, IP License

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Supply Chain Transparency – Are You Ready? 

With sustainability increasingly being folded into corporate strategy, supply chain transparency and accountability are front of mind topics. Suppliers and vendors are critical partners in day-to-day operations, and their…more

Accounting, Due Diligence, Forced Labor, Regulatory Agenda, Supply Chain

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LeTip World Franchise LLC v. Long Island Social Media Group LLC

In LeTip World Franchise LLC v. Long Island Social Media Group LLC, the U.S. District of Court for the District of Arizona granted a temporary restraining order in favor of a franchisor, LeTip World Franchise LLC (“LeTip”)…more

Breach of Contract, Burden of Proof, Franchise Agreements, Franchisee, Franchisors

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The Laws of Fashion: What's Trending in 2022

The fashion industry has certainly seen its fair share of change over the last year given consumer trends, geopolitical & public health issues, innovation in technology and legal developments and we don’t anticipate that…more

Acquisitions, Blockchain, CASE Act, Copyright, Cosmetics

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EEOC Issues Proposed Enforcement Guidance on Harassment and Addresses LGBTQ and Racial Employment Issues

Sexual orientation, gender identity, and race continue to be widely discussed and politicized throughout the U.S. Issues related to these protected categories also continue to arise in the workplace. The EEOC recently issued…more

Civil Rights Act, Employment Litigation, Enforcement, Equal Employment Opportunity Commission (EEOC), Gender Identity

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Changes to General Obligation Notes Borrowing in Wisconsin: Benefits to Municipalities

Municipalities issuing general obligation promissory notes under section 67.12 (12) of the Wisconsin Statutes may now take advantage of a statutory maximum maturity date of 20 years. 2023 Wisconsin Act 128 (the “Act”) took…more

Debt, Municipal Bonds, Municipalities, New Legislation, Promissory Notes

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Top Ten Risk Mitigation Issues in Renewable Energy Construction Loan Agreements

Construction financing is used to fund the construction of renewable projects prior to such projects obtaining long-term financing. Because construction loans are disbursed during a high-risk phase of a project, these loans…more

Collateral, Construction Loans, Default, Interest Rates, Lending

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Supreme Court Changes Its Mind, Decides Not To Mire into Attorney Client Privilege

The United States Supreme Court has changed its mind as to whether to rule on the proper test to assess the applicability of the attorney-client privilege to dual purpose communications. Last year, the Supreme Court granted…more

Attorney-Client Privilege, Dismissals, Petition for Writ of Certiorari, Privileged Communication, SCOTUS

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SBA Guidance on Changes in Ownership of PPP Loan Borrowers

On Friday, October 2, 2020, the Small Business Administration (“SBA”) issued a Procedural Notice (the “Notice”) providing guidance on the notification and consent requirements for changes in ownership of borrowers of Paycheck…more

Borrowers, Change in Ownership, Consent, Fair Market Value, Loan Forgiveness

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Introduction to Family Offices

Each family office we work with is unique to the situation and needs of the family it serves. The key to success is identifying the right business and tax objectives—we take a very client specific approach. In working with…more

Accounting, Family Offices, Financial Reporting, Income Taxes, Investment Adviser

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Key Terms and Conditions for Buyers and Sellers in the Supply Chain

Commercial forms – such as quotations, purchase orders and invoices – and associated terms and conditions are ubiquitous in the supply chain and often the only contract that exists between a buyer and seller. When used…more

Breach of Warranty, Buyers, Contract Terms, Force Majeure Clause, Global Economy

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A New Era of Technology in the Private Markets

The private markets are notorious for their outdated (or non-existent) technology stacks. However, a new era of innovation may finally unwind years of risk-avoidant behavior that has slowed technology adoption across the…more

Private Equity, Private Equity Firms, Shareholders, Third-Party Service Provider, Venture Capital

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Intersolar North America and Energy Storage North America’s 2024 Conference & Expo

A large number of key players in the solar energy and energy storage industries converged at the San Diego Convention Center on January 16-19 for the Intersolar North America/Energy Storage North America conference and…more

Energy Storage, Inflation Reduction Act (IRA), Solar Energy

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Artificial Intelligence, the SEC, and What the Future May Hold

With the growing use of artificial intelligence (AI) in financial markets, broker-dealers and investment advisers need to pay attention to the risks posed by AI on firms’ compliance with federal securities laws. While machine…more

Algorithms, Artificial Intelligence, Broker-Dealer, Compliance, Conflicts of Interest

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Allocation of Equity to Founders, Directors, and Advisors

Allocation of equity is one of the first and most significant topics that arises when forming a company. In fact, how founders split their equity in the initial stages essentially determines who will control the major decisions…more

Compensation, Directors, Equity, Investors

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Fairbairn v. Fidelity Investments Charitable Gift Fund: Managing Contributions of IPO Stock Goes Awry, but Donors have Little Recourse

Donors make contributions to donor-advised funds (“DAFs”) for a variety of reasons. One is that DAF rules permit the donor to make the contribution in the current year (which entitles the donor to a deduction in that year),…more

Bench Trial, Breach of Contract, Donor-Advised Funds (DAFs), Fidelity Investments, Negligence

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COVID-19: Un-Lucky For the XFL

The COVID-19 pandemic interrupted sports and live entertainment around the world and triggered a surge of financial restructurings. While sale processes in bankruptcy court are usually an effective and efficient way to…more

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

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Navigating the AI Frontier: Legal and Operational Insights Into Generative AI

In our ever-changing technological environment, artificial intelligence (AI) is beginning to exert its influence on numerous sectors, revolutionizing our approach to work. As businesses and organizations worldwide adopt…more

Anti-Discrimination Policies, Artificial Intelligence, Automated Decision Systems (ADS), Bias, Biotechnology

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Amendments to New York’s NDA Law

New York governor Kathleen Hochul recently signed into law S4516, which amended General Obligations Law Section 5-336 (“GOL 5-336”). The amendments expanded restrictions on the use of nondisclosure provisions (“NDAs”) in certain…more

City of New York, Confidential Information, New Amendments, Non-Disclosure Agreement, Settlement Agreements

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Revisiting FDA’s Original Guidance on Orange Book Listability in Light of Heightened FTC Scrutiny

The listing of many types of patents in the FDA’s Orange Book (Approved Drug Products with Therapeutic Equivalence Evaluations) is fairly straightforward. Patents covering the approved drug product (active pharmaceutical…more

Federal Register, Federal Trade Commission (FTC), Food and Drug Administration (FDA), FTC Act, Orange Book

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Infrastructure Investment and Jobs Act: January 1, 2022, Brings Opportunities with Two Types of Tax Exempt Bonds and Program Expansion

Executive Summary - On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (Public Law 117-58) (the “Act”). The Act provides for more than $550 billion in new infrastructure…more

Biden Administration, Broadband, Carbon Capture and Sequestration, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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Disclosure of 1023 and 990 Forms for Nonprofits

Tax-exempt organizations (including private foundations, which are subject to special additional disclosures) are subject to certain public disclosure rules. These rules require that the organization make its exemption…more

Disclosure, Form 1023 EZ, Form 990, IRS, Nonprofits

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HHS Updates Pixels and Trackers Guidance for HIPAA Regulated Entities

Pixels, cookies, and trackers continue to be front of mind for HIPAA regulated entities seeking clarity on their ability to advertise, market, and engage with existing and prospective patients. On March 18, 2024, the U.S…more

Cybersecurity, Data Security, Department of Health and Human Services (HHS), Health Information Technologies, Health Insurance Portability and Accountability Act (HIPAA)

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An Opportunity for Clarity on Assignor Estoppel: Mentor Graphics v. EVE-USA

In patent litigation, assignor estoppel is a common law doctrine that can dramatically alter the rights of both parties involved – when applicable it is dispositive on the issue of patent validity. However, despite the import of…more

Assignor Estoppel, License Agreements, Litigation Strategies, Patent Infringement, Patent Litigation

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California: Health Care Transactions “Material Change” Regulations are Finalized

In late December, the California Office of Health Care Affordability (OHCA) issued final regulations for the new material change transactions filing process, which goes into effect this year. (22 Cal. Code of Regs. §§…more

Acquisitions, California, Healthcare, Material Change Doctrine, Mergers

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Managing the Commercial Impact of the Coronavirus: Sixteen Counties and Three Cities in California Under Shelter In Place Order or Directive (Updated)

On March 19, 2020, California Governor Gavin Newsom issued an Executive Order requiring Californians to “stay at home or at their place of residence” until further notice except as needed to maintain continuity of 16…more

Banks, Coronavirus/COVID-19, Gas Stations, Governor Newsom, Grocery Stores

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The NIL Presumption: Is the Newest NCAA Measure a Boon for Enforcement or the Next Front for Legal Challenge?

The Name, Image, and Likeness (“NIL”) era of college sports has brought headlines, rumors, and dollar signs, but little in the way of NCAA enforcement. The NCAA’s seeming reluctance to take action against perceived violators of…more

Alston v NCAA, Antitrust Provisions, College Athletes, Enforcement Actions, Name and Likeness

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USPTO Releases Guidance on Rule 132 Declarations

The U.S. Patent and Trademark Office (USPTO) has released new training materials on “Declaration practice under 37 CFR 1.132 (Rule 132).” The materials were developed under a collaboration initiative with the U.S. Food and Drug…more

37 C.F.R. § 1.132 Declaration, Declaration, False Statements, Food and Drug Administration (FDA), New Guidance

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Mexican Renewables - Set for a Boom; Waiting for Guidance

The sunset date for the 30% ITC is coming into view for developers of U.S. solar projects. The U.S. domestic solar market is also becoming increasingly competitive. The PTC for wind has already expired except for projects unless…more

Energy Policy, Energy Projects, Mexico, Renewable Energy, Solar Energy

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Giving Title IX Its Props in the NIL Era of College Sports

In the beginning of the name, image, and likeness (“NIL”) era in college sports, state laws, NCAA regulations, boosters, and collectives have been the prime focus for both observers and NIL stakeholders, with seven-figure NIL…more

College Athletes, Colleges, Compliance, Name and Likeness, NCAA

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Supreme Court’s Jack Daniel’s Decision Clarifies First Amendment Parody Defense in Trademark Infringement Cases

On June 8, 2023, the Supreme Court of the United States issued its decision in Jack Daniel’s Properties, Inc. v. VIP Products, LLC, a trademark case concerning the First Amendment parody defense. In a unanimous opinion authored…more

Cease and Desist, Dilution, First Amendment, Intellectual Property Protection, Jack Daniels Properties Inc v VIP Products LLC

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Mexico: Some Key Issues to Watch in a Financially Stressed Environment

Following the bank receivership of Silicon Valley Bank (SVB) and similar situations with other stressed financial institutions in the U.S. and Europe, companies are concerned with their international assets and credits held by…more

Banking Regulators, Banking Sector, Financial Institutions, Insolvency, IPAB

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A Snapshot Of The Evolving Restrictive Covenant Landscape

In recent months, noncompete agreements have become a hotly contested topic in the realm of employment law. It seems that new precedent emerges on this topic week after week, leaving employers and deal-makers alike concerned…more

Acquisitions, Employees, Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC)

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Salt Water Disposal Well Leases Can Pose a Trap for the Unwary

The victor in a lawsuit involving a salt water disposal well lease may depend on whether a Texas court treats the lease as being a mineral lease or simply a lease of real estate. That is because Texas law applies different…more

Contract Terms, Lease Termination, Mineral Leases, Oil & Gas

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Procurement Collusion Strike Force Acts Broadly and Often in 2022

In November 2019, the Department of Justice (DOJ) announced the creation of the Procurement Collusion Strike Force (PCSF), an interagency partnership composed of prosecutors from the Antitrust Division and the United States…more

Biden Administration, Compliance, Criminal Penalties, Department of Justice (DOJ), Enforcement

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Beyond The Binary: Legal Considerations in the Quantum Computing Era

With significant progress on hardware and optimism about future applications, interest in quantum computing is growing steadily. As the technology promises solutions to complex problems that are currently daunting (or even…more

Artificial Intelligence, Cloud Computing, Innovative Technology, Intellectual Property Protection, Technology

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Race to the … Increasingly Conservative Non-Competition Jurisdiction?

Businesses frequently choose Delaware as the governing law and venue for enforcement when drafting many kinds of agreements, including non-competition covenants. Delaware is attractive for several reasons, including robust…more

Delaware, Enforcement, Non-Compete Agreements, Restrictive Covenants

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Public Nuisance Claims: Altria’s Vaping Trial Highlights Potential Expansion

The recent trial in a case now settled highlights the potential expansion of public nuisance claims under California law, and in large-scale public nuisance actions more broadly. On April 24, 2023, opening arguments began…more

Liability, Property Damage, Public Nuisance, Settlement Agreements, Tobacco Litigation

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Now What: Recent Supreme Court Decision Opens the Door for Expanded Corporate Personal Jurisdiction

Here at Foley, we routinely represent companies, whether manufacturers, distributors, service providers, or others that are, by necessity, registered to do business in most or all of the fifty states. For years, the U.S. Supreme…more

Commerce Clause, Constitutional Challenges, Due Process, Fourteenth Amendment, General Jurisdiction

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Opioid Treatment Programs: SAMHSA Makes Permanent Regulatory Flexibilities

On February 1, 2024, the Substance Abuse and Mental Health Services Administration (SAMHSA), U.S. Department of Health and Human Services, announced a final rule updating the regulations regarding Opioid Treatment Programs…more

Certifications, Coronavirus/COVID-19, Department of Health and Human Services (HHS), Final Rules, Licensing Rules

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Applying the ERISA Controlled Group and Affiliated Service Group Rules in the Health Care Industry

Entities interested in entering into health care related industries must consider compliance with the corporate practice of medicine doctrine. In a number of states, the corporate practice of medicine doctrine prohibits…more

Affiliated-Business Arrangements, Affordable Care Act, Employee Benefits, Employee Retirement Income Security Act (ERISA), Health Insurance

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Private Space Activity and the Advantages of U.S. Patents for Protecting Space Inventions

In 2025, the National Aeronautics and Space Administration (NASA) is scheduled to once again bring man and machine to the lunar surface, this time under the name of the Greek goddess Artemis. However, the means to the ends have…more

Inventions, Jurisdiction, NASA, Outer Space, Patent Infringement

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Co-Investment Vehicles Under the Final Carried Interest Regulations

As a result of final Treasury Regulations issued by the IRS under Section 1061, fund sponsors should consider investing capital through a commingled fund with other investors as opposed to using its own investment vehicle to…more

Capital Investments, IRS, Treasury Regulations, U.S. Treasury

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California Establishes Fund to Combat Wildfire Threats

On July 11, 2019, the California Legislature passed, and Governor Gavin Newsome quickly signed into law, Assembly Bill 1054, which creates the potential for a $21 billion fund to assist Californian utilities with their liability…more

New Legislation, PG&E, Southern California Edison, State Funding, Utilities Sector

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SEC Adopts New Private Funds Rules: Key Takeaways for Private Fund Advisers and Investors

During an open meeting on Wednesday, August 23, 2023, the U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) voted 3-2 along party lines to adopt new rules (collectively referred to as the “Private Funds…more

Audits, Borrowing Statutes, Capital Markets, Clawbacks, Compliance

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SBA Change of Control Guidance Does Not Work for Insolvent PPP Borrowers

This article focuses on the recent “change of control” guidance issued by the SBA to its PPP lenders (the “Guidance”) and, more specifically, how that Guidance affects insolvent PPP borrowers when they need to sell assets. As…more

Bankruptcy Court, Borrowers, Chapter 11, Coronavirus/COVID-19, Fiduciary Duty

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Artificial Intelligence, the SEC, and What the Future May Hold

With the growing use of artificial intelligence (AI) in financial markets, broker-dealers and investment advisers need to pay attention to the risks posed by AI on firms’ compliance with federal securities laws. While machine…more

Algorithms, Artificial Intelligence, Broker-Dealer, Compliance, Conflicts of Interest

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What Every Multinational Company Should Know About . . . Navigating Economic Downturns through Racial Equity Audits

A strong correlation exists between a multinational company’s Diversity, Equity & Inclusion (DEI) efforts and the company’s financial performance. Racial equity audits often are utilized to measure the precise quality and…more

Audits, Diversity, Economic Downturn, Equity, Investors

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Ensuring Child Labor Law Compliance Amid Growing Scrutiny

In February, the New York Times published an investigative report regarding alleged employment of underage migrants, many from Central America, at U.S. companies. While employment of certain minors is permitted under federal and…more

Child Labor, Compliance, Department of Health and Human Services (HHS), Department of Justice (DOJ), Department of Labor (DOL)

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What Food & Beverage Companies Need to Know About the U.S. Consumer Product Safety Commission

Food and beverage companies may be surprised to learn that the U.S. Food and Drug Administration (“FDA”) is not the exclusive regulatory authority over the safety of foods and beverages. Indeed, other governmental authorities…more

Compliance, Consumer Product Safety Act (CPSA), Consumer Product Safety Commission (CPSC), Distributors, Food and Drug Administration (FDA)

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2020 Esports Survey Report

At the end of March – amid the first wave of COVID-19-related shutdown orders – an esports record was broken when 1.3 million broadcast television viewers tuned in to watch professional NASCAR drivers compete in a virtual race…more

Anti-Harassment Policies, Capital Investments, Coronavirus/COVID-19, Cybersecurity, Employee Training

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U.S. Supreme Court Rules That “Pure Omissions” Are Not Actionable Under Rule 10b-5

On April 12, 2024, the United States Supreme Court delivered an important decision on the issue of whether a failure to make disclosure required under Item 303 of Regulation S-K can support a Rule 10b-5 claim, even in the…more

Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements, Omissions, Private Right of Action

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Florida Medical Marijuana Licensure Client Alert

The Florida Department of Health, Office of Medical Marijuana Use, recently adopted three important new emergency rules. These rules include: long awaited standards for the production of edibles, - new packaging…more

Cannabis Products, Compliance, Florida, Licenses, Marijuana Related Businesses

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Beyond The Binary: Legal Considerations in the Quantum Computing Era

With significant progress on hardware and optimism about future applications, interest in quantum computing is growing steadily. As the technology promises solutions to complex problems that are currently daunting (or even…more

Artificial Intelligence, Cloud Computing, Innovative Technology, Intellectual Property Protection, Technology

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Growing Infringement of OEM IP Rights on Online Marketplaces

Sales of consumer products through online marketplaces have been commonplace for years and account for a significant portion of the total consumer products marketplace. Sellers of industrial products such as replacement parts…more

Amazon, China, Copyright, Counterfeiting, eBay

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Eighth Circuit Keeps Two Product Liability Class Actions Off the Road

The United States Court of Appeals for the Eighth Circuit published two opinions last month in companion class actions alleging defects with off-road vehicles. With its decisions, the court held that purchaser plaintiffs must…more

Appeals, Class Action, Class Certification, Corporate Counsel, SCOTUS

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DOJ and FTC Propose Comprehensive Overhaul of Merger Guidelines, Including Presumption against Horizontal Mergers that Result in Market Shares Above 30%

On July 19, 2023, the Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) (together, the Agencies) released a draft set of revised Merger Guidelines (the Revised Guidelines) to set forth the…more

Department of Justice (DOJ), Draft Guidance, Federal Trade Commission (FTC), Horizontal Merger Guidelines, Mergers

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Top Trends in Digital Assets for 2022

It's no secret that cryptocurrency markets and the larger digital assets economy have been roiled by recent instability, resulting in discussions about how regulatory initiatives, rising inflationary pressure, and public…more

Anti-Money Laundering, Biden Administration, Blockchain, Copyright, Coronavirus/COVID-19

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11th Circuit Court of Appeals Granted AAER’s Preliminary Injunction against Fearless Fund

American Alliance for Equal Rights (“AAER”) sued Fearless Fund Management LLC (“Fearless”) (a black women-run company) for alleged violation of Section 1981 of the Civil Rights Act of 1866. After the Northern District of Georgia…more

Appeals, Civil Rights Act, First Amendment, Minority-Owned Businesses, Preliminary Injunctions

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Federal Circuit Orders Partial Dismissal of Voip-Pal’s IPR Challenged Claims

In a succinct opinion, the Federal Circuit ordered a remedy which raises questions thought to have been settled in SAS Institute Inc. v. Iancu, namely whether the Patent Trial and Appeal Board can address only some of the…more

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

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First Biometrics, Now Genetics: Is GIPA the Next BIPA for Employers to Worry About?

