Pillsbury Winthrop Shaw Pittman LLP

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31 West 52nd Street
United States, NY 10019, United States
Phone: 212.858.1000
Fax: 212.858.1500
Practice Groups
Areas Of Practice
  • Alternative Dispute Resolution (ADR)
  • Antitrust & Trade Regulation
  • Appellate Practice
  • Art, Entertainment, & Sports Law
  • Bankruptcy
  • Communications & Media Law
  • Construction Law
  • Criminal Law
  • Education
  • Elections & Politics
  • Energy & Utilities
  • Environmental Law
  • Finance & Banking
  • Government
  • Health
  • Indigenous Peoples
  • Insurance
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
  • Mergers & Acquisitions
  • Products Liability
  • Real Estate
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
  • Toxic Torts
  • Transportation
  • Wills, Trusts, & Estate Planning
  • Zoning, Planning & Land Use
See more
Locations
Other U.S. Locations
  • California
  • D.C.
  • Florida
  • New York
  • Tennessee
  • Texas
  • Virginia
Other Countries
  • China
  • Hong Kong
  • Japan
  • Taiwan
  • United Arab Emirates
  • United Kingdom
Number of Attorneys
600+ Attorneys

California Announces First Statewide Microplastics Strategy

Companies should consider taking proactive measures to avoid being blindsided by future microplastic-related laws. California’s adoption of the Statewide Microplastics Strategy is the first attempt by a U.S. state to establish…more

California, Environmental Policies, Plastic Bag Bans, Plastic Straw Ban, Plastics

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Tour de Force: COVID-19 Continues to Impact Leases While Cases Implicating Force Majeure Await Decisions

Real estate litigation and landlord-tenant disputes continue to dominate the COVID-19 force majeure litigation landscape. Meanwhile, several COVID-related cases are teed up for judicial decisions implicating force majeure…more

Coronavirus/COVID-19, Damages, Force Majeure Clause, Landlords, Popular

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Treasury Announces Proposed Rule to Update CFIUS Regulations and Bolster Enforcement

On April 11, 2024, the U.S. Department of the Treasury (Treasury), as Chair of the Committee on Foreign Investment in the United States (CFIUS), issued a Notice of Proposed Rulemaking (NPRM), which is the first substantive…more

CFIUS, Enforcement, FIRRMA, Foreign Investment, NPRM

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Should I Incorporate on My Own?

Formally incorporating a company is a significant milestone in a founder’s journey. What may have begun as an idea doodled on the back of a napkin is now an official legal entity. Given the mass availability of “do-it-yourself”…more

Articles of Incorporation, Business Development, Business Formation, Corporate Governance, Entrepreneurs

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Information Requests and Subpoenas for PFAS Likely to Increase, as Biden Administration Ramps Up Regulation of PFAS

What to Do When You Receive an Information Request or Subpoena from a Governmental Agency about PFAS - Federal and state governments use information requests and subpoenas to gather information about a business’s practices…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, CERCLA, Chemicals, Clean Air Act

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Not So Fast: Satisfaction of Default-Rate Interest Required before Loan Reinstatement

A New York Bankruptcy Judge held that a debtor must pay default-rate interest and fees to a secured lender as a condition to reinstatement of defaulted and accelerated debt under a chapter 11 plan. A debtor must pay…more

Bankruptcy Code, Chapter 11, Commercial Mortgages, Debtors, Fees

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The “Insurance Neutrality” Doctrine is Heading to SCOTUS

The U.S. Supreme Court agreed to hear an appeal of the Fourth Circuit’s decision in Kaiser Gypsum regarding an insurer’s standing to object to a bankruptcy plan under the “insurance neutrality” doctrine. Under the “insurance…more

Appeals, Bankruptcy Plans, Chapter 11, Insurance Industry, Objection Procedures

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New Stimulus Measures Taking Shape

Democrats and Republicans launch negotiations, each envisioning a broad-scale extension of previous efforts to stem the economic damage from COVID-19. Senate Republicans and House Democrats have both put forth proposals aimed…more

Affordable Care Act, CARES Act, Child Tax Credit, Coronavirus/COVID-19, Earned Income Credit

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Revised Uniform Grants Guidance Reduces Burdens While Encouraging Accessibility and Transparency

On April 4, 2024, the White House released a pre-publication final rule substantially updating the Office of Management and Budget (OMB) Uniform Grants Guidance, which sets the foundational requirements for agencies in making…more

Acquisitions, Federal Funding, Federal Procurement Systems, Final Rules, Mergers

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Chemical Conundrum: TSCA at the Forefront of PFAS Regulation

The Toxic Substances Control Act (TSCA) has been regulating new and existing chemicals for almost 50 years. Under the TSCA, the EPA was given broad authority to track the thousands of existing commercial chemicals and regulate…more

Environmental Policies, Environmental Protection Agency (EPA), Hazardous Substances, Manufacturers, PFAS

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French Parliament Unanimously Approves a Bill Banning Certain PFAS Products

As regulation of the use of PFAS in consumer products continues to develop at a rapid pace in the United States, businesses that manufacture or sell products internationally should also keep their fingers on the pulse of foreign…more

Compliance, Consumer Product Companies, Environmental Policies, EU, France

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SEC Adopts Rule Changes to Shareholder Ownership Reporting

The SEC shortened Schedule 13D and Schedule 13G beneficial ownership reporting deadlines and amended disclosure requirements. The SEC modified and accelerated the initial filing and amendment deadlines, as well as amendment…more

Beneficial Owner, Compliance, Deadlines, Derivatives, Disclosure Requirements

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When the Tigers Broke Free: A Primer on the Clemson/Atlantic Coast Conference Lawsuits

Clemson University is challenging in court the Atlantic Coast Conference’s (ACC) financial exit fee and the scope of Clemson’s grant of its media rights to the ACC, each of which pose significant financial obstacles to Clemson…more

College Athletes, Colleges, Commercial Litigation, Contract Terms, Fees

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Cal/OSHA Approves Stricter Standards for Occupational Lead Exposure

Because Cal/OSHA significantly lowered the exposure thresholds that require an employer to comply with its lead regulations, more employers may fall within the ambit of the revised regulations. Revised regulations, effective…more

Cal-OSHA, Health and Safety, Lead, Occupational Exposure, Regulatory Standards

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The U.S. Moves Toward a Comprehensive Privacy Law (One More Time)

On April 7, 2024, U.S. Sen. Maria Cantwell (D-WA), Chair of the Senate Committee on Commerce, Science and Transportation, and U.S. Rep. Cathy McMorris Rodgers (R-WA), Chair of the House Committee on Energy and Commerce, released…more

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

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New Law Mandates Disclosure of Alternative Fund Fees By California Public Pensions

To increase the transparency of fees and expenses paid to alternative funds, every California public pension plan must require each alternative fund in which they invest to make various disclosures, and California public pension…more

Disclosure Requirements, Fee Disclosure, Hedge Funds, Investment, Investment Funds

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New York Amends Recently Enacted Comprehensive Insurance Disclosure Act Requirements

Defendants in New York state court must now produce insurance information in newly filed lawsuits within 90 days of answering the complaint. While the extent of the insurance disclosure requirements has been narrowed, and…more

Disclosure Requirements, Insurance Industry, New Amendments, New York

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SEC Adopts Long-Anticipated Rules for SPACs: Considerations for Market Participants and SEC Enforcement Objectives in the New Regulatory Environment

The rules, originally proposed in March 2022, realign disclosures, marketing practices and other obligations in de-SPAC transactions more closely with traditional IPOs and add increased risk and uncertainty for market…more

Conflicts of Interest, Corporate Counsel, Disclosure Requirements, Enforcement, Fairness Standard

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Minerva: Another Bright-Line Rule Dims

Assignor estoppel survived the Supreme Court’s decision in Minerva Surgical Inc. v. Hologic Inc., but the Court’s clarification requires diligence and presents opportunities. Review patent assignment and employee agreements to…more

Assignor Estoppel, Corporate Counsel, Estoppel, Medical Devices, Minerva Surgical Inc. v Hologic Inc.

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South Carolina Legislature Forces New Standards for Forced Combination on Revenue Department

Under a new bill signed into law on March 11, 2024, the South Carolina Department of Revenue will have to satisfy additional standards before it may force affiliated corporate taxpayers to file a unitary combined return.  These…more

Apportionment, Corporate Taxes, Income Taxes, New Legislation, State and Local Government

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Coronavirus in the Chinese Law Context: Force Majeure and Material Adverse Change

As COVID-19’s impacts threaten to upend contractual relationships between parties doing business under Chinese law, it is critical to understand the legal landscape in China. - China’s statutory laws allow contracting…more

China, Contract Terms, Coronavirus/COVID-19, Force Majeure Clause, Infectious Diseases

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Clarity for M&A Practitioners: Proposed DGCL Amendments Bridge the Gap between Recent Delaware Chancery Court Decisions and Market Practice

The proposed amendments would address recent case law decisions in Activision, Moelis and Crispo that uprooted well-established market practice with respect to the enforceability of certain provisions of stockholder agreements…more

Acquisitions, Board of Directors, Corporate Governance, Corporate Officers, Delaware General Corporation Law

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UK Government COVID-19 Funding Initiatives

The UK Government has announced an unprecedented raft of measures designed to support UK workers and businesses through the COVID-19 pandemic. The UK government’s economic response to the crisis has been substantial and aims…more

Business Interruption, Coronavirus Business Interruption Loan Scheme (CBILS), Coronavirus/COVID-19, UK

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The U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule in EPA v. EME Homer City Generation, L.P., Paving the Way to Further Use of Cap-and-Trade Programs to Control Emissions of SO2 and NOx from Electric Power Plants.

On April 24, the Supreme Court issued a 6-2 decision in EPA v. EME Homer City Generation, L.P., No. 12-1182, 572 U. S. ____, 2014 WL 1672044 (2014), upholding EPA’s latest version of a regional cap-and-trade program under the…more

Cap-and-Trade, Carbon Emissions, Clean Air Act, EPA v EME Homer City, NAAQS

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Making Japan a More Attractive Center for International Arbitration

Since 2017, Japan has been actively working to promote international arbitration. The updates to the Arbitration Act of Japan should help boost the country’s popularity as an arbitration seat…more

Arbitration Awards, Commercial Arbitration, Foreign Corporations, Hong Kong International Arbitration Centre (HKIAC), International Arbitration

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Banks, Payments and Fintech—Staying Nimble and Customer-Focused during a Pandemic

Recently, Pillsbury’s Deborah Thoren-Peden sat down with a panel of experts that included Millicent Calinog Tracey (former Wells Fargo SVP), Samantha Ettus (founder and CEO of Park Place Payments) and Pillsbury partner John…more

Banks, Coronavirus/COVID-19, FinTech, Merchants, Online Payments

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Web Scraping Watch: Cases Set to Clarify Application of the Computer Fraud and Abuse Act

For years, website owners have leveraged the federal Computer Fraud & Abuse Act (CFAA) as a tool to combat unauthorized scraping of data and other content from their websites. Due to a circuit court split on the interpretation…more

Cease and Desist, Computer Fraud and Abuse Act (CFAA), Corporate Counsel, Data Collection, Web Scraping

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Personal Guaranties May Not Deter Property Owner Bankruptcies

Lenders should plan for real estate owner bankruptcies despite having a non-recourse carveout guaranty triggered by the owner’s bankruptcy filing. Real estate bankruptcies may occur despite personal guaranties because…more

Bankruptcy Code, Bankruptcy Court, Coronavirus/COVID-19, Debtors, Lenders

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U.S. Capital Markets Regulations Affecting U.S. Companies - August 2022

Capital markets in the United States provide an unparalleled source of investment capital, measured in trillions of dollars. U.S. markets and rules allow companies to raise funds on an expedited and economically efficient basis…more

Beneficial Owner, Capital Markets, Disclosure Requirements, Emerging Growth Companies, Executive Compensation

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Cloud Computing: Not Always the Low Cost Alternative

There is no doubt cloud computing has delivered multiple benefits to the IT organization. However, without proper management and controls, these benefits could become a non-trivial expense to the organization. In a Wall Street…more

Cloud Computing, Computer Servers, Popular, Wall Street Journal

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A Hat Tip to the Manufacturing, R&D and Electric Power Industries: California Bill Would Provide Income Tax Credits for Sales and Use and District Taxes Paid on Certain “Qualified Tangible Personal Property”

California’s Existing Partial Exemption for Statewide Sales and Use Tax Paid on Qualified Tangible Personal PropertyRTC section 6377.1 exempts from certain state sales and use taxes the sale of, and the storage, use or other…more

Business Strategies, California, Capital Investments, Income Taxes, Investment Opportunities

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How This Multimillion-Dollar Tax Benefit Can Slip Through Your Fingers: Don’t Miss Out!

The Qualified Small Business Stock (QSBS) status under Section 1202 of the Internal Revenue Code provides a significant tax advantage for small business owners (i.e., Founders) and investors. It allows for a 100% capital gain…more

Business Ownership, Founding Members, Internal Revenue Code (IRC), Investors, Qualified Small Business Stock

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Correcting and Clarifying Export Controls Issued on Advanced Computing and Semiconductor Manufacturing Items

On March 29, 2024, the U.S. Commerce Department’s Bureau of Industry and Security (BIS) issued an interim final rule (“2024 IFR”) clarifying and correcting its October 2023 interim final rules on advanced…more

Bureau of Industry and Security (BIS), China, ECCNs, Export Administration Regulations (EAR), Export Controls

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SCOTUS Relaxes Standards for Title VII Plaintiffs in Workplace Discrimination Claims

In Muldrow v. City of St. Louis, No. 22-193, 2024 WL 1642826 (U.S. Apr. 17, 2024), the U.S. Supreme Court ruled that an employee alleging that an involuntary lateral job transfer constituted workplace discrimination in violation…more

Civil Rights Act, Discrimination, Diversity and Inclusion Standards (D&I), Employee Transfers, Employer Liability Issues

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Treasury Department and IRS Issue Final Regulations and Other Guidance on the Direct Pay Election under Section 6417 of the Internal Revenue Code

Under Section 6417 of the Internal Revenue Code (IRC), “applicable entities” and certain electing taxpayers can elect to treat various renewable energy tax credits as payments against tax, essentially making those credits…more

Business Entities, Comment Period, Internal Revenue Code (IRC), IRS, Joint Ownership

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SEC Adopts Long-Anticipated Final Rules on Climate-Related Disclosure Requirements

The rules impose standardized disclosure requirements on public companies beginning as early as 2026 (for fiscal year ending 2025, depending on filer status). Climate-related disclosures, including in financial statement…more

Annual Reports, Climate Change, Corporate Governance, Disclosure Requirements, Final Rules

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Ukraine Reconstruction: Opportunities and Legal Challenges for Businesses

Ukraine’s reconstruction efforts present myriad opportunities for foreign businesses particularly in the energy, construction and tech sectors. At the same time, it is imperative for foreign businesses to approach these…more

Business Development, Construction Industry, Economic Sanctions, Energy Sector, Export Controls

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How Your Business Can Weather Big Sur’s Latest Landslide

After heavy rains on March 30, 2024, a section of the southbound lane of famous Highway 1, which sits atop dramatic cliffs near Big Sur, collapsed and crumbled into the Pacific Ocean. The incident occurred near Rocky Creek…more

Insurance Claims, Insurance Industry, Insurance Litigation, Natural Disasters, Policy Exclusions

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SEC Adopts Long-Anticipated Final Rules on Climate-Related Disclosure Requirements

The rules impose standardized disclosure requirements on public companies beginning as early as 2026 (for fiscal year ending 2025, depending on filer status). Climate-related disclosures, including in financial statement…more

Annual Reports, Climate Change, Corporate Governance, Disclosure Requirements, Final Rules

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Bill Proposes First-Ever Federal Workforce Housing Tax Credit for Middle-Class Housing

Legislation was recently introduced to the U.S. Senate and House of Representatives proposing the creation of the first-ever Workforce Housing Tax Credit (WHTC) for middle-income housing developments…more

Affordable Housing, Construction Project, Housing Developers, Low Income Housing, Real Estate Development

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Proposed U.S. Department of Transportation Passenger Protection Rules Offer Opportunity for Travel Industry Comments

On May 21, 2014, the U.S. Department of Transportation (DOT) proposed new passenger protection rules for the airline and travel industries, which would add to DOT’s extensive “Enhancing Airline Passenger Protections” regulations…more

Airlines, Aviation Industry, Department of Transportation (DOT), Safety Precautions

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Esports Industry Report

We began developing this report before COVID-19. Then, esports was a burgeoning sector with exponential year-over-year growth. The commercial landscape was ripe with opportunities for all stakeholders in the esports…more

Coronavirus/COVID-19, eSports, Financial Sponsors, Louis Vuitton, NBA

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DC Non-Compete and Anti-Moonlighting Law to Take Effect October 1, 2022

A new DC law restricts DC employers from entering into non-compete agreements with employees earning less than $150,000 as of October 1, 2022, whereas the prior iteration of the law would have imposed a near universal ban on…more

Bonuses, Conflicts of Interest, Damages, Department of Labor (DOL), Enforcement

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COVID-19 Impacts on REITs and Mitigation Strategies

REITs need to be sensitive to the consequences of acts taken in response to the COVID-19 pandemic on their compliance with the REIT tests under the tax laws. REITs that intend to rely on large borrowings from their credit lines…more

Asset Management, Business Strategies, Commercial Tenants, Coronavirus/COVID-19, Mitigation

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The “Insurance Neutrality” Doctrine is Heading to SCOTUS

The U.S. Supreme Court agreed to hear an appeal of the Fourth Circuit’s decision in Kaiser Gypsum regarding an insurer’s standing to object to a bankruptcy plan under the “insurance neutrality” doctrine. Under the “insurance…more

Appeals, Bankruptcy Plans, Chapter 11, Insurance Industry, Objection Procedures

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Contracting Models for Global Capability Centers in India

Global Capability Centers (GCCs) located in India continue to evolve from labor arbitrage and cost savings initiatives to innovation centers for digital transformation, supporting cloud, mobile, data security, data analytics,…more

Acquisitions, Business Formation, Buyouts, Dispute Resolution, Foreign Corrupt Practices Act (FCPA)

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Guidance for Companies Developing and Implementing Antitrust Compliance Programs

Recent policy statements by the U.S. Department of Justice’s Antitrust Division (“DOJ”) highlight the factors companies should consider when developing and implementing antitrust compliance programs. Effective antitrust…more

Antitrust Provisions, Best Management Practices, Chief Compliance Officers, Department of Justice (DOJ)

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Grecian: Tax Court Rejects IRS Ruling - Five Things You Need to Know

On July 13, 2017, in Grecian Magnesite Mining, Industrial and Shipping Co. SA v. Commissioner (149 T.C. No. 3 (2017), the U.S. Tax Court concluded that gain recognized by a foreign corporation upon redemption of its interest in…more

FIRPTA, Foreign Corporations, Internal Revenue Code (IRC), IRS, Partnerships

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Preserving California’s Tied-House Rules - Ninth Circuit en banc decision upholds decades-old law restricting alcohol beverage supplier-paid advertising in retail establishments

On June 14, 2017, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, issued its decision in Retail Digital Network LLC v. Ramona Prieto, Case No. 13-56069, D.C. No 2:11-cv-09065-CBM-PJW. The decision rejects a…more

Advertising, Commercial Speech, First Amendment, Marketing, Retailers

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The EU and UK Introduce New IoT Security Standards

The FCC’s recent introduction of a new Voluntary Cybersecurity Labelling Program for consumer Internet of Things (IoT) products reflects the continued desire by U.S. regulators to bolster the security of the ever-increasing…more

Compliance, Cybersecurity, Data Security, Distributors, EU

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The Emperor Has No Clothes: What We Learned About Hotel Brands During the Pandemic

Branded hotel managers are not bad people, but they’re sometimes bad managers if profitability is your objective. If you noticed that operating margins improved when brand standards were relaxed during the pandemic, and when the…more

Asset Management, Contract Terms, Coronavirus/COVID-19, Hospitality Industry, Hotel Management Agreements

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ICSID Issues an Amended Set of Arbitration Rules

The amended rules issued by the International Centre for Settlement of Investment Disputes mandate certain disclosures, increase transparency and reduce costs, among other things. …more

Amended Rules, Arbitration, ICSID, Mediation, Third Party Funding

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The Red Zone: College Football and the Risk/Reward of Loss-of-Value Insurance