Most employers operating in Illinois are (or should be) aware of Illinois' stringent Biometric Information Protection Act (BIPA). As we have written about previously, BIPA’s requirements are exacting, and BIPA plaintiffs do not…more

Biometric Information, Biometric Information Privacy Act, Compliance, Damages, Genetic Testing

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SEC Adopts New Private Funds Rules: Key Takeaways for Private Fund Advisers and Investors

During an open meeting on Wednesday, August 23, 2023, the U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) voted 3-2 along party lines to adopt new rules (collectively referred to as the “Private Funds…more

Audits, Borrowing Statutes, Capital Markets, Clawbacks, Compliance

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Divided Infringement Between Doctor and Patient

Recent jurisprudence on the issue of divided infringement has arisen in the context of computer-related technologies, where a user or customer performs one or more steps of a patented method. Now the issue has arisen in the…more

Abbreviated New Drug Application (ANDA), Direct Infringement, Divided Infringement, Eli Lilly, En Banc Review

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Simultaneous Obstructions to the Suez and Panama Canals Threaten the Global Supply Chain

The Suez Canal and Panama Canal connect critical international trade and supply chains across continents. The Suez Canal (completed in 1869) routes ships between Europe and Asia directly linking the Red Sea and the Mediterranean…more

Force Majeure Clause, Insurance Industry, Military Conflict, Price Inflation, Shipping

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Recognition and Enforcement in Mexico of Foreign Reorganization Proceedings (Chapter 11)

COVID-19 has had a dramatic impact on the world economy with the virus affecting jobs and companies around the world in many ways, with imminent cash-flow shortfalls soon to occur throughout many sectors of the global economy. …more

Bankruptcy Code, Chapter 11, Coronavirus/COVID-19, Enforcement, Mexico

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Exception to the Rule? Late Submission of Evidence as Supplemental Information Under 37 C.F.R. 42.123(b)

In PTAB trials, rules regulate when evidence may be presented by a party to ensure the opposing party a fair opportunity to respond to such evidence. Rule 42.23(b) prohibits a party from filing a sur-reply with “new evidence…more

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

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Construction Project Executives Beware: The Massachusetts Prompt Pay Act Means Business

If you are an executive involved in a Massachusetts construction project, the routine pay applications you exchange in the ordinary course must now receive your utmost attention — as any failure to reject a pay application in…more

Appeals, Breach of Contract, Certifications, Construction Industry, Construction Project

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When Even the Regulations Are Bigger in Texas: Limitations on Court Deference

Manufacturers considering operations in Texas may be surprised to discover that, despite the state’s desired reputation as a “light regulation” and “free market” environment, comprehensive regulatory statutes exist for most…more

Administrative Interpretation, Agency Deference, Appeals, Chevron Deference, Judicial Review

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Constitutional Challenges to Proposed Retroactive COVID-19 Coverage Legislation

In the early days of the COVID-19 pandemic, many thousands of businesses were forcibly shuttered when governors and mayors across the country ordered cessation of most economic activity and closure of most businesses in an…more

Business Interruption, Commercial Insurance Policies, Constitutional Challenges, Coronavirus/COVID-19, Due Process

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SEC Cannabis Enforcement Continuing to Grow this Past Spring

During the past few months, the U.S. Securities and Exchange Commission (“SEC”) Division of Enforcement has continued to police the areas of the cannabis industry that roll over into the SEC’s jurisdiction. In March, the SEC…more

Anti-Retaliation Provisions, Cannabis-Related Businesses (CRBs), Enforcement, Injunctions, Investors

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Biden Administration Executive Order on AI: Implications for the Energy Sector

President Biden’s recent executive order (EO) to manage risks associated with artificial intelligence (AI) is intended to establish new standards governing AI safety, security, and privacy concerns while promoting innovation and…more

Artificial Intelligence, Biden Administration, Data Security, Energy Sector, Executive Orders

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SEC Adopts New Private Funds Rules: Key Takeaways for Private Fund Advisers and Investors

During an open meeting on Wednesday, August 23, 2023, the U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) voted 3-2 along party lines to adopt new rules (collectively referred to as the “Private Funds…more

Audits, Borrowing Statutes, Capital Markets, Clawbacks, Compliance

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Key Takeaways Bank Receiverships Week Two

Foley & Lardner LLP is closely monitoring the rapidly changing landscape surrounding the recent bank insolvencies. On Tuesday, March 21, at 5:00 p.m. CT, Foley hosted a webinar where a panel of presenters discussed the…more

Acquisitions, Cyber Crimes, FDIC, Initial Public Offering (IPO), Mergers

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PTAB Cannot Invalidate Challenged Claims for Indefiniteness in an IPR

The Federal Circuit definitively rejected arguments to cancel challenged claims for reasons other than anticipation or obviousness in an inter partes review proceeding. In Samsung Electronics America, Inc., v. Prisua Engineering…more

Final Written Decisions, Indefiniteness, Inter Partes Review (IPR) Proceeding, Means-Plus-Function, Obviousness

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Mexican Government Restricts Importation of Certain Fuels and Petrochemicals into Mexico

On October 23, 2023, the Mexican President published in the Official Gazette of the Federation a Decree under which the Mexican Government implements measures to combat the illicit trading of fuels, related to the importation of…more

Energy Regulatory Commission, Fossil Fuel, Imports, IRS, Mexico

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USPTO Discusses Duty of Disclosure and Duty of Reasonable Inquiry

On February 23, 2023, the U.S. Patent and Trademark Office (USPTO) held a virtual panel discussion on the duty of disclosure and duty of reasonable inquiry. While both duties apply regardless of technology area, the discussion…more

Abbreviated New Drug Application (ANDA), Duty to Disclose, Enrollment, Federal Register, Food and Drug Administration (FDA)

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Senate HELP Committee’s PREVENT Pandemics Act Draft Released: What to Know

Following nearly a year of committee hearings, research, policy briefs, and discussion with agency experts, the Senate Health, Education, Labor, and Pensions (HELP) Committee Chairwoman Patty Murray (D-WA) and Ranking Member…more

Biomedical Advanced Research and Development Authority (BARDA), Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Food and Drug Administration (FDA), GAO

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Seventh Circuit Emphasizes “Rigorous Analysis” to Certify Class against University for Its Decision to Cancel Classes during the Pandemic

In Eddlemon v. Bradley University, 65 F.4th 335 (7th Cir. 2023), the Seventh Circuit underscored that evidence, not allegations, control the court’s class certification analysis. At issue in Eddlemon were claims stemming…more

Appeals, Breach of Contract, Class Action, Class Certification, Coronavirus/COVID-19

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Clinical Trials: FDA Issues Finalized Charging Guidance for Investigational Drug Use 

In February 2024, the U.S. Food and Drug Administration (FDA) published its finalized guidance concerning its investigational drug charging regulations (found at 21 C.F.R. § 312.8). These regulations are applicable to…more

Clinical Trials, Cost Recovery, Final Guidance, Food and Drug Administration (FDA), New Regulations

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CMS’ Making Care Primary (MCP) Model: Applications Due November 30, 2023

The Centers for Medicare and Medicaid Services’ (CMS) new program Making Care Primary (MCP), is anticipated to begin July 1, 2024. In a previous blog post Foley breaks down major highlights of the new model. On…more

Applications, Centers for Medicare & Medicaid Services (CMS), Federal Health Care Programs (FHCP), Health Care Providers, Medicare

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California Legislature Proposes Modifications to CCPA for Children Under 18

On January 29 the California legislature introduced the California Children’s Data Privacy Act (AB 1949) in what appears to be the first bill proposed to amend the California Consumer Privacy Act (CCPA) since passage of ballot…more

California, California Consumer Privacy Act (CCPA), Consumer Privacy Rights, COPPA, Cybersecurity

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Federal Circuit Clarifies Standard for Obviousness of Design Patents

Practitioners involved with design patent litigation should take note of a recent decision by the Federal Circuit in MRC Innovations, Inc. v. Hunter Mfg., LLP, No. 2013-1433 (Apr. 2, 2014), where Federal Circuit clarified the…more

Design Patent, Obviousness, Patent Litigation, Patents

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Supply Chain Shortages: How Wrongdoers Can Steal Your Secrets

For months, companies in all industries have been talking about indefinite global supply chain disruptions and worker shortages. This is particularly true in the energy industry, with oil prices surging even before Russia…more

Counterfeiting, Injunctive Relief, Proprietary Information, Russia, Supply Chain

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Foley Automotive Update - April 2024 - 2

This update helps automotive suppliers inform their legal and operational decisions to help address challenges and opportunities. Key Developments - Recent pricing disputes with suppliers have resulted in production…more

Antitrust Division, Automation Systems, Automotive Industry, Department of Energy (DOE), Department of Justice (DOJ)

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Employers Beware: You May Be Required to Provide Paid Military Leave

The Uniformed Services Employee and Reemployment Rights Act (USERRA) provides employees with a variety of leave entitlements for absences related to military service. The law does not explicitly require paying employees out on…more

Appeals, Military Leave, Military Service Members, Paid Leave, USERRA

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New Jersey Passes Comprehensive Privacy Law to Lead the 2024 Wave of State Privacy Laws

On January 16, 2024, New Jersey Governor Phil Murphy signed Senate Bill (SB) 332, establishing New Jersey’s consumer data privacy law, the New Jersey Data Privacy Act (NJDPA) which will be effective January 15, 2025. This…more

California Privacy Rights Act (CPRA), CDPA, Data Protection, Enforcement, FERPA

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Competing Interests: Data Ownership at the Crossroads of SaaS Stakeholders and Regulation

Kicking off our series on topics concerning Software-as-a Service (SaaS) technology, it is important to lay a framework around the data managed by SaaS applications and issues that arise out of complex relationships among…more

Data Management, Regulatory Oversight, SaaS, Software, Software Developers

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Director Fiduciary Duties in the Sale of a Company

The sale of a company can be a complex and challenging process and it requires the careful consideration of many factors. It is the responsibility of the company’s directors to ensure that the best interests of the company are…more

Duty of Care, Duty of Loyalty, Fiduciary Duty

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NLRB Announces it Will Revisit its FedEx and SuperShuttle Decisions in Atlanta Opera

On Monday, December 27, 2021, the National Labor Relations Board (the “Board” or the “NLRB”) issued a notice of proposed rulemaking and invited public participation in reconsidering the test for classifying independent…more

Classification, Employee Definition, FedEx, Independent Contractors, NLRA

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Anatomy of an Agreement: Unique SaaS Contract Structures and Key Terms to Address in the Cloud

Companies procuring or providing Software-as-a Service (SaaS) technology need some form of contract to govern the relationship between the SaaS provider and customer. As with many intellectual property (IP) and technology…more

Cloud Computing, Cloud Service Providers (CSPs), Contract Terms, Health Insurance Portability and Accountability Act (HIPAA), Intellectual Property Protection

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New Circuit Decisions Highlight When Individualized Damages Issues May Preclude Class Certification

Under Federal Rule of Civil Procedure 23(b)(3), a district court may certify a damages class if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual…more

Breach of Contract, Class Action, Class Certification, Corporate Counsel, Federal Rules of Civil Procedure

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The BioPharma Patent Cliff: 2023 and Beyond

A “patent cliff” refers to the end of IP protection for a drug that has enjoyed market exclusivity since its launch. Various types of regulatory exclusivity can occasionally lengthen the protection for drugs, but generally when…more

Biopharmaceutical, Biosimilars, Intellectual Property Protection, Patent Applications, Patents

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The Fast Track: Using Blockchain to Trace Products Through the Supply Chain

Many companies need strong supply chain traceability. For the most prevalent tracing challenges, blockchain may provide a formidable solution. Real-World Applications - Using blockchain to trace products is especially…more

Blockchain, Fashion Industry, Food Manufacturers, Food Recalls, Popular

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Managing the Commercial Impact of the Coronavirus: Implications for Oil & Gas

...The coronavirus (provisionally named SARS-CoV-2, with its disease being named COVID-19) has now been documented in six of the world’s seven continents (sparing only Antarctica), in more than 70 countries and territories. More…more

Acquisitions, Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Due Diligence, Force Majeure Clause

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White House Issues Extensive AI Executive Order

As has been widely reported, the White House issued a comprehensive and sweeping (some might say overly broad) Executive Order on October 30 about “the Safe, Secure, and Trustworthy Development, and Use of Artificial…more

Artificial Intelligence, Automated Decision Systems (ADS), Bias, Biden Administration, Deep Fake

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Automation, Electrification, and Connectivity: The Auto Industry in the ITC

Automakers and their suppliers have long been participants in unfair trade investigations before the International Trade Commission (“ITC”), but the scope and subject matter of automotive-related investigations is evolving…more

Artificial Intelligence, Automation Systems, Automotive Industry, Copyright, Customs and Border Protection

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Deadline Approaching Under Health Plan Price Transparency Rules – Public Disclosure of Provider Reimbursement Rates Due by July 1, 2022

Enforcement of one of the Transparency in Coverage Final Rules (“TiC Rules”) begins on July 1, 2022. The rule requires plans and issuers to make machine-readable files publicly available that will disclose in-network rates and…more

Consolidated Appropriations Act (CAA), Deadlines, Department of Health and Human Services (HHS), Medical Billing Codes, Out of Network Provider

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Issuers and Conduit Borrowers of Municipal Securities: Don’t Neglect Your Continuing Disclosure Obligations Under Rule 15c-2-12 ... Even While Working From Home

The U.S. Securities and Exchange Commission’s (the “SEC”) Rule 15c2-12 (the “Rule”) requires an underwriter in a primary offering of certain municipal securities to reasonably determine that an issuer or obligated person (as…more

Coronavirus/COVID-19, Disclosure, MSRB, Securities, Securities and Exchange Commission (SEC)

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Navigating Board Turbulence: Lessons From OpenAI

OpenAI, the high-flying developer of the groundbreaking ChatGPT AI chatbot and its associated foundational large language models, recently made headlines that set the corporate governance world abuzz. On a quiet Friday in…more

Artificial Intelligence, CEOs, Corporate Governance, Fiduciary Duty, Investors

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SAS Institute: One Month In

We are now a little over a month since the Supreme Court issued its decision in SAS Institute v. Iancu, where the Court held that “[w]hen the Patent Office institutes an inter partes review, it must decide the patentability of…more

Administrative Procedure, America Invents Act, Final Written Decisions, Inter Partes Review (IPR) Proceeding, New Guidance

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To 457(b) or Not to 457(b): Five Rules You Must Follow to Keep Your 457(b) Plan Compliant

Recruiting and retaining top executives can be challenging for non-governmental tax-exempt organizations such as Code §501(c)(3) organizations, private universities, and certain healthcare organizations (Nonprofits). Not only…more

401k, 403(b) Plans, 501(c)(3), Compensation, Corporate Executives

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CAA Compensation Disclosures: DOL’s New FAB Confirms the Scope is Broad

The Consolidated Appropriations Act, 2021, Public Law 116-260 (CAA) set forth new compensation disclosure requirements that apply to service providers who provide “brokerage services” or “consulting” to group health plans…more

Compensation, Consolidated Appropriations Act (CAA), Department of Labor (DOL), Disclosure Requirements, Employee Assistance Programs

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Sixth Circuit Holds Michigan Franchise Investment Law Voids Forum Selection Clause

The Sixth Circuit has held that a contractual forum-selection clause in a franchise agreement was unenforceable because it violated state law. In Lakeside Surfaces, Inc. v. Cambria Company, LLC, Lakeside Surfaces, a stone…more

Appeals, Breach of Contract, Class Action, Dismissals, Forum Selection

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Don’t You Forget About Me: Terminating Employees and Benefits to Think About

No matter the size of your organization, at some point in time employees leave. As we noted previously, it behooves human resources and other departments to provide departing employees with an exit letter that includes important…more

401k, COBRA, Employee Benefits, Employee Contributions, Employer Contributions

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Innovation for Good Panel Discussion – A Recap

The Foley & Lardner team recently hosted a panel on Innovation for Good: Designing Products with Purpose, which was developed in collaboration with Parna Sarkar-Basu of B&B Consulting. The speakers were Matthew Anderson of A&K…more

Artificial Intelligence, Innovative Technology, Robotics, Small Business, Startups

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Supreme Court May Give Brand Owners an Easier Path to Trademark Damages

In a case that may have a major impact on trademark litigation across the country, the Supreme Court decided on June 28, 2019 to grant certiorari in Romag Fasteners, Inc., v. Fossil, Inc., et al., in which Romag has asked the…more

Certiorari, Corporate Branding, Corporate Counsel, Damages, Disgorgement

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No Lag: Ensuring Compliance with Labor and Employment Law in the Esports Industry

The esports industry is a breed apart. The novelty, dynamism, and creativity that have spurred its remarkable growth in recent years differentiate it from most other industries, but the legal landscape that this industry must…more

ABC Test, Employee Definition, Employment Policies, eSports, Fair Labor Standards Act (FLSA)

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Credit Crunch: An Update for Borrowers

The collapse of Silicon Valley Bank and Signature Bank on March 10 and 12, 2023, respectively, sent shockwaves through the venture capital, entrepreneur, technology innovation, and life sciences communities, as well as those…more

Borrowers, Bridge Banks, FDIC, Insuretech Sector, Life Sciences

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Significant Recent Decisions Relevant To Private Company M&A

In navigating the complex world of private company mergers and acquisitions (M&A), understanding recent legal decisions is paramount. This white paper serves as a guide, distilling intricate court rulings into digestible…more

Acquisitions, Bad Faith, Breach of Contract, Damages, Fiduciary Duty

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FERC’s Generator Interconnection Reform Order No. 2023

The Federal Energy Regulatory Commission (“FERC” or “Commission”) unanimously issued its highly anticipated Order No. 2023, which requires many reforms to pro forma interconnection agreements and procedures under Open Access…more

Advanced Notice of Proposed Rulemaking (ANPRM), BOEM, Compliance, Electric Generation Suppliers, FERC

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The FTC Initiates Rare Enforcement Action in Case Against Franchisor Burgerim

The FTC filed suit against California fast food franchisor Burgerim in early February. The case is the FTC’s first major enforcement action against a franchisor in about a decade…more

Corporate Counsel, Enforcement Actions, Federal Trade Commission (FTC), Franchises, FTC Act

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2023 Telemedicine & Digital Health Trends

Medicare telehealth post-Public Health Emergency (PHE): With the COVID-19 PHE concluding on May 11, 2023, many of the telehealth flexibilities the Centers for Medicare & Medicaid Services (CMS) implemented during the PHE will…more

Centers for Medicare & Medicaid Services (CMS), Controlled Substances, DEA, Department of Health and Human Services (HHS), Digital Health

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Understanding the Evolving U.S. Sanctions and Restrictions on Ethiopia and Eritrea