As summer turns to fall, football fans around the country are brimming with excitement for the 2022 college football season to kick off. This upcoming season is particularly notable as it marks the second year of what has now…more

Alston v NCAA, Insurance Industry, Loss of Value, Name and Likeness, NCAA

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Supreme Court Unanimously Rules “Pure Omissions” Not Actionable under SEC Rule 10b-5 Even If Disclosure Required by Item 303 of Regulation S-K

A company cannot be sued by private parties under Rule 10b-5(b) for a “pure omission” but can be liable for omissions that render other statements misleading. “Pure omissions” cannot be attacked in private 10b-5(b) actions…more

Disclosure, Disclosure Requirements, Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements

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Zurich Pleads with Court to Ignore Science

In a recent federal court filing, Zurich American Insurance Company asked the district court to ignore the entirety of science regarding COVID-19 in order to support Zurich’s denial of all coverage for COVID-19 business…more

Business Interruption, Business Losses, Coronavirus/COVID-19, Denial of Insurance Coverage, Insurance Industry

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EPA Finalizes Rule Designating PFAS Substances as Hazardous Constituents Under CERCLA

On April 19, 2024, the Environmental Protection Agency (EPA) finalized its long-awaited rule designating two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under…more

CERCLA, Contamination, Drinking Water, Environmental Policies, Environmental Protection Agency (EPA)

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Spoofing Is No Joke: Prosecutors Clamp Down on High-Frequency Traders

On November 3, 2015, an Illinois federal jury convicted Michael Coscia, a high-frequency commodities trader, of six counts of commodities fraud and six counts of spoofing—entering a buy or sell order with the intent to cancel…more

CFTC, Commodity Exchange Act (CEA), Dodd-Frank, High Frequency Trading, Securities and Exchange Commission (SEC)

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Health Care Providers Should Prepare for $100 Billion Reimbursement

The CARES Act provides an additional $100 billion to reimburse health care providers for COVID-19 expenses and lost revenue. The Secretary of HHS has broad discretion in distributing the CARES Act’s $100 billion in emergency…more

CARES Act, Coronavirus/COVID-19, Department of Health and Human Services (HHS), Health Care Providers

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EPA Finalizes Rule Designating PFAS Substances as Hazardous Constituents Under CERCLA

On April 19, 2024, the Environmental Protection Agency (EPA) finalized its long-awaited rule designating two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under…more

CERCLA, Contamination, Drinking Water, Environmental Policies, Environmental Protection Agency (EPA)

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SEC Adopts Rule Changes to Shareholder Ownership Reporting

The SEC shortened Schedule 13D and Schedule 13G beneficial ownership reporting deadlines and amended disclosure requirements. The SEC modified and accelerated the initial filing and amendment deadlines, as well as amendment…more

Beneficial Owner, Compliance, Deadlines, Derivatives, Disclosure Requirements

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Court Finds Pandemic Does Not Satisfy Lease’s Casualty Clause

One year into the pandemic, courts have almost uniformly found that COVID-19 does not permit commercial tenants to avoid their rent payment obligations. In this case, the court continued that trend, ruling that the pandemic was…more

Commercial Tenants, Coronavirus/COVID-19, Force Majeure Clause, Frustration of a Common Purpose, Gap Inc

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AAM: Getting Cleared for Take-Off

Advanced Air Mobility represents an exciting new frontier and sustainable path forward for the aviation industry. Advanced Air Mobility (AAM) is an umbrella term used to describe next-generation air transportation of people…more

Aviation Industry, Civil Aviation Authority (the CAA), Electricity, Environmental Social & Governance (ESG), EU

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Ukraine Reconstruction: Opportunities and Legal Challenges for Businesses

Ukraine’s reconstruction efforts present myriad opportunities for foreign businesses particularly in the energy, construction and tech sectors. At the same time, it is imperative for foreign businesses to approach these…more

Business Development, Construction Industry, Economic Sanctions, Energy Sector, Export Controls

See all updates »

IRS Eases PPP Loan Stumbling Block in M&A Deals

The IRS’s informal FAQs provide comfort that an acquirer, including affiliated companies treated as a single employer (employer group), will not lose its past or future employee retention tax credits (ERTCs) if it acquires a…more

CARES Act, IRS, Paycheck Protection Program (PPP), Tax Credits

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California and New York to Open One-Year Windows Reviving Time-Barred Adult Sexual Assault Claims

Four months ago, New York Governor Kathy Hochul signed the Adult Survivors Act (ASA) (S.66A/A.648A), creating a one-year window, beginning November 24, 2022, for adult survivors of sexual assault to bring civil claims against…more

Cal Code of Civil Procedure, California, Civil Claims, D&O Insurance, Employment Practices Liability Insurance (EPLI)

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U.S. Department of the Treasury Confronts the Risks to the Financial Sector Associated with Cloud Computing

On February 8, 2023, the U.S. Department of the Treasury released a report citing its “findings on the current state of cloud adoption in the sector, including potential benefits and challenges associated with increased…more

Cloud Computing, Cloud Service Providers (CSPs), Cybersecurity, Financial Institutions, Financial Services Industry

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ASBCA’s FY 2023 Annual Report: Contractor Appeals Are Way Down but Dispositive Motion Activity Is Way Up

The Armed Services Board of Contract Appeals’ 2023 annual report reveals the lowest number of docketed appeals in 40 years, while at the same time the Board deals with the largest number of motions for summary judgment in recent…more

Annual Reports, Appeals, Armed Services Board of Contract Appeals, Contractors, Court of Federal Claims

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China Issues Rules to Clarify and Relax Cross-Border Data Transfer Controls

A data controller that is not a critical information infrastructure operator that cumulatively exports personal information (excluding any sensitive personal information) of less than 100,000 individuals since January 1 of the…more

China, Critical Infrastructure Sectors, Cross-Border Transactions, Data Controller, Data Security

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What You Need to Know for Your 2020 Form 10-K

A roundup of the principal new rules and amendments promulgated by the SEC in 2020 that public companies with December 31 fiscal years should consider when preparing their Annual Reports on Form 10-K for 2020. Public companies…more

Amended Rules, Annual Reports, Compliance, Corporate Counsel, Disclosure Requirements

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Try, Try Again—New York’s Convenience of the Employer Rule Sources Nonresident Wages to New York Even During the Pandemic

A New York nonresident taxpayer, Edward Zelinsky, recently filed a notice of exception to a Division of Tax Appeals’ (DTA) determination that he must allocate all his wages to New York under the so-called “convenience of the…more

Income Taxes, New York, Non-Resident Income Taxes, Non-Residents, Out-of-State Employees

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Provisions Relating to Digital Assets under the Financial Services and Markets Act 2023 Come into Force

With new provisions in effect beginning August 29, 2023, the UK’s regulatory framework for digital assets begins to take shape. FSMA 2023 explicitly brings cryptoassets within the FCA’s regulatory perimeter and creates a new…more

Bank of England, Cryptoassets, Digital Assets, Financial Conduct Authority (FCA), Financial Markets

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10 Recommended Steps to Take Following Receipt of a Notice of Proposed Debarment or Suspension

For government contractors, a debarment immediately renders them ineligible for government contracting and, in turn, cuts off revenue, leading to potential irreparable harm. For individuals facing debarment, the effect is…more

Federal Contractors, Government Agencies, Subcontractors, Suspensions & Debarments

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Operational Resilience Requirements May Be Coming for Large U.S. Banks Soon

On March 12, 2024, Acting Comptroller of the Currency Michael Hsu indicated in a speech that regulations may soon be forthcoming that would be designed to bolster larger depository institutions’ ability to withstand disruptions…more

Banking Regulators, Banking Sector, Banks, Depository Institutions, Financial Institutions

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DoD Contractor Requirement to Disclose Greenhouse Gas Emissions Has Been Halted

In response to the 2024 National Defense Authorization Act (NDAA), the Department of Defense (DoD) issued a class deviation postponing the proposed requirement to disclose greenhouse gas emissions. On November 14, 2022, the…more

Department of Defense (DOD), Disclosure Requirements, Federal Acquisition Regulations (FAR), Federal Contractors, Greenhouse Gas Emissions

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Congressional SPACtivity Continues: Draft Legislation Proposes to Eliminate Safe Harbor Protection for Projections in SPAC Transactions

Updates from recent U.S. House Committee on Financial Services hearing and proposed legislation - In light of recent Congressional hearings and proposed legislation, market participants should remain vigilant and prepared…more

D&O Insurance, Initial Coin Offering (ICOs), Proposed Legislation, PSLRA, Regulatory Standards

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Should I Incorporate on My Own?

Formally incorporating a company is a significant milestone in a founder’s journey. What may have begun as an idea doodled on the back of a napkin is now an official legal entity. Given the mass availability of “do-it-yourself”…more

Articles of Incorporation, Business Development, Business Formation, Corporate Governance, Entrepreneurs

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Important International Arbitration Issues Fill Supreme Court Docket

These rulings will likely impact critical strategic decisions early in international arbitrations. Recent Supreme Court decisions on international arbitration may clarify important issues and make for a more efficient…more

American Arbitration Association, Arbitration, Commercial Arbitration, Federal Arbitration Act, GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC

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Recent Appellate Decisions Clarify the “NonCommercial” Requirement of the Creative Commons ShareAlike License

Anyone who has spent time scouring the internet for free-to-use content has likely come across pictures, written materials and music permissively licensed under one or more of the Creative Commons licenses. These licenses tend…more

Copyright, Copyright Infringement, Creative Commons License, Non-Commercial Use

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EPA Issues New Rules Regarding Response and Risk Management Plans

The Accidental Chemical Release Rules have an effective date of May 10, 2024, and includes a number of situations requiring compliance, generally by May 10, 2027. The new Clean Water Act facility response plan requirements…more

Chemical Spills, Clean Air Act, Clean Water Act, Climate Change, Compliance

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When Actual Knowledge Is Not Notice: Harvard Loses Excess Coverage for Defense Costs in Case Litigated All the Way to Supreme Court

Recently, amid the tempest of media coverage surrounding Supreme Court oral arguments in the case of Students for Fair Admission v. President & Fellows of Harvard College, another federal court quietly issued a dispositive order…more

Harvard University, Insurance Industry, SCOTUS, Students for Fair Admissions v Harvard College

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Minnesota Tax Court Denies a Catalog and Internet-Based Distribution Company Public Law 86-272 Protection

The Minnesota Tax Court held a catalog and internet-based distribution company exceeded the protections of Public Law 86-272 (PL 86-272) by providing non-sales personnel with information about competitors’ products and sales…more

Income Taxes, State Taxes, Tax Court

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Ready, Set, Action: Camera-Shy Insurers Are Subject to Recording

Resolving an issue of first impression, the California First District Court of Appeal recently decided that property policyholders required to submit to an examination under oath (EUO) have a right to record the entire…more

Appeals, California, Insurance Adjusters, Insurance Industry, Property Insurance

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Key Changes to California’s Automatic Renewal Law Are Now in Effect

Businesses offering subscription services or other automatically renewing agreements to California consumers must adhere to new notice and cancellation requirements or face the risk of significant liability. Businesses must…more

Automatic Renewals, California, Cancellation Rights, Class Action, Enforcement Actions

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Fugitive Sentenced in China to Life Imprisonment in Landmark Corruption Case

Xu Guojun, along with co-conspirators Xu Chaofan and Yu Zhendong, exploited their positions at the Bank of China to steal bank funds and cover unauthorized foreign exchange losses. Due to their acts, the Bank of China lost a…more

China, Corruption, Criminal Prosecution, Embezzlement, Financial Crimes

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Big Things Have Small Beginnings: New Jersey Broadens Definition of Unitary Business

On July 3, 2023, Governor Phil Murphy signed into law A.B. 5323, enacting important revisions to New Jersey’s Corporation Business Tax (CBT) including expanding the definition of what constitutes a “unitary business.”  The…more

Business Taxes, Corporate Taxes, New Jersey

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Human Rights Due Diligence—ESG Impact on M&A Transactions

As environmental, social and governance (ESG) considerations continue to gain global importance in the context of mergers and acquisitions (M&A), many buyers are requiring human rights in their due diligence processes. As the…more

Acquisitions, Child Labor, Due Diligence, Environmental Social & Governance (ESG), Human Rights

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Build Back Better Includes Historic Expansion of the Low-Income Housing Tax Credit Program

On November 19, 2021, the U.S. House of Representatives passed the Build Back Better Act (H.R. 5376), a bill that represents a large portion of the Biden-Harris Administration’s agenda. Among other spending and tax measures, the…more

Infrastructure, Low Income Housing, Tax Credits

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Women’s Professional Sports Continues to Grow by Courts (and Rinks) and Bounds

Earlier this year, we wrote about the surging popularity of women’s soccer in the United States, and how the sport’s growth promised to open exciting new investment opportunities in markets around the country. The Women’s World…more

Arenas and Stadiums, Basketball, Hockey, Investors, Soccer

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The Impact of Artificial Intelligence on Vulnerable Populations in the Workforce

AI will impact a broader range of professions than automation alone, ranging across various job types. Employers should work to ensure that the use of AI in the workplace does not exacerbate existing barriers to access…more

Artificial Intelligence, Automation Systems, Department of Labor (DOL), Employment Discrimination, Global Workforce

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Internal Revenue Service Provides Helpful Relief to Hurricane Victims

Announcement 2017-11 (Announcement) provides that a tax-qualified employer retirement plan may treat a distribution to a current or former employee covered by the Announcement as on account of hardship or an unforeseeable…more

401k, 403(b) Plans, 457(b) Plans, Benefit Plan Sponsors, Employee Benefits

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Say What You Mean: Delaware Court Finds Bump-Up Exclusion Ambiguous as Applied to Mergers Versus Acquisitions

Long a feature of directors’ and officers’ (D&O) liability insurance policies, the so-called “Bump-Up” Exclusion has gotten significant attention over the last few years. Because of the recent escalation in securities litigation…more

Acquisitions, Ambiguous, Breach of Duty, Corporate Counsel, D&O Insurance

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Unclean Hands: Available for Litigation Misconduct or an Illusory Remedy?

Discovery misconduct can be remedied not only through the sanctions available in the Federal Rules of Civil Procedure, but also potentially through the defense of unclean hands…more

Damages, Federal Rules of Civil Procedure, Lanham Act, Patent Infringement, Patents

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Bankruptcy and Restructuring Considerations for De-SPACed Companies

Distressed de-SPACed companies are increasingly turning to chapter 11 as a means of restructuring their debts and preserving going-concern value. Many de-SPAC mergers in 2020 and 2021 involved pre-revenue or…more

Bankruptcy Code, Business Plans, Chapter 11, Coronavirus/COVID-19, Corporate Restructuring

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Affirming Dismissal of AirAsia Lawsuit, D.C. Circuit Court Overrules Prior Decisions Allowing Personal Jurisdiction Based on Internet Presence Alone

In affirming the dismissal of a lawsuit against Pillsbury’s client, AirAsia, the D.C. Circuit overruled its prior precedent that a company’s website could be sufficient to support general jurisdiction. A company’s internet…more

Appeals, Corporate Counsel, DaimlerChrysler v Bauman, Dismissals, En Banc Review

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Abortion as an Employee Health Benefit – How to Protect against Potential Liability Post-Dobbs

Amazon. Bank of America. Citigroup. Dick’s Sporting Goods. JP Morgan. Kroger. Meta. Microsoft. Procter & Gamble. Target. Walt Disney Company. These are just a few of what is a growing list of companies that have offered to cover…more

Abortion, Affordable Care Act, Americans with Disabilities Act (ADA), Cease and Desist Orders, COBRA

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Ohio Begins Reopening

Ohio pushes for businesses to reopen on a phased reopening schedule. Ohio plans to open up the state in phases, starting with manufacturing, distribution, construction and general office environments…more

Coronavirus/COVID-19, Elective Surgical Procedures, Employer Responsibilities, Health and Safety, Personal Protective Equipment

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U.S. Increases Export Restrictions Against Nicaragua

The U.S. Department of Commerce amended the Export Administration Regulations (EAR), effective March 15, 2024, to move Nicaragua from Country Group B to Country Group D, and added it to the list of countries subject to the…more

Arms Embargo, Bureau of Industry and Security (BIS), Export Administration Regulations (EAR), Exports, ITAR

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Is “Booking.com” Mark Registrable? SCOTUS Says Booking.com-pletely!

U.S. Supreme Court affirms that a mark composed of a generic term and “.com” does not automatically yield a generic and unregistrable composite. A [generic].com mark is registrable if consumers do not perceive it as the name…more

Acquired Distinctiveness, Appeals, Booking.com, Domain Name Registration, Domain Names

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Insurance Considerations for Cannabis Delivery Services

The legal cannabis industry in the U.S. is growing at an unprecedented rate and is projected to reach $73.6 billion by 2027. While federal law still classifies marijuana as a Schedule I drug, many states have legalized both…more

Auto Insurance, Cannabis-Related Businesses (CRBs), Commercial General Liability Policies, Crime Insurance Policies, Cyber Insurance

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Treasury Department and IRS Issue Proposed Regulations on the Energy Investment Tax Credit under Section 48 of the Internal Revenue Code

The proposed regulations offer helpful guidance for taxpayers seeking to take advantage of the ITC under IRC section 48. The proposed regulations add new definitions to clarify the scope of recently added qualifying property,…more

Apprenticeships, Energy Storage, Energy Tax Incentives, Inflation Reduction Act (IRA), Internal Revenue Code (IRC)

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FCC Enforcement Monitor ~ March 2024

Pillsbury’s communications lawyers have published the FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others…more

Broadcasting, Enforcement Actions, FCC, Fines, License Applications

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The Impact of Artificial Intelligence on Vulnerable Populations in the Workforce

AI will impact a broader range of professions than automation alone, ranging across various job types. Employers should work to ensure that the use of AI in the workplace does not exacerbate existing barriers to access…more

Artificial Intelligence, Automation Systems, Department of Labor (DOL), Employment Discrimination, Global Workforce

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Zone of Uncertainty: Director Considerations in Responding to COVID-19

Directors managing the impact of the COVID-19 pandemic on the business must remember their fiduciary duties as they consider potential actions and approaches, including M&A and interested party transactions, and should consider…more

Annual Meeting, Board of Directors, Borrowers, CARES Act, Coronavirus/COVID-19

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As the Country Slowly Reopens, Opportunities to Do Business with the Government Look Increasingly Attractive

The U.S. Government spends billions annually on procuring goods and services, frequently using streamlined methods. As one of the largest owners and lessees of real property in the country, the U.S. Government may be an…more

Coronavirus/COVID-19, Department of Defense (DOD), Department of Energy (DOE), Department of Health and Human Services (HHS), Department of Transportation (DOT)

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New York District Court Holds Teaming Agreements May Be Enforced

The ruling indicates that selecting New York law may increase the likelihood that the terms of a well-written teaming agreement will be enforced. Government contractors will find the New York Court’s recent denial of a motion…more

Defend Trade Secrets Act (DTSA), Enforcement, Federal Acquisition Regulations (FAR), Motion to Dismiss, Teaming Agreements

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Paycheck Protection Program Update: New SBA Guidance Impacting M&A Activity

The Small Business Administration’s latest guidance tells PPP lenders under what conditions they may approve changes of ownership involving PPP borrowers. Standard PPP loan paperwork has required PPP borrowers to seek consent…more

Borrowers, CARES Act, Change of Ownership, Escrow Accounts, Fair Market Value

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Congressional and Government Investigations in 2021: What to Expect from the Biden-Harris Administration and How to Prepare

As savvy investigators in Congress and the Biden-Harris Administration prepare for new and expanded government investigations, it is time for potential targets to assess and address their vulnerabilities. Investigators in…more

Biden Administration, CARES Act, CFIUS, China, Coronavirus/COVID-19

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Congress Continues to Address AI in Bipartisan Fashion, Launching House AI Task Force as Latest Step

House leadership announced the launch of the Task Force on Artificial Intelligence (AI), a bipartisan group that will develop a report outlining AI regulatory priorities and setting guiding principles to help shape the AI…more

Artificial Intelligence, Copyright, Employer Liability Issues, Financial Services Industry, General Elections

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Alternating Current Yields Alternating Decisions on Bankruptcy Priority Treatment