Several U.S. sanctions and restrictions on Ethiopia and Eritrea remain in place due to the countries’ failure to fully implement the peace deal reached with the Tigray People’s Liberation Front in November 2022. While progress…more

AGOA, Biden Administration, Economic Sanctions, Ethiopia, Executive Orders

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Securities Class Action Lawsuits Related to Coronavirus Begin

Where markets fall precipitously, “stock-drop” lawsuits are sure to follow. Impacts of COVID-19 present the classic event-driven drop in stock price that is often the target of shareholder lawsuits. Thus far, the plaintiffs’ bar…more

Coronavirus/COVID-19, Cruise Ships, Hospitality Industry, Pharmaceutical Industry, Regulation S-K

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Top Legal Issues Facing the Manufacturing Sector in 2023

Agility and resiliency remain essential attributes for manufacturers in 2023. Manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past…more

Artificial Intelligence, Best Practices, Clawbacks, Compensation, Compliance

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One Year of Action Since President Biden’s Executive Order on Competition

Earlier this month — July 9, 2022 — marked the one-year anniversary of President Biden’s Executive Order on Promoting Competition in the American Economy (Executive Order). The Executive Order was notable in its breadth and…more

Beverage Manufacturers, Biden Administration, Competition, Department of Justice (DOJ), Enforcement

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eDiscovery: The View From Singapore

The Singaporean government has adopted aggressive measures to become a regional center for dispute resolution and arbitration in areas ranging from intellectual property, to oil and gas arbitration…more

Arbitration, Discovery, Dispute Resolution, Electronic Filing, Electronically Stored Information

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Tips for Financial Health in the New Year: Avoid Having to Double Pay a Supplier

What if your company was forced to pay twice for all of its purchases from a particular supplier during the last month? What if that double payment obligation instead covered the last three months, six months, or even longer?…more

Appeals, Commercial Loans, Financial Distress, Interest Rate Adjustments, Lenders

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One Year of Action Since President Biden’s Executive Order on Competition

Earlier this month — July 9, 2022 — marked the one-year anniversary of President Biden’s Executive Order on Promoting Competition in the American Economy (Executive Order). The Executive Order was notable in its breadth and…more

Beverage Manufacturers, Biden Administration, Competition, Department of Justice (DOJ), Enforcement

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Technological and Information Concerns Highlight NAIC Spring 2016 National Meeting

The National Association of Insurance Commissioners (NAIC) Spring 2016 National Meeting, which was held from April 3 – 6 in New Orleans, offered insight into numerous issues being considered by state commissioners nationwide…more

Accreditation, Affordable Care Act, Annuities, Big Data, Cybersecurity

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Recent Memorandum from Commerce regarding Solar Circumvention Investigation

On May 2, 2022, the U.S. Department of Commerce (“Commerce”) released a memorandum to “All Interested Parties” that clarifies the scope of the investigation into the alleged circumvention of tariffs on certain solar cells and…more

China, Customs and Border Protection, U.S. Commerce Department

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Michigan Governor Gretchen Whitmer Announces “The MI Vacc to Normal Challenge” Outlining Return-to-Office, Reopening Plans for State

On Thursday, April 29 Michigan Governor Gretchen Whitmer held a press conference announcing  the “MI Vacc to Normal Challenge” to re-open portions of the Michigan economy restricted in response to the COVID-19 pandemic. The…more

Coronavirus/COVID-19, Governor Whitmer, Re-Opening Guidelines, Vaccinations

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A Summary of Certain Recent Enforcement and Non-Enforcement Actions

Sender Primary Liability for Misstatements in PPMs and Prospectuses: Lorenzo v. SEC (No. 17-1077 -- U.S. – 2019). On March 27th, the Supreme Court issued a 1934 Act Rule 10b-5 opinion that will have implications for sponsors…more

Corporate Officers, Custody Rule, Digital Assets, Directors, Enforcement Actions

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Dual-Hatted CEO and CCO Named Individually in SEC Settlement for Compliance Violations

On December 5, 2022, the SEC filed a settled action against investment advisory firm Two Point Capital Management Inc. (the Firm) and its chief executive officer, who also served as the Firm’s chief compliance officer until…more

CEOs, Chief Compliance Officers, Compliance, Corporate Counsel, Investment Adviser

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The Long Arm of American Enforcement: How Companies Without U.S. Operations Can Still Find Themselves Facing U.S. Law and Regulatory Enforcement

...Think your company and its employees are beyond the reach of U.S. authorities? Maybe you don’t have U.S. operations there, or your company isn’t publicly traded on a U.S. stock exchange. Perhaps you don’t directly sell or…more

Anti-Bribery, Anti-Competitive, Antitrust Violations, Business Operations, Conspiracies

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DOJ and FTC Propose Comprehensive Overhaul of Merger Guidelines, Including Presumption against Horizontal Mergers that Result in Market Shares Above 30%

On July 19, 2023, the Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) (together, the Agencies) released a draft set of revised Merger Guidelines (the Revised Guidelines) to set forth the…more

Department of Justice (DOJ), Draft Guidance, Federal Trade Commission (FTC), Horizontal Merger Guidelines, Mergers

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NLRB’s New Rule Sings “Come Together, Right Now”

On October 26, 2023, the National Labor Relations Board (NLRB or the “Board”) issued its long-awaited final rule (the “New Rule”) addressing the standard for determining joint-employer status under the National Labor Relations…more

Browning-Ferris Industries of California Inc., Joint Employers, Labor Relations, New Rules, NLRA

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Florida’s Recovery and Reopening Plan - Phase 1

Florida Governor Ron DeSantis announced Phase 1 of Florida’s reopening plan, titled “Safe. Smart. Step-by-Step. Plan for Florida’s Recovery,” on April 29, 2020. Subsequently, the Governor issued Executive Order 20-111 (a…more

Centers for Disease Control and Prevention (CDC), Child Care, Coronavirus/COVID-19, Governor DeSantis, Personal Protective Equipment

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USPTO Expands Eligibility for Design Patent Practitioners

On Wednesday, November 15, the United States Patent and Trademark Office (USPTO) announced the implementation of a new design patent practitioner bar. While the existing patent bar has certain acceptable education criteria…more

Design Patent, USPTO

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New False Claims Act Stats Show Jump in DOJ-Driven Investigations

The Department of Justice’s (DOJ) annual False Claims Act (FCA) press release revealed that it increased self-initiated investigations for the federal fiscal year ending September 30, 2023, by 1.5 times over the prior year. The…more

Cybersecurity, Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA), Healthcare Fraud

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New Provider Relief Funding and 60-day Grace Period for Reports on Funding Previously Received

Since Spring 2020, the Department of Health and Human Services (HHS) has distributed more than $150 billion in Provider Relief Funds (PRF) to health care providers that can be used to reimburse their expenses attributable to…more

American Rescue Plan Act of 2021, Children's Health Insurance Program (CHIP), Coronavirus/COVID-19, Department of Health and Human Services (HHS), HRSA

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New California Bill Protects Employees’ Off-Duty Marijuana Use

On August 30, 2022, the California legislature passed Assembly Bill (AB) 2188, which now awaits approval from Governor Gavin Newsome. If signed into law, the bill would become effective on January 1, 2024. AB 2188 serves as…more

California, Drug Testing, Employment Policies, Governor Newsom, Marijuana

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Sixth Circuit Court of Appeals Holds Properly Perfected Assignment of Rents Not Property of Bankruptcy Estate

In a significant ruling impacting commercial real estate lenders in Michigan, the 6th Circuit Court of Appeals has ruled that an absolute assignment of rents that had been fully perfected (by demanding payment from tenants to…more

Appeals, Assignments, Change in Ownership, Chapter 11, Collateral

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S.D.N.Y. Finds Arbitration Clause in Insurance Contract Unenforceable, Following Second Circuit Precedent that the McCarran-Ferguson Act Preempts the New York Convention

Two recent decisions from the United States District Court for the Southern District of New York highlight the split among circuits on whether state insurance laws that prohibit arbitration of insurance and reinsurance disputes…more

Arbitration, Foreign Arbitral Awards, Insurance Contracts, Insurance Industry, Insurance Litigation

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Colorado’s New Automatic Renewal Law

If you use automatically renewing contracts in Colorado, you need to be aware of the effects of a new law - Colorado’s new law governing automatic renewal clauses in contracts, C.R.S. 6-1-732, went into effect January 1,…more

Automatic Renewals, Colombia, New Legislation, Opt-Outs, Subscription Services

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New False Claims Act Stats Show Jump in DOJ-Driven Investigations

The Department of Justice’s (DOJ) annual False Claims Act (FCA) press release revealed that it increased self-initiated investigations for the federal fiscal year ending September 30, 2023, by 1.5 times over the prior year. The…more

Cybersecurity, Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA), Healthcare Fraud

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Chicago’s Public Venue Vaccine Mandate – Does It Impact Cannabis Dispensaries?

On Tuesday, December 21, 2021, the City of Chicago ordered that many public accommodations, including restaurants, bars, coffee shops, gyms, and entertainment venues, must require patrons to present proof of full vaccination…more

Cannabis-Related Businesses (CRBs), Illinois, Public Accommodation, Vaccinations

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California Order Reinforces Need to Comply with Ongoing COVID-19 Employee Protections

About a year into the pandemic, the California Labor Commissioner recently imposed fines on a Los Angeles fast food franchisee. In doing so, the commissioner determined that the franchisee fired four employees after the…more

Cal-OSHA, California, Citations, Coronavirus/COVID-19, Reporting Requirements

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Estate Planning in 2020

In December 2017, President Trump signed the Tax Cuts and Jobs Act (“TCJA”) into law. As a result, the lifetime gifting and estate tax exemption (“Estate Tax Exemption”), as well as the generation-skipping transfer tax exemption…more

AFR, Coronavirus/COVID-19, Estate-Tax Exemption, Generation-Skipping Transfer, Gift-Tax Exemption

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ESG Metrics in Credit Agreements

The genesis of the term ESG, which combines environmental, social, and governance metrics into a popular acronym, is frequently linked to a report published in 2004 titled “Who Cares Wins." The report, endorsed by a group of 20…more

Corporate Social Responsibility, Credit Agreements, Environmental Social & Governance (ESG), Know Your Customers, Rulemaking Process

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Private Equity and Hedge Funds Should Expect More SEC Scrutiny Ahead

Last week, SEC Chair Gary Gensler gave the keynote speech for the 2021 Institutional Limited Partners Association’s virtual summit. Gensler focused his remarks exclusively on private funds and detailed his view that private…more

Conflicts of Interest, Fiduciary Duty, Hedge Funds, Heightened Scrutiny, Private Equity

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Ensuring Child Labor Law Compliance Amid Growing Scrutiny

In February, the New York Times published an investigative report regarding alleged employment of underage migrants, many from Central America, at U.S. companies. While employment of certain minors is permitted under federal and…more

Child Labor, Compliance, Department of Health and Human Services (HHS), Department of Justice (DOJ), Department of Labor (DOL)

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Webinar Key Takeaways: Feeling Insecure About SECURE 2.0? A Discussion for Retirement Plan Sponsors

SECURE 2.0 significantly changed the legal and administrative compliance landscape for retirement plans. Foley recently hosted a webinar where Leigh Riley, Kathleen Bardunias, and Kelsey O’Gorman discussed key provisions of…more

401k, Benefit Plan Sponsors, Compliance, EPCRS, Pensions

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U.S. Supreme Court Rules That “Pure Omissions” Are Not Actionable Under Rule 10b-5

On April 12, 2024, the United States Supreme Court delivered an important decision on the issue of whether a failure to make disclosure required under Item 303 of Regulation S-K can support a Rule 10b-5 claim, even in the…more

Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements, Omissions, Private Right of Action

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Recognition and Enforcement in Mexico of Foreign Reorganization Proceedings (Chapter 11)

COVID-19 has had a dramatic impact on the world economy with the virus affecting jobs and companies around the world in many ways, with imminent cash-flow shortfalls soon to occur throughout many sectors of the global economy. …more

Bankruptcy Code, Chapter 11, Coronavirus/COVID-19, Enforcement, Mexico

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Salt Water Disposal Well Leases Can Pose a Trap for the Unwary

The victor in a lawsuit involving a salt water disposal well lease may depend on whether a Texas court treats the lease as being a mineral lease or simply a lease of real estate. That is because Texas law applies different…more

Contract Terms, Lease Termination, Mineral Leases, Oil & Gas

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Post-COVID M&A Transactions Guidebook

The COVID-19 pandemic has had far-reaching effects to date, including economic uncertainty and widespread business interruptions. This environment may raise unique considerations for parties contemplating an M&A transaction…more

Alternative Fee Arrangements, Alternative Financing and Procurement (AFP), Business Interruption, CARES Act, Coronavirus/COVID-19

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Post-COVID M&A Transactions Guidebook

The COVID-19 pandemic has had far-reaching effects to date, including economic uncertainty and widespread business interruptions. This environment may raise unique considerations for parties contemplating an M&A transaction…more

Alternative Fee Arrangements, Alternative Financing and Procurement (AFP), Business Interruption, CARES Act, Coronavirus/COVID-19

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Challenges to IP Protections in Fast-Paced Cloud Environments

In recent years, cloud computing has gained popularity as a technology that gives both organizations and consumers access to scalable computer resources and services on demand. As cloud computing becomes more ubiquitous,…more

Business Strategies, Cloud Computing, Intellectual Property Protection

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U.S. DOT Releases NEVI Formula Program Guidance, Giving Public and Private Stakeholders a Roadmap for EV Infrastructure Funding

As we highlighted in our December 29, 2021 and January 19, 2021 posts, on November 15, 2021, the Bipartisan Infrastructure Law (BIL) was passed, enacted as the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58),…more

Automotive Industry, Charging Stations, Cybersecurity, Department of Transportation (DOT), Electric Vehicles

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Testifying on the Patent Eligibility Restoration Act

When we first wrote about the Patent Eligibility Restoration Act (PERA), I had no idea I would have the honor of being invited to testify before the Subcommittee on Intellectual Property of the Senate Judiciary Committee, but on…more

Alice/Mayo, Inventions, Patent Trial and Appeal Board, Patent-Eligible Subject Matter, Patents

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Illinois Insurance Law Update: H.B. 579 and H.B. 2296 Signed Into Law; Significant Changes On The Horizon For Illinois Health Insurance Industry

On June 29, 2023, Governor J.B. Pritzker signed House Bills 579 and 2296 into law, enacting sweeping changes to Illinois health insurance law that grants the Illinois Department of Insurance (IDOI) expanded regulatory powers…more

Benefit Plan Sponsors, Employee Benefits, Employer Group Health Plans, Enrollment, Health Insurance

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The Rapid Acceleration of Energy Convergence

Energy convergence is a rapidly growing macro trend within the Energy Sector. What is “energy convergence”? Historically, the vast majority of our energy needs have been supplied by hydrocarbons (e.g. oil & gas and coal). …more

Energy Projects, Energy Sector, Investment, Oil & Gas, Renewable Energy

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DEA: Potential New Telemedicine Special Registration for Controlled Substances Prescribing to be Discussed in Special Listening Sessions

At long last, the Drug Enforcement Administration (DEA) has signaled its consideration of a separate Special Registration for telemedicine prescribing for patients without requiring an in-person examination. On August 4,…more

Controlled Substances, Controlled Substances Act, DEA, Prescription Drugs, Proposed Rules

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The Impact of Google v. Oracle: Google’s Big Win at the Supreme Court

Earlier this week, the Supreme Court issued a decision in the long-standing copyright battle between technology titans, Google LLC and Oracle America, Inc., Google LLC v. Oracle America Inc. , ruling 6-2 in favor of Google…more

Copyright, Copyright Infringement, Copyright Litigation, Google, Google LLC v Oracle America Inc

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Nearshoring and Beyond: Hot Topics for Automotive Companies Operating in Mexico

As manufacturing in Mexico returns to pre-pandemic levels, several recent legal developments may affect those operations. Manufacturers, particularly those in the automotive industry, need to consider new Mexican labor…more

Automotive Industry, Beneficial Owner, Collective Bargaining, Coronavirus/COVID-19, Foreign Direct Investment

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Top Ten Risk Mitigation Issues in Renewable Energy Construction Loan Agreements

Construction financing is used to fund the construction of renewable projects prior to such projects obtaining long-term financing. Because construction loans are disbursed during a high-risk phase of a project, these loans…more

Collateral, Construction Loans, Default, Interest Rates, Lending

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Telehealth Providers: HHS Issues HIPAA Best Practices

Recognizing the evolving landscape of care delivery and growth of telehealth, the U.S. Department of Health and Human Services (HHS) published a resource guide aimed at assisting telehealth providers in explaining the privacy…more

Cybersecurity, Department of Health and Human Services (HHS), Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA), Informed Consent

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Coronavirus Related Legal Considerations for the Senior Housing and Skilled Nursing Industries

The Senior Housing Industry has been uniquely impacted by the coronavirus pandemic. In addition to the various logistical, practical, and educational measures senior housing communities should be taking to monitor, respond to…more

Ambulatory Surgery Centers, Assisted Living Facilities (ALFs), Certificate of Need, Dedicated Emergency Departments, Federal Funding

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State Data Breach Notification Laws - March 2022

While most state data breach notification statutes contain similar components, there are important differences, meaning a one-size-fits-all approach to notification will not suffice. What’s more, as data breaches continue to…more

Breach Notification Rule, Corporate Counsel, Data Breach, Gramm-Leach-Blilely Act, Health Insurance Portability and Accountability Act (HIPAA)

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Impact of Coronavirus on the Insurance Industry

Like nearly every sector of the U.S. economy, the insurance industry, including insurance carriers, agents, brokers, adjusters, and other licensees, is being severely affected by the COVID-19 outbreak. Beginning in early March,…more

Commercial Insurance Policies, Coronavirus/COVID-19, Insurance Industry

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Electrified Industrial Policy: IRS Proposed Regulations on Section 30D EV Tax Credits & EV Manufacturing Grants

The Inflation Reduction Act of 2022 (the “IRA”) and the Infrastructure Investment and Jobs Act of 2021 (the “IIJA”) set in motion an ongoing series of changes that are aimed at transforming, among other things, the automotive…more

Automotive Industry, Batteries, Electric Vehicles, Grants, Inflation Reduction Act (IRA)

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VIX Manipulation Class Actions - Part II: Venue and Consolidation

In our previous update, we informed you that Atlantic Trading USA LLC had filed the first class action complaint in Chicago federal court against various numerous unnamed market maker trading firms, alleging manipulation of the…more

Case Consolidation, CBOE, Class Action, Market Manipulation, Multidistrict Litigation

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Managing Data Privacy in the COVID-19 Environment – Navigating the Challenges of a Pandemic in 2021

Last year, the COVID-19 pandemic brought about a global market disruption across multiple industries, and manufacturers expect the pandemic to continue to affect the automotive industry through 2021. The pandemic has not slowed…more

Automotive Industry, California Consumer Privacy Act (CCPA), Coronavirus/COVID-19, Cybersecurity, Data Privacy

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Recent Developments in TCPA Class Actions Against Cannabis Industry Participants

Cannabis companies are increasingly the targets of putative class action lawsuits brought under the Telephone Consumer Protection Act (TCPA). Dozens of lawsuits alleging TCPA violations have been filed against cannabis industry…more

Auto-Dialed Calls, California, Cannabis-Related Businesses (CRBs), Class Action, Motion To Stay

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FDA’s New Dietary Supplement Ingredient Directory

On March 6, 2023, the U.S. Food & Drug Administration (FDA) launched a Dietary Supplement Ingredient Directory (Directory) to consolidate information about ingredients used in dietary supplements and provide information…more

Consumer Product Safety Commission (CPSC), Dietary Supplements, Food and Drug Administration (FDA), Product Labels

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U.S. Tax Court Ruling Exempts Gain on Foreign Partner's Sale of a Partnership Interest

On July 13, 2017, the U.S. Tax Court issued a decision in Grecian Magnesite Mining, Industrial & Shipping Co., SA v. Commissioner, 149 T.C. No. 3, which could have a significant impact on how non-U.S. investors invest in U.S…more

Appeals, Capital Gains, Exemptions, Foreign Investment, Foreign Partner

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CMS Proposes New All-Payor, Total-Cost-of-Care Model (AHEAD Model), Funding Opportunity for States

On September 5, 2023, the Centers for Medicare & Medicaid Services (CMS) announced a new all-payor, total-cost-of-care model that is designed to tackle growing health care costs, boost population health functions, and reduce…more

Centers for Medicare & Medicaid Services (CMS), Funding Opportunities, Medicaid, Medicare, Total Cost of Care Model (TCOC)

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IRS Extends Deadlines for Section 1031 Like-Kind Exchanges and Qualified Opportunity Zone Investments

The IRS extended the timelines for certain taxpayers engaging in Section 1031 like-kind exchanges or making investments in Qualified Opportunity Zone Funds. The IRS extensions only apply to deadlines that fall between April 1,…more

IRS, Like Kind Exchanges, Opportunity Zones, Qualified Opportunity Funds, Tax Extensions

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Seventh Circuit Revives Franchise No-Poach Case, Holds Per Se Treatment Possible

A recent opinion by the U.S. Court of Appeals for the Seventh Circuit reinstates allegations against McDonald’s that no-poach provisions in the company’s franchise agreements violate the antitrust laws, holding that such…more

Appeals, Franchises, No-Poaching, Sherman Act

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SEC Voluntarily Stays Final Rule on Climate Disclosures

On April 4, 2024, the U.S. Securities and Exchange Commission (SEC) issued an order staying the Final Rule for the Enhancement and Standardization of Climate-Related Disclosures for Investors (“Final Rule”) that it released not…more

Climate Change, Disclosure Requirements, Final Rules, Investors, Securities and Exchange Commission (SEC)

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Estate Planning in 2020

In December 2017, President Trump signed the Tax Cuts and Jobs Act (“TCJA”) into law. As a result, the lifetime gifting and estate tax exemption (“Estate Tax Exemption”), as well as the generation-skipping transfer tax exemption…more

AFR, Coronavirus/COVID-19, Estate-Tax Exemption, Generation-Skipping Transfer, Gift-Tax Exemption

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Exception to the Rule? Late Submission of Evidence as Supplemental Information Under 37 C.F.R. 42.123(b)

In PTAB trials, rules regulate when evidence may be presented by a party to ensure the opposing party a fair opportunity to respond to such evidence. Rule 42.23(b) prohibits a party from filing a sur-reply with “new evidence…more

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

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Practices and Precautions for Commercial Landlords for Reopening After COVID-19

As many businesses are re-opening, employees have begun returning to work at their companies’ physical office space and landlords of commercial office buildings are encountering practical questions regarding how best to re-open…more

Coronavirus/COVID-19, Executive Orders, Landlords, Re-Opening Guidelines, Tenants

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The Skills Gap in the Manufacturing Industry and What We Can Do About It

There is a serious skills gap crisis in the U.S. manufacturing industry, an industry which makes up nine percent of the U.S. workforce, making it one of the largest workforces in the country. The manufacturing industry, like…more

Engineering, Hiring & Firing, Job Applicants, Manufacturers, Skilled Laborers

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Texas Executive Order to Prohibit COVID-19 Vaccine Mandate

As you undoubtedly know, there has been an enormous amount of media attention given to the recent efforts by the Governor of Texas to prohibit COVID vaccine mandates in Texas. As could be expected, we have received a number of…more

Coronavirus/COVID-19, Executive Orders, Federal Contractors, Governor Abbott, OSHA

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States with Penalties for Non-Compete Law Violations

In recent months, we have written quite a bit on the continuing trend to restrict employee non-compete agreements. For example, last month we reported on New York’s sweeping ban on non-competes, which was passed by the state…more

Corporate Counsel, Federal Trade Commission (FTC), Labor Law Violations, Non-Compete Agreements, Penalties

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Qualifying Qualified Broadband Projects: NABL’s Request for Guidance to Clarify Qualified Broadband Project Provisions

The Infrastructure Investment and Jobs Act (“IIJA”) has provisions to encourage investment in high-speed broadband projects, but as written, the legislation leaves open for interpretation several provisions. Guidance or…more

Bond Financing, Broadband, FCC, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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Texas Hydrogen Alliance – “All Things Hydrogen” Event Recap

On Thursday, January 11, 2024, the Texas Hydrogen Alliance (“THA”) hosted “All Things Hydrogen,” an in-person educational and networking reception held in Houston, Texas at the offices of Foley & Lardner LLP (“Foley”). The THA…more

Clean Energy, Department of Energy (DOE), Energy Projects, Energy Sector, Funding

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Managing the Commercial Impact of the Coronavirus: Considerations for Virtual Annual Meetings

As the coronavirus (specifically, “COVID-19”) outbreak continues to wreak havoc on markets and industries in the U.S. and around the world, businesses are now confronting significant and unique challenges. Successful navigation…more

Annual Meeting, Coronavirus/COVID-19, Corporate Governance, Virtual Meetings

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Conflict Between Granting a Preliminary Injunction and Staying the Case Pending Appeal of the Injunction

In Fresenius Kabi USA, LLC v. Fera Pharmaceuticals, LLC, et al., Case No. 15-3654 (D.N.J.) the district court recently denied Fresenius’s motion to dismiss Fera’s antitrust counterclaims, but simultaneously decided to sever and…more

Antitrust Violations, Appeals, Counterclaims, Generic, Interlocutory Appeals

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FERC’s Generator Interconnection Reform Order No. 2023

The Federal Energy Regulatory Commission (“FERC” or “Commission”) unanimously issued its highly anticipated Order No. 2023, which requires many reforms to pro forma interconnection agreements and procedures under Open Access…more

Advanced Notice of Proposed Rulemaking (ANPRM), BOEM, Compliance, Electric Generation Suppliers, FERC

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Diving Into SECURE 2.0: Expanding Access to 401(k) Plan Savings for Long-Term Part-Time Employees

The SECURE 2.0 Act of 2022 (SECURE 2.0) significantly changes the legal and administrative compliance landscape for U.S. retirement plans. Foley & Lardner LLP is authoring a series of articles that take a “deep dive” into key…more

401k, 403(b) Plans, Benefit Plan Sponsors, Employee Benefits, Employees

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Ohio Legalizes Recreational Use of Marijuana

Earlier this month, Ohio joined the growing number of states to legalize the recreational use of marijuana. The new law, which becomes effective December 7, 2023, allows adults aged 21 and older to (within certain restrictions)…more

Adverse Action, Cannabis Products, Drug Testing, Hiring & Firing, Legalization

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FTC Weighs in on Threats to Competition from Artificial Intelligence in Comment to U.S. Copyright Office

The Federal Trade Commission (FTC) recently submitted a comment to the U.S. Copyright Office in response to its “Notice of Inquiry” in the Federal Register examining copyright issues related to artificial intelligence (AI). The…more

Artificial Intelligence, Civil Investigation Demand, Competition, Compliance, Copyright Office

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Mandated Benefits for your Puppies and Kittens? Maybe in California.

According to a survey conducted by the American Pet Products Association, in 2019 approximately 70% of American households include a pet, a number that we will likely see increase this year as a result of COVID-19. It seems…more

Additional Insured, Coronavirus/COVID-19, Insurance Industry, NAIC, Pets

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Proposed Amendments Schedule 13D – Part One

In February 2022, the Security and Exchange Commission (the “SEC”) proposed an amendment (the “Amendment”) to Schedules 13D and 13G of the Securities Exchange Act of 1934, to modernize its reporting rules and ultimately to speed…more

Beneficial Owner, Deadlines, Investors, Proposed Amendments, Securities and Exchange Commission (SEC)

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Brazilian Government Makes the LGPD Effective Imminently

On August 14, 2018, the Brazilian government approved the Brazilian General Data Protection Law, known as the Lei Geral de Proteção de Dados Pessoais (“LGPD”). Enforcement was set to begin on August 15, 2020 but then, due to…more

Binding Corporate Rules, Brazil, Certifications, Coronavirus/COVID-19, Data Protection

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Federal Circuit Provides More Guidance On Biosimilar Patent Litigation

In Amgen Inc. v. Hospira, Inc., the Federal Circuit held that Amgen could not obtain discovery related to activities that might infringe a patent that it had not asserted in its biosimilar patent litigation against Hospira. In…more

Amgen, Appeals, Biosimilars, BPCIA, Collateral Order Doctrine

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The Rubber Meets the Road on State and Federal Vehicle Emissions Strategies

March and April have been busy months for vehicle emission regulation in the U.S. On March 20 and March 29 respectively, the U.S. Environmental Protection Agency (U.S. EPA) issued a set of final emission rules setting stringent…more

Advanced Batteries, Automotive Industry, California, Clean Air Act, Electric Vehicles

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The SEC Focuses on Supply Chain Disruptions: COVID, Russia-Ukraine Conflict and More

As public companies across the economic spectrum strive to overcome the supply chain disruptions drastically affecting revenue and profitability, they must not lose sight of how these disruptions impact their disclosure…more

China, Coronavirus/COVID-19, Disclosure Requirements, Enforcement, MD&A Statements

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The Effect of Tax Reform on Financing Transactions: Thoroughly Review Your Company's Situation

In general, the effects of the new tax law should be very favorable to most corporate borrowers. Nevertheless, there may be situations where a corporate borrower benefits economically from a lower tax rate and other favorable…more

Corporate Taxes, Debt, Debtor-Creditor, EBITDA, Foreign Corporations

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Did AI Patents Help AV/EV-Related Companies Get Acquired by Apple?

From 2016 to 2020, Apple bought the most AI companies. Of the AI companies Apple acquired during this time, the following appear to provide technology (e.g., vehicular technology, visual or image processing, or facial…more

Apple, Artificial Intelligence, Driverless Cars, Electric Vehicles, USPTO

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Giant Leap for Human Genomics

Last week marked a major milestone in studying the human genome. Since the early 2000s, the Human Genome Project has published successive versions of their map, or "sequence," of the human genome. While rightfully acclaimed,…more

Human Genome Project, Medical Research, Scientific Research

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Please Remain Standing: 11th Circuit Rejects $35 Million GoDaddy Settlement Due to Absent Class Members Lack of Standing

Class actions for money damages that involve class members who do not have Article III standing in the Eleventh Circuit are improper even if such members would have standing in other jurisdictions. In a unanimous decision late…more

Article III, Attorney's Fees, CAFA, Class Action, Federal Rules of Civil Procedure

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Early Dispositive Applications May Reduce Arbitration Time and Costs

Several arbitral forums have begun adopting rules explicitly allowing for early dispositive applications that allow parties to petition the tribunal for the resolution of claims and issues during the early stages of a…more

American Arbitration Association, Arbitration, Conflict Resolution, Dispositive Motions, Dispute Resolution

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The Future of Money With Zebec Network

Nikhil Pradhan (Senior Counsel, Boston) recently joined Zebec Networks’ Future of Money podcast to explore the intersection of artificial intelligence and the blockchain ecosystem with Parth Shah. The below episode transcript…more

Artificial Intelligence, Blockchain, Cybersecurity, Fraud, Innovation

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Considering Selling Your Company? Tip #2: Stage Your Company

Nearly every founder or executive considers selling their company at one point or another. Before embarking on the complex process, it is crucial for the company leaders – especially within the ever-evolving tech community – to…more

At-Will Employment, Business Valuations, Buyers, Change of Control, Confidentiality Agreements

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Snackable: Food & Beverage Review

We invite you to enjoy a review of the food and beverage industry with bite size articles ranging from regulatory and real estate trends to litigation and M&A happenings. The past two years have seen significant changes in…more

American Rescue Plan Act of 2021, Beverage Manufacturers, Coronavirus/COVID-19, Department of Justice (DOJ), Enforcement

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Baiting the Line: Can Professional Sports Leagues or Teams Sign NIL Deals with College Athletes?

Where’s the line between permissible NIL deal and impermissible “pay for play” when it comes to professional teams offering NIL deals? Name, image, and likeness (NIL) agreements between collegiate student-athletes and…more

College Athletes, Compensation, MLB, Name and Likeness, NCAA

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USPTO Warns Against Blind Reliance on Artificial Intelligence

Share on Twitter Print Share by Email Share Back to top U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal recently released a memorandum on the subject of the use of artificial intelligence (AI) by parties during…more

Artificial Intelligence, Intellectual Property Litigation, Patent Litigation, Patent Trial and Appeal Board, Patents

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SEC Adopts New Cybersecurity Disclosure Rules

On July 26, 2023, the U.S. Securities Exchange Commission (“SEC”) adopted final rules regarding cybersecurity risk management, strategy, governance, and incident reporting by public companies. The final rules require registrants…more

Annual Reports, Customer Proprietary Network Information (CPNI), Cybersecurity, Disclosure Requirements, FBI

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Qualcomm Prevails at Federal Circuit Based on Lack of Notice and Adequate Opportunity to Respond

In Qualcomm Inc. v. Intel Corp., the Federal Circuit held that Qualcomm was not afforded notice of, or an adequate opportunity to respond to, the Patent Trial and Appeal Board’s (PTAB’s) novel construction of an undisputed claim…more

Burden of Proof, Claim Limitations, Inter Partes Review (IPR) Proceeding, Notice Requirements, Patent Trial and Appeal Board

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Practices and Precautions for Commercial Landlords for Reopening After COVID-19

As many businesses are re-opening, employees have begun returning to work at their companies’ physical office space and landlords of commercial office buildings are encountering practical questions regarding how best to re-open…more

Coronavirus/COVID-19, Executive Orders, Landlords, Re-Opening Guidelines, Tenants

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Tips for Financial Health in the New Year: Avoid Having to Double Pay a Supplier

What if your company was forced to pay twice for all of its purchases from a particular supplier during the last month? What if that double payment obligation instead covered the last three months, six months, or even longer?…more

Appeals, Commercial Loans, Financial Distress, Interest Rate Adjustments, Lenders

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What Happened to Texas’ Anti-Renewable Agenda? Legislators Fail to Pass Energy-Related Bills that Would Have Adversely Impacted Renewable Projects

The most recent Texas biennial legislative session ended on May 29, 2023. Before its close, legislators introduced a series of energy-related bills aimed at shaping the state’s energy landscape and addressing various…more

Energy Sector, Infrastructure, New Legislation, Proposed Legislation, Renewable Energy

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Federal Reserve Primary Market Corporate Credit Facility

On April 9, 2020, the Federal Reserve released the term sheet for the Primary Market Corporate Credit Facility (PMCCF) to support the flow of credit to highly rated issuers with significant operations and a majority of its…more

Corporate Bonds, Federal Reserve, Primary Market Corporate Credit Facility (PMCCF)

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Eleventh Circuit Confirms Federal Contractor Vaccine Mandate Likely Exceeds Presidential Authority, But Narrows the Scope of the Previous Nationwide Injunction

On August 26, 2022, the Eleventh Circuit issued its long awaited decision on the government’s appeal of the nationwide injunction that prevented the government from enforcing the vaccine mandate for federal contractors and…more

Employer Mandates, Enforcement, Federal Contractors, Injunctions, Injunctive Relief

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Helping your family (even a little) is a violation of the Advisers Act?

Is an “Ask” a Violation of the Advisers Act? Yes, it can be a violation to “put in a good word” for one of your family members. On January 5, 2023, the Securities and Exchange Commission (the SEC) entered into an Offer of…more

Fraud, Investment Adviser, Investment Advisers Act of 1940, Portfolio Managers, Securities and Exchange Commission (SEC)

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What’s Next for Blockchain Tech and Crypto in 2023?

Following the recent closures of Silicon Valley Bank, Signature Bank, and Silvergate Bank and Credit Suisse’s takeover by Swiss-based rival UBS, ramifications for blockchain tech and crypto-based assets and deals are…more

Bitcoin, Blockchain, Cryptoassets, Cryptocurrency, Enforcement Actions

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Global Ransomware Attack: Preparation is Key

Businesses have been scrambling since Friday evening when news spread that a ransomware attack named WannaCry is compromising organizations at an alarming rate. In less than 48 hours, it has compromised more than 130,000…more

Cyber Attacks, Cyber Crimes, Cybersecurity, Hackers, Microsoft

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Top Legal Issues Facing the Automotive Industry in 2022

In 2022, automotive suppliers face many of the same issues that have bedeviled the industry throughout 2021, as well as a host of all-new challenges. Unfortunately, as with many aspects of pre-pandemic life, the relative…more

Automotive Industry, Biden Administration, Coronavirus/COVID-19, Corruption, Department of Justice (DOJ)

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New Florida Receivership Statute Gives Commercial Mortgage Lenders Potential Leverage

Amidst the growing uncertainty caused by the COVID-19 pandemic, Florida’s newly enacted receivership law, the Uniform Commercial Real Estate Receiver Act (“UCRERA”), codified in Chapter 714 of the Florida Statutes, endeavors to…more

Avoidable Transfer, Bankruptcy Code, Commercial Mortgages, Coronavirus/COVID-19, Foreclosure

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The Phasing Out of LIBOR: Initial Reaction and Preparation

1. Background: Elimination of LIBOR by 2021 - As has been widely publicized, on July 27, 2017, the U.K. Financial Conduct Authority announced that LIBOR (London Interbank Offered Rate) the longtime global interest rate…more

Banking Sector, Benchmarks, Due Diligence, Federal Reserve, Financial Conduct Authority (FCA)

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What You Need to Know about the Corporate Transparency Act Notice of Proposed Rulemaking

On December 7, 2021, the Financial Crimes Enforcement Network (“FinCEN”) issued a Notice of Proposed Rulemaking (“NPRM”) to establish regulations that will implement the Corporate Transparency Act (“CTA”). This rulemaking is…more

Anti-Money Laundering, Beneficial Owner, Corporate Transparency Act, FinCEN, Investment Adviser

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Trademark Primer: Proactive Strategies for Avoiding Disputes and Consumer Confusion

Trademark disputes can be time-consuming and costly. By proactively assessing risks and taking steps to avoid infringement, emerging companies save time and money. At the crux of most trademark disputes is the claim that…more

Infringement, Trademark Application, Trademark Registration, Trademarks

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A December to Remember: The Trademark Modernization Act Implemented on December 18, 2021

The Trademark Modernization Act of 2020 (“TMA”) went into effect on December 18, 2021. Applicants and registrants now have new tools at their disposal to clear the federal register of unused trademarks and the USPTO can move…more

Ex Parte, Expungement, Lanham Act, Trademark Modernization Act (TMA), Trademark Registration

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CCPA Business-to-Business and Employment Information Exceptions Ending

As the California Privacy Rights Act (CPRA) comes into effect on January 1, 2023, the temporary and partial exceptions for employment and business-to-business information will expire, making California the first and only state…more

Background Checks, Biometric Information, California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), Data Breach

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Food & Beverage Supply Chain Desk Reference

Foley & Lardner’s Food & Beverage Industry Team has authored a new handbook entitled, “Food & Beverage Supply Chain Desk Reference.” For the sake of convenience, the Desk Reference includes quick answers to your legal needs and…more

Food and Drug Administration (FDA), Food Recalls, Indemnification, License Agreements, Limitation of Liability Clause