Courts remain divided as to whether electricity is a good (resulting in an administrative claim for electricity provided in the 20-day period before a bankruptcy case is filed) or service (no administrative claim). Bankruptcy…more

Bankruptcy Code, Bankruptcy Court, Debt Restructuring, Electricity, Goods or Services

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Establishing and Managing a Business in the UK 2023

Establishing and Managing a Business in the UK”, authored by the attorneys of Pillsbury’s London office, is a concise and practical guide for foreign investors in the UK. The guide covers key concerns and topics such as choice…more

CFIUS, Economic Sanctions, Foreign Corrupt Practices Act (FCPA), Foreign Investment, Investment

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Tour de Force: Rudolph v. United Airlines, Causation and Force Majeure

In a recent decision, causation proved to be a determinative factor in the viability of multiple claims subject to the same force majeure clause. District judge rules that broad interpretation of United Airline’s “Force…more

Breach of Contract, Causation, Class Action, Coronavirus/COVID-19, Force Majeure Clause

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Soaring Inflation Demands Careful Review of COLA Provisions in Technology & Services Agreements

Customers should look closely, in their new and existing contracts, at the charges and fees that are eligible for escalation under the COLA provision and beware of COLA provisions that apply to “all” charges in a contract…more

Consumer Price Index, Cost-of-Living Adjustment (COLA), Fees, Price Inflation, SaaS

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Oregon COVID-19 Law Halts Foreclosures, Expands Borrower Protections

Oregon HB 4204 law halts COVID-19 related foreclosures and requires lenders to defer payments or negotiate on loan mitigation. Oregon lenders must negotiate with borrowers on mortgage mitigation, deferral or defer payments…more

Borrowers, Coronavirus/COVID-19, Foreclosure, Governor Brown, Lenders

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What You Need to Know for Your 2020 Form 10-K

A roundup of the principal new rules and amendments promulgated by the SEC in 2020 that public companies with December 31 fiscal years should consider when preparing their Annual Reports on Form 10-K for 2020. Public companies…more

Amended Rules, Annual Reports, Compliance, Corporate Counsel, Disclosure Requirements

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Data Center Investment Opportunities

Due to the rapidly increasing amount of data generated and consumed on the internet, an opportunity exists for commercial real estate investors, lenders, developers, green energy providers and others to develop data center…more

Artificial Intelligence, Clean Energy, Commercial Property Owners, Commercial Real Estate Market, Construction Industry

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SCOTUS Upholds Civil RICO Lawsuit for a Foreign Defendant’s Acts in the United States to Evade Enforcement of a Foreign Arbitral Award

The Supreme Court held that a defendant’s acts to prevent a foreign plaintiff from collecting on an overseas arbitration award in the U.S. may give rise to a civil RICO claim. The Court held that whether there is a U.S…more

Enforcement, Foreign Defendants, Injunctive Relief, International Arbitration, RICO

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ASBCA’s FY 2023 Annual Report: Contractor Appeals Are Way Down but Dispositive Motion Activity Is Way Up

The Armed Services Board of Contract Appeals’ 2023 annual report reveals the lowest number of docketed appeals in 40 years, while at the same time the Board deals with the largest number of motions for summary judgment in recent…more

Annual Reports, Appeals, Armed Services Board of Contract Appeals, Contractors, Court of Federal Claims

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Official Committee Afterlife: Dismissal of the Chapter 11 Case Might Not Automatically Dissolve Its Committees

After a U.S. District Court departed from the “apparent consensus” that an official committee automatically dissolves when the chapter 11 case is dismissed, the Talc Claimants’ Committee in the similarly dismissed In re LTL…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Creditors

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IRS Eases PPP Loan Stumbling Block in M&A Deals

The IRS’s informal FAQs provide comfort that an acquirer, including affiliated companies treated as a single employer (employer group), will not lose its past or future employee retention tax credits (ERTCs) if it acquires a…more

CARES Act, IRS, Paycheck Protection Program (PPP), Tax Credits

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USAID’s Proposed AIDAR Clause Protects Children from Sexual Exploitation and Abuse

The proposed clause will require USAID contractors to develop new standards, policies, or procedures designed to protect children from sexual exploitation. The Agency for International Development Acquisition Regulation…more

Exploitation, Federal Acquisition Regulations (FAR), Human Trafficking, Minor Children, Policies and Procedures

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Sweden’s NATO Membership Is Official! Significant Business Opportunities Now Available to Swedish Companies

Sweden’s accession to NATO provides not only increased political stability in Northern Europe, but also presents significant opportunities to Swedish companies. On March 7, 2024, after a nearly two-year delay, Sweden…more

Business Opportunities, Buy American Act, Commercial Contracts, Cybersecurity Maturity Model Certification (CMMC), Department of Defense (DOD)

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U.S. Senate Holds Hearing on B737 MAX

Subcommittee’s probe of FAA’s oversight role in certifying the aircraft is the first step in a larger review—and possible major overhaul—of agency’s aircraft certification process and pilot training standards. The FAA is…more

Aircraft, Airlines, Airplane Accidents, Aviation Industry, Certifications

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Voluntary Self-Disclosure: Is the Value Self-Evident?

How should companies think about DOJ, BIS and OFAC voluntary disclosure in the wake of the DOJ’s massive investment in sanctions and export control enforcement? The DOJ, BIS and OFAC released a joint compliance note…more

Bureau of Industry and Security (BIS), Department of Justice (DOJ), Economic Sanctions, Embargo, Enforcement

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U.S. Patent Trial and Appeal Board (PTAB) Considers Sweeping Reform to Address Discretionary Denials and Petitions Filed by Certain For-Profit Entities

The USPTO is considering changes to provide a framework to guide practitioners and the PTAB in assessing the circumstances that warrant the PTAB’s exercise of its discretion to deny a petition. The USPTO is considering…more

For-Profit Corporations, Inter Partes Review (IPR) Proceeding, International Trade Commission (ITC), Patent Ownership, Patent Trial and Appeal Board

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Not So Fast: An Option to Purchase Real Estate May Not Always Be Rejected by the Debtor in Bankruptcy

A recent bankruptcy court decision determined that a debtor cannot reject an unexercised option for the purchase of its real estate, raising a potentially significant bar to any debtor extricating itself from an under-market…more

Bankruptcy Code, Bankruptcy Court, Breach of Contract, Chapter 11, Damages

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Soaring Inflation Demands Careful Review of COLA Provisions in Technology & Services Agreements

Customers should look closely, in their new and existing contracts, at the charges and fees that are eligible for escalation under the COLA provision and beware of COLA provisions that apply to “all” charges in a contract…more

Consumer Price Index, Cost-of-Living Adjustment (COLA), Fees, Price Inflation, SaaS

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Great Sargasso Seaweed Event May Lead to Covered Business Interruption and Loss of Use

As summer vacation rolls around and hotels, restaurants and other hospitality companies gear up for a busy tourist season, coastal businesses in the U.S. Southeast, Puerto Rico and the Caribbean may be welcoming an unexpected…more

Business Disruption, Business Interruption, Commercial Insurance Policies, Hospitality Industry, Hotels

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Dollar Threshold Change for “Qualified Client” Definition under the Investment Advisers Act

Most 3(c)(1) private equity and hedge funds are impacted; exempt venture capital funds are not impacted. Effective August 16, 2021, the dollar thresholds specified in the definition of “qualified client” under Rule 205-3 of…more

Dodd-Frank, Fair Market Value, Hedge Funds, Investment Adviser, Investment Advisers Act of 1940

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U.S. Supreme Court to Resolve a Circuit Split Involving Qui Tam Actions

The Court will decide whether the government can dismiss qui tam actions after initially declining to intervene and what standard courts should apply to the government’s dismissal request. The Supreme Court agreed to consider…more

Certiorari, Department of Justice (DOJ), False Claims Act (FCA), Medicare, Qui Tam

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FTC Announces HSR Threshold and Filing Fee Increases for 2024 Transactions

The size-of-transaction threshold under the Hart-Scott-Rodino Act will increase to $119.5 million, and the largest filing fee will increase to $2.335 million. As a result of the increase in the U.S. Gross National Product…more

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

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Estate and Tax Planning 2023 Update: Act While You Can

Although the IRS is now on high alert for wealthy individuals, new and existing planning opportunities are available, such as tax-free gifts and other advantageous planning. Wealthy individuals and families should take note…more

Charitable Lead Annuity Trust, Estate Planning, Estate Tax, Generation-Skipping Transfer, Gift-Tax Exemption

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Eco Oro v. Colombia and the Police Powers Exception: What Companies Should Know When Investing Outside of Their Country

In a mixed decision for international investors, the International Centre for Settlement of Investment Disputes (ICSID) recently published a tribunal’s award finding that the Republic of Colombia breached its obligations under…more

Arbitration, Environmental Social & Governance (ESG), ICSID

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DOJ’s New White-Collar Policy Directs Prosecutors to Focus on Individual Accountability

On September 9, 2015, Deputy Attorney General Sally Quillian Yates introduced a new policy aimed at aggressively prosecuting individuals for white-collar crimes. A product of a DOJ working group that started under former…more

Corporate Investigations, Criminal Investigations, Criminal Prosecution, Department of Justice (DOJ), Enforcement Actions

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Understanding the EPA’s Final Renewable Fuel Standard Set Rule for 2023, 2024 and 2025

The EPA issued a final Renewable Fuel Standard (RFS) rule that announces the biofuel volume targets for 2023 – 2025 and provides a first look into the EPA’s plans for implementing the program moving forward. The RFS statute…more

Biofuel, Biomass, Clean Water Act, Climate Change, Department of Energy (DOE)

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Delaware Court of Chancery Invalidates Certain Board Control Rights Commonly Found in Stockholder Agreements

The ruling calls into question the enforceability of common provisions contained in private and public company stockholder agreements. The Court invalidated certain governance rights in stockholder agreements because they…more

Board of Directors, Enforceability, Governance Standards, Pre-approval, Shareholders' Agreements

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No Exceptions for AI: The FTC Hosts a Tech Summit to Discuss the Impacts of AI on Consumers and Competition

On January 25, 2024, the Federal Trade Commission (FTC) hosted a summit focused on the impact of artificial intelligence (AI) on consumers and competition in the technology sector. Comprising three panel discussions and related…more

Anti-Competitive, Artificial Intelligence, Competition, Confidential Information, Data Privacy

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Proposed Amended FRE 702 Confirms Court as Gatekeeper of Expert Testimony

New changes to Federal Rule of Evidence 702 will clarify the courts’ responsibility to determine the admissibility of expert testimony. Forthcoming amendments to FRE 702 will promote uniformity in application of the Rule…more

Advisory Committee, Daubert Standards, Expert Testimony, Expert Witness, Federal Rules of Evidence

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Supreme Court Unanimously Rules “Pure Omissions” Not Actionable under SEC Rule 10b-5 Even If Disclosure Required by Item 303 of Regulation S-K

A company cannot be sued by private parties under Rule 10b-5(b) for a “pure omission” but can be liable for omissions that render other statements misleading. “Pure omissions” cannot be attacked in private 10b-5(b) actions…more

Disclosure, Disclosure Requirements, Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements

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2022 Election Night Guide

As of November 3, 2022, national polls show likely Republican gains in Congress, but it is unclear whether the “red wave” that some had predicted earlier in the year will materialize. …more

General Elections, Local Elections, Political Campaigns, Political Candidates, State and Local Government

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Supreme Court Unanimously Rules “Pure Omissions” Not Actionable under SEC Rule 10b-5 Even If Disclosure Required by Item 303 of Regulation S-K

A company cannot be sued by private parties under Rule 10b-5(b) for a “pure omission” but can be liable for omissions that render other statements misleading. “Pure omissions” cannot be attacked in private 10b-5(b) actions…more

Disclosure, Disclosure Requirements, Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements

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President Biden and Senators Support the Ramp Up in IRS Audits on Corporate Aircraft

President Biden announced that he will focus on ending tax breaks for corporate aircraft and “cracking down on corporate jet loopholes.” Several aviation and labor organizations, including the National Business Aviation…more

Aircraft, Airlines, Audits, Biden Administration, Department of Transportation (DOT)

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The EU and UK Introduce New IoT Security Standards

The FCC’s recent introduction of a new Voluntary Cybersecurity Labelling Program for consumer Internet of Things (IoT) products reflects the continued desire by U.S. regulators to bolster the security of the ever-increasing…more

Compliance, Cybersecurity, Data Security, Distributors, EU

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COVID-19 and Leveraged Finance: Some Issues to Consider

With many borrowers facing a current or looming liquidity crunch but having a committed revolving line of credit potentially available to them, borrowers and lenders need to carefully review their loan documentation when…more

Business Interruption, Coronavirus/COVID-19, EBITDA, EU, Investment

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New CISA Rule Would Require Widespread Cyber Incident Reporting, Updated Timelines and Penalties for Critical Infrastructure Sector

Most businesses in the United States will have to file incident reports—including for ransomware payments—under the Proposed Rule. The Department of Homeland Security has the authority to issue subpoenas and even penalties for…more

Covered Entities, Critical Infrastructure Sectors, Cyber Incident Reporting, Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA), Cybersecurity

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Chemical Conundrum: TSCA at the Forefront of PFAS Regulation

The Toxic Substances Control Act (TSCA) has been regulating new and existing chemicals for almost 50 years. Under the TSCA, the EPA was given broad authority to track the thousands of existing commercial chemicals and regulate…more

Environmental Policies, Environmental Protection Agency (EPA), Hazardous Substances, Manufacturers, PFAS

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Federal Circuit’s Split Decision on Software Patents in CLS Bank Satisfied No One and Confused All

Section 101 of the patent statute lists the categories of subject matter eligible for patent protection as including “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement…more

CLS Bank, CLS Bank v Alice Corp, Patent-Eligible Subject Matter, Patents, SCOTUS

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Treasury Announces Proposed Rule to Update CFIUS Regulations and Bolster Enforcement

On April 11, 2024, the U.S. Department of the Treasury (Treasury), as Chair of the Committee on Foreign Investment in the United States (CFIUS), issued a Notice of Proposed Rulemaking (NPRM), which is the first substantive…more

CFIUS, Enforcement, FIRRMA, Foreign Investment, NPRM

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New York Creates Rocket-Docket for Commercial Disputes—But Accelerated Adjudication Comes With Trade-Offs

As of June 2, the Commercial Division of the New York Supreme Court will allow for the accelerated adjudication of commercial disputes. Rule 9 of Section 202.70(g) of the Uniform Rules for the Supreme and County Courts takes…more

Contract Disputes, Discovery, Expedited Discovery

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Conflicting Court Rulings on Subchapter V Eligibility Leave Small Businesses in Limbo

Two recent bankruptcy court decisions reflect a split of authority on subchapter V eligibility. In re Macedon Consulting Inc. finds that all future amounts due under an unexpired lease qualify as “noncontingent and…more

Bankruptcy Code, Bankruptcy Court, Business Ownership, Chapter 11, Commercial Leases

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California AG Issues New Privacy Policy and “Do Not Track” Compliance Guidelines, Announces Proactive Enforcement

The California Attorney General recently released a series of guidelines to assist with compliance with the California Online Privacy Protection Act of 2003 (CalOPPA), which was amended to require new data collection and Do Not…more

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New York State Courts to Restore (Electronic) Filing of New Nonessential Actions

Following a two-month hiatus, litigants will soon be able to file new nonessential actions electronically in all New York State courts, even in regions of the state that have not begun reopening such as New York…more

Administrative Orders, Coronavirus/COVID-19, Electronic Filing, Re-Opening Guidelines

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California Supreme Court Dumps Excess Insurers’ Horizontal Exhaustion Argument

In a long-running environmental case, the state’s high court rejects insurers’ theory of so-called horizontal exhaustion. California Supreme Court hands policyholders a victory in latest Montrose case and upholds policyholder…more

CA Supreme Court, Environmental Insurance Policies, Excess Policies, Horizontal Exhaustion Doctrine, Insurance Industry

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Broadcasters Once Again Face Reporting Employee Race, Ethnicity and Gender to the FCC

Yesterday, the FCC released its Fourth Report and Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking in its Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and…more

Broadcasting, EEO, FCC, Radio Broadcasting, Radio Stations

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FCC Enforcement Monitor ~ March 2024

Pillsbury’s communications lawyers have published the FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others…more

Broadcasting, Enforcement Actions, FCC, Fines, License Applications

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Affirming Dismissal of AirAsia Lawsuit, D.C. Circuit Court Overrules Prior Decisions Allowing Personal Jurisdiction Based on Internet Presence Alone

In affirming the dismissal of a lawsuit against Pillsbury’s client, AirAsia, the D.C. Circuit overruled its prior precedent that a company’s website could be sufficient to support general jurisdiction. A company’s internet…more

Appeals, Corporate Counsel, DaimlerChrysler v Bauman, Dismissals, En Banc Review

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Microwave Transmission of Space-Based Solar Power: The Focus of New Attention

Scientists have long proposed that solar electricity generation in space could be an integral component of the world’s carbon-free future. In the 1970s, a U.S. Navy experiment showed that it might be possible to capture solar…more

Carbon Emissions, Electricity, Energy Sector, Popular, Renewable Energy

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DOJ Announces Civil Cyber-Fraud Initiative to Combat Cybersecurity Threats

DOJ launches new initiative that promises to use the False Claims Act to combat cybersecurity threats by targeting government contractors who knowingly fail to comply with cybersecurity protocols. The Civil Cyber-Fraud…more

Cybersecurity, Cybersecurity Maturity Model Certification (CMMC), Department of Justice (DOJ), Executive Orders, False Claims Act (FCA)

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FAA Issues Licensing Guidance for Launch and Reentry of Space Nuclear Systems

The guidance will provide clarity and a compliance path to companies seeking permission to launch or reenter space-based nuclear technologies. The U.S. Federal Aviation Administration’s newly released Advisory Circular AC…more

Compliance, Department of Transportation (DOT), Federal Aviation Administration (FAA), Guidance Update, Licensing Rules

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China Year-in-Review: Supply Chains

This past year saw a continued trend in building supply chain resiliency, as this topic has grown increasingly important following Covid-19, the conflict in Ukraine, shifting landscape on tariffs, forced labor concerns and a…more

China, Customs and Border Protection, Export Controls, Forced Labor, Foreign Adversaries

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Federal Court Finally Issues an Opinion Analyzing LEG 3 (and It’s a Win for Policyholders)

The London Engineering Group’s LEG 3 exclusion—one of three standard form provisions issued by the London Engineering Group addressing coverage arising from construction or design defects—is an increasingly common defects…more

Design Defects, Federal Court Litigation, Insurance Industry, Rectification, Replacement Costs

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Tour de Force: COVID-19 Continues to Impact Leases While Cases Implicating Force Majeure Await Decisions

Real estate litigation and landlord-tenant disputes continue to dominate the COVID-19 force majeure litigation landscape. Meanwhile, several COVID-related cases are teed up for judicial decisions implicating force majeure…more

Coronavirus/COVID-19, Damages, Force Majeure Clause, Landlords, Popular

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Historic Estate Planning Opportunities from Tax Reform

The Tax Cuts and Jobs Act, providing extraordinary estate planning opportunities, was signed into law by the President on December 22, 2017. The new Act allows for a great opportunity to take advantage of increased exemption…more

529 Plans, Alternative Minimum Tax, Charitable Donations, Estate Planning, Estate Tax

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Provisions Relating to Digital Assets under the Financial Services and Markets Act 2023 Come into Force

With new provisions in effect beginning August 29, 2023, the UK’s regulatory framework for digital assets begins to take shape. FSMA 2023 explicitly brings cryptoassets within the FCA’s regulatory perimeter and creates a new…more

Bank of England, Cryptoassets, Digital Assets, Financial Conduct Authority (FCA), Financial Markets

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Compliance Programs Must Track and Adapt to Changes and Risks

Updated DOJ Guidance calls on corporations to devote additional resources and attention to detect and prevent misconduct. A well-structured and effective compliance program must evolve with lessons learned, be understood by…more

Audits, Compliance, Corporate Misconduct, Department of Justice (DOJ), Employee Misconduct

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Choosing the Wrong Business Structure: A Startup’s Death Sentence?