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What’s Next in Washington? - January 2023 Edition

The dust from the 2022 Midterm Elections has settled and the 118th Congress has begun. Republicans were successfully able to flip control of the House and now have a 222-212 majority with one vacancy to be filled. Democratic…more

Child Tax Credit, Climate Change, Communications Decency Act, Congressional Review Act, Consolidated Appropriations Act (CAA)

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The Supreme Court Reverses Decades-Old Venue Precedent and Re-affirms Fourco

Setting up a major shift in patent litigation, the Supreme Court in T.C. Heartland LLC v. Kraft Foods Group Brands LLC, today rejected the long-standing Federal Circuit precedent of VE Holding Corp. v. Johnson Gas Appliance Co.,…more

Forum Shopping, Patent Assertion Entities, Patent Infringement, Patent Litigation, Patent Trolls

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SEC Adopts New Cybersecurity Disclosure Rules

On July 26, 2023, the U.S. Securities Exchange Commission (“SEC”) adopted final rules regarding cybersecurity risk management, strategy, governance, and incident reporting by public companies. The final rules require registrants…more

Annual Reports, Customer Proprietary Network Information (CPNI), Cybersecurity, Disclosure Requirements, FBI

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Webinar Key Takeaways: Feeling Insecure About SECURE 2.0? A Discussion for Retirement Plan Sponsors

SECURE 2.0 significantly changed the legal and administrative compliance landscape for retirement plans. Foley recently hosted a webinar where Leigh Riley, Kathleen Bardunias, and Kelsey O’Gorman discussed key provisions of…more

401k, Benefit Plan Sponsors, Compliance, EPCRS, Pensions

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Property & Casualty Insurance Premium Refunds during COVID-19

An unexpected issue faced by property & casualty insurers during the COVID-19 pandemic has been premium refunds to policyholders – especially on personal auto policies. The refunds and rebates are justified by substantial…more

Casualty Insurance, Coronavirus/COVID-19, Income Taxes, Insurance Industry, IRS

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Managing the Commercial Impact of the Coronavirus: Implications for the Technology Industry

The coronavirus (also known as COVID-19) has now been documented in more than 100 countries and territories. As the coronavirus outbreak continues to wreak havoc on markets and industries in the U.S. and around the world,…more

Business Disruption, Business Travel, Coronavirus/COVID-19, Cybersecurity, Force Majeure Clause

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Stress and Distress in the Hospitality Industry Due to the Coronavirus

The coronavirus outbreak has impacted the hospitality industry disproportionally more than other industries. For many companies, revenues have fallen off the cliff. Further, the uncertainty and likely overhang of coronavirus for…more

Commercial Insurance Policies, Coronavirus/COVID-19, Crisis Management, Economic Downturn, Hospitality Industry

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Restore Illinois: Governor Pritzker’s Five-Phase, Four-Region Plan and What It May Mean for Your Business Operations

On May 5, 2020, Illinois Governor J.B. Pritzker issued a phased, regional plan for reopening the State’s economy, entitled Restore Illinois: A Public Health Approach to Safely Reopen Our State (the “Plan”). The Plan is…more

Coronavirus/COVID-19, Entertainment Industry, Executive Orders, Governor Pritzker, Healthcare

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“Be Kind to Yourself” – and Other Advice for New Lawyers Starting Their Career During a Pandemic

As law firms deal with the ongoing impact of COVID-19, those who recently graduated from law school are facing unique challenges. To help new lawyers navigate this challenging time, we asked members of the Foley family who…more

Coronavirus/COVID-19, Firm Leadership, Law Firm Associates, Law Practice Management, Mentors

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Antitrust Scrutiny of Technology Companies Continues to Expand

Governmental and private antitrust actions against technology companies expanded in 2018 and 2019, particularly relative to electronics and pharmaceutical companies.  This post provides an overview of several important decisions…more

Abbreviated New Drug Application (ANDA), Antitrust Provisions, Federal Trade Commission (FTC), FRAND, Google

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Supreme Court Clarifies Standards for Indefiniteness and Induced Infringement

On June 2, 2014, the United States Supreme Court issued opinions in Nautilus, Inc. v. Biosig Instruments, Inc., No. 13-369 and Limelight Networks, Inc. v. Akamai Techs., Inc., No. 12-786. In Nautilus, the Supreme Court defined a…more

Akamai Technologies, Indefiniteness, Induced Infringement, Limelight, Limelight Networks

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National Interest Exceptions for European Students, Academics, Investors and Business Travelers

On July 16, 2020, the U.S. Department of State (DOS) announced that business travelers, investors, treaty traders, and academics from the Schengen Area countries, the U.K., and Ireland may qualify for “national interest…more

Coronavirus/COVID-19, E-1, F-1 Visa, J-1 Visas, M-1 Visa

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IRS Releases Final Direct Pay Regulations

The Internal Revenue Service (“IRS”) and Department of the Treasury earlier this week released final regulations relating to direct cash payments for certain tax credits pursuant to Section 6417 of the Internal Revenue Code (the…more

Carbon Capture and Sequestration, Investment Tax Credits, IRS, New Regulations, Production Tax Credit

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COVID-19: CMS Publishes Explanatory Guidance on Stark Blanket Waivers

As discussed in detail in a prior post, U.S. Health and Human Services Secretary Alex M. Azar II (the Secretary) issued blanket waivers of sanctions under the federal Physician Self-Referral Law (Section 1877 of the Act),…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Health Care Providers, Stark Law, Waivers

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“Approval to Energize” – Texas’s Power Grid Operator Issues New Guidance

On March 25, 2022, the Electric Reliability Council of Texas (ERCOT), Texas’s power grid operator, issued a new directive in response to the marked increase of cryptocurrency miners setting up operations in the state..…more

Cryptocurrency, NERC, New Guidance, Power Grid, Texas

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Blockchain for Capital Equipment in a Machine-as-a-Service Model

Subscription-based services, embraced by the software industry as an alternative to traditional models of selling product, provide a steady income stream to providers. Software-as-a-Service, along with the related…more

Automation Systems, Blockchain, Export Controls, Right to Repair, Uniform Commercial Code (UCC)

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FDA: Major Policy Shift Authorizes Florida’s Plan to Import Drugs from Canada

On Friday, January 5, 2024, in a major policy shift, the U.S. Food & Drug Administration (FDA) authorized Florida’s Agency for Health Care Administration’s plan to purchase medicines in bulk for its Medicaid programs, government…more

Abbreviated New Drug Application (ANDA), Canada, FDA Approval, Federal Food Drug and Cosmetic Act (FFDCA), Florida

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Automation, Electrification, and Connectivity: The Auto Industry in the ITC

Automakers and their suppliers have long been participants in unfair trade investigations before the International Trade Commission (“ITC”), but the scope and subject matter of automotive-related investigations is evolving…more

Artificial Intelligence, Automation Systems, Automotive Industry, Copyright, Customs and Border Protection

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SEC Issues Concept Release Requesting Input on Potential Audit Committee Disclosure Requirements

At an open meeting held on July 1, 2015, the Securities and Exchange Commission (SEC) issued a concept release seeking input on whether it should adopt rules requiring additional disclosures for audit committees, with a focus on…more

Audit Committee, Auditors, Board of Directors, Comment Period, Disclosure Requirements

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Why You Should Pay Attention to the Revised, Broadened ASTM Standard for Phase I Environmental Assessments

On December 15, 2022, the United States Environmental Protection Agency (EPA) published a notice of a Final Rule approving the use of a new American Society for Testing & Materials (ASTM) standard for conducting Phase I…more

ASTM, Environmental Assessments, Environmental Policies, Environmental Protection Agency (EPA), PFAS

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New False Claims Act Stats Show Jump in DOJ-Driven Investigations

The Department of Justice’s (DOJ) annual False Claims Act (FCA) press release revealed that it increased self-initiated investigations for the federal fiscal year ending September 30, 2023, by 1.5 times over the prior year. The…more

Cybersecurity, Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA), Healthcare Fraud

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Electrifying a Fleet Presents Opportunities for Local Grid Stability and Revenue for Fleet Owners

In our March 15 article, EV Buses: Arriving Now and Here to Stay, we discussed the opportunities being created when fleet operators shift powertrains from internal combustion engines (ICE) to electric vehicle engines (EV). With…more

Batteries, Electric Vehicles, Energy Sector, Power Grid, Tesla

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Biden Administration Proposes Financial Surveillance Regime Likely to Catch Tax-Dodging Small Business Owners

Under present law, most Americans’ taxable income is reported by both the payor and the payee. Wage income is reported by the employer on a form W-2 and by the employee on an annual tax return. Independent contractor income is…more

1099s, Biden Administration, Financial Institutions, Income Taxes, IRS

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DOJ and FTC Propose Comprehensive Overhaul of Merger Guidelines, Including Presumption against Horizontal Mergers that Result in Market Shares Above 30%

On July 19, 2023, the Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) (together, the Agencies) released a draft set of revised Merger Guidelines (the Revised Guidelines) to set forth the…more

Department of Justice (DOJ), Draft Guidance, Federal Trade Commission (FTC), Horizontal Merger Guidelines, Mergers

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Infrastructure Investment and Jobs Act: January 1, 2022, Brings Opportunities with Two Types of Tax Exempt Bonds and Program Expansion

Executive Summary - On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (Public Law 117-58) (the “Act”). The Act provides for more than $550 billion in new infrastructure…more

Biden Administration, Broadband, Carbon Capture and Sequestration, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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The Holidays Have Us Thinking About FAMLI

It is already that time of the year — year-end holidays, good food, colder weather, and the opportunity to assess new laws that are set to go into effect at the start of the next calendar year. For Colorado employers, now…more

Colorado, Employee Benefits, Employee Handbooks, Employer Contributions, Employment Policies

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States Impose New Requirements for Dealer Warranty Reimbursement

State legislatures across the country spent the first half of 2021 enacting laws that include several changes to warranty reimbursement obligations owed by suppliers to authorized dealers. Four states have new warranty…more

Audits, Automotive Industry, Manufacturers, New Legislation, Reimbursements

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Full Federal Circuit Set to Consider Changing the Test for Obviousness of Design Patents

Last week, the Federal Circuit decided to consider, en banc, whether the Supreme Court’s 2007 KSR decision regarding obviousness overruled the Federal Circuit’s decades-old Rosen and Durling tests for design patents, setting in…more

Amicus Briefs, Design Patent, En Banc Review, Obviousness, Patent Litigation

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Growing Infringement of OEM IP Rights on Online Marketplaces

Sales of consumer products through online marketplaces have been commonplace for years and account for a significant portion of the total consumer products marketplace. Sellers of industrial products such as replacement parts…more

Amazon, China, Copyright, Counterfeiting, eBay

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New York State’s Non-Compete Ban Set to Reach Governor’s Desk

New York State appears set to join the growing number of jurisdictions prohibiting or significantly limiting the use of employment non-compete agreements. The Empire State’s non-compete ban (Bill No. S3100A), which was recently…more

Confidentiality Agreements, Federal Trade Commission (FTC), Liquidated Damages, New Legislation, New York

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Key Challenges Facing XaaS Companies

The worldwide market for cloud-based services continues to expand, with recent growth accelerated by the increased demand for online services during the COVID-19 pandemic. Remote work environments and new offerings proliferated…more

Cloud Service Providers (CSPs), Compliance, Coronavirus/COVID-19, Data Privacy, Data Rights

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Coronavirus Business Survival Guide: Small Business Relief

The COVID-19 pandemic is impacting global markets, and is already causing some small businesses to confront operational and financial distress. Successful navigation of these challenges will require thoughtful and comprehensive…more

Affiliated-Business Arrangements, CARES Act, Coronavirus/COVID-19, Economic Injury Disaster Loans, Financial Stimulus

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Delaware Affirms Limitation of Vicarious Liability Within Global Networks

In a win for the accounting profession and other member firm networks, the Delaware Court of Chancery clarified the limits of vicarious liability within such networks. On August 21, 2020, the Court held in Otto Candies, LLC v…more

Corporate Counsel, Delaware, Fraud, Vicarious Liability, Wrongful Acts

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Infrastructure Investment and Jobs Act: January 1, 2022, Brings Opportunities with Two Types of Tax Exempt Bonds and Program Expansion

Executive Summary - On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (Public Law 117-58) (the “Act”). The Act provides for more than $550 billion in new infrastructure…more

Biden Administration, Broadband, Carbon Capture and Sequestration, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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What To Know About the New Colorado False Claims Act

On June 7, 2022, Governor Jared Polis signed into law the Colorado False Claims Act (CFCA) at Colo. Rev. Stat. Ann. § 24-31-101 et seq. The CFCA is largely based on the Federal False Claims Act (FCA), but is not an exact…more

Colorado, Coronavirus/COVID-19, Enforcement, False Claims Act (FCA), Fraud Prevention

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Managing the Commercial Impact of the Coronavirus: FAQs for the Life Sciences Industry

As the coronavirus outbreak continues to wreak havoc on markets and industries in the U.S. and around the world, businesses are now confronting significant and unique challenges. Successful navigation of these challenges will…more

Coronavirus/COVID-19, Diagnostic Tests, Food and Drug Administration (FDA), Life Sciences, Medical Devices

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Taxes Are Not the Only Thing to Worry About in Washington — Employers Face Stiff Fines for Violating Washington, D.C.’s Ban on Non-Competes

Share on Twitter Print Share Back to top While many state legislatures have jumped on the Federal Trade Commission’s (FTC) bandwagon by enacting prohibitions on restrictive covenants (which includes both non-competition and…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Fines, Highly Compensated Employees

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Snackable: Food & Beverage Review

We invite you to enjoy a review of the food and beverage industry with bite size articles ranging from regulatory and real estate trends to litigation and M&A happenings. The past two years have seen significant changes in…more

American Rescue Plan Act of 2021, Beverage Manufacturers, Coronavirus/COVID-19, Department of Justice (DOJ), Enforcement

See all updates »

Fourth Annual Esports Survey Report

In November of last year, an esports viewership record was set when over 4 million people watched the 2021 World Championship for League of Legends. The high mark, which came despite the exclusion of Chinese platforms, surpassed…more

Coronavirus/COVID-19, Cryptocurrency, Cybersecurity, eSports, Gambling

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The Laws of Fashion: What's Trending in 2022

The fashion industry has certainly seen its fair share of change over the last year given consumer trends, geopolitical & public health issues, innovation in technology and legal developments and we don’t anticipate that…more

Acquisitions, Blockchain, CASE Act, Copyright, Cosmetics

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IRS Releases Final Direct Pay Regulations

The Internal Revenue Service (“IRS”) and Department of the Treasury earlier this week released final regulations relating to direct cash payments for certain tax credits pursuant to Section 6417 of the Internal Revenue Code (the…more

Carbon Capture and Sequestration, Investment Tax Credits, IRS, New Regulations, Production Tax Credit

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Illinois Insurance Law Update: H.B. 579 and H.B. 2296 Signed Into Law; Significant Changes On The Horizon For Illinois Health Insurance Industry

On June 29, 2023, Governor J.B. Pritzker signed House Bills 579 and 2296 into law, enacting sweeping changes to Illinois health insurance law that grants the Illinois Department of Insurance (IDOI) expanded regulatory powers…more

Benefit Plan Sponsors, Employee Benefits, Employer Group Health Plans, Enrollment, Health Insurance

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Preserving and Protecting Value Following the Recent Supreme Court Decision Shifting the Landscape on Intellectual Property Licenses

In May 2019, the U.S. Supreme Court decided the Mission Product Holdings, Inc. v. Tempnology, LLC case. The Mission Products Holdings decision provides a reminder to intellectual property license parties that periodic review of,…more

Bankruptcy Appellate Panel (BAP), Bankruptcy Code, Breach of Contract, Chapter 11, Commercial Bankruptcy

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CMS Proposes Remedy for 340B-Acquired Drug Payment Policy for CY 2018-2022

Along with its calendar year (CY) 2024 Medicare Outpatient Prospective Payment System (OPPS) proposed rule, the Centers for Medicare & Medicaid Services (CMS) have also published the long-awaited proposal to remediate the…more

American Hospital Association et al v Becerra Secretary Of Health And Human Services et al, Centers for Medicare & Medicaid Services (CMS), Covered Entities, Department of Health and Human Services (HHS), Drug Pricing

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COVID-19: Provider Relief Funds for Assisted Living Facilities

On September 1, 2020, the U.S. Department of Health and Human Services (HHS) announced that assisted living facilities (ALFs) may now apply for funding under the Provider Relief Fund (PRF) Phase 2 General Distribution…more

Assisted Living Facilities (ALFs), CARES Act, Coronavirus/COVID-19, Department of Health and Human Services (HHS), Health Care Providers

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What Every Multinational Company Needs to Know About … The Uyghur Forced Labor Prevention Act Due Diligence and Compliance (Part II)

In our previous biweekly update, What Every Multinational Needs to Know About … The Uyghur Forced Labor Prevention Act, Part I, we summarized the UFLPA requirements and the basic expectations that U.S. Customs and Border…more

Compliance, Corporate Counsel, Customs and Border Protection, Due Diligence, Forced Labor

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Texas Supreme Court Decides What “One-Half of One-Eighth” Means in 1924 Oil and Gas Deed

Simple math isn’t always simple. As the Texas Supreme Court recently put it, “[o]nly in a legal text could the formula ‘one-half of one-eighth’ mean anything other than one-sixteenth.” No. 21-0146, 2023 WL 2053175 (Tex. 2023)…more

Grantee, Mineral Rights, Oil & Gas, Royalties, Successors

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New York “Denies Access” to Employers Seeking Login Credentials for Employee’s Social Media Accounts

New York employers should take note: 2024 will bring significant changes in the state’s labor law, restricting the ability to seek login credentials for the private social media accounts of employees and job candidates. …more

Anti-Retaliation Provisions, Employer Liability Issues, New York, Social Media, State Labor Laws

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Texas Executive Order to Prohibit COVID-19 Vaccine Mandate

As you undoubtedly know, there has been an enormous amount of media attention given to the recent efforts by the Governor of Texas to prohibit COVID vaccine mandates in Texas. As could be expected, we have received a number of…more

Coronavirus/COVID-19, Executive Orders, Federal Contractors, Governor Abbott, OSHA

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Public Company Disclosure Considerations for Those Affected by SVB

Hundreds of public companies have filed current reports on Form 8-K since Silicon Valley Bank (SVB) became insolvent and was taken over by the FDIC. The disclosures made to date have been primarily “voluntary” filings, made to…more

Banking Sector, Disclosure Requirements, FDIC, MNPI, Publicly-Traded Companies

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The No Surprises Act: The Departments Proposed Another Increase to IDR Fee, Will it Stick?