Starting a business is a thrilling journey filled with excitement, innovation and the promise of potential success. However, choosing the wrong business structure to reach your objectives can set your business on a path to…more

Business Development, Business Entities, Business Formation, Business Ownership, Business Strategies

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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The Corporate Transparency Act: What You Need to Do Now

When the Corporate Transparency Act (CTA) goes into effect in January 2024, millions of companies will face new beneficial ownership reporting obligations. The Financial Crimes Enforcement Network has proposed allowing…more

Beneficial Owner, Corporate Counsel, Corporate Transparency Act, FinCEN, Partnerships

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DOE Opens the Door to Major Energy Market Reforms

On April 14, 2017, Energy Secretary Rick Perry requested the Department undertake a study to examine electricity markets and reliability in order to determine whether “wholesale energy and capacity markets are adequately…more

Department of Energy (DOE), Electricity, Energy Market, FERC

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Reviewing Key CHIPS Act Implementation Milestones to Deliver Opportunities for the Semiconductor Supply Chain

In 2023 and the early months of 2024, there has been a flurry of agency activity to implement key programs enacted under the CHIPS and Science Act—directing benefits to the semiconductor industry. From December 1, 2023, to…more

Construction Industry, Department of Defense (DOD), Semiconductors, Supply Chain

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What to Consider When Strategically Implementing the SEC’s New Pay for Performance Rule

While a time-consuming exercise of limited use to investors, the rule will push issuers to provide clarifying compensation disclosure in the annual proxy. Due to its reliance on accounting values and emphasis on unvested…more

Compensation, Disclosure Requirements, Executive Compensation, Investors, Pay-for-Performance

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Generative AI’s Impact on Insurance Coverage: An Interview with ChatGPT-4 and Coverage Counsel on What Policyholders Should Be Doing Now

Generative AI is transforming our economy in previously unimagined ways, with Goldman Sachs estimating a $7 trillion (7%) increase in global GDP by virtue of this ecosystem. Insurance is but one sector that will be impacted,…more

Artificial Intelligence, Cybersecurity, Employment Practices Liability Insurance (EPLI), Errors and Omissions Policy, Insurance Industry

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The Brexit Blindspot: Nuclear Retransfers

Potential impediments to post-Brexit retransfers of nuclear material and items between the UK and EURATOM countries - There is currently no U.S. advance consent in place for retransfers of nuclear material and items from…more

Department of Energy (DOE), EU, Euratom Treaty, Nuclear Power, Nuclear Regulatory Commission

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Federal Court Finally Issues an Opinion Analyzing LEG 3 (and It’s a Win for Policyholders)

The London Engineering Group’s LEG 3 exclusion—one of three standard form provisions issued by the London Engineering Group addressing coverage arising from construction or design defects—is an increasingly common defects…more

Design Defects, Federal Court Litigation, Insurance Industry, Rectification, Replacement Costs

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Don’t Forget to File (Accurately): 2024 Brings Heightened IRS and DOJ Focus on Non-Filers and Digital Assets

The IRS has increased funding for collection and enforcement, with a stated focus on high income non-filers and digital assets (among other areas). The DOJ has also emphasized a focus on digital assets, and the Department and…more

Department of Justice (DOJ), Digital Assets, Enforcement, Filing Deadlines, Income Taxes

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House Ways and Means Committee Releases Tax Plan

Plan focuses on eliminating certain available estate planning opportunities and increasing rates for corporations and high net worth individuals. The proposed tax plan from House Ways and Means Committee seeks to eliminate…more

Capital Gains Tax, Corporate Taxes, Estate Tax, Grantor Retained Annuity Trusts (GRATs), Grantor Trusts

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Making Japan a More Attractive Center for International Arbitration

Since 2017, Japan has been actively working to promote international arbitration. The updates to the Arbitration Act of Japan should help boost the country’s popularity as an arbitration seat…more

Arbitration Awards, Commercial Arbitration, Foreign Corporations, Hong Kong International Arbitration Centre (HKIAC), International Arbitration

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The Corporate Transparency Act

A new federal law will require certain U.S. entities to report the personal information of their beneficial owners to the Financial Crimes Enforcement Network (FinCEN) of the U.S. Department of the Treasury. “Reporting…more

Beneficial Owner, Corporate Transparency Act, Disclosure Requirements, Federal Acquisition Regulations (FAR), FinCEN

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SBA Releases Program Guide for Restaurant Revitalization Fund Grants

The program guide addresses application requirements and eligibility criteria for prospective grantees as they prepare for the program’s announced May 3 launch. On April 20, 2021, the Small Business Administration (SBA)…more

American Rescue Plan Act of 2021, Business Expenses, Coronavirus/COVID-19, Economic Injury Disaster Loans, Federal Trade Commission (FTC)

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DOI Rule Endorses Seminole Tribe’s Model of Remote Wagering

On March 22, 2024, a new federal rule published by the U.S. Department of the Interior (Department or DOI) went into effect, governing the Department’s review and oversight of certain tribal gaming arrangements…more

Department of the Interior, Gambling, Gaming, Indian Gaming Regulation Act, New Rules

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World Aircraft Repossession Index

Third Edition - Pillsbury Winthrop Shaw Pittman LLP is pleased to publish this Third Edition of the World Aircraft Repossession Index. This Third Edition builds on the success of our Second Edition and covers 31 “new”…more

Aircraft, Aircraft Equipment, Aircraft Financing, Aircraft Sales, Aviation Industry

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Are Insurers’ Panel Counsel Rates Reasonable?

It is a settled principle of insurance law that a liability insurer’s duty to defend is broader than its duty to indemnify. In most jurisdictions, if any portion of a complaint against a policyholder is even potentially covered,…more

Asbestos Litigation, Bad Faith, Duty to Defend, Independent Counsel, Insurance Industry

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Court Dismisses COVID-19 Flight Cancellation and Refund Class Action Lawsuit Brought Against Norwegian Air

With airlines facing over 30 class actions across the country seeking refunds for COVID-19 related flight cancellations, Pillsbury client Norwegian Air is the first to obtain a dismissal with prejudice. Boilerplate…more

Airline Deregulation Act, Airlines, Breach of Contract, California, Class Action

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Bill Proposes First-Ever Federal Workforce Housing Tax Credit for Middle-Class Housing

Legislation was recently introduced to the U.S. Senate and House of Representatives proposing the creation of the first-ever Workforce Housing Tax Credit (WHTC) for middle-income housing developments…more

Affordable Housing, Construction Project, Housing Developers, Low Income Housing, Real Estate Development

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SEC Adopts Rule Changes to Shareholder Ownership Reporting

The SEC shortened Schedule 13D and Schedule 13G beneficial ownership reporting deadlines and amended disclosure requirements. The SEC modified and accelerated the initial filing and amendment deadlines, as well as amendment…more

Beneficial Owner, Compliance, Deadlines, Derivatives, Disclosure Requirements

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Stand-Alone AI-Generated Content Is Not Copyrightable

On August 18, 2023, the U.S. District Court for the District of Columbia denied Dr. Stephen Thaler’s motion and granted the U.S. Copyright Office’s cross motion to dismiss Thaler’s complaint. The facts of Thaler’s struggle to…more

Artificial Intelligence, Authorship, Copyright, Copyright Office, Intellectual Property Protection

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Build Back Better Includes Historic Expansion of the Low-Income Housing Tax Credit Program

On November 19, 2021, the U.S. House of Representatives passed the Build Back Better Act (H.R. 5376), a bill that represents a large portion of the Biden-Harris Administration’s agenda. Among other spending and tax measures, the…more

Infrastructure, Low Income Housing, Tax Credits

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Federal Circuit Limits Claims to the Described Invention and Finds That Certain Targeted Advertising Claims Were Unpatentable

The precedential opinion reaffirmed that when a patentee consistently describes its present invention, its claims will be limited to such invention unless it meets a narrow exception. The decision reaffirmed that targeted…more

Advertising, Alice/Mayo, Inventions, Patent Infringement, Patent Validity

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Clarity for M&A Practitioners: Proposed DGCL Amendments Bridge the Gap between Recent Delaware Chancery Court Decisions and Market Practice

The proposed amendments would address recent case law decisions in Activision, Moelis and Crispo that uprooted well-established market practice with respect to the enforceability of certain provisions of stockholder agreements…more

Acquisitions, Board of Directors, Corporate Governance, Corporate Officers, Delaware General Corporation Law

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SEC Adopts Rule Changes to Shareholder Ownership Reporting

The SEC shortened Schedule 13D and Schedule 13G beneficial ownership reporting deadlines and amended disclosure requirements. The SEC modified and accelerated the initial filing and amendment deadlines, as well as amendment…more

Beneficial Owner, Compliance, Deadlines, Derivatives, Disclosure Requirements

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VC Update—The Down Round Is Back

Financing terms in the VC market are tightening in a hurry. As valuations of public company comparables crumble and VCs engage in stricter price discipline, startups able to raise money may only be able to do so at…more

Change of Control, Dividends, Pay-To-Play, Preferred Stock Financing, Publicly-Traded Companies

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Casinos Go Virtual

In late February 2013 the New Jersey Legislature passed legislation allowing on-line wagering, subject to certain limitations. This legislation was signed into law by Governor Chris Christie. Under the new law, licensed…more

Casinos, Chris Christie, Licenses, Online Gaming

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Update Your California Release Provisions to Include Amended Section 1542 Language

Most companies have been involved in a situation where they want to end their relationship with another company, or with an employee, and to permanently terminate their mutual obligations (e.g., a settlement agreement resolving…more

Amended Legislation, Civil Code, Creditors, Debtors, Release Agreements

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Non-Fungible Tokens and Art that Lives on the Blockchain

Non-fungible tokens (or NFTs) are unique blockchain-based tokens that can represent almost anything, including physical assets. NFTs have been growing significantly in popularity in recent years because of this potential to…more

Art, Art Auctions, Blockchain, Copyright, Digital Assets

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AAA Revises Construction Industry Arbitration Rules and Mediation Procedures

The American Arbitration Association (AAA) has revised its Construction Industry Arbitration Rules and Mediation Procedures (Rules), effective July 1, 2015. Although some changes are relatively modest, others expand the powers…more

American Arbitration Association, Arbitration, Arbitration Agreements, Case Management, Construction Contracts

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Carbon Sequestration Can Combat Global Warming, Sometimes in Unexpected Ways

Whether by land, by sea or through human innovation, carbon sequestration is likely coming to (or already happening in) a destination near you. As our planet, overdosed on greenhouse gases, battles climate disasters, a logical…more

Carbon Capture and Sequestration, Carbon Emissions, Climate Change, Environmental Protection Agency (EPA), Global Warming

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The Real Estate Market – Warehouses, Ports and Addition by Subdivision

In episode #26 of Industry Insights podcast, Steve Hamilton joins host Joel Simon to discuss certain segments of the real estate market and related financing that remained robust in the midst of the pandemic…more

Apartments, Borrowers, Distribution Centers, Housing Market, Lenders

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New York State Tax Appeals Tribunal Rejects Sourcing of Partnership Income to that Partnership’s Operating Location

The New York State Tax Appeals Tribunal (Tribunal) held that a taxpayer’s distributive share income from a partnership was intangible income properly sourced to the taxpayer’s residence and not to the location of the…more

Administrative Law Judge (ALJ), Income Taxes, New York, Partnerships, Tax Liability

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Texas Restricts Evictions Due to COVID-19: Landlord Considerations

In the wake of the COVID-19 pandemic, the Supreme Court of Texas along with many Texas counties have issued moratoriums on evictions and foreclosures, the applicability of which remains varied and depends on local…more

CARES Act, Coronavirus/COVID-19, Eviction, Foreclosure, Moratorium

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Acquisition of Distressed Loans: Bankruptcy Considerations and the 363 Sale

There are no shortage of bankruptcy considerations that must be understood by an incoming lender who acquires a distressed commercial real estate loan and whose borrower shortly thereafter files for bankruptcy protection. For…more

Bankruptcy Code, Commercial Real Estate Market, Debtors, Distressed Debt, Foreclosure

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Great Sargasso Seaweed Event May Lead to Covered Business Interruption and Loss of Use

As summer vacation rolls around and hotels, restaurants and other hospitality companies gear up for a busy tourist season, coastal businesses in the U.S. Southeast, Puerto Rico and the Caribbean may be welcoming an unexpected…more

Business Disruption, Business Interruption, Commercial Insurance Policies, Hospitality Industry, Hotels

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Natural Hydrogen May Seem New in Town, but It’s Been Here All Along

When it comes to renewable energy, hydrogen is hailed as a pivotal resource in the zero-carbon game plan. Hydrogen energy is accessible, produces lower greenhouse gas emissions and can use existing gas infrastructure to power…more

Carbon Emissions, Clean Energy, Energy Projects, Energy Sector, Greenhouse Gas Emissions

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Trade Secrets Claims Reach Federal Court: New Law Changes Jurisdiction, Remedies and Duties

Until May 12, 2016, trade secret law was the only area of intellectual property law left largely to state courts and state law. But no longer. On May 12, President Obama signed the Defend Trade Secrets Act of 2016, Pub. L. No…more

Asset Seizure, Confidentiality Agreements, Defend Trade Secrets Act (DTSA), Employment Contract, Ex Parte

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A New Dawn for Copyright in AI-Generated Works?

On February 21, 2023, the Copyright Office eclipsed its prior decisions in the area of AI authorship when it partially cancelled Kristina Kashtanova’s registration for a comic book titled Zarya of the Dawn. In doing so, the…more

Artificial Intelligence, Copyright, Copyright Office, Corporate Counsel, Machine Learning

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Red Sea Dangers: Increasing Insurance Premiums and Introducing Coverage Exclusions for Vessels Transiting the Red Sea

Yemeni-based Houthi forces have attacked more than two dozen vessels transiting the Red Sea since the October 7, 2023, start of the current Israel-Hamas conflict, leading to a surge in marine war insurance premiums. Houthi…more

Commercial Insurance Policies, Insurance Industry, Insurance Rates, Lloyds of London, Marine Insurance

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BIS Issues Additional Enhancements to Voluntary Self-Disclosure Process

Takeaways: On January 16, 2024, the Bureau of Industry and Security (“BIS”) Office of Export Enforcement (“OEE”) announced several updates to its Voluntary Self-Disclosure (VSD) process aimed at enhancing the program’s overall…more

Bureau of Industry and Security (BIS), Compliance, Export Controls, Exports, Voluntary Disclosure

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Prime Contractors Take Note of New California Law Imposing Liability for Subcontractors’ Employees’ Unpaid Wages

California is imposing greater responsibilities on prime contractors for nonpayment of wages and benefits by their subcontractors. On October 14, Governor Jerry Brown signed into law Assembly Bill 1701 (Thurmond), adding Section…more

Construction Contracts, Construction Industry, Contractors, Popular, Prime Contractor

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The Supreme Court’s Decision in Liu and Insider Trading Enforcement

Although the Supreme Court handed the SEC a win by preserving its authority to seek disgorgement, the Liu decision limits that authority and creates uncertainty that will likely benefit defendants, particularly in insider…more

15 U.S.C. § 78u(d)(5), Administrative Authority, Business Expenses, Calculation of Damages, Corporate Misconduct

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EPA Expands Requirements for Reducing Methane Emissions from Oil & Gas Production Sector

EPA proposes new emissions control requirements for new sources and existing sources and aims to reduce methane emissions by 74 percent by 2030. Regulations would require newly constructed oil and gas production facilities to…more

Biden Administration, Department of Justice (DOJ), Environmental Protection Agency (EPA), Greenhouse Gas Emissions, Methane

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The “Builder’s Remedy” Looms Over Bay Area Cities

Cities in the San Francisco Bay Area are frantically working to finalize their state-mandated “housing elements” in their General Plans by the January 31, 2023, deadline imposed by the California Department of Housing and…more

Affordable Housing, California, Community Development, Real Estate Development, Urban Planning & Development

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California Allows Localities to Reopen Certain Businesses Consistent with State Guidance

The new order provides a pathway for certain industries to open doors sooner than others. Retailers and other businesses are allowed to resume limited operations…more

California, Coronavirus/COVID-19, Executive Orders, Public Safety, Re-Opening Guidelines

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Transferring Customer Data in an Asset Sale

Be careful what you’ve promised your customers…or what has been promised about data you buy! In today’s world, consumer data is a huge asset for companies across all industries, in particular those in technology-focused…more

Business Assets, Chapter 11, Commercial Bankruptcy, Customer Lists, Data Use Policies

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U.S. Supreme Court to Resolve a Circuit Split Involving Qui Tam Actions

The Court will decide whether the government can dismiss qui tam actions after initially declining to intervene and what standard courts should apply to the government’s dismissal request. The Supreme Court agreed to consider…more

Certiorari, Department of Justice (DOJ), False Claims Act (FCA), Medicare, Qui Tam

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Financial Hedges for United States Gas-Fired Power Generation Facilities

Over the past few years, many merchant gas-fired power generation plants operating in the regional transmission organization, PJM Interconnection and in the New York Independent Service Operator (NYISO) areas have been…more

Electric Generation Suppliers, Energy Projects, Energy Sector, Hedges, NYISO

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Lessons Learned—FCC’s COVID-19 Telehealth Program One Month Later

Federal Communication Commission has distributed CARES Act funding for remote patient monitoring, screening equipment, video services and connected devices. Commission has granted 30 funding proposals funding in 16 states…more

American Hospital Association, CARES Act, Chamber of Commerce, Coronavirus/COVID-19, FCC

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Protecting Shareholder Rights During the COVID 19 Pandemic

Boards may want to consider adopting or placing “on the shelf” a shareholder rights plan (or “poison pill”) to address the recent collapse in equity values and resulting vulnerability. Because of the current unprecedented…more

Coronavirus/COVID-19, Corporate Governance, Institutional Shareholder Services (ISS), Poison Pill, Shareholder Rights

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70 Days and Counting: Clock Is Ticking to Claim Embedded Software Tax Exemption

The amount of non-taxable embedded software being taxed in California is a staggering number. While companies own assets with millions of dollars of embedded software, few companies are maximizing their property tax savings…more

Software, Tax Exemptions

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Winner-Winner: Preserving Your Chicken Dinner with JPI

Judgment Preservation Insurance (JPI), also sometimes referred to as Judgment Protection Insurance, has become both more requested and available in recent years. As more plaintiffs seek ways to protect court judgments, more…more

Appeals, Insurance Industry, Policy Terms, Reduction of Damages, Trials

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Running a Sweepstakes or Contest on Social Media?

If entry for the chance to win a prize requires participants to post content featuring your company’s products or services, the participants should be instructed to disclose that their posts are pursuant to a contest…more

Content Marketing, Contests & Promotions, Disclosure, Endorsements, Pinterest

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Shining Light on the Algorithms in Your Company’s Black Box

Artificial intelligence has long since evolved from a technology with exciting potential to a near ubiquitous and integral component in the day-to-day conduct of many businesses…more

Algorithms, Artificial Intelligence, Bias, Innovative Technology, Risk Management

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1 De Haro: A Case Study on Successful Cross-Laminated Timber Design and Construction in San Francisco

At the intersection of San Francisco’s SOMA, Potrero Hill and Showplace Square districts, a first-of-its-kind building offers an example of the potential widespread success of mass timber construction in the United States. 1 De…more

Construction Industry, Construction Project, Lumber Industry, Sustainability, Timber

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Recent Measures Establish Unprecedented Tax Increases on Real Property in California Cities

In the City of Los Angeles, Measure ULA will impose an additional city real estate transfer tax of 4% on transactions between $5 million and $10 million and an additional 5.5% on transactions over $10 million. In the City of…more

California, Property Tax, Tax Increases, Transfer Taxes

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Voluntary Self-Disclosure: Is the Value Self-Evident?