On September 26, 2023, the Departments of Health & Human Services (HHS), Labor, and the Treasury (collectively, the Departments) jointly proposed rules (September Rule) updating the administrative fee and Certified Independent…more

Billing, Department of Health and Human Services (HHS), Department of Labor (DOL), Dispute Resolution, Fees

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Health-Related Social Needs: Three Trends in Leveraging Community Partnerships

Leading health authorities have increasingly emphasized how non-medical factors such as socioeconomic status, education, employment, housing, food security, and community support have an outsized impact on health outcomes. By…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA)

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Coronavirus Business Survival Guide: Small Business Relief

The COVID-19 pandemic is impacting global markets, and is already causing some small businesses to confront operational and financial distress. Successful navigation of these challenges will require thoughtful and comprehensive…more

Affiliated-Business Arrangements, CARES Act, Coronavirus/COVID-19, Economic Injury Disaster Loans, Financial Stimulus

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Health Care Provider Director and Officer Liability: Important Takeaways from Clovis and Marchand

Health care provider boards of directors have been put on notice—given these two recent Delaware court decisions - Clovis and Marchand—that courts may be willing to significantly extend a corporate board’s Caremark duty to…more

Bad Faith, Board of Directors, Breach of Duty, Caremark claim, Compliance

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Fourth Annual Esports Survey Report

In November of last year, an esports viewership record was set when over 4 million people watched the 2021 World Championship for League of Legends. The high mark, which came despite the exclusion of Chinese platforms, surpassed…more

Coronavirus/COVID-19, Cryptocurrency, Cybersecurity, eSports, Gambling

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How Rights Owners Can Be Proactive With CBP Enforcement

Ever since the U.S. Customs and Border Protection designated intellectual property rights, or IPRs, as a priority trade issue, the agency has seized billions of dollars in counterfeit goods. In 2021 and 2022, CBP seized…more

Counterfeiting, Customs and Border Protection, Enforcement, Intellectual Property Protection, International Trade Commission (ITC)

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DTC Promotional Labeling and Advertisements: Quantitative Efficacy Wins Over FDA in Final Guidance on Presenting Risk Information

In June 2023, the U.S. Food and Drug Administration (FDA) published final guidance (Guidance) on presenting risk and efficacy information for direct-to-consumer (DTC) promotional labeling and advertisements for prescription drug…more

Advertising, Compliance, Direct to Consumer Sales, Final Guidance, Food and Drug Administration (FDA)

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Divorce Tips: How to Avoid Getting Your New Channel Partners Sued

Leaving behind an underperforming dealer or distributor relationship for a new one can be exciting for manufacturers and suppliers. It’s always a good feeling to get a part of the business turned around and headed in the right…more

Appeals, Breach of Contract, Dealers, Distributors, Manufacturers

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Seventh Circuit Addresses Mandatory Local Controversy Exception to the Class Action Fairness Act

Since its enactment in 2005, the Class Action Fairness Act (CAFA) has provided defendants with additional opportunities to remove state-law claims to federal court. Among other things, the statute expands federal courts’…more

CAFA, Class Action, Class Certification, Diversity, Health Care Providers

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Impacts of COVID-19 on Automotive Suppliers

...Given that the original epicenter of the coronavirus was the important worldwide manufacturing hub of Wuhan, China, the automotive industry was swiftly and seriously impacted in ways that continue one year later. The global…more

Automotive Industry, Coronavirus/COVID-19, Force Majeure Clause, Global Economy, Manufacturers

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A New Regulatory Landscape for Consumer Products Containing Button Cell or Coin Batteries

New regulations from the Consumer Product Safety Commission (CPSC) are set to go into effect on March 19, 2024, for manufacturers and importers of consumer products containing button cell and coin batteries (or products intended…more

Batteries, Consumer Product Safety Act (CPSA), Consumer Product Safety Commission (CPSC), Labeling, Manufacturers

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Cook County Follows the Illinois General Assembly’s Lead, Passes Paid Leave Ordinance

On December 14, 2023, the Cook County Board of Commissioners (“the Board”) overhauled the 2017 Cook County Earned Sick Leave Ordinance, replacing it with the Cook County Paid Leave Ordinance (CCPLO or “the Ordinance”). The…more

Employer Liability Issues, General Assembly, Illinois, New Legislation, Notification Requirements

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Mexico: Some Key Issues to Watch in a Financially Stressed Environment

Following the bank receivership of Silicon Valley Bank (SVB) and similar situations with other stressed financial institutions in the U.S. and Europe, companies are concerned with their international assets and credits held by…more

Banking Regulators, Banking Sector, Financial Institutions, Insolvency, IPAB

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Applicant Admitted Prior Art Cannot Be a “Basis For” an IPR Challenge

In a decision dated February 1, 2022, the Federal Circuit confirmed that applicant admitted prior art (AAPA) may not form the basis of a validity challenge in an inter partes review (IPR). The decision arose out of two IPRs…more

Apple, Inter Partes Review (IPR) Proceeding, Patents, Prior Art, Qualcomm

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Medicare Advantage Agent and Broker Compensation: Commissions, Administrative Payments, and Referral Fees under 42 C.F.R. § 422.2274

A common question in the context of Medicare Advantage (“MA”) distribution and compensation is how agents and brokers may be compensated for commissions and administrative payments and whether, and to what extent, referral fees…more

Agents, Beneficiaries, Brokers, Centers for Medicare & Medicaid Services (CMS), Competition

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FDA Approves Two Gene Therapies to Treat Sickle Cell Disease Including a CRISPR-Based Therapy

Share on Twitter Print Share Back to top On December 8, 2023 the U.S. Food and Drug Administration (FDA) approved Casgevy and Lyfgenia, both cell-based gene therapies for the treatment of sickle cell disease in patients 12 and…more

CRISPR, Food and Drug Administration (FDA), Pharmaceutical Industry, Stem cells

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Exploring Business Opportunities in India: Insights from Foley & Lardner's General Counsel Series

In today’s globalized world, understanding international markets is crucial for businesses aiming to expand their footprint and capitalize on emerging opportunities. As part of Foley & Lardner’s ongoing series of General Counsel…more

Business Opportunities, Ethics, Foreign Investment, Global Market, India

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Sotera Stipulation Filed After the Patent Owner’s Response Still Deemed Effective

The Patent Trial and Appeal Board (PTAB) recently addressed both the timing requirements and procedures for filing a Sotera stipulation before the Board in, BMW of North America LLC v. Northstar Systems LLC, IPR2023-01017…more

BMW, Inter Partes Review (IPR) Proceeding, Patent Invalidity, Patent Owner Preliminary Response, Patent Trial and Appeal Board

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Near-Term Disruptions and Opportunities in the Automotive Supply Industry

Disruption in the automotive industry seems a near-constant force these days. The automotive supply chain continues to suffer hangover challenges from the pandemic (including raw materials shortages and increased labor costs),…more

Automotive Industry, Bankruptcy Code, Chapter 11, Department of Energy (DOE), Due Diligence

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California: Health Care M&A Market Heats up as New Regulator Takes a Closer Look

California health care entities can expect increased scrutiny of future mergers, acquisitions, and other transactions following the passage of the California Health Care Quality and Affordability Act (HCQAA). Effective April 1,…more

Acquisitions, Anti-Competitive, California, Healthcare, Mergers

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Chicago Mayoral Runoff Recap

In one of the most closely watched races in the country, Chicago’s mayoral runoff election will see Cook County Commissioner Brandon Johnson sworn in on May 15 as the city’s 57th mayor. Johnson, the 47-year-old Cook County…more

City of Chicago, Mayors, State Elections

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Ninth Circuit: Additional Information on Back of Packaging can Defeat Deceptive Labelling Claim

On June 9, 2023, the Ninth Circuit in McGinity v. The Procter & Gamble Company, No. 22-15080 (9th Cir. 2023) held that a food manufacturer could rely on an ingredients list panel located on the back of the challenged product…more

CLRA, False Advertising, Food Labeling, Food Manufacturers, Unfair Competition

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What Every Multinational Company Should Know About … Anticorruption Red Flags (Part I)

We have received several requests to publish a list of red flags pertinent to multinational organizations. To accommodate these requests, we are publishing a three-part series on anticorruption, export controls and economic…more

Anti-Corruption, Antiboycott Requirements, Billing, Compliance, Economic Sanctions

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Wetlands No More? U.S. Supreme Court Limits Federal Regulation of Wetlands in Sackett v. EPA Decision

On May 25, 2023, the Supreme Court issued a decision in Sackett v. EPA,effectively narrowing the scope of federally protected wetlands to which the Clean Water Act (CWA) applies. The CWA provides the U.S. Army Corp of Engineers…more

Clean Water Act, Environmental Policies, Environmental Protection Agency (EPA), Federal Jurisdiction, Inland Waterways

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The Austin Court of Appeals Determines that PSA Wells Do Not Require Pooling Authority

Horizontal drilling in the last decade materially altered oil and gas production in Texas. Horizontal wells allow producers to unlock vast mineral resources otherwise inaccessible to traditional vertical drilling. Commentors…more

Administrative Procedure Act, Appeals, Exploration and Production Sharing Contract, Horizontal Wells, Oil & Gas

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Three Likely Disruptors and Opportunities for Manufacturers in 2023

The ever-resilient manufacturing sector has been bruised (and some might say battered) in recent years, through the pandemic, raw material shortages, increased labor costs, rising interest rates, and Russia’s war against…more

Electric Vehicles, Interest Rates, Manufacturers, Supply Chain, Supply Shortages

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Proposed SAFE TO WORK Act Offers Protections to Businesses Impacted by COVID-19

The ongoing COVID-19 pandemic has brought with it a surge of class action lawsuits targeting fitness clubs, entertainment venues, educational institutions, manufacturers of consumer products, and insurance companies, among…more

Business Interruption, Coronavirus/COVID-19, Public Readiness and Emergency Preparedness Act (PREP Act), Putative Class Actions, Relief Measures

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FDA: New Guidance for Non-interventional Studies of Drug Safety and Effectiveness

The U.S. Food and Drug Administration (FDA) has recently issued guidance for sponsors and investigators interested in submitting a non-interventional study, commonly known as an observational study, to contribute evidence of a…more

Analytics, Drug Safety, Food and Drug Administration (FDA)

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NLRB’s New Rule Sings “Come Together, Right Now”

On October 26, 2023, the National Labor Relations Board (NLRB or the “Board”) issued its long-awaited final rule (the “New Rule”) addressing the standard for determining joint-employer status under the National Labor Relations…more

Browning-Ferris Industries of California Inc., Joint Employers, Labor Relations, New Rules, NLRA

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Five Do’s and Don’ts for an Effective Virtual Mediation

With shelter-in-place orders in effect in almost every state in the country, videoconferences are now the norm for conducting everyday business. Over the last several weeks, Foley attorneys have completed a number of virtual…more

Confidential Information, Coronavirus/COVID-19, Mediation, Remote Working, Risk Assessment

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Hillary Clinton's IP Litigation Experience

Many people are surprised to learn that Hillary Clinton was an intellectual property attorney when she practiced law from 1977-1992 for the Rose Law Firm. While the New York Times has reported that former colleagues cannot…more

False Advertising, Hillary Clinton, Injunctive Relief, Intellectual Property Protection, Presidential Elections

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Electric Vehicle Charging Gets a Boost

As reported multiple places, the Federal Government opened up applications on Tuesday, March 14, 2023 for a program to expand access to electric vehicle charging. The money originated from the 2021 bipartisan infrastructure law…more

Charging Stations, Department of Energy (DOE), Electric Vehicles, Infrastructure

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Opportunity Zones: Should Your Startup Make One Its Home?

A Qualified Opportunity Zone (QOZ) is an economically distressed community where new investments, under certain conditions, may be eligible for preferential tax treatment. The U.S. federal government created this tax incentive…more

Capital Gains, Infrastructure, Investment, IRS, Qualified Opportunity Funds

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There’s an Updated EEOC Poster! Covered Employers Must Display it at Worksite

On October 19, the Equal Employment Opportunity Commission (EEOC) released an updated “Know Your Rights” poster that covered employers (those with 15 or more employees to whom the federal nondiscrimination laws apply) are…more

Americans with Disabilities Act (ADA), Anti-Discrimination Policies, Anti-Harassment Policies, Anti-Retaliation Provisions, Equal Employment Opportunity Commission (EEOC)

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Top Legal Issues Facing the Manufacturing Sector in 2022

As the global economy faces the third year of the pandemic, manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past few years to become…more

Artificial Intelligence, Audits, BPA, China, Climate Change

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Coronavirus Related Legal Considerations for the Senior Housing and Skilled Nursing Industries

The Senior Housing Industry has been uniquely impacted by the coronavirus pandemic. In addition to the various logistical, practical, and educational measures senior housing communities should be taking to monitor, respond to…more

Ambulatory Surgery Centers, Assisted Living Facilities (ALFs), Certificate of Need, Dedicated Emergency Departments, Federal Funding

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Artificial Intelligence: Can it be an Inventor or an Author?

As the innovation paradigm in automotive industry shifted over time, artificial intelligence (“AI”) has deeply penetrated into operation of automotive industry. For example, integration of AI in automotive availed a broad range…more

Artificial Intelligence, Authors, Automotive Industry, Copyright, Intellectual Property Litigation

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IP Contracting Considerations for Software as a Medical Device (SaMD)

Advancements in the medical device space are increasingly driven by integrations of software, oftentimes as the fruit of the symbiosis between engineers at software development firms working with clinicians at research…more

Artificial Intelligence, Intellectual Property Protection, Medical Devices, Quality of Care Standards, Software

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DHS Announces New Version of Form I-9 and New I-9 Remote Document Verification Procedure for E-Verify Employers

The United States Department of Homeland Security (DHS) recently announced two significant changes regarding Form I-9, Employment Eligibility Verification. First, DHS is issuing a new version of Form I-9. Second, as of August 1,…more

E-Verify, Employer Liability Issues, Employment Eligibility Verification, Foreign Workers, Form I-9

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Texas Railroad Commission Weighs Production Cuts

The Texas Railroad Commission (state agency that regulates the Texas oil and gas industry) has held two hearings to discuss production demand and proration. The Railroad Commission (RCC) announced formation of a task force to…more

Oil & Gas, Railroads, Railways

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Texas Becomes Tenth State to Enact Comprehensive Consumer Data Privacy Law

On June 18, 2023, Texas Governor Greg Abbott signed H.B. 4, otherwise known as the Texas Data Privacy and Security Act (TDPSA). Following substantive legislative action in Tennessee, Montana, and Indiana, Texas now becomes the…more

Consumer Privacy Rights, Data Privacy, Data Protection Acts, Data Security, Governor Abbott

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CARES Act – Federal Reserve Main Street Loan Facilities - Updated June 12, 2020

The Main Street Lending Program, authorized under the CARES Act and Section 13(3) of the Federal Reserve Act, is designed to provide financial assistance to small and medium sized businesses. There will be three Main Street loan…more

Banks, Borrowers, CARES Act, Coronavirus/COVID-19, Debt

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Top Legal Issues Facing the Manufacturing Sector in 2023

Agility and resiliency remain essential attributes for manufacturers in 2023. Manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past…more

Artificial Intelligence, Best Practices, Clawbacks, Compensation, Compliance

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The Eve of the Electric Vehicle Revolution

All the signs point to an impending perfect storm in the automotive industry and the impact on innovation will be great. We have seen technological revolutions before; a new technology more than just disrupts, it can change a…more

Charging Stations, Department of Transportation (DOT), Electric Vehicles, Pollution Control

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Can Law Firms Prohibit Attorneys from Soliciting or Servicing Clients Because of Trade Secret Misappropriation?

As we recently highlighted, trade secret misappropriation lawsuits brought by law firms against departing attorneys are not a new phenomenon, but the number and intensity have increased over recent years. Our last article…more

American Bar Association (ABA), Confidentiality Agreements, Ethics, Injunctive Relief, Misappropriation

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Florida 2022 General Election Results

While nothing compares to the Sunshine State’s white sandy beaches and emerald-green waters, Florida’s 2022 midterm election shores were filled with voters, pundits and national media watching the red tsunami surge across the…more

Constitutional Amendment, Florida, General Elections, Voter Registration

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Insider Threat Investigations: Considerations for Employers to Effectively Manage the Threat

“Insider threats” can come in various forms — fraud, embezzlement, theft of confidential information, failures to follow policy, and more. Employers regularly face threats to their businesses, but when the threat comes from…more

Attorney-Client Privilege, Compliance, Confidential Information, Document Preservation Notices, Embezzlement

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California Isn’t Waiting for the Feds to Resuscitate EEO-1 Reporting

The California legislature just took the matter of gender and race/ethnicity pay gaps into its own hands by mandating employer pay information reporting. This action follows in the wake of the controversial federal pay…more

California, Data Collection, EEO-1, Equal Employment Opportunity Commission (EEOC), Equal Pay

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Wisconsin PFAS Groundwater Standards Halted—for Now

Share on Twitter Print Share by Email Share Back to top The wait will continue for Wisconsin per- and polyfluoroalkyl substances (PFAS) enforcement standards for groundwater. Last week the Wisconsin Department of Natural…more

Audits, Enforcement, Environmental Protection Agency (EPA), Groundwater, PFAS

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Delaware Bankruptcy Court Upholds Reclamation Creditors’ Rights

Vendors — take note! The Delaware bankruptcy court in In re Reichhold Holdings US Inc. recently issued an important ruling for vendors asserting reclamation rights. Under section 546(c) of the Bankruptcy Code, a vendor…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Corporate Counsel, Creditors

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Wisconsin PFAS Groundwater Standards Halted—for Now

Share on Twitter Print Share by Email Share Back to top The wait will continue for Wisconsin per- and polyfluoroalkyl substances (PFAS) enforcement standards for groundwater. Last week the Wisconsin Department of Natural…more

Audits, Enforcement, Environmental Protection Agency (EPA), Groundwater, PFAS

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SEC Proposes Amendments to 13(D) And 13(G) Reporting Requirements – Accelerates Filing Deadlines and Addresses Group Formation Activity

On February 10, 2022, the U.S. Securities and Exchange Commission (“SEC”) announced proposed rule amendments to beneficial ownership reporting requirements under Sections 13(d) and 13(g) of the Securities Exchange Act of 1934…more

Beneficial Owner, Proposed Rules, Reporting Requirements, Securities and Exchange Commission (SEC), Securities Exchange Act

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Private Equity: Proposed Health Over Wealth Act -What This Means for You

On April 3, 2024, Senators Edward Markey (D-Mass.) and Elizabeth Warren (D-Mass.), chaired a Senate Health, Education, Labor, and Pensions (HELP) Subcommittee on Primary Health and Retirement Security field hearing titled, When…more

Department of Health and Human Services (HHS), Department of Justice (DOJ), Federal Trade Commission (FTC), For-Profit Corporations, Hart-Scott-Rodino Act

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Proposed Bill Would Substantially Rewrite the California Consumer Privacy Act of 2018

...On April 4, 2019, California Assembly Member Wicks proposed sweeping changes to bill AB 1760, effectively repealing the California Consumer Privacy Act of 2018 (CCPA) and replacing it with the Privacy for All Act of 2019…more

California Consumer Privacy Act (CCPA), Consumer Privacy Rights, Corporate Counsel, Data Privacy, Disclosure Requirements

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What Food & Beverage Companies Need to Know About the U.S. Consumer Product Safety Commission

Food and beverage companies may be surprised to learn that the U.S. Food and Drug Administration (“FDA”) is not the exclusive regulatory authority over the safety of foods and beverages. Indeed, other governmental authorities…more

Compliance, Consumer Product Safety Act (CPSA), Consumer Product Safety Commission (CPSC), Distributors, Food and Drug Administration (FDA)

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The No Surprises Act: The Departments Proposed Another Increase to IDR Fee, Will it Stick?