How should companies think about DOJ, BIS and OFAC voluntary disclosure in the wake of the DOJ’s massive investment in sanctions and export control enforcement? The DOJ, BIS and OFAC released a joint compliance note…more

Bureau of Industry and Security (BIS), Department of Justice (DOJ), Economic Sanctions, Embargo, Enforcement

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Esports Industry Report

We began developing this report before COVID-19. Then, esports was a burgeoning sector with exponential year-over-year growth. The commercial landscape was ripe with opportunities for all stakeholders in the esports…more

Coronavirus/COVID-19, eSports, Financial Sponsors, Louis Vuitton, NBA

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Data Center Investment Opportunities

Due to the rapidly increasing amount of data generated and consumed on the internet, an opportunity exists for commercial real estate investors, lenders, developers, green energy providers and others to develop data center…more

Artificial Intelligence, Clean Energy, Commercial Property Owners, Commercial Real Estate Market, Construction Industry

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Hidden Within the Transparency and Fairness Act of 2017 was the Little Noticed Exemption from OAL Review of the CDTFA’s Proposed Regulations

Much to the recent surprise of many in the tax community, the California Department of Tax and Fee Administration (“CDTFA”) is able to adopt or amend regulations without the normal review process by the Office of Administrative…more

Administrative Procedure Act, California, Office of Administrative Law

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SEC’s Climate Disclosure Rules Could Collide with California’s Laws

The SEC’s new climate regulations generate uncertainty for companies that must comply with both the SEC’s and California’s climate-related disclosure requirements. On March 6, 2024, the U.S. Securities and Exchange Commission…more

Appeals, California, Climate Change, Disclosure Requirements, Greenhouse Gas Emissions

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Don’t Let Bank Uncertainty Delay Payroll: Considerations for Employers

With bank uncertainty making headlines, we answer employers’ most frequently asked questions about the consequences of payroll delays, strategies for mitigating risk and more. …more

401k, Banking Sector, COBRA, Corporate Counsel, Department of Labor (DOL)

See all updates »

Supreme Court Strikes Down Race-Conscious Admissions at Harvard and UNC

While the Court did not explicitly overrule prior precedent, it significantly constrains schools’ ability to consider race in admissions. The Supreme Court ruled that the race-conscious admissions programs at Harvard and the…more

Affirmative Action, Civil Rights Act, College Admissions, Diversity, Educational Institutions

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Expansion of Global Capability Centers Requires Anticorruption Compliance Planning

Companies looking to set up global capability centers in India should take steps at the outset to assure compliance with applicable anti-bribery and anti-corruption laws and standards. The FCPA prohibits bribing or offering…more

Anti-Bribery, Anti-Corruption, Compliance, Department of Justice (DOJ), Foreign Corrupt Practices Act (FCPA)

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Treasury Announces Proposed Rule to Update CFIUS Regulations and Bolster Enforcement

On April 11, 2024, the U.S. Department of the Treasury (Treasury), as Chair of the Committee on Foreign Investment in the United States (CFIUS), issued a Notice of Proposed Rulemaking (NPRM), which is the first substantive…more

CFIUS, Enforcement, FIRRMA, Foreign Investment, NPRM

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Indian Regulator to Consider the Civil and Commercial Use of Drones

Last month, India’s civil aviation regulator, the Directorate General of Civil Aviation (DGCA), issued draft guidelines proposing a framework to regulate the civil and commercial use of unmanned aerial systems or drones…more

Commercial Use, Drones, India, Registration Requirement, Unmanned Aircraft Systems

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Web Scraping Watch: Cases Set to Clarify Application of the Computer Fraud and Abuse Act

For years, website owners have leveraged the federal Computer Fraud & Abuse Act (CFAA) as a tool to combat unauthorized scraping of data and other content from their websites. Due to a circuit court split on the interpretation…more

Cease and Desist, Computer Fraud and Abuse Act (CFAA), Corporate Counsel, Data Collection, Web Scraping

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Developments in Association Law 2021 – 2022

A review of notable cases and regulatory developments for nonprofit organizations at the federal and state levels in 2021 and 2022. Governance - Striltschuk v. Hryckowian, 202 A.D.3d 497, 160 N.Y.S.3d 56 (2022)…more

Anti-SLAPP, Appeals, Breach of Contract, Certifications, D&O Insurance

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Los Angeles Initiative Seeks to Impose $450,000 Cap on Annual Compensation of Executives in Health Care Facilities

The Los Angeles City Council will soon decide whether to adopt an initiative as an ordinance or refer it to voters for the 2024 ballot. If the initiative officially qualifies for the ballot, the Los Angeles City Council will…more

Bonuses, City of Los Angeles, Employee Retirement Income Security Act (ERISA), Enforcement Actions, Executive Compensation

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

See all updates »

Carbon Sequestration Can Combat Global Warming, Sometimes in Unexpected Ways

Whether by land, by sea or through human innovation, carbon sequestration is likely coming to (or already happening in) a destination near you. As our planet, overdosed on greenhouse gases, battles climate disasters, a logical…more

Carbon Capture and Sequestration, Carbon Emissions, Climate Change, Environmental Protection Agency (EPA), Global Warming

See all updates »

SEC Adopts Long-Anticipated Final Rules on Climate-Related Disclosure Requirements

The rules impose standardized disclosure requirements on public companies beginning as early as 2026 (for fiscal year ending 2025, depending on filer status). Climate-related disclosures, including in financial statement…more

Annual Reports, Climate Change, Corporate Governance, Disclosure Requirements, Final Rules

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How Your Business Can Weather Big Sur’s Latest Landslide

After heavy rains on March 30, 2024, a section of the southbound lane of famous Highway 1, which sits atop dramatic cliffs near Big Sur, collapsed and crumbled into the Pacific Ocean. The incident occurred near Rocky Creek…more

Insurance Claims, Insurance Industry, Insurance Litigation, Natural Disasters, Policy Exclusions

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Navigating the Intersection of DNA Data and Privacy: Insights from the FTC

On January 5, 2024, the Federal Trade Commission (FTC) published an article discussing privacy issues related to the DNA information that many consumers provide to genetic testing companies. This post outlines key takeaways from…more

Biometric Information, Compliance, Data Collection, Data Privacy, Federal Trade Commission (FTC)

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FAA Issues Licensing Guidance for Launch and Reentry of Space Nuclear Systems

The guidance will provide clarity and a compliance path to companies seeking permission to launch or reenter space-based nuclear technologies. The U.S. Federal Aviation Administration’s newly released Advisory Circular AC…more

Compliance, Department of Transportation (DOT), Federal Aviation Administration (FAA), Guidance Update, Licensing Rules

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A Look At Trademark Law Changes In Congress' Spending Bill

The federal trademark registration system in the U.S. is primarily premised on how a mark is used in commerce on or in connection with the provision of certain goods and services. Most U.S. trademark applicants must show the…more

Appeals, Coronavirus/COVID-19, Trademark Litigation, Trademark Modernization Act (TMA), Trademark Registration

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New York District Court Holds Teaming Agreements May Be Enforced

The ruling indicates that selecting New York law may increase the likelihood that the terms of a well-written teaming agreement will be enforced. Government contractors will find the New York Court’s recent denial of a motion…more

Defend Trade Secrets Act (DTSA), Enforcement, Federal Acquisition Regulations (FAR), Motion to Dismiss, Teaming Agreements

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Unleashing the AI Imagination: A Global Overview of Generative AI Regulations

United States: The Administration and Congress are taking initial steps to produce legislation to regulate AI and using interim measures, such as the White House’s recently announced voluntary agreement with seven prominent…more

Artificial Intelligence, China, Data Privacy, Data Protection, Disclosure Requirements

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EPA Updates PFAS TRI Reporting Requirements

On October 2023, the U.S. Environmental Protection Agency (EPA) published a final rule in the Federal Register modifying reporting requirements for per- and polyfluoroalkyl substances (PFAS) in the Toxics Release Inventory (TRI)…more

Environmental Policies, Environmental Protection Agency (EPA), Manufacturers, PFAS, Reporting Requirements

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Don’t Let Bank Uncertainty Delay Payroll: Considerations for Employers

With bank uncertainty making headlines, we answer employers’ most frequently asked questions about the consequences of payroll delays, strategies for mitigating risk and more. …more

401k, Banking Sector, COBRA, Corporate Counsel, Department of Labor (DOL)

See all updates »

Don’t Forget to File (Accurately): 2024 Brings Heightened IRS and DOJ Focus on Non-Filers and Digital Assets

The IRS has increased funding for collection and enforcement, with a stated focus on high income non-filers and digital assets (among other areas). The DOJ has also emphasized a focus on digital assets, and the Department and…more

Department of Justice (DOJ), Digital Assets, Enforcement, Filing Deadlines, Income Taxes

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Prepare for Arrival: Aviation Finance Transitions to SOFR

Term SOFR emerges as the new market standard for aviation financing and leasing transactions. Market standards are evolving in new SOFR-based financings, including with respect to market disruption, breakage costs and future…more

Alternative Reference Rates Committee (ARRC), Consumer Financial Products, Financial Transactions, GSE, ISDA

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China Year-in-Review: Supply Chains

This past year saw a continued trend in building supply chain resiliency, as this topic has grown increasingly important following Covid-19, the conflict in Ukraine, shifting landscape on tariffs, forced labor concerns and a…more

China, Customs and Border Protection, Export Controls, Forced Labor, Foreign Adversaries

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Establishing and Managing a Business in the UK 2022

Overseas investors are welcome in the UK. Save as set out below, there are no specific laws prohibiting foreign investment in the UK nor are there any business requirements for UK participation in the ownership or management of…more

Capital Gains, Certificates of Incorporation, Corporate Taxes, Excise Tax, Financing

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Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes

The Final Rule, if it survives significant legal challenges and the challenges yet to come, will ban all existing and future non-compete agreements with workers, with only narrow exceptions. The FTC Final Rule imposes a…more

Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC), Final Rules

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SEC Adopts Long-Anticipated Rules for SPACs: Considerations for Market Participants and SEC Enforcement Objectives in the New Regulatory Environment

The rules, originally proposed in March 2022, realign disclosures, marketing practices and other obligations in de-SPAC transactions more closely with traditional IPOs and add increased risk and uncertainty for market…more

Conflicts of Interest, Corporate Counsel, Disclosure Requirements, Enforcement, Fairness Standard

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COVID-19 Relief: SBA Issues Regulations & Guidance on the Paycheck Protection Program

SBA issues interim regulations and guidance on the Paycheck Protection Program, including confirmation of “affiliation” rules that may leave many companies affiliated with their investors and other businesses. New Small…more

Banks, Business Closures, Business Interruption, CARES Act, Coronavirus/COVID-19

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NFTs, Web 3.0 and the Technologies Enabling the Metaverse

Riaz Karamali recently joined host Joel Simon on the Industry Insights podcast to discuss the issues and innovations driving the video game industry, including the emergence of the Metaverse and how non-fungible tokens,…more

Blockchain, Cryptoassets, Digital Assets, Non-Fungible Tokens (NFTs), Popular

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New UK and EU Sanctions Introduced Against Russia

The United Kingdom (“UK”) introduced new sanctions against Russia on December 14, 2023 with the European Union (“EU”) also adopting its 12th package of sanctions against Russia on December 18, 2023…more

Economic Sanctions, EU, Export Controls, Exports, Imports

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Negotiating Construction Agreements with Japanese Contractors for Domestic Projects

A foreign owner contracting with a Japanese construction company to build facilities in Japan, whether a hotel, a manufacturing facility, a process plant or otherwise, faces a number of challenges…more

Construction Contracts, Construction Industry, Construction Project, Contract Negotiations, Design-Build

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The Consolidated Appropriations Act, 2021 Extends and Expands Eligibility for Employee Retention Tax Credit

The Consolidated Appropriations Act, 2021 extends eligibility for the employee retention tax credit through June 30, 2021, and increases the potential amount of the credit during this period. The Act increases the threshold…more

CARES Act, Consolidated Appropriations Act (CAA), Coronavirus/COVID-19, Employee Retention, Loan Forgiveness

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The Higher the Value, the Greater the Loss: The Importance of Updating Building Values in Inflationary Times

Earlier in 2022, CBRE forecasted a 14.1% year-over-year increase in construction costs by year-end 2022, as labor and material costs continue to rise, despite the expectation that overall cost inflation for materials would begin…more

Commercial Insurance Policies, Commercial Property Owners, Construction Industry, Construction Project, FEMA

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Obamacare HealthCare.gov Issues Serve as a Reminder to Embrace Best Practices in Software Development and Integration Projects

October 1st marked the beginning of open enrollment for the federal and state health care exchanges ("Exchanges") created to comply with the Affordable Care Act ("ACA") of 2010, commonly referred to as Obamacare. The creation of…more

Affordable Care Act, Health Insurance Exchanges, Healthcare, Open Enrollment, Software

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Reminder: “Gross” Does Not Mean “Net” – California OTA Holds All Repatriated Dividends Must Be Included in Sales Factor

In a decision marked “not precedential,” the OTA held 100 percent of repatriated dividends must be included in the taxpayer’s sales factor denominator…more

Apportionment, California, Dividends, Income Taxes, Sales Factor

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New York Adopts New More Workable Registration Requirements for Foreign In-House Counsel

N.Y. Court of Appeals amends Part 522 of Rules, making possible registration for foreign in-house counsel practicing in New York (the “New Regime”). Effective April 15, 2020, foreign in-house counsel have 90 days to register…more

Affidavits, Appellate Courts, Burden of Proof, Reciprocity Rules, Registration

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Russia Sanctions Year in Review: Impact on Aviation Sector

This post marks the third entry in our Year-in-Review series. For prior posts, click here. Many of the first measures that the United States, European Union and United Kingdom collectively took against Russia in 2022 related to…more

Aviation Industry, Bureau of Industry and Security (BIS), Economic Sanctions, EU, Export Administration Regulations (EAR)

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Smart Building and Smarter Protocols: Mitigating IoT Cybersecurity Risks in Commercial Real Estate

From our homes to our workplaces, the deployment of smart technology is becoming increasingly prevalent. The Wall Street Journal notes that smart-building-related companies raised $2.88 billion in venture capital in 2021. In…more

Connected Items, Cybersecurity, Data Privacy, Data Security, Internet of Things

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Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes

The Final Rule, if it survives significant legal challenges and the challenges yet to come, will ban all existing and future non-compete agreements with workers, with only narrow exceptions. The FTC Final Rule imposes a…more

Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC), Final Rules

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Acquirers Beware: Salary History Bans Impact Employment Diligence and Arrangements

New state and local laws might change employment salary due diligence and post-closing arrangements in M&A deals New state and local laws might change employment salary due diligence and post-closing arrangements in M&A deals…more

Acquisitions, Due Diligence, Employment Discrimination, Hiring & Firing, Job Applicants

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Privacy Breach: The Silent Killer of Startups

A privacy breach can have detrimental consequences for startups:  A privacy breach may trigger legal consequences and regulatory scrutiny, especially for a startup that operates in areas with stringent data protection laws and…more

Cyber Attacks, Cybersecurity, Data Breach, Data Management, Data Protection

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Treasury Announces Proposed Rule to Update CFIUS Regulations and Bolster Enforcement

On April 11, 2024, the U.S. Department of the Treasury (Treasury), as Chair of the Committee on Foreign Investment in the United States (CFIUS), issued a Notice of Proposed Rulemaking (NPRM), which is the first substantive…more

CFIUS, Enforcement, FIRRMA, Foreign Investment, NPRM

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Clarity for M&A Practitioners: Proposed DGCL Amendments Bridge the Gap between Recent Delaware Chancery Court Decisions and Market Practice

The proposed amendments would address recent case law decisions in Activision, Moelis and Crispo that uprooted well-established market practice with respect to the enforceability of certain provisions of stockholder agreements…more

Acquisitions, Board of Directors, Corporate Governance, Corporate Officers, Delaware General Corporation Law

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Biden Administration Publishes Final Version of Title IX Regulations

The New Rules expand the scope of Title IX and change requirements for schools. The New Rules expand the definitions of sex-based harassment and hostile environment harassment and cover certain off-campus conduct…more

Biden Administration, Hostile Environment, Jurisdiction, New Regulations, Notice of Proposed Rulemaking (NOPR)

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U.S. Supreme Court to Decide Whether State’s Public Policy Interest Could Sink Insurance Policy’s Choice-of-Law Provision

The rare insurance dispute has appeared on the horizon for the nation’s highest court. Last month, the U.S. Supreme Court granted certiorari and agreed to take up the case of Great Lakes Insurance SE v. Raiders Retreat Realty…more

Appeals, Breach of Duty, Choice-of-Law, Declaratory Judgments, Fiduciary Duty

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New Due Date for “FBAR” Filings - Report of Foreign Bank and Financial Accounts now due on Tax Day, with auto-extension for six months

Federal law requires U.S. citizens and resident aliens to report world-wide income, including income from foreign trusts, bank and securities accounts. In addition to attaching Schedule B to their tax returns disclosing foreign…more

FATCA, FBAR, Filing Requirements, FinCEN, Foreign Bank Accounts

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Aircraft and Engine Lessors & Financiers Take Note: UK Corporate Insolvency and Governance Act 2020

A summary of key features of the new UK insolvency legislation and a look at its interaction with the Cape Town Convention and Aircraft Protocol, as implemented in the UK Summary - Further to the entry into UK insolvency law…more

Aircraft, Corporate Insolvency and Governance (CIG) Act 2020, Insolvency, Lenders, Moratorium

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Amid the Rise of Greenwashing Litigation, Guidance Due for Updates May Become Law

As companies are increasingly defending against lawsuits over allegedly greenwashed marketing campaigns, federal agencies and the Biden Administration are considering codifying relevant non-binding guidance, currently under…more

Biden Administration, Enforcement, Environmental Social & Governance (ESG), Federal Trade Commission (FTC), Greenwashing

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Red Sea Dangers: Increasing Insurance Premiums and Introducing Coverage Exclusions for Vessels Transiting the Red Sea

Yemeni-based Houthi forces have attacked more than two dozen vessels transiting the Red Sea since the October 7, 2023, start of the current Israel-Hamas conflict, leading to a surge in marine war insurance premiums. Houthi…more

Commercial Insurance Policies, Insurance Industry, Insurance Rates, Lloyds of London, Marine Insurance

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Unleashing the AI Imagination: A Global Overview of Generative AI Regulations

United States: The Administration and Congress are taking initial steps to produce legislation to regulate AI and using interim measures, such as the White House’s recently announced voluntary agreement with seven prominent…more

Artificial Intelligence, China, Data Privacy, Data Protection, Disclosure Requirements

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New York Administrative Law Judge Holds ITFA Preempts Taxation of Gross Receipts From ADSL and Fiber Broadband Sales

An administrative law judge with the New York State Division of Tax Appeals held that the federal Internet Tax Freedom Act (ITFA) preempted the imposition of New York franchise tax and a metropolitan transportation business tax…more

Broadband, Franchise Taxes, Gross Receipts Tax, Internet Service Providers (ISPs), Internet Tax Freedom Act

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Last Minute Tax Change Benefits Commercial Real Estate

In general, the Tax Cuts and Jobs Act bill allows pass-through owners making less than $157,500 ($315,000 for married couples) to take a flat 20 percent deduction on certain business income, before computing the ordinary income…more

Business Taxes, Commercial Real Estate Market, Income Taxes, Pass-Through Entities, Tax Reform

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The State of Play on Clawbacks and Forfeitures Based on Misconduct

On July 1, 2015, the SEC issued proposed rules implementing Section 954 of the Dodd-Frank Act, which would obligate national securities exchanges to adopt listing standards that require listed companies to adopt and disclose…more

#MeToo, C-Suite Executives, Clawbacks, Corporate Governance, Corporate Officers

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California Commercial Tenant Security Deposits in a COVID-19 World

In the wake of government-ordered moratoriums on commercial tenant evictions, how does a California commercial tenant’s security deposit come into play as an available landlord remedy for a lease default? Commercial lease…more

Commercial Leases, Coronavirus/COVID-19, Default, Economic Duress, Eviction

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Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes

The Final Rule, if it survives significant legal challenges and the challenges yet to come, will ban all existing and future non-compete agreements with workers, with only narrow exceptions. The FTC Final Rule imposes a…more

Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC), Final Rules

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U.S. Increases Export Restrictions Against Nicaragua

The U.S. Department of Commerce amended the Export Administration Regulations (EAR), effective March 15, 2024, to move Nicaragua from Country Group B to Country Group D, and added it to the list of countries subject to the…more

Arms Embargo, Bureau of Industry and Security (BIS), Export Administration Regulations (EAR), Exports, ITAR

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California Supreme Court Punts on FAA Preemption - Court invalidates waiver of public injunctive relief, declines to address whether Federal Arbitration Act preempts Broughton-Cruz rule

Last month, the California Supreme Court handed down its unanimous decision in McGill v. Citibank N.A., holding that an arbitration provision that effectively waives a consumer’s statutory right to seek public injunctive relief…more

Arbitration, Banking Sector, Citibank, CLRA, Consumer Contracts

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SEC Moves to Modernize Framework for Securities Offerings and Sales to Workers