On September 26, 2023, the Departments of Health & Human Services (HHS), Labor, and the Treasury (collectively, the Departments) jointly proposed rules (September Rule) updating the administrative fee and Certified Independent…more

Billing, Department of Health and Human Services (HHS), Department of Labor (DOL), Dispute Resolution, Fees

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Webinar Key Takeaways: The New Biden Executive Order on Foreign Investment

Foley recently cohosted a webinar with 4thly featuring a panel of legal and policy experts addressing President Biden’s New Outbound Investment Screening Program…more

Biden Administration, CFIUS, China, Executive Orders, Foreign Direct Investment

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More Clarity on What Constitutes a Final, Appealable Order in Bankruptcy After Ritzen Group Inc. v. Jackson Masonry, LLC

On January 14, 2020, the Supreme Court of the United States issued an opinion clarifying what constitutes a final order for purposes of bankruptcy appeal. The Ritzen decision comes a few years after the Supreme Court in Bullard…more

Appeals, Automatic Stay, Bankruptcy Court, Commercial Bankruptcy, Creditors

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Offshore Wind Developers Race to Compete for Lucrative Government Leases

The desire to get in on the ground floor of offshore wind development in the U.S is at an all-time high. Following the announcement by President Biden of a goal of producing 30 gigawatts of offshore wind energy by 2030 and a tax…more

Biden Administration, Energy Sector, Green Energy, Ground Leases, Offshore Wind

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California Breach Regulations Applicable to Health Care Facilities Align “Breach” Definition with HIPAA, Expand Reporting Obligations, and Clarify Penalty Structure

California clinics, health facilities, home health agencies, and licensed hospices required to report breaches to the California Department of Public Health (CDPH) under California’s Health and Safety Code Section 1280.15…more

California, Health Insurance Portability and Accountability Act (HIPAA), HIPAA Breach, HIPAA Violations, New Regulations

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Another Fund Manager Sues IRS Over Application of “Limited Partner” Exception to Self-Employment Taxes

On August 11, 2023, Stamford, Connecticut-based hedge fund manager Point72 Asset Management (“Point72”) filed a petition with the Tax Court contesting the IRS’s position that its owner, billionaire and New York Mets team owner…more

Asset Management, FICA Taxes, Hedge Funds, IRS, Limited Partnerships

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California Appellate Court Empowers Privacy Agency to Immediately Enforce CPRA Regulations.

On February 9, a California appellate court issued a decisive ruling in favor of the California Privacy Protection Agency (the Agency), allowing the state to immediately begin enforcement of its new regulations, effectively…more

Appellate Courts, Artificial Intelligence, Audits, California, California Consumer Privacy Act (CCPA)

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NIST Publishes Final “Cybersecurity Resource Guide” on Implementing the HIPAA Security Rule

In an important development for HIPAA-regulated entities looking for practical assistance in understanding, implementing, and enhancing compliance with the HIPAA Security Rule, the National Institute of Standards and Technology…more

Compliance, Data Security, Electronic Protected Health Information (ePHI), Final Rules, Health Insurance Portability and Accountability Act (HIPAA)

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Restructuring The Private Club

Private golf clubs are facing a tidal wave of challenges, from the prolonged economic downturn, to an aging population unable to continue playing the game, to a general decline in demand for golf, to financial hardships facing…more

Golf, Golf Courses

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SEC Modernizes and Simplifies Disclosure Requirements

On March 20, 2019, the U.S. Securities and Exchange Commission (SEC) announced it had adopted a series of amendments to improve the readability and navigability of company disclosures, and to discourage the disclosure of…more

Amended Regulation, Corporate Governance, Disclosure Requirements, Filing Requirements, Fixing America’s Surface Transportation Act (FAST Act)

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The Complex Terrain of the Video Game Industry: Challenges and Opportunities

The video game industry is brimming with innovation, competition, and transformative technological advancements. As we look at the current state of this vibrant sector, it is evident there are both challenges and opportunities,…more

Business Strategies, Gaming, Innovative Technology, Investment, Investors

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Revival of the General Duty Clause

In a somewhat surprising decision issued at the end of 2020, U.S. EPA ruled that Section 112(r)(1) of the Clean Air Act, better known as the “General Duty Clause,” requires facilities to implement the latest industry practices…more

Air Pollution, Citizen Suits, Clean Air Act, Enforcement Actions, Environmental Protection Agency (EPA)

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Strategies for the Tech Sector in 2024

After two very difficult years in the tech sector, everyone is hoping for a comeback. We are looking at a more positive economic climate, the prospect of interest rates dropping, and there is much less talk of a recession..…more

Artificial Intelligence, Coronavirus/COVID-19, Information Technology, Interest Rates, Machine Learning

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Five Things to Know Regarding American Alliance for Equal Rights v. Fearless Fund

American Alliance for Equal Rights (AAER) is suing Fearless Fund Management LLC (a black women-run company) for claims of racial discrimination and violations of Section 1981 of the Civil Rights Act of 1866 (Civil Rights Act)…more

Affirmative Action, Civil Rights Act, Dispute Resolution, Grants, Race Discrimination

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11th Circuit Court of Appeals Granted AAER’s Preliminary Injunction against Fearless Fund

American Alliance for Equal Rights (“AAER”) sued Fearless Fund Management LLC (“Fearless”) (a black women-run company) for alleged violation of Section 1981 of the Civil Rights Act of 1866. After the Northern District of Georgia…more

Appeals, Civil Rights Act, First Amendment, Minority-Owned Businesses, Preliminary Injunctions

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Federal Circuit Rules That Supreme Court Decision in TC Heartland Was a Change of Law

In good news for those awaiting decisions on pending motions to transfer, or those contemplating a challenge to a recent denial of their motion – especially in the ED Texas, ND California, CD California and Delaware – on…more

Federal Rule 12(b)(6), FRCP 12(b)(3), Motion to Dismiss, Patents, SCOTUS

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The Fifth Circuit Strikes a Blow to the Constitutionality of SEC Administrative Proceedings

On Wednesday, in a 2-1 decision, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled in Jarkesy v. SEC that proceedings before an SEC administrative law judge were unconstitutional. Notably, the circuit…more

Administrative Proceedings, Appeals, Securities Act of 1933, Securities and Exchange Commission (SEC), Securities Exchange Act of 1934

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CMS’ Latest Innovation Model – The Making Care Primary (MCP) Model Includes Focus on Social Determinants of Health

On June 8, 2023, the Centers for Medicare and Medicaid Services (CMS) announced a new voluntary primary care model, the Making Care Primary (MCP) Model. Highlights include the following: The MCP Model will run for 10.5…more

ACOs, Beneficiaries, Centers for Medicare & Medicaid Services (CMS), Compensation, FQHC

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Payor/Provider Convergence and What It Means for You

Welcome to the Payor/Provider Convergence Series of the Health Care Law Today blog. This series is dedicated to exploring the intersection between payors and providers in the health care space; in particular, the evolving trend…more

Centers for Medicare & Medicaid Services (CMS), CMMI, False Claims Act (FCA), Fee-for-Service, Health Care Providers

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Reminder October 30 Filing Deadline to file 2019 Form BE-180 Electronically

For investment advisers, managers/general partners of private funds, registered funds, private funds, and pension funds, among others, you have until October 30 to file Form BE-180, but you must do so electronically. (Yes, it…more

BE-180, BEA, Equity Transactions, Federal Register, Filing Deadlines

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How the Health and Human Services Advisory Opinion Impacts Liability Immunity for Covered Persons and Coronavirus Countermeasures under the PREP Act (Updated)

Updated as of Friday, April 17, 2020 - As discussed in our March 25 article below on liability immunity and the PREP Act, the March 17, 2020 Declaration by the Secretary of the Department of Health and Human Services (HHS)…more

Coronavirus/COVID-19, Department of Health and Human Services (HHS), Immunity, Public Readiness and Emergency Preparedness Act (PREP Act)

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Wisconsin PFAS Groundwater Standards Halted—for Now

Share on Twitter Print Share by Email Share Back to top The wait will continue for Wisconsin per- and polyfluoroalkyl substances (PFAS) enforcement standards for groundwater. Last week the Wisconsin Department of Natural…more

Audits, Enforcement, Environmental Protection Agency (EPA), Groundwater, PFAS

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Preparing for New SBA Certification Requirements for Veteran-Owned and Service-Disabled Veteran-Owned Small Businesses

On November 29, 2022, the Small Business Administration (SBA) published a Final Rule, requiring all Veteran-Owned Small Business Concerns (VOSBs) and Service-Disabled Veteran-Owned Small Business Concerns (SDVOSBs) to obtain SBA…more

Certifications, Department of Veterans Affairs, Final Rules, NAICS, SBA

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It’s Personal: No Causal Link, No Claim?

For any company facing a product liability lawsuit, it is critical at the outset to assess whether the forum court actually has the power to render a judgment against the defendant company (i.e., personal jurisdiction). A court…more

Ford Motor, Ford Motor Co. v Montana Eighth Judicial District Court, Jurisdiction, Personal Jurisdiction, SCOTUS

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“PowerOn!” – Women in Energy Network’s 2022 Annual Conference

Foley was a Silver Power Sponsor of the WEN 2022 Conference, which was held in person in Fort Worth from April 3-5, 2022. A number of Foley team members attended the conference along with over 500 attendees from various areas…more

Carbon Capture and Sequestration, Cybersecurity, Diversity, Energy Sector, Environmental Social & Governance (ESG)

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2022 NFT Litigation Roundup

The emergence of non-fungible tokens (NFTs) has spawned novel legal and regulatory considerations, spanning intellectual property rights, the potential classification of NFTs as securities, the recovery of assets held on…more

Criminal Prosecution, Cryptocurrency, Digital Assets, Enforcement Actions, Non-Fungible Tokens (NFTs)

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Top Ten Risk Mitigation Issues in Renewable Energy Construction Loan Agreements

Construction financing is used to fund the construction of renewable projects prior to such projects obtaining long-term financing. Because construction loans are disbursed during a high-risk phase of a project, these loans…more

Collateral, Construction Loans, Default, Interest Rates, Lending

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Five Compliance Checks Every Multinational Company Should Consider for … Being an Importer of Record

As an accompaniment to our biweekly series on “What Every Multinational Company Should Know About” various international trade, enforcement, and compliance topics, below find an update to our series on compliance checks that…more

Compliance, Customs, Enforcement, Multinationals, Recordkeeping Requirements

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“Let’s Talk Compliance”: Medicare Advantage: Compliance Issues and Enforcement

Editor’s Note: PYA and Foley & Lardner hosted the 6th Annual “Let’s Talk Compliance” two-day Virtual Conference on January 18 and 19, 2024. Panelists included Foley & Lardner attorneys and PYA experts. The event was hosted by…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Compliance, Department of Health and Human Services (HHS), Enforcement

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Foley Automotive Update - April 2024 - 2

This update helps automotive suppliers inform their legal and operational decisions to help address challenges and opportunities. Key Developments - Recent pricing disputes with suppliers have resulted in production…more

Antitrust Division, Automation Systems, Automotive Industry, Department of Energy (DOE), Department of Justice (DOJ)

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Successfully Navigating EV Product Roll-Outs: Manufacturers Balance Innovation and Legacy Needs

Automotive OEMs, suppliers, startups and other participants in the automotive ecosystem have a great deal to do in 2023 as manufacturers begin to move to diversify historical internal combustion engine (ICE) vehicle product…more

Electric Vehicles, Environmental Protection Agency (EPA), Greenhouse Gas Emissions, Inflation Reduction Act (IRA), Intellectual Property Protection

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FQHCs: Four Reimbursement Traps for the Unwary

This is the third article in our series addressing important topics for federally qualified health centers (FQHCs) and the providers who work with them. The first post in the series offered five tips for contracting with FQHCs…more

Health Care Providers, Healthcare Facilities, Incentive Based Contracts, Managed Care Contracts, Medicaid

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State Data Breach Notification Laws - September 2023

While most state data breach notification statutes contain similar components, there are important differences, meaning a one-size-fits-all approach to notification will not suffice. What’s more, as data breaches continue to…more

Data Breach, Gramm-Leach-Blilely Act, Health Insurance Portability and Accountability Act (HIPAA), Personally Identifiable Information, State Data Breach Notification Statutes

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Opportunity Zones: Should Your Startup Make One Its Home?

A Qualified Opportunity Zone (QOZ) is an economically distressed community where new investments, under certain conditions, may be eligible for preferential tax treatment. The U.S. federal government created this tax incentive…more

Capital Gains, Infrastructure, Investment, IRS, Qualified Opportunity Funds

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Recognition and Enforcement in Mexico of Foreign Reorganization Proceedings (Chapter 11)

COVID-19 has had a dramatic impact on the world economy with the virus affecting jobs and companies around the world in many ways, with imminent cash-flow shortfalls soon to occur throughout many sectors of the global economy. …more

Bankruptcy Code, Chapter 11, Coronavirus/COVID-19, Enforcement, Mexico

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Mexican Government Restricts Importation of Certain Fuels and Petrochemicals into Mexico

On October 23, 2023, the Mexican President published in the Official Gazette of the Federation a Decree under which the Mexican Government implements measures to combat the illicit trading of fuels, related to the importation of…more

Energy Regulatory Commission, Fossil Fuel, Imports, IRS, Mexico

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Is the DEA Poised to Regulate Telepharmacy?

On November 16, 2021, the Drug Enforcement Agency (DEA) issued an advance notice of proposed rulemaking, exploring whether or not to create new federal regulations governing the practice of telepharmacy. These regulations would…more

Brick-and-Mortar Stores, Controlled Substances, DEA, Notice of Proposed Rulemaking (NOPR), Telecommunications

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Issue of Applicability of 28 U.S.C. §1782 to Private International Commercial Arbitrations Is Ripe for Supreme Court’s Review After Second Circuit Decision

On July 8, 2020, the U.S. Court of Appeals for the Second Circuit held that 28 U.S.C. §1782, which affords discretion to U.S. courts to order discovery in the U.S. in connection with foreign proceedings, does not extend to…more

28 U.S.C. § 1782, Appeals, CIETAC, Commercial Arbitration, Discovery

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Fourth Circuit Holds Magistrate Judge Jurisdiction Does Not Require Absent Class Members’ Consent

Federal law delineates a magistrate judge’s exercise of jurisdiction over a civil case. Specifically, with the “consent of the parties,” a magistrate judge may conduct “any or all proceedings . . . and order the entry of…more

Absenteeism, Class Action, Class Members, Jurisdiction, Settlement Agreements

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Thinking About Selling your Business? Now is the Time

The economic environment has mostly stabilized following the inflationary shocks of 2021-2022, and a strong Q4 2023 suggests that M&A may be in line for a comeback in 2024. The following trends demonstrate why now is likely a…more

Acquisitions, Capital Gains, Capital Gains Tax, EBITDA, Mergers

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Top Legal Issues Facing the Manufacturing Sector in 2022

As the global economy faces the third year of the pandemic, manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past few years to become…more

Artificial Intelligence, Audits, BPA, China, Climate Change

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Extending Cuozzo: Supreme Court Holds § 315(b) One-Year Time Bar Determinations Are “Final and Nonappealable"

In Thryv, Inc. v. Click-to-Call Technologies, LP, the Supreme Court held that 35 U.S.C. § 314(d) precludes judicial review of the PTAB’s decision to institute inter partes review (IPR) even on a petition filed beyond the 35…more

§ 315(b), Cuozzo Speed Technologies v Lee, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board, SCOTUS

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Massachusetts: Proceed With Caution - New Vaccination Criteria for Hospitals and Other Licensed Health Facilities

Following public hearings and at least 78 public comments, at the end of October, hospitals and other facilities licensed by the Massachusetts Department of Public Health (DPH) will have new flexibility to require both flu and…more

Coronavirus/COVID-19, Employment Policies, Healthcare Facilities, Hospitals, Influenza

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Five Things You Should Know for 2017 About Cross-Border IP Licensing and Insolvency Law

Brexit. Trump. The year 2016 can be characterized as one of unpredicted results and impending uncertainty. In June, the UK electorate voted to leave the European Union and in November, a tumultuous presidential campaign in the…more

Chapter 15, Commercial Bankruptcy, Cross-Border, Debtors, Foreign Debt

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INSIGHT: Biogen Decision Shows Need for Clinical, Legal Collaboration

In Biogen International GmbH v. Banner Life Sciences LLC, a panel of the U.S. Court of Appeals for the Federal Circuit (CAFC) held that the scope of a patent term restoration under 35 U.S.C. §156 only includes the active…more

CAFC, Food and Drug Administration (FDA), Patent Infringement, Patent Terms, Patent-in-Suit

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DOJ’s New Corporate Enforcement Policies Target Individuals and Incentivize Self-Disclosure

On September 15, 2022, Deputy Attorney General Lisa Monaco announced significant changes to the U.S. Department of Justice’s (DOJ) approach to corporate criminal enforcement, including revised policies and an accompanying…more

Biden Administration, Compensation, Compliance, Corporate Communications, Corporate Crimes

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Preparing for New SBA Certification Requirements for Veteran-Owned and Service-Disabled Veteran-Owned Small Businesses

On November 29, 2022, the Small Business Administration (SBA) published a Final Rule, requiring all Veteran-Owned Small Business Concerns (VOSBs) and Service-Disabled Veteran-Owned Small Business Concerns (SDVOSBs) to obtain SBA…more

Certifications, Department of Veterans Affairs, Final Rules, NAICS, SBA

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Legal Implications of Blockchain in Supply Chain: What’s Law Got to Do With It?

The advent of new technology brings along with it the murkiness of how the American legal system will treat such technology. Before the rise of blockchain for instance, businesses were uncertain how courts would treat…more

Blockchain, California Consumer Privacy Act (CCPA), Confidentiality Policies, E-SIGN, Force Majeure Clause

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Cos. Should Heed IRS Warnings About Employee Tax Credit

For most businesses, turning the calendar to 2023 meant putting the pandemic and any of its tax-related effects further in the rearview mirror. One notable exception, however, is the employee retention credit, or ERC, which…more

Audits, CARES Act, Coronavirus/COVID-19, Employee Retention, Fraud

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11th Circuit Court of Appeals Granted AAER’s Preliminary Injunction against Fearless Fund

American Alliance for Equal Rights (“AAER”) sued Fearless Fund Management LLC (“Fearless”) (a black women-run company) for alleged violation of Section 1981 of the Civil Rights Act of 1866. After the Northern District of Georgia…more

Appeals, Civil Rights Act, First Amendment, Minority-Owned Businesses, Preliminary Injunctions

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CARES Act – Federal Reserve Main Street Loan Facilities - Updated June 12, 2020

The Main Street Lending Program, authorized under the CARES Act and Section 13(3) of the Federal Reserve Act, is designed to provide financial assistance to small and medium sized businesses. There will be three Main Street loan…more

Banks, Borrowers, CARES Act, Coronavirus/COVID-19, Debt

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Applicant Admitted Prior Art Cannot Be a “Basis For” an IPR Challenge

In a decision dated February 1, 2022, the Federal Circuit confirmed that applicant admitted prior art (AAPA) may not form the basis of a validity challenge in an inter partes review (IPR). The decision arose out of two IPRs…more

Apple, Inter Partes Review (IPR) Proceeding, Patents, Prior Art, Qualcomm

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New York Employers Should Take Advantage of the “Freelance Isn’t Free Act” Requirements to Reexamine Independent Contractor Relationships

Nearly six months after it was passed — with overwhelming support — by the New York Legislature, Governor Kathy Hochul recently signed Assembly Bill A6040, or the Freelance Isn’t Free Act (the “Act”). With an effective date of…more

Freelance Isn't Free Act (FIFA), Independent Contractors, New York, Payment Systems, Service Contracts

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The Not-So-Wild West of AI Regulation

Over the past year, we have seen the various agencies and branches of government issue a slew of rules, guidance, and directives over the use (and misuse) of Artificial Intelligence (AI). In May, the EEOC issued guidance on the…more

Analytics, Artificial Intelligence, Automated Decision Systems (ADS), Consumer Protection Laws, Cybersecurity

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New California Law Regulating Semiautonomous Vehicles Effective on January 1, 2023

A new law in California regulating consumer notices for semiautonomous vehicles went into effect on January 1, 2023. SB 1398, applies to the sale of new passenger vehicles equipped with a partial driving automation feature, or…more

Automotive Industry, California, False Advertising, Misleading Statements, New Regulations

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Fourth Annual Esports Survey Report

In November of last year, an esports viewership record was set when over 4 million people watched the 2021 World Championship for League of Legends. The high mark, which came despite the exclusion of Chinese platforms, surpassed…more

Coronavirus/COVID-19, Cryptocurrency, Cybersecurity, eSports, Gambling

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[Webinar] Food & Beverage Class Action Advertising and Labeling Lawsuits - August 5, 12:00-1:00 Central

Foley invites you to join us on Wednesday, August 5, 2015, to discuss recent class action litigation trends in food and beverage labeling and advertising. The presentation will review recent legal developments and provide…more

Advertising, Class Action, Class Certification, Continuing Legal Education, Expert Witness

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New Biden EO on AI Oversight, Development, and Use: Implications for the Health Care Industry

On Monday, October 30, President Biden signed an executive order (EO) aimed at overhauling the governance and oversight of artificial intelligence (AI) and technological infrastructure, including setting standards for AI used in…more

Artificial Intelligence, Biden Administration, Department of Health and Human Services (HHS), Executive Orders, Governance Standards

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OESA Mobility Supplier Forum Convenes in Palo Alto

The OESA convened its most recent “Mobility Supplier Forum” on August 25th at SRI International on the campus of Stanford University in Palo Alto. This was the first in-person forum hosted in Silicon Valley by OESA in a couple…more

Charging Stations, Due Diligence, Electric Vehicles, Infrastructure, NHTSA

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“Let’s Talk Compliance”: OIG’s General Compliance Program Guidance: How to Refresh Compliance Programs

Editor’s Note: PYA and Foley & Lardner hosted the 6th Annual “Let’s Talk Compliance” two-day Virtual Conference on January 18 and 19, 2024. Panelists included Foley & Lardner attorneys and PYA experts. The event was hosted by…more

Business Operations, Centers for Medicare & Medicaid Services (CMS), Compliance, Department of Health and Human Services (HHS), Enforcement Actions

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Quantity Requirements Under UCC Art. 2: Let’s Ensure Supply

In the business world, many companies enter into long-term contracts with respect to high volume, expensive, or essential transactions. A long-term contract is certainly beneficial for these types of transactions, but companies…more

Goods or Services, Minimum Contacts, Supply Agreements, Uniform Commercial Code (UCC)

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Class Certification Analysis in a Cryptocurrency Case: Williams v. Kucoin

A recent class certification decision out of the Southern District of New York provides insights on how courts will analyze the requirements for class certification, at least at the initial stage, in cases involving…more

Class Certification, Corporate Counsel, Cryptocurrency, Digital Assets, Howey

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Ongoing Battles Remind Employers to Carefully Consider Their Approach to Arbitration Agreements

Hop into the time machine with me so I can take a quick victory lap before I revert to being the ever-cautious counselor. Way back in October 2019, I not-so-subtly indicated my belief that a California statute banning…more

Arbitration, Arbitration Agreements, Class Action Arbitration Waivers, Employment Contract, Federal Arbitration Act

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Navigating the AI Frontier: Legal and Operational Insights Into Generative AI

In our ever-changing technological environment, artificial intelligence (AI) is beginning to exert its influence on numerous sectors, revolutionizing our approach to work. As businesses and organizations worldwide adopt…more

Anti-Discrimination Policies, Artificial Intelligence, Automated Decision Systems (ADS), Bias, Biotechnology

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Health Care Private Equity: Senate Budget Committee Investigates Hospital Ownership 

On December 7, 2023, the Senate Budget Committee (the “Committee”) launched a bipartisan investigation into the reality of private equity ownership of hospitals in the United States. This investigation stems from concerns around…more

Centers for Medicare & Medicaid Services (CMS), False Claims Act (FCA), Healthcare, Hospitals, Investigations

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Should I Stay or Should I Go: Supreme Court to Consider Whether Federal Courts Can Dismiss or Must Stay Cases Pending Arbitration

On January 12, 2024, the U.S. Supreme Court granted certiorari in Smith, et al. v. Spizzirri, et al., No. 22-1218 to consider whether a district court must stay a case — rather than dismiss it — when presented with an…more

Arbitration, Arbitration Agreements, Dismissals, Federal Arbitration Act, Judicial Proceedings

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Human Rights and Forced Labor Sanctions Announced

Earlier this week, the United States, the European Union, Britain, and Canada imposed sanctions on several Chinese officials for human rights abuses against the Uyghur minority in China’s Xinjiang Uyghur Autonomous Region…more

Canada, China, Economic Sanctions, EU, Exports

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Top Legal Issues Facing the Manufacturing Sector in 2023

Agility and resiliency remain essential attributes for manufacturers in 2023. Manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past…more

Artificial Intelligence, Best Practices, Clawbacks, Compensation, Compliance

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Blockchain: A Tool With a Future in Healthcare

Blockchain technology originated in 1991, and was conceived as a secure way to timestamp digital documents akin to how a notary timestamps physical documents. The true value lies in the fact that once stamped, the document…more

Blockchain, Credentialing, Distributed Ledger Technology (DLT), DSCSA, EHR

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Medicare Compliance Basics: “Incident to” Billing

Editor’s Note: We are excited to announce that this article is the first of a series addressing Medicare Part B’s “incident to” billing requirements, designed to give practical guidance and orientation to health care providers,…more

Centers for Medicare & Medicaid Services (CMS), Compliance, Coronavirus/COVID-19, MACs, Medicare

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No Incentive Awards for Class Representatives — Eleventh Circuit Rejects Reconsideration En Banc of Its One-of-a-Kind Bar

Last week, the Eleventh Circuit declined, 7–4, to reconsider en banc a divided panel’s September 2020 decision barring incentive awards to class representatives for their work in class actions. As such, the Eleventh Circuit…more

Certiorari, Class Action, Corporate Counsel, En Banc Review, Incentive Awards

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Introduction: What is Supply Chain Management?

Share on Twitter Print Share by Email Share Back to top In recent years, viral videos featuring a surprising topic have racked up millions of views on social media. Not videos of a celebrity doing something outrageous, a…more

Artificial Intelligence, Automation Systems, Blockchain, Collaboration, Coronavirus/COVID-19

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Supreme Court’s Jack Daniel’s Decision Clarifies First Amendment Parody Defense in Trademark Infringement Cases

On June 8, 2023, the Supreme Court of the United States issued its decision in Jack Daniel’s Properties, Inc. v. VIP Products, LLC, a trademark case concerning the First Amendment parody defense. In a unanimous opinion authored…more

Cease and Desist, Dilution, First Amendment, Intellectual Property Protection, Jack Daniels Properties Inc v VIP Products LLC

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IRS Releases Guidance on Tax Credit Sales and Direct Cash Payments

The Internal Revenue Service (“IRS”) and Department of the Treasury earlier this week released extensive proposed regulations relating to direct cash payments for certain tax credits pursuant to Section 6417 of the Internal…more

Inflation Reduction Act (IRA), Internal Revenue Code (IRC), Investment Tax Credits, IRS, New Guidance

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Regulatory Alert: DEA’s New Controlled Substance Theft or Loss Rule Includes a New Deadline and May Require Changes to Corporate Compliance Systems

On July 24, 2023, a new final rule from the Drug Enforcement Administration (DEA) became effective, with important consequences for companies and individuals registered to manufacture, distribute, or dispense controlled…more

Compliance, Controlled Substances, Controlled Substances Act, DEA, Deadlines

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The No Surprises Act: The Departments Proposed Another Increase to IDR Fee, Will it Stick?

On September 26, 2023, the Departments of Health & Human Services (HHS), Labor, and the Treasury (collectively, the Departments) jointly proposed rules (September Rule) updating the administrative fee and Certified Independent…more

Billing, Department of Health and Human Services (HHS), Department of Labor (DOL), Dispute Resolution, Fees

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Leveraging the International Labor Organization’s Forced-Labor Indicators to Eradicate Forced Labor from Supply Chains

The United States Customs and Border Protection (CBP) prioritizes enforcing rules against the use of forced labor and human trafficking. The CBP’s ramped-up enforcement of the Uyghur Forced Labor Prevention Act (UFLPA) is…more

China, Code of Conduct, Compliance, Customs and Border Protection, Due Diligence

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Unlocking Stock Options: Employee Loans and Considerations

When it comes to employee compensation, companies constantly explore innovative ways to align their workforce’s interests with the organization’s success. One strategy gaining traction is the extension of loans to employees to…more

Employees, Employer Liability Issues, Initial Public Offering (IPO), Loans, Risk Management

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What’s Next in Washington? - January 2023 Edition

The dust from the 2022 Midterm Elections has settled and the 118th Congress has begun. Republicans were successfully able to flip control of the House and now have a 222-212 majority with one vacancy to be filled. Democratic…more

Child Tax Credit, Climate Change, Communications Decency Act, Congressional Review Act, Consolidated Appropriations Act (CAA)

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VIX Manipulation Class Actions - Part II: Venue and Consolidation

In our previous update, we informed you that Atlantic Trading USA LLC had filed the first class action complaint in Chicago federal court against various numerous unnamed market maker trading firms, alleging manipulation of the…more

Case Consolidation, CBOE, Class Action, Market Manipulation, Multidistrict Litigation

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Helping your family (even a little) is a violation of the Advisers Act?

Is an “Ask” a Violation of the Advisers Act? Yes, it can be a violation to “put in a good word” for one of your family members. On January 5, 2023, the Securities and Exchange Commission (the SEC) entered into an Offer of…more

Fraud, Investment Adviser, Investment Advisers Act of 1940, Portfolio Managers, Securities and Exchange Commission (SEC)

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Practices and Precautions for Commercial Landlords for Reopening After COVID-19

As many businesses are re-opening, employees have begun returning to work at their companies’ physical office space and landlords of commercial office buildings are encountering practical questions regarding how best to re-open…more

Coronavirus/COVID-19, Executive Orders, Landlords, Re-Opening Guidelines, Tenants

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Understanding the Evolving U.S. Sanctions and Restrictions on Ethiopia and Eritrea

Several U.S. sanctions and restrictions on Ethiopia and Eritrea remain in place due to the countries’ failure to fully implement the peace deal reached with the Tigray People’s Liberation Front in November 2022. While progress…more

AGOA, Biden Administration, Economic Sanctions, Ethiopia, Executive Orders

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Board-Level Risk Oversight Deserves Renewed Attention

Board oversight of significant company risk areas and legal compliance deserves renewed attention, as the Delaware Supreme Court recently ruled that monitoring practices that have previously been considered acceptable may…more

Blue Bell Creameries, Board of Directors, Breach of Duty, Caremark claim, Compliance

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New Florida Receivership Statute Gives Commercial Mortgage Lenders Potential Leverage

Amidst the growing uncertainty caused by the COVID-19 pandemic, Florida’s newly enacted receivership law, the Uniform Commercial Real Estate Receiver Act (“UCRERA”), codified in Chapter 714 of the Florida Statutes, endeavors to…more

Avoidable Transfer, Bankruptcy Code, Commercial Mortgages, Coronavirus/COVID-19, Foreclosure

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Wisconsin Supreme Court Reaffirms Four-Corners Rule for Insurers’ Duty to Defend

An insurer’s decision whether to defend a lawsuit against its insured can be a critical issue involving tens of thousands, if not millions, of dollars for Wisconsin companies who are sued. The Wisconsin Supreme Court recently…more

Appeals, Bad Faith, Breach of Duty, Duty to Defend, Extrinsic Evidence

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Department of Labor Issues Final Rule on Worker Classification under the FLSA, Returning to More Employee-Friendly Analysis 

On January 9, 2024, the United States Department of Labor (DOL) issued its long-awaited final rule (“Final Rule”) regarding worker classification under the Fair Labor Standards Act (FLSA or the “Act”). The Final Rule —…more

Classification, Department of Labor (DOL), Economic Realities Test, Employee Definition, Fair Labor Standards Act (FLSA)

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SEC Adopts New Cybersecurity Disclosure Rules

On July 26, 2023, the U.S. Securities Exchange Commission (“SEC”) adopted final rules regarding cybersecurity risk management, strategy, governance, and incident reporting by public companies. The final rules require registrants…more

Annual Reports, Customer Proprietary Network Information (CPNI), Cybersecurity, Disclosure Requirements, FBI

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Top Legal Issues Facing the Manufacturing Sector in 2023

Agility and resiliency remain essential attributes for manufacturers in 2023. Manufacturers are no longer focused on figuring out when things will return to “normal.” Instead, they are applying lessons learned from the past…more

Artificial Intelligence, Best Practices, Clawbacks, Compensation, Compliance

See all updates »

Trademark Law and Bankruptcy Considerations for Emerging Companies in the Renewable Energy Sector

As the renewable energy sector continues to experience significant growth and attract emerging companies, it becomes essential for entrepreneurs and business owners to understand the legal landscape surrounding trademarks and…more

Acquisitions, Automatic Stay, Corporate Branding, Debtors, Energy Sector

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States with Pending Legislation to Ban Employee Noncompetes: Maine Poised to be Next State to Enact a Ban

As we continue to report, noncompete agreements are an area of ever-increasing scrutiny and limitation. Last year we wrote about states with civil and criminal penalties for violations of noncompete law, which is just one aspect…more

Civil Monetary Penalty, Corporate Counsel, Criminal Penalties, Labor Law Violations, Non-Compete Agreements

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SEC Amends Rule 14a-8 to Modernize Shareholder Proposal Requirements

On September 23, 2020, the Securities and Exchange Commission (“SEC”) announced that it had adopted amendments to Rule 14a-8 under the Securities Exchange Act of 1934 (the “Amendments”). Rule 14a-8 governs the eligibility, on…more

Aggregation Rules, American Bar Association (ABA), Federal Register, Proposed Amendments, Regulatory Requirements

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New Florida Receivership Statute Gives Commercial Mortgage Lenders Potential Leverage

Amidst the growing uncertainty caused by the COVID-19 pandemic, Florida’s newly enacted receivership law, the Uniform Commercial Real Estate Receiver Act (“UCRERA”), codified in Chapter 714 of the Florida Statutes, endeavors to…more

Avoidable Transfer, Bankruptcy Code, Commercial Mortgages, Coronavirus/COVID-19, Foreclosure

See all updates »

Action Steps Health Plans Should Take Now In Response To New DOL Guidance on Mental Health Parity

The Consolidated Appropriations Act, 2021 (CAA) added a requirement for health plans to document their compliance with nonquantitative treatment limitations (NQTLs) under the Mental Health Parity and Addiction Equity Act…more

Consolidated Appropriations Act (CAA), Department of Labor (DOL), Employer Group Health Plans, Mental Health Parity Rule, MHPAEA

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Seventh Circuit Addresses Mandatory Local Controversy Exception to the Class Action Fairness Act

Since its enactment in 2005, the Class Action Fairness Act (CAFA) has provided defendants with additional opportunities to remove state-law claims to federal court. Among other things, the statute expands federal courts’…more

CAFA, Class Action, Class Certification, Diversity, Health Care Providers

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Keeping Up To Date On CRISPR – July 2016

CRISPR is a gene editing technique that promises to revolutionize genetic engineering, but already is raising ethical, business, and legal issues. This is the first in a monthly series of articles on CRISPR…more

Bioengineering, China, Clinical Trials, CRISPR, DNA

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How Women In Law Can Advance Toward Leadership Roles

Women in law firm leadership add tremendous value to their clients, their colleagues and the firm as a whole. According to a recent study by Business Insider, female leaders are more effective at taking initiative,…more

Collaboration, Diversity, Diversity and Inclusion Standards (D&I), Law Practice Management, Professional Development

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Federal Circuit Clarifies Conditions for Standard Essential Patents in LTE Technologies

Standard Essential Patents (SEP) are patents that claim inventions needed to comply with a technical standard e.g., the 3G or LTE standards in mobile telecommunications technology. A SEP can benefit the patentee when licensed to…more

Appeals, FRAND, International Trade Commission (ITC), Non-Discrimination Rules, Patents

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Medicaid Drug Rebate Agreements: Changes Require Immediate Action By Pharmaceutical Manufacturers

For the first time since the enactment of the Medicaid Drug Rebate Program (MDRP), the Centers for Medicare and Medicaid Services (CMS) revised the National Medicaid Drug Rebate Agreement (NDRA) entered into between drug…more

Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Drug Pricing, Manufacturers, MDRP

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California Enacts the California Age-Appropriate Design Code Act

On September 15, 2022 California Governor Gavin Newsom signed into law the California Age-Appropriate Design Code Act (CAADCA) AB 2273, which takes effect July 1, 2024 and intends to protect the wellbeing, data, and privacy of…more

California, California Privacy Rights Act (CPRA), COPPA, Data Collection, Data Protection

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AseraCare 11th Circuit Case Holds Differences in Hospice Clinical Opinions are Insufficient to Demonstrate Falsity Under the FCA

Tuesday’s ruling by the United States Court of Appeals for the Eleventh Circuit in United States v. AseraCare is a win for hospice and other health care providers who have long argued that a mere difference of clinical opinion…more

Appeals, False Claims Act (FCA), Health Care Providers, Hospice, Objective Falsity

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Key Trends In Pharmaceutical IPRs Filed By Generic Petitioners

We reviewed a sub-group of two hundred and four (204) IPRs filed by generic drug companies against pharmaceutical patents to assess PTAB outcomes and key trends in dealing with this technology field. The survey captured IPR…more

Generic Drugs, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board, Patents, Pharmaceutical Industry

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Pulp Fiction: The “Food Court” Squeezes Statutory Damages Request by Class of Defrauded “Joint Juice” Health Supplement Buyers

Joint Juice, according to its labelling and advertising, promoted “healthy and happy,” if not pain free, joints. A jury apparently thought it was closer to snake oil, finding the product’s marketing false, misleading, and…more

Class Action, Class Certification, Corporate Counsel, Due Process, Fraud

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Behavioral Health: CMS Innovation Model Outlines Changes for the Delivery of Integrated Behavioral and Physical Health Care

On January 18, 2024, the Centers for Medicare & Medicaid Services (CMS) announced a new innovation model designed to improve quality of care and behavioral and physical health outcomes for Medicaid and Medicare patients with…more

Alternative Payment Models (APM), Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Healthcare, Medicaid

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IP Contracting Considerations for Software as a Medical Device (SaMD)

Advancements in the medical device space are increasingly driven by integrations of software, oftentimes as the fruit of the symbiosis between engineers at software development firms working with clinicians at research…more

Artificial Intelligence, Intellectual Property Protection, Medical Devices, Quality of Care Standards, Software

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Significant Recent Decisions Relevant To Private Company M&A

In navigating the complex world of private company mergers and acquisitions (M&A), understanding recent legal decisions is paramount. This white paper serves as a guide, distilling intricate court rulings into digestible…more

Acquisitions, Bad Faith, Breach of Contract, Damages, Fiduciary Duty

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Privacy and Data Security Considerations in M&A Transactions

When entering into any merger or acquisition (both a stock deal and an asset deal), there are numerous privacy and data security issues that must be evaluated and addressed from the beginning. Most companies in today’s online…more

Acquisitions, Data Collection, Data Privacy, Data Security, Data Storage

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What You Need to Know about the Corporate Transparency Act Notice of Proposed Rulemaking

On December 7, 2021, the Financial Crimes Enforcement Network (“FinCEN”) issued a Notice of Proposed Rulemaking (“NPRM”) to establish regulations that will implement the Corporate Transparency Act (“CTA”). This rulemaking is…more

Anti-Money Laundering, Beneficial Owner, Corporate Transparency Act, FinCEN, Investment Adviser

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  • 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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