The SEC takes a highly anticipated first step toward updating Rule 701 and Form S-8 - Amendments to Rule 701 would increase the cap on exempt offerings and ease disclosure burdens. Revisions to Form S-8 would permit…more

Fair Market Value, Financial Statements, GAAP, Gig Economy, Internal Revenue Code (IRC)

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Federal Circuit Reverses COFC Protest Decision on Standing

The Court of Appeals for the Federal Circuit reversed a Court of Federal Claims ruling, finding that a bidder whose proposal was excluded from the competitive range was an interested party to protest the evaluations of awardees’…more

Appeals, COFC, Department of Veterans Affairs, GAO, Reversal

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SEC Streamlines Financial Disclosure Requirements under Regulation S-K for Reporting Companies

The amendments are designed to increase focus on material information while simplifying compliance efforts. The amendments eliminate the five-year selected financial data requirement, limit selected quarterly financial data…more

Compliance, Disclosure Requirements, EDGAR, Federal Register, Foreign Private Issuers

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Adolph v. Uber Technologies, Inc.: Plaintiffs Compelled to Arbitrate Their Individual PAGA Claims May Still Litigate Representative PAGA Claims

To have Private Attorneys General Act (PAGA) standing, a plaintiff must be an “aggrieved employee,” which is an individual who worked for an alleged violator and personally sustained at least one Labor Code violation…more

Appeals, California, Labor Code, Private Attorneys General Act (PAGA), SCOTUS

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Insurers Seek to Avoid Coverage for BIPA Claims by Using Old Exclusions for New Purposes

When Illinois enacted the Biometric Information Privacy Act in 2008 (BIPA), the concept of “biometric privacy protection” was foreign to many observers. Yet less than 20 years later, consumers are familiar with the concept of…more

Biometric Information, Biometric Information Privacy Act, Class Action, Exclusions, Insurance Industry

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Congressional Action on AI Takes Major Step Forward

Senate Majority Leader Chuck Schumer (D-NY) proposed a new framework to guide future artificial intelligence legislation and regulation, and other members of Congress are also considering legislation to address AI…more

Artificial Intelligence, National Security, Proposed Legislation, Proposed Regulation, Shareholders

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How to Build a Coronavirus Hospital in Ten Days

If the coronavirus pandemic continues to spread in the United States as it has in other countries, drastic expansions of hospital and quarantine facility capacity are likely to be necessary…more

Construction Industry, Coronavirus/COVID-19, Hospitals, Infectious Diseases

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Court Holds COVID-19 Executive Order Triggers Lease’s Force Majeure Clause, Excusing Some Rent Obligations

Illinois Governor’s Executive Order prohibiting sale of food or beverages for on-premises consumption held to partially excuse restaurant tenant’s rent payment obligations. Bankruptcy Court finds that Executive Order…more

Bankruptcy Court, Chapter 11, Commercial Tenants, Coronavirus/COVID-19, Executive Orders

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EPA Drops Pre-Publication of the Long-Anticipated Final Version of Its One-Time PFAS Reporting Rule under TSCA Section 8(a)(7)

On September 28, 2023, the U.S. Environmental Protection Agency (EPA) finalized the long-awaited one-time reporting rule for per- and polyfluoroalkyl substances (PFAS) that the Agency had proposed in June 2021 under Section…more

Environmental Protection Agency (EPA), Manufacturers, PFAS, Reporting Requirements, Toxic Chemicals

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SEC Adopts Amendments to the “Accelerated Filer” and “Large Accelerated Filer” Definitions

Changes are intended to address unintended consequences of 2018 SEC ruling. The amendments to the definitions of “accelerated filer” and “large accelerated filer” pursuant to Rule 12b-2 under the Securities Exchange Act of…more

Accelerated Filers, Annual Reports, Final Rules, Publicly-Traded Companies, Securities and Exchange Commission (SEC)

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Specially Designated Nationals as Tenants: How Landlords Can Be Impacted by Sanctions Against Russian Nationals

Sanctions designations may require U.S. persons involved with sanctioned individuals to terminate existing contracts, including leases. It is important for landlords to conduct thorough due diligence on prospective tenants…more

Contract Termination, Economic Sanctions, International Emergency Economic Powers Act (IEEPA), Landlords, Lease Termination

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NRC Issues Draft Guidance to Facilitate Reactor Siting

If accepted, the new Draft Regulatory Guide DG-4034, “General Site Suitability Criteria for Nuclear Power Stations,” may facilitate the siting of both advanced and traditional reactors closer to population centers. The U.S…more

Draft Guidance, Energy Projects, Fossil Fuel, Nuclear Power, Nuclear Regulatory Commission

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Another Brick in the Wall: NCAA Enjoined from Enforcing NIL Rules Prohibiting Student-Athletes from Negotiating with Third Parties

U.S. District Judge Clifton Corker issued an injunctive order prohibiting the NCAA from enforcing its name, image or likeness (NIL) rules to the extent those rules prohibit prospective or existing student-athletes from…more

Antitrust Violations, Compensation, Contract Negotiations, Damages, Enforcement

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UPDATE: NRC Rescinds Entire Enforcement Action Against Pillsbury Client Tennessee Valley Authority

NRC staff unilaterally rescinds remaining violation in TVA discrimination case. Staff also rescinds entire enforcement order and civil penalty; NRC board terminates the proceeding. The Nuclear Regulatory Commission (NRC)…more

Adverse Employment Action, Civil Monetary Penalty, Dismissals, Enforcement Actions, Notice of Violation

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Federal Court Finally Issues an Opinion Analyzing LEG 3 (and It’s a Win for Policyholders)

The London Engineering Group’s LEG 3 exclusion—one of three standard form provisions issued by the London Engineering Group addressing coverage arising from construction or design defects—is an increasingly common defects…more

Design Defects, Federal Court Litigation, Insurance Industry, Rectification, Replacement Costs

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World Aircraft Repossession Index

Third Edition - Pillsbury Winthrop Shaw Pittman LLP is pleased to publish this Third Edition of the World Aircraft Repossession Index. This Third Edition builds on the success of our Second Edition and covers 31 “new”…more

Aircraft, Aircraft Equipment, Aircraft Financing, Aircraft Sales, Aviation Industry

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Privacy Breach: The Silent Killer of Startups

A privacy breach can have detrimental consequences for startups:  A privacy breach may trigger legal consequences and regulatory scrutiny, especially for a startup that operates in areas with stringent data protection laws and…more

Cyber Attacks, Cybersecurity, Data Breach, Data Management, Data Protection

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Considerations for Regulation of Fusion-Based Power Generation Devices

With advances in technology, the long sought-after development of fusion power, which promises a limitless, carbon-free source of energy for the future, finally appears within reach. Over two-dozen private companies are…more

Atomic Energy Act, Department of Energy (DOE), Energy Sector, Nuclear Energy Innovation and Modernization Act (NEIMA), Nuclear Power

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Commercial Real Estate Partnership Cancellation of Debt Income

The complexities of cancellation of debt income (CODI), including bankruptcy and insolvency implications, are important to understand. When debt is cancelled or discharged, the borrowed funds become taxable income, or…more

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SEC Adopts Amendments to the “Accelerated Filer” and “Large Accelerated Filer” Definitions

Changes are intended to address unintended consequences of 2018 SEC ruling. The amendments to the definitions of “accelerated filer” and “large accelerated filer” pursuant to Rule 12b-2 under the Securities Exchange Act of…more

Accelerated Filers, Annual Reports, Final Rules, Publicly-Traded Companies, Securities and Exchange Commission (SEC)

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U.S. Government Shutdown: Will Performance of Private Contracts Be Excused?

With Congress unable to reach an agreement on a continuing resolution, the federal government shut down all “non-essential” services on October 1, 2013. The shutdown will remain in effect until Congress passes appropriations…more

Breach of Contract, Force Majeure Clause, Government Shutdown, Specific Performance

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eIDAS 2.0: Paving the Way for a Unified Digital Identity Framework in Europe

Electronic identification and trust services (eIDAS) refer to a range of services that include verifying the identity of individuals and businesses online and verifying the authenticity of electronic documents. Since 2014, such…more

Authentication and Trust Services Regulation (eIDAS), Digital Wallets, E-Signatures, Electronic Identification, Electronically Stored Information

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SEC Names First Chief Risk Officer

On the heels of a January 2019 announcement that it was charging nine persons with participation in a scheme that allowed them to hack into the SEC’s confidential database of public filings, commonly known as EDGAR…more

Chief Risk Officers (CRO), Cybersecurity, EDGAR, Hackers, Popular

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The Supreme Court Narrows Its Holding in American Pipe & Construction Co. v. Utah

The U.S. Supreme Court bars previously absent class members from bringing subsequent class actions outside the applicable limitations period. The Supreme Court’s decision in China Agritech, Inc. v. Resh cements a new limit on…more

American Pipe & Construction Co. v. Utah, Appeals, China Agritech Inc v Resh, Class Action, Class Certification

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Data Privacy: What Nonprofits Need to Know in the United States, EU and UK, and China

From long-standing laws to incoming legislation, global nonprofits must understand the requirements and prepare for scrutiny in their handling of personal data. U.S. privacy regulations are currently a complex framework of…more

California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), CDPA, China, Compliance

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Unleashing the AI Imagination: A Global Overview of Generative AI Regulations

United States: The Administration and Congress are taking initial steps to produce legislation to regulate AI and using interim measures, such as the White House’s recently announced voluntary agreement with seven prominent…more

Artificial Intelligence, China, Data Privacy, Data Protection, Disclosure Requirements

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Employment Law in the Golden State: 2023 Updates

A number of recent case law and regulatory updates—at both the state and federal levels—carry important implications for California employers in the upcoming year…more

California, Employees, Employer Liability Issues, Job Ads, Minimum Wage

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China Enacts New Foreign Investment Law

Amid stark slowdown in output growth and trade disputes with U.S., PRC authorities speed up issuance of legislation to encourage investment from abroad. Law affirms equal legal standing of foreign-backed enterprises and…more

China, Foreign Direct Investment, Foreign Investment, New Legislation

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Construction During a Pandemic – Pillsbury’s 50-State Survey of COVID-19 Impact on Construction Services (UPDATED)

Pillsbury continues to track the impact on construction projects of COVID-19-related orders and guidance in all 50 states and the District of Columbia as well as guidance from CISA and OSHA. We are updating our chart weekly…more

Construction Industry, Construction Project, Coronavirus/COVID-19, Re-Opening Guidelines

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REIT Dividends in the Wake of the Coronavirus

The pandemic’s financial impact adds another layer of complexity to REITs authorizing, declaring and paying dividends under Maryland law. Maryland REITs must carefully weigh statutory distribution requirements against…more

Coronavirus/COVID-19, Debtor-Creditor, Dividends, Financial Solvency, IRS

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SEC Adopts Long-Anticipated Final Rules on Climate-Related Disclosure Requirements

The rules impose standardized disclosure requirements on public companies beginning as early as 2026 (for fiscal year ending 2025, depending on filer status). Climate-related disclosures, including in financial statement…more

Annual Reports, Climate Change, Corporate Governance, Disclosure Requirements, Final Rules

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Treasury Department and IRS Issue Final Regulations and Other Guidance on the Direct Pay Election under Section 6417 of the Internal Revenue Code

Under Section 6417 of the Internal Revenue Code (IRC), “applicable entities” and certain electing taxpayers can elect to treat various renewable energy tax credits as payments against tax, essentially making those credits…more

Business Entities, Comment Period, Internal Revenue Code (IRC), IRS, Joint Ownership

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2022 Election Night Guide

As of November 3, 2022, national polls show likely Republican gains in Congress, but it is unclear whether the “red wave” that some had predicted earlier in the year will materialize. …more

General Elections, Local Elections, Political Campaigns, Political Candidates, State and Local Government

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For Banks Placing or Renewing D&O Coverage, It Pays to Proceed with Caution

The collapse of Silicon Valley Bank (SVB), the failure of Signature Bank, the close-call of First Republic, and the bailout of Credit Suisse had many proclaiming earlier this year that banking was heading toward an industry-wide…more

Banking Sector, D&O Insurance, FDIC, Federal Reserve, Financial Institutions

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Don’t Let Bank Uncertainty Delay Payroll: Considerations for Employers

With bank uncertainty making headlines, we answer employers’ most frequently asked questions about the consequences of payroll delays, strategies for mitigating risk and more. …more

401k, Banking Sector, COBRA, Corporate Counsel, Department of Labor (DOL)

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Use It or Lose It! Indemnification Rights May Not Be Asserted against a Post-Confirmation Liquidation Trust

The Fifth Circuit recently held that claims and defenses arising from an indemnification agreement with a debtor could not be asserted against a liquidation trust because the chapter 11 plan barred those claims and defenses, and…more

Beneficiaries, Bondholders, Bonds, Chapter 11, Commercial Bankruptcy

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No Exceptions for AI: The FTC Hosts a Tech Summit to Discuss the Impacts of AI on Consumers and Competition

On January 25, 2024, the Federal Trade Commission (FTC) hosted a summit focused on the impact of artificial intelligence (AI) on consumers and competition in the technology sector. Comprising three panel discussions and related…more

Anti-Competitive, Artificial Intelligence, Competition, Confidential Information, Data Privacy

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U.S. Fish & Wildlife Service Rolls Out BGEPA General Permit, Streamlining Wind and Power Line Project Approvals

Beginning April 12, 2024, USFWS will offer a general permit application for incidental take of bald and golden eagles for wind energy and power line projects. The general permit option will provide an alternative to…more

Bald and Golden Eagle Protection Act, Energy Sector, General Permit, Risk Mitigation, Transmission Lines

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Maryland Stays Commercial Evictions, Residential Foreclosures and Repossessions in Response to COVID-19

On April 3, 2020, Maryland’s Governor amended and restated his March 15, 2020, order temporarily prohibiting residential evictions to also prohibit COVID-19 commercial evictions and repossessions, stay any initiation of…more

Coronavirus/COVID-19, Eviction, Foreclosure, Maryland, State and Local Government

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AI and the “G” in ESG

As artificial intelligence (AI) expands into virtually every industry, companies should consider AI’s potential impacts on corporate governance and internal controls. Companies should integrate AI thoughtfully to ensure they…more

Artificial Intelligence, Climate Change, Corporate Governance, Data Breach, Disclosure Requirements

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The Missing Piece of the Cyber Response Plan Puzzle – The Insurance Component

Experts are full of advice about the importance of designing and implementing a robust cyber breach response plan. They opine frequently on its key components, such as identifying the roles and responsibilities of the response…more

Best Practices, Crisis Management, Cyber Attacks, Cyber Incident Reporting, Cyber Insurance

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Compliance Programs Must Track and Adapt to Changes and Risks

Updated DOJ Guidance calls on corporations to devote additional resources and attention to detect and prevent misconduct. A well-structured and effective compliance program must evolve with lessons learned, be understood by…more

Audits, Compliance, Corporate Misconduct, Department of Justice (DOJ), Employee Misconduct

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Operational Resilience Requirements May Be Coming for Large U.S. Banks Soon

On March 12, 2024, Acting Comptroller of the Currency Michael Hsu indicated in a speech that regulations may soon be forthcoming that would be designed to bolster larger depository institutions’ ability to withstand disruptions…more

Banking Regulators, Banking Sector, Banks, Depository Institutions, Financial Institutions

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SCOTUS Relaxes Standards for Title VII Plaintiffs in Workplace Discrimination Claims

In Muldrow v. City of St. Louis, No. 22-193, 2024 WL 1642826 (U.S. Apr. 17, 2024), the U.S. Supreme Court ruled that an employee alleging that an involuntary lateral job transfer constituted workplace discrimination in violation…more

Civil Rights Act, Discrimination, Diversity and Inclusion Standards (D&I), Employee Transfers, Employer Liability Issues

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DOI Aims to Modernize its “Inefficient and Inflexible” Type A Natural Resource Damages Assessment Regulations

The U.S. Department of the Interior (DOI) published a proposed rule aimed at modernizing and streamlining the “Type A” Natural Resource Damage Assessment (NRDA) regulations under the Comprehensive Environmental Response,…more

Advanced Notice of Proposed Rulemaking (ANPRM), Assessment, Department of the Interior, Natural Resources, Proposed Rules

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Montage IPO – Are The U.S. Markets Re-Opening To Chinese Companies?

The U.S. capital markets—the largest in the world—have been all but closed to Chinese companies for more than two years. The successful IPO of Montage Technology, and e-commerce giant Alibaba’s announcement that it will seek a…more

Audits, Capital Markets, China, Corporate Governance, Foreign Corporations

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The U.S. Moves Toward a Comprehensive Privacy Law (One More Time)

On April 7, 2024, U.S. Sen. Maria Cantwell (D-WA), Chair of the Senate Committee on Commerce, Science and Transportation, and U.S. Rep. Cathy McMorris Rodgers (R-WA), Chair of the House Committee on Energy and Commerce, released…more

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

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Making Japan a More Attractive Center for International Arbitration

Since 2017, Japan has been actively working to promote international arbitration. The updates to the Arbitration Act of Japan should help boost the country’s popularity as an arbitration seat…more

Arbitration Awards, Commercial Arbitration, Foreign Corporations, Hong Kong International Arbitration Centre (HKIAC), International Arbitration

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Adolph v. Uber Technologies, Inc.: Plaintiffs Compelled to Arbitrate Their Individual PAGA Claims May Still Litigate Representative PAGA Claims

To have Private Attorneys General Act (PAGA) standing, a plaintiff must be an “aggrieved employee,” which is an individual who worked for an alleged violator and personally sustained at least one Labor Code violation…more

Appeals, California, Labor Code, Private Attorneys General Act (PAGA), SCOTUS

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Estate and Tax Planning 2023 Update: Act While You Can

Although the IRS is now on high alert for wealthy individuals, new and existing planning opportunities are available, such as tax-free gifts and other advantageous planning. Wealthy individuals and families should take note…more

Charitable Lead Annuity Trust, Estate Planning, Estate Tax, Generation-Skipping Transfer, Gift-Tax Exemption

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Revving Up: Eight States in Gear with Low-Carbon Fuel Standard Legislation

Eight states are currently considering legislation that would require reductions in the carbon intensity of transportation fuel sold in the state, which would substantially increase the demand for renewable fuel and low-carbon…more

California, CARB, Greenhouse Gas Emissions, Infrastructure, Low Carbon Fuel Standard

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Don’t Let Bank Uncertainty Delay Payroll: Considerations for Employers

With bank uncertainty making headlines, we answer employers’ most frequently asked questions about the consequences of payroll delays, strategies for mitigating risk and more. …more

401k, Banking Sector, COBRA, Corporate Counsel, Department of Labor (DOL)

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Official Committee Afterlife: Dismissal of the Chapter 11 Case Might Not Automatically Dissolve Its Committees

After a U.S. District Court departed from the “apparent consensus” that an official committee automatically dissolves when the chapter 11 case is dismissed, the Talc Claimants’ Committee in the similarly dismissed In re LTL…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Creditors

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SEC’s Climate Disclosure Rules Could Collide with California’s Laws

The SEC’s new climate regulations generate uncertainty for companies that must comply with both the SEC’s and California’s climate-related disclosure requirements. On March 6, 2024, the U.S. Securities and Exchange Commission…more

Appeals, California, Climate Change, Disclosure Requirements, Greenhouse Gas Emissions

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Supreme Court Strikes Down Race-Conscious Admissions at Harvard and UNC

While the Court did not explicitly overrule prior precedent, it significantly constrains schools’ ability to consider race in admissions. The Supreme Court ruled that the race-conscious admissions programs at Harvard and the…more

Affirmative Action, Civil Rights Act, College Admissions, Diversity, Educational Institutions

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Open up the PIPEs: Current Market Considerations

Private investments in public equity are likely to become more popular as investors and public companies utilize PIPEs to navigate market turbulence. In the face of tremendous market uncertainty, PIPE transactions offer…more

Board of Directors, CFIUS, Conversion, Dividends, Hart-Scott-Rodino Act

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Treasury Department Announces Additional Guidance and Timetable to Allocate $4 Billion in Qualifying Advanced Energy Project Credits

The application cycle for the first round of credits will soon open. Treasury’s additional guidance clarifies what types of facilities may qualify for credits, the submission process and the selection criteria for evaluating…more

Clean Energy, Department of Energy (DOE), Energy Projects, Greenhouse Gas Emissions, Hydrogen Power

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Taking the Market’s Temperature on Coverage for Climate Change-Related Property Damage

Temperatures in Arizona this week reached over 110 degrees Fahrenheit. The water temperature in the Florida Keys was reported to reach sauna-like levels, threatening the life of habitat-sustaining coral. Atmospheric conditions…more

Business Interruption, Climate Change, Insurance Claims, Insurance Industry, Property Damage

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Florida, Sebo and the Concurrent Causation Doctrine

The Florida Supreme Court recently issued a widely reported decision, Sebo v. American Home Assurance Co., which applied the concurrent cause doctrine in ruling that an all-risk homeowner’s insurance policy provides coverage…more

Concurrent Causation, Construction Defects, FL Supreme Court, Florida, Insurance Industry

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Congress Continues to Address AI in Bipartisan Fashion, Launching House AI Task Force as Latest Step

House leadership announced the launch of the Task Force on Artificial Intelligence (AI), a bipartisan group that will develop a report outlining AI regulatory priorities and setting guiding principles to help shape the AI…more

Artificial Intelligence, Copyright, Employer Liability Issues, Financial Services Industry, General Elections

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Corporate Plastic Footprints: A Growing ESG and Sustainable Finance Focus

Increasing public awareness of the environmental and social impacts of plastic pollution is pushing plastic management to a leading place in ESG evaluations. ESG and sustainable finance programs continue to gain momentum…more

Climate Change, Environmental Social & Governance (ESG), Investment, Plastics, Recycling

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COVID-19 Relief: SBA Issues Regulations & Guidance on the Paycheck Protection Program

SBA issues interim regulations and guidance on the Paycheck Protection Program, including confirmation of “affiliation” rules that may leave many companies affiliated with their investors and other businesses. New Small…more

Banks, Business Closures, Business Interruption, CARES Act, Coronavirus/COVID-19

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Nasdaq Proposal Includes Mandatory Director Diversity Disclosures

Board diversity may become not just a requirement but smart business as many corporations seek to maintain relevance and purpose. Nasdaq’s proposal would require most Nasdaq-listed companies to have, or explain why they do…more

Board of Directors, Corporate Governance, Diversity and Inclusion Standards (D&I), LGBTQ, Minorities

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The Ayes Have It: Dartmouth Men’s Basketball Team Is the First Student-Athletes to Unionize

The Dartmouth Men’s Basketball Team voted 13-2 in favor of being represented by SEIU Local 560. Dartmouth now has until March 12 to file objections to the election results…more

Joint Employers, NCAA, NLRA, NLRB, SEIU

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Department of Energy Proposes to Revise its Acquisition Regulation

The DOE proposes to update and streamline its policies, procedures, provisions and clauses applicable to its contracts. The changes include revisions related to facility clearances, Agreements for Commercializing Technology…more

Atomic Energy Act, Contract Terms, Department of Energy (DOE), Federal Acquisition Regulations (FAR), Notice of Proposed Rulemaking (NOPR)

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FAA Issues Licensing Guidance for Launch and Reentry of Space Nuclear Systems

The guidance will provide clarity and a compliance path to companies seeking permission to launch or reenter space-based nuclear technologies. The U.S. Federal Aviation Administration’s newly released Advisory Circular AC…more

Compliance, Department of Transportation (DOT), Federal Aviation Administration (FAA), Guidance Update, Licensing Rules

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Reminder: “Gross” Does Not Mean “Net” – California OTA Holds All Repatriated Dividends Must Be Included in Sales Factor

In a decision marked “not precedential,” the OTA held 100 percent of repatriated dividends must be included in the taxpayer’s sales factor denominator…more

Apportionment, California, Dividends, Income Taxes, Sales Factor

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Biden Administration Publishes Final Version of Title IX Regulations

The New Rules expand the scope of Title IX and change requirements for schools. The New Rules expand the definitions of sex-based harassment and hostile environment harassment and cover certain off-campus conduct…more

Biden Administration, Hostile Environment, Jurisdiction, New Regulations, Notice of Proposed Rulemaking (NOPR)

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The New UK-U.S. Data Bridge

The UK and U.S. Governments have now formalized the UK-U.S. Data Bridge. The U.S. Attorney General designated the UK as a “qualifying state” for the purposes of the Executive Order 14086 on September 18, 2023, and the UK…more

Data Privacy, Data Protection, General Data Protection Regulation (GDPR), International Data Transfers, Personal Data

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“Blank Space” Becomes Big Win for Builder’s Risk Policyholder

Loyal readers of this blog may recall our recent analysis of Norwegian Hull Club v. North Star Fishing Co., an insurance coverage dispute that appeared likely to turn on the meaning of a blank space in a very large builder’s…more

Builders Risk Insurance, Insurance Claims, Summary Judgment

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Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes

The Final Rule, if it survives significant legal challenges and the challenges yet to come, will ban all existing and future non-compete agreements with workers, with only narrow exceptions. The FTC Final Rule imposes a…more

Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC), Final Rules

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Commercial Real Estate Partnership Cancellation of Debt Income

The complexities of cancellation of debt income (CODI), including bankruptcy and insolvency implications, are important to understand. When debt is cancelled or discharged, the borrowed funds become taxable income, or…more

See all updates »

Recent Illinois Supreme Court Decision on Construction Defect Claim Is a Perfect Holiday Gift for Policyholders

The Illinois Supreme Court handed down a big win for policyholders just in time for the holidays. In Acuity v. M/I Homes of Chicago, LLC, the court joined the mainstream of jurisdictions and reversed years-old precedent that…more

Commercial Insurance Policies, Construction Defects, Construction Project, Declaratory Judgments, Homeowners Association (HOA)

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New York State Courts to Restore (Electronic) Filing of New Nonessential Actions

Following a two-month hiatus, litigants will soon be able to file new nonessential actions electronically in all New York State courts, even in regions of the state that have not begun reopening such as New York…more

Administrative Orders, Coronavirus/COVID-19, Electronic Filing, Re-Opening Guidelines

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President Biden and Senators Support the Ramp Up in IRS Audits on Corporate Aircraft

President Biden announced that he will focus on ending tax breaks for corporate aircraft and “cracking down on corporate jet loopholes.” Several aviation and labor organizations, including the National Business Aviation…more

Aircraft, Airlines, Audits, Biden Administration, Department of Transportation (DOT)

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Congress Continues to Address AI in Bipartisan Fashion, Launching House AI Task Force as Latest Step

House leadership announced the launch of the Task Force on Artificial Intelligence (AI), a bipartisan group that will develop a report outlining AI regulatory priorities and setting guiding principles to help shape the AI…more

Artificial Intelligence, Copyright, Employer Liability Issues, Financial Services Industry, General Elections

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Operational Resilience Requirements May Be Coming for Large U.S. Banks Soon

On March 12, 2024, Acting Comptroller of the Currency Michael Hsu indicated in a speech that regulations may soon be forthcoming that would be designed to bolster larger depository institutions’ ability to withstand disruptions…more

Banking Regulators, Banking Sector, Banks, Depository Institutions, Financial Institutions

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Congress Establishes the 4% Floor to Support Affordable Housing

Legislation signed into law on December 27, 2020, fixed the rate for the 30% present value low-income housing tax credit (LIHTC), which had dropped to a historic low of 3.07 in 2020, at 4% (the 4% Floor). Congress hopes that the…more

Affordable Housing, HUD, LIHTC, Low Income Housing, Real Estate Development

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EPA Clarifies Requirements for Management of End-of-Life Lithium-Ion Batteries under RCRA

New EPA guidance clarifies the application of federal hazardous waste requirements under the Resource Conservation and Recovery Act (RCRA) to the management and recycling of spent lithium-ion batteries. As the demand for…more

Department of Justice (DOJ), Electric Vehicles, Hazardous Waste, Lithium Batteries, New Guidance

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FinCEN’s Proposed Rule to Regulate Investment Advisers: The Questions Industry Should Be Following

FinCEN is focused on customer due diligence, and both the 2024 Investment Adviser Risk Assessment and proposed rule indicate that investment advisers will be expected to assess customer identity, business model, and sources of…more

AML/CFT, Anti-Corruption, Anti-Money Laundering, Bank Secrecy Act, Beneficial Owner

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California Bill Designed to Support Underrepresented Entrepreneurs Signed into Law

The bill requires certain venture capital companies to report demographic information about the founding team members of businesses in which they invested in the prior year. A “covered entity” must gather certain demographic…more

Asset Management, California, Covered Entities, Diversity, Founding Members

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Revving Up: Eight States in Gear with Low-Carbon Fuel Standard Legislation

Eight states are currently considering legislation that would require reductions in the carbon intensity of transportation fuel sold in the state, which would substantially increase the demand for renewable fuel and low-carbon…more

California, CARB, Greenhouse Gas Emissions, Infrastructure, Low Carbon Fuel Standard

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Not So Fast: Satisfaction of Default-Rate Interest Required before Loan Reinstatement

A New York Bankruptcy Judge held that a debtor must pay default-rate interest and fees to a secured lender as a condition to reinstatement of defaulted and accelerated debt under a chapter 11 plan. A debtor must pay…more

Bankruptcy Code, Chapter 11, Commercial Mortgages, Debtors, Fees

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The EU and UK Introduce New IoT Security Standards

The FCC’s recent introduction of a new Voluntary Cybersecurity Labelling Program for consumer Internet of Things (IoT) products reflects the continued desire by U.S. regulators to bolster the security of the ever-increasing…more

Compliance, Cybersecurity, Data Security, Distributors, EU

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The Qualified Opportunity Zone Program: Thoughts on the Long-Awaited Treasury Guidance

Treasury takes an important first step in bringing clarity to the QOZ program. The Proposed Regulations provide a 31-month grace period for development of a QOZ Business - The treatment of land is clarified for purposes…more

Capital Gains, Community Development, Internal Revenue Code (IRC), IRS, Opportunity Zones

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SCOTUS Relaxes Standards for Title VII Plaintiffs in Workplace Discrimination Claims

In Muldrow v. City of St. Louis, No. 22-193, 2024 WL 1642826 (U.S. Apr. 17, 2024), the U.S. Supreme Court ruled that an employee alleging that an involuntary lateral job transfer constituted workplace discrimination in violation…more

Civil Rights Act, Discrimination, Diversity and Inclusion Standards (D&I), Employee Transfers, Employer Liability Issues

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U.S. Increases Export Restrictions Against Nicaragua

The U.S. Department of Commerce amended the Export Administration Regulations (EAR), effective March 15, 2024, to move Nicaragua from Country Group B to Country Group D, and added it to the list of countries subject to the…more

Arms Embargo, Bureau of Industry and Security (BIS), Export Administration Regulations (EAR), Exports, ITAR

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Developments in Association Law 2021 – 2022

A review of notable cases and regulatory developments for nonprofit organizations at the federal and state levels in 2021 and 2022. Governance - Striltschuk v. Hryckowian, 202 A.D.3d 497, 160 N.Y.S.3d 56 (2022)…more

Anti-SLAPP, Appeals, Breach of Contract, Certifications, D&O Insurance

See all updates »

SEC Adopts Long-Anticipated Rules for SPACs: Considerations for Market Participants and SEC Enforcement Objectives in the New Regulatory Environment

The rules, originally proposed in March 2022, realign disclosures, marketing practices and other obligations in de-SPAC transactions more closely with traditional IPOs and add increased risk and uncertainty for market…more

Conflicts of Interest, Corporate Counsel, Disclosure Requirements, Enforcement, Fairness Standard

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DOE Issues Final Rule on Part 810 Civil Penalties

The U.S. Department of Energy issued a final rule regarding procedures for imposing civil penalties for violations of DOE’s 10 CFR Part 810 regulations governing civil nuclear technology export controls. The language of the…more

Atomic Energy Act, Burden of Proof, Civil Monetary Penalty, Department of Energy (DOE), Export Controls

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U.S. Fish & Wildlife Service Rolls Out BGEPA General Permit, Streamlining Wind and Power Line Project Approvals

Beginning April 12, 2024, USFWS will offer a general permit application for incidental take of bald and golden eagles for wind energy and power line projects. The general permit option will provide an alternative to…more

Bald and Golden Eagle Protection Act, Energy Sector, General Permit, Risk Mitigation, Transmission Lines

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Japanese Government Finally Declares Objection to Service by Mail under the Hague Service Convention

On December 21, 2018, Japan objected to service by direct mail under Hague Service Convention Article 10(a), which is welcome news for Japanese parties subject to foreign litigation, but creates a hurdle for U.S. plaintiffs…more

Foreign Defendants, Hague Convention, International Litigation, Service by Mail, Service of Process

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Before You Sign—Options and Opportunity in IBM’s Latest Reinvention

Major mergers and spin-offs by IT service providers are rare, but when they occur (e.g., Xerox’s acquisition of ACS in 2010 and Atos’ subsequent acquisition in 2014, HPE’s 2017 spin-off of its Enterprise Services business and…more

Business Expansion, Customers, Information Technology, Outsourcing

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FTC Announces Largest-Ever HSR Threshold Increase for 2022 Transactions

cSize-of-transaction threshold under Hart-Scott-Rodino Act will increase to $101 million in Federal Trade Commission’s largest threshold increase ever. As a result of the increase in the U.S. Gross National Product (GNP) for…more

Department of Justice (DOJ), Federal Trade Commission (FTC), Filing Fees, Hart-Scott-Rodino Act, Mergers

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Overview of the Impact of the 88th Legislative Session on the Oil, Gas and Renewables Industries in Texas

The 88th regular session of the Texas Legislature saw an unusually high number of proposed bills with a stated focus of ensuring reliability of the Texas grid and favoring “dispatchable generation” (having output within human…more

Corporate Taxes, Energy Projects, Energy Sector, Grants, Natural Gas

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Proposed California Bill Would Ban Commercial Evictions During State of Emergency, Grant Lease Termination Rights to Qualifying Tenants (UPDATE)

(Updated) California Senate Bill 939 goes beyond the COVID-19 eviction moratorium imposed in most cities and counties across the state. Landlords would be restricted from pursuing eviction proceedings or imposing late fees…more

California, Coronavirus/COVID-19, Landlords, Moratorium, Restaurant Industry

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A Hat Tip to the Manufacturing, R&D and Electric Power Industries: California Bill Would Provide Income Tax Credits for Sales and Use and District Taxes Paid on Certain “Qualified Tangible Personal Property”

California’s Existing Partial Exemption for Statewide Sales and Use Tax Paid on Qualified Tangible Personal PropertyRTC section 6377.1 exempts from certain state sales and use taxes the sale of, and the storage, use or other…more

Business Strategies, California, Capital Investments, Income Taxes, Investment Opportunities

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COVID-19: BCP and Remote Work Notifications from Suppliers

In managing relationships with their suppliers during the pandemic, companies will find it in their interest to show some flexibility—but only within certain parameters. - Third-party suppliers of technology products and…more

Business Continuity Plans, Coronavirus/COVID-19, Health and Safety, Infectious Diseases, Recovery Plans

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My Brother’s Keeper: When Do Minority Stockholders Risk Being Considered “Controllers” of a Delaware Corporation?

Recent Delaware cases have clarified that minority stockholders merely rolling over shares alongside an independent and unrelated controlling stockholder do not form a control group in most cases—the controlling stockholder must…more

Bankruptcy Court, Chapter 11, Coronavirus/COVID-19, Fiduciary Duty, Insolvency

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And They’re Off: FCC Jumps Out of the Gate with Back-to-Back Enforcement Actions and NPRMs

If there was any doubt that the late-2023 confirmation of Anna Gomez as the fifth commissioner would bring a flurry of FCC activity in 2024, the FCC has laid those questions to rest.  In addition to a $150,000 good faith NAL,…more

Broadcasting, Cable Television Providers, EEO, Enforcement Actions, FCC

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Protecting Your Digital Identity in the Metaverse

Who are you, really? Identity can be hard to define. In the real world, we don different (often overlapping) masks depending on the situation—family, work, public service or private play…more

Data Collection, Data Protection, Digital Platforms, Internet, Metaverse

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Blockchain-Based Tokenization of Commercial Real Estate

Blockchain technology is a digitized, distributed ledger that immutably records and shares information using software protocols and advanced cryptology. The development of blockchain-based smart contracts—self-executing software…more

Blockchain, Cryptocurrency, Popular, Token Sales, Tokenization

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DoD Contractor Requirement to Disclose Greenhouse Gas Emissions Has Been Halted

In response to the 2024 National Defense Authorization Act (NDAA), the Department of Defense (DoD) issued a class deviation postponing the proposed requirement to disclose greenhouse gas emissions. On November 14, 2022, the…more

Department of Defense (DOD), Disclosure Requirements, Federal Acquisition Regulations (FAR), Federal Contractors, Greenhouse Gas Emissions

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FinCEN’s Proposed Rule to Regulate Investment Advisers: The Questions Industry Should Be Following

FinCEN is focused on customer due diligence, and both the 2024 Investment Adviser Risk Assessment and proposed rule indicate that investment advisers will be expected to assess customer identity, business model, and sources of…more

AML/CFT, Anti-Corruption, Anti-Money Laundering, Bank Secrecy Act, Beneficial Owner

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Ukraine Reconstruction: Opportunities and Legal Challenges for Businesses

Ukraine’s reconstruction efforts present myriad opportunities for foreign businesses particularly in the energy, construction and tech sectors. At the same time, it is imperative for foreign businesses to approach these…more

Business Development, Construction Industry, Economic Sanctions, Energy Sector, Export Controls

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President Biden Issues Long-Awaited Executive Order on Safe, Secure and Trustworthy Artificial Intelligence

n October 30, President Biden issued the long-awaited Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI), the first order to navigate AI’s impact across sectors and to help…more

Artificial Intelligence, Biden Administration, Competition, Copyright, Cybersecurity

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Transportation Finance Digest: Volume 1

In This Issue: - Introduction - All Hat And No Chattel: Life After Cape Town - Q&A - The Future Of Eca Financing - Deal Of The Year - An Innovative Engine Re-Securitization - Pillsbury Case…more

Aircraft Sales, Aviation Contracts, Aviation Industry

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Developments in Association Law 2021 – 2022

A review of notable cases and regulatory developments for nonprofit organizations at the federal and state levels in 2021 and 2022. Governance - Striltschuk v. Hryckowian, 202 A.D.3d 497, 160 N.Y.S.3d 56 (2022)…more

Anti-SLAPP, Appeals, Breach of Contract, Certifications, D&O Insurance

See all updates »

SEC Adopts Long-Anticipated Rules for SPACs: Considerations for Market Participants and SEC Enforcement Objectives in the New Regulatory Environment

The rules, originally proposed in March 2022, realign disclosures, marketing practices and other obligations in de-SPAC transactions more closely with traditional IPOs and add increased risk and uncertainty for market…more

Conflicts of Interest, Corporate Counsel, Disclosure Requirements, Enforcement, Fairness Standard

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Senate Confirms Rohit Chopra as CFPB Director

As CFPB Director, Rohit Chopra will vigorously apply the CFPB’s authority to promulgate rules, conduct examinations, and bring enforcement actions. CFPB Acting Director Uejio has laid the groundwork for Director Chopra to…more

Consumer Financial Protection Bureau (CFPB), Credit Reports, Data Collection, Dodd-Frank, ECOA

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SEC Proposes Amendments to Shareholder Reporting Rules, Affecting Schedule 13D/G Filers and Impacting Section 16(a) Reporting

Rule amendments, if adopted, would substantially shorten filing deadlines for initial and amended Schedules 13D and 13G, as well as increase the number of securityholders required to file Section 16(a) reports (Forms 3, 4, and…more

Beneficial Owner, Compliance, Filing Deadlines, Proposed Amendments, Reporting Requirements

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No Brain, No Gain: U.S. Patent Inventors Must Be Human

The U.S. Court of Appeals for the Federal Circuit has agreed with the U.S. Patent Trademark Office (PTO) in holding that artificial intelligence (AI) cannot be considered an “inventor” for purposes of obtaining patents…more

Artificial Intelligence, Inventions, Inventors, Patents, USPTO

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Circuit Court Split on ACA Could Impact Employer Penalties

In conflicting opinions released on July 22nd, two federal circuits split on whether Affordable Care Act subsidies are available under a federally operated health insurance exchange. “Pay or play” penalties apply only if…more

Affordable Care Act, Employee Rights, Employer Liability Issues, Employer Mandates, Healthcare

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California Board Diversity Rules: Struck-Down Statutes and Paths Forward

Even as California’s courts block the state’s landmark pieces of legislation, the push for board diversity persists. Over the last four years, California has enacted two landmark pieces of legislation regarding the…more

Board of Directors, California, Corporate Governance, Diversity, Diversity and Inclusion Standards (D&I)

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The Banking Crisis of 2023: Outlook for the U.S. Banking Sector, Possible Regulatory and Legislative Responses, Lessons for Bank Customers and Management

Legislative responses to recent banking industry failures could include reinstating various rules that formerly applied to banks with more than $100 billion in assets. There are a variety of measures which bank depositors may…more

Bank Notes, Banking Crisis, Banking Sector, Depository Institutions, FDIC

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After Jack Daniel’s, the Other Shoe Drops for MSCHF in Wavy Baby Trademark Case

On December 5, 2023, the U.S. Court of Appeals for the Second Circuit affirmed a temporary restraining order and preliminary injunction secured by skateboard apparel company Vans against, MSCHF, an infamous parodist company. The…more

Copyright, Intellectual Property Protection, Preliminary Injunctions, Trademark Infringement, Trademark Litigation

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Estate and Tax Planning 2023 Update: Act While You Can

Although the IRS is now on high alert for wealthy individuals, new and existing planning opportunities are available, such as tax-free gifts and other advantageous planning. Wealthy individuals and families should take note…more

Charitable Lead Annuity Trust, Estate Planning, Estate Tax, Generation-Skipping Transfer, Gift-Tax Exemption

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SEC Proposes Amendments to Shareholder Reporting Rules, Affecting Schedule 13D/G Filers and Impacting Section 16(a) Reporting

Rule amendments, if adopted, would substantially shorten filing deadlines for initial and amended Schedules 13D and 13G, as well as increase the number of securityholders required to file Section 16(a) reports (Forms 3, 4, and…more

Beneficial Owner, Compliance, Filing Deadlines, Proposed Amendments, Reporting Requirements

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Revised Uniform Grants Guidance Reduces Burdens While Encouraging Accessibility and Transparency

On April 4, 2024, the White House released a pre-publication final rule substantially updating the Office of Management and Budget (OMB) Uniform Grants Guidance, which sets the foundational requirements for agencies in making…more

Acquisitions, Federal Funding, Federal Procurement Systems, Final Rules, Mergers

See all updates »

New CISA Rule Would Require Widespread Cyber Incident Reporting, Updated Timelines and Penalties for Critical Infrastructure Sector

Most businesses in the United States will have to file incident reports—including for ransomware payments—under the Proposed Rule. The Department of Homeland Security has the authority to issue subpoenas and even penalties for…more

Covered Entities, Critical Infrastructure Sectors, Cyber Incident Reporting, Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA), Cybersecurity

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Reminder: “Gross” Does Not Mean “Net” – California OTA Holds All Repatriated Dividends Must Be Included in Sales Factor

In a decision marked “not precedential,” the OTA held 100 percent of repatriated dividends must be included in the taxpayer’s sales factor denominator…more

Apportionment, California, Dividends, Income Taxes, Sales Factor

See all updates »

EU Reaches Agreement on New “AI Act”: The World’s First Comprehensive AI Law

The Council of the European Union and the European Parliament reached a provisional agreement on a new comprehensive regulation governing AI, known as the “AI Act,” late on Friday night (December 8, 2023). While the final agreed…more

Artificial Intelligence, Compliance, EU, European Commission, Innovative Technology

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Creditors May Take Rule 2004 Examinations in Chapter 15 Cases

A recent Bankruptcy Court decision indicates that Rule 2004—a powerful information-gathering tool that has long been utilized by foreign representatives in chapter 15 cases—may also be used by creditors in appropriate…more

Bankruptcy Code, Bankruptcy Court, Chapter 15, Creditors, Debt Restructuring

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Winner-Winner: Preserving Your Chicken Dinner with JPI

Judgment Preservation Insurance (JPI), also sometimes referred to as Judgment Protection Insurance, has become both more requested and available in recent years. As more plaintiffs seek ways to protect court judgments, more…more

Appeals, Insurance Industry, Policy Terms, Reduction of Damages, Trials

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Client Briefing: Biden’s Blueprint for Aggressive Antitrust Enforcement

Pillsbury puts the Biden Administration’s antitrust agenda in perspective. White House is backing the most aggressive antitrust agenda in generations. Constrained by legal precedent, antitrust officials adopt alternative…more

Anti-Monopoly, Biden Administration, Department of Justice (DOJ), Enforcement, Executive Orders

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Commercial Real Estate Partnership Cancellation of Debt Income

The complexities of cancellation of debt income (CODI), including bankruptcy and insolvency implications, are important to understand. When debt is cancelled or discharged, the borrowed funds become taxable income, or…more

See all updates »

Acquiring a Distressed Business in the United States: Key Issues for Prospective Buyers

Prospective buyers should prepare to take advantage of opportunities to acquire distressed businesses, as we are likely to see an uptick in distressed M&A soon. Prospective buyers seeking first-mover advantages should act…more

Acquisitions, Anti-Assignment Clauses, Bankruptcy Code, Bankruptcy Court, Corporate Bonds

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NLRB Shoots Its Shot: Dartmouth Basketball Players Deemed Employees, Allowed to Hold Union Election

Region 1 of the National Labor Relations Board (NLRB) found that student-athletes on the Dartmouth College men’s basketball team are “employees” within the meaning of the National Labor Relations Act (NLRA) and directed a secret…more

College Athletes, Employees, Jurisdiction, Name and Likeness, NCAA

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Treasury Announces Proposed Rule to Update CFIUS Regulations and Bolster Enforcement

On April 11, 2024, the U.S. Department of the Treasury (Treasury), as Chair of the Committee on Foreign Investment in the United States (CFIUS), issued a Notice of Proposed Rulemaking (NPRM), which is the first substantive…more

CFIUS, Enforcement, FIRRMA, Foreign Investment, NPRM

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Revised Uniform Grants Guidance Reduces Burdens While Encouraging Accessibility and Transparency

On April 4, 2024, the White House released a pre-publication final rule substantially updating the Office of Management and Budget (OMB) Uniform Grants Guidance, which sets the foundational requirements for agencies in making…more

Acquisitions, Federal Funding, Federal Procurement Systems, Final Rules, Mergers

See all updates »

Gatekeeping Provisions in Chapter 11 Plans May Be Alternative to Nonconsensual Nondebtor Releases

Nonconsensual nondebtor releases have been a key reason businesses facing mass tort claims have filed for bankruptcy. They hope chapter 11 will result in a faster, less expensive resolution of mass tort claims than class actions…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Corporate Restructuring, Injunctions

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CARES Act Provides Tax Deferral and Refund Opportunities

The Act represents the third legislative attempt to address the economic effects of the COVID-19 pandemic. Many of these provisions provide taxpayers with liquidity benefits by providing cash payments, pushing back tax…more

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

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Financial Hedges for United States Gas-Fired Power Generation Facilities

Over the past few years, many merchant gas-fired power generation plants operating in the regional transmission organization, PJM Interconnection and in the New York Independent Service Operator (NYISO) areas have been…more

Electric Generation Suppliers, Energy Projects, Energy Sector, Hedges, NYISO

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SEC Finalizes Public Company Cybersecurity Disclosure Rules

Under the SEC’s rules, public companies that are subject to reporting requirements must promptly disclose material cybersecurity incidents. The SEC’s Final Rules require public companies to report a material cybersecurity…more

Compliance, Cyber Incident Reporting, Cybersecurity, Disclosure Requirements, Final Rules

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Popular Estate Planning Opportunities Remain Available - For Now

As 2022 comes to a close, it is worth taking note of the current state of the legislative landscape that could affect estate planning opportunities in the coming year. This year, the Inflation Reduction Act was enacted into law…more

Estate Planning, Grantor Trusts, Inflation Reduction Act (IRA), Qualified Small Business Stock, Unified Credit Portability

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Is Your AI Testing Tool a Breach of Contract Claim Waiting to Happen?

Reliability, security, and legal compliance. These are assurances that customers purchasing technology products expect from their providers, and which are often required as part of the contracts for such products. AI Providers,…more

Artificial Intelligence, Breach of Contract, Copyright, Intellectual Property Protection, Risk Management

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After Jack Daniel’s, the Other Shoe Drops for MSCHF in Wavy Baby Trademark Case

On December 5, 2023, the U.S. Court of Appeals for the Second Circuit affirmed a temporary restraining order and preliminary injunction secured by skateboard apparel company Vans against, MSCHF, an infamous parodist company. The…more

Copyright, Intellectual Property Protection, Preliminary Injunctions, Trademark Infringement, Trademark Litigation

See all updates »

NLRB Invalidates Common Confidentiality and Non-Disparagement Clauses in Severance Agreements

The NLRB recently deemed broad confidentiality and non-disparagement provisions in a severance agreement for non-supervisory workers unlawful, in a decision likely to have broad implications for employers in both unionized and…more

Confidentiality Agreements, Contract Terms, NLRA, NLRB, Non-Disclosure Agreement

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FCC Advances Its Space and Satellite Agenda

Recent actions by the Federal Communications Commission indicate its support for the country’s space-based economy and national security interests. The FCC has adopted rules that allow satellite operators and terrestrial…more

Advertising, FCC, Internet, Investors, National Security

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Don’t Let Bank Uncertainty Delay Payroll: Considerations for Employers

With bank uncertainty making headlines, we answer employers’ most frequently asked questions about the consequences of payroll delays, strategies for mitigating risk and more. …more

401k, Banking Sector, COBRA, Corporate Counsel, Department of Labor (DOL)

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The Case for Mixed-Use Retail Centers and Their Continued Investment Potential

Early pandemic fears that brick-and-mortar retail would not live to see the next decade look to be largely unfounded. Shopping centers remain a sound investment for private firms and large institutional investors alike, as…more

Commercial Property Owners, Real Estate Investments, Real Estate Market, Retail Investors, Shopping Centers

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Chemical Conundrum: TSCA at the Forefront of PFAS Regulation

The Toxic Substances Control Act (TSCA) has been regulating new and existing chemicals for almost 50 years. Under the TSCA, the EPA was given broad authority to track the thousands of existing commercial chemicals and regulate…more

Environmental Policies, Environmental Protection Agency (EPA), Hazardous Substances, Manufacturers, PFAS

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ASBCA’s FY 2023 Annual Report: Contractor Appeals Are Way Down but Dispositive Motion Activity Is Way Up

The Armed Services Board of Contract Appeals’ 2023 annual report reveals the lowest number of docketed appeals in 40 years, while at the same time the Board deals with the largest number of motions for summary judgment in recent…more

Annual Reports, Appeals, Armed Services Board of Contract Appeals, Contractors, Court of Federal Claims

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Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes

The Final Rule, if it survives significant legal challenges and the challenges yet to come, will ban all existing and future non-compete agreements with workers, with only narrow exceptions. The FTC Final Rule imposes a…more

Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC), Final Rules

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FinCEN Extends Beneficial Ownership Reporting Deadline for Companies Created or Registered in 2024

The Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a rule that extends the deadline from 30 days to 90 days for reporting companies created or registered in 2024 to file initial beneficial…more

Beneficial Owner, Business Entities, Corporate Transparency Act, Filing Deadlines, FinCEN

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Reminder: “Gross” Does Not Mean “Net” – California OTA Holds All Repatriated Dividends Must Be Included in Sales Factor

In a decision marked “not precedential,” the OTA held 100 percent of repatriated dividends must be included in the taxpayer’s sales factor denominator…more

Apportionment, California, Dividends, Income Taxes, Sales Factor

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California Lawmakers Propose Constitutional Amendment to Abolish the State Board of Equalization

California Democratic lawmakers recently introduced Assembly Constitutional Amendment 11 (“ACA 11”) which proposes to abolish the State Board of Equalization (“BOE”) and reassign its responsibilities to other state tax agencies…more

Board of Equalization, Constitutional Amendment, Property Tax, Tax Assessment

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Affirming Dismissal of AirAsia Lawsuit, D.C. Circuit Court Overrules Prior Decisions Allowing Personal Jurisdiction Based on Internet Presence Alone

In affirming the dismissal of a lawsuit against Pillsbury’s client, AirAsia, the D.C. Circuit overruled its prior precedent that a company’s website could be sufficient to support general jurisdiction. A company’s internet…more

Appeals, Corporate Counsel, DaimlerChrysler v Bauman, Dismissals, En Banc Review

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California’s Storms Are Not California Dreaming

- It is essential to keep track of deadlines mandated under policies. - Keep in mind that several types of insurance—not just property insurance—may cover flood and storm-related losses (such as property damage, loss of use…more

Business Interruption, Commercial Insurance Policies, Critical Infrastructure Sectors, Federal Grants, FEMA

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Delaware Court of Chancery Invalidates Certain Board Control Rights Commonly Found in Stockholder Agreements

The ruling calls into question the enforceability of common provisions contained in private and public company stockholder agreements. The Court invalidated certain governance rights in stockholder agreements because they…more

Board of Directors, Enforceability, Governance Standards, Pre-approval, Shareholders' Agreements

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Unclean Hands: Available for Litigation Misconduct or an Illusory Remedy?

Discovery misconduct can be remedied not only through the sanctions available in the Federal Rules of Civil Procedure, but also potentially through the defense of unclean hands…more

Damages, Federal Rules of Civil Procedure, Lanham Act, Patent Infringement, Patents

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Aurora Energy Decision Deems Discharges Prohibited, Leaves Open Question of Permit Shield Applicability

On September 3, 2014, the United States Court of Appeals for the Ninth Circuit issued its opinion in Alaska Community Action on Toxics v. Aurora Energy Services, LLC, holding that the Clean Water Act General Permit for…more

Appeals, Clean Water Act, Coal, Coal Industry, Environmental Protection Agency (EPA)

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Doing Business in the United States

In This Book: - Choice Of A Business Entity - Introduction To Federal Securities Laws - From Let’s Go Shopping To Closing: M&A Process In The United States - Employment Considerations - Equity…more

Business Formation, Choice of Entity, Commercial Real Estate Market, Corporate Taxes, Dispute Resolution

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Biden Administration Publishes Final Version of Title IX Regulations

The New Rules expand the scope of Title IX and change requirements for schools. The New Rules expand the definitions of sex-based harassment and hostile environment harassment and cover certain off-campus conduct…more

Biden Administration, Hostile Environment, Jurisdiction, New Regulations, Notice of Proposed Rulemaking (NOPR)

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Before You Sign—Options and Opportunity in IBM’s Latest Reinvention

Major mergers and spin-offs by IT service providers are rare, but when they occur (e.g., Xerox’s acquisition of ACS in 2010 and Atos’ subsequent acquisition in 2014, HPE’s 2017 spin-off of its Enterprise Services business and…more

Business Expansion, Customers, Information Technology, Outsourcing

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U.S. Increases Export Restrictions Against Nicaragua

The U.S. Department of Commerce amended the Export Administration Regulations (EAR), effective March 15, 2024, to move Nicaragua from Country Group B to Country Group D, and added it to the list of countries subject to the…more

Arms Embargo, Bureau of Industry and Security (BIS), Export Administration Regulations (EAR), Exports, ITAR

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The Impact of AI Foundation Models on Competition, Consumers and Regulation: A View from the UK’s CMA

The Competition and Markets Authority (CMA), the UK’s competition regulator, announced this month that it plans on publishing an update in March 2024 to its initial report on AI foundation models (published in September 2023)…more

Artificial Intelligence, Competition, Innovative Technology, Machine Learning, Risk Management

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Making Japan a More Attractive Center for International Arbitration

Since 2017, Japan has been actively working to promote international arbitration. The updates to the Arbitration Act of Japan should help boost the country’s popularity as an arbitration seat…more

Arbitration Awards, Commercial Arbitration, Foreign Corporations, Hong Kong International Arbitration Centre (HKIAC), International Arbitration

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Acquiring a Distressed Business in the United States: Key Issues for Prospective Buyers

Prospective buyers should prepare to take advantage of opportunities to acquire distressed businesses, as we are likely to see an uptick in distressed M&A soon. Prospective buyers seeking first-mover advantages should act…more

Acquisitions, Anti-Assignment Clauses, Bankruptcy Code, Bankruptcy Court, Corporate Bonds

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Choosing the Wrong Business Structure: A Startup’s Death Sentence?

Starting a business is a thrilling journey filled with excitement, innovation and the promise of potential success. However, choosing the wrong business structure to reach your objectives can set your business on a path to…more

Business Development, Business Entities, Business Formation, Business Ownership, Business Strategies

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FTC Warns Hotels Against Providing Price Quotes That Lack Mandatory Taxes and Fees

On November 28, 2012, the Federal Trade Commission (“FTC”) announced that it sent letters to 22 hotel operators warning them that their online reservation sites may violate the law by misrepresenting hotel room prices. In…more

Advertising, Federal Trade Commission (FTC), Misrepresentation

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Revving Up: Eight States in Gear with Low-Carbon Fuel Standard Legislation

Eight states are currently considering legislation that would require reductions in the carbon intensity of transportation fuel sold in the state, which would substantially increase the demand for renewable fuel and low-carbon…more

California, CARB, Greenhouse Gas Emissions, Infrastructure, Low Carbon Fuel Standard

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FCC Enforcement Monitor ~ March 2024

Pillsbury’s communications lawyers have published the FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others…more

Broadcasting, Enforcement Actions, FCC, Fines, License Applications

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SCOTUS Upholds Civil RICO Lawsuit for a Foreign Defendant’s Acts in the United States to Evade Enforcement of a Foreign Arbitral Award

The Supreme Court held that a defendant’s acts to prevent a foreign plaintiff from collecting on an overseas arbitration award in the U.S. may give rise to a civil RICO claim. The Court held that whether there is a U.S…more

Enforcement, Foreign Defendants, Injunctive Relief, International Arbitration, RICO

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Federal Banking Regulators Issue Final Rule Overhauling Community Reinvestment Act Regulations

The expansive final rule overhauls how banks are evaluated for lending to low- and moderate-income customers. The federal banking regulators issued a joint final rule that will govern Community Reinvestment Act (CRA)…more

Banking Regulators, Community Reinvestment Act, Data Collection, FDIC, Final Rules

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Pillsbury’s Post-Election Outlook

The 2018 Midterm Election played out as most poll forecasters speculated. Although several races have yet to be decided, Republicans have retained control of the Senate, but lost at least 29 seats, allowing the Democrats to…more

Corporate Counsel, Critical Infrastructure Sectors, Cross-Border, Cybersecurity, Department of Homeland Security (DHS)

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Airline Stimulus Plans in the U.S. and Europe in Response to the COVID-19 Pandemic

CARES Act includes $61 billion relief package for U.S. airlines, consisting of grants to passenger airlines, loans to passenger airlines, grants to cargo airlines, loans to cargo airlines and aid to airline contractors. UK…more

Airlines, Aviation Industry, CARES Act, Coronavirus/COVID-19

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FinCEN Expands Its AML Target Real Estate Deals and Information Collection

The Financial Crimes Enforcement Network (FinCEN) announced on August 22, 2017, that it is expanding its earlier Geographic Targeting Orders (GTO) that require U.S. title insurance companies to identify the natural persons who…more

Anti-Money Laundering, FinCEN, Geographic Targeting Order, Real Estate Market, Title Insurance

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IRS Issues FAQs and Form 7200 for Advance Payment of COVID-19 Employer Tax Credits

The IRS has issued FAQs regarding the tax credits for the sick and family leave and employee retention tax credits which provide guidance on eligibility and instructions for claiming the credits. The guidance sets forth the…more

CARES Act, Coronavirus/COVID-19, Filing Deadlines, Income Taxes, IRS

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Historic Estate Planning Opportunities from Tax Reform

The Tax Cuts and Jobs Act, providing extraordinary estate planning opportunities, was signed into law by the President on December 22, 2017. The new Act allows for a great opportunity to take advantage of increased exemption…more

529 Plans, Alternative Minimum Tax, Charitable Donations, Estate Planning, Estate Tax

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Human Rights Due Diligence—ESG Impact on M&A Transactions

As environmental, social and governance (ESG) considerations continue to gain global importance in the context of mergers and acquisitions (M&A), many buyers are requiring human rights in their due diligence processes. As the…more

Acquisitions, Child Labor, Due Diligence, Environmental Social & Governance (ESG), Human Rights

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Los Angeles Initiative Seeks to Impose $450,000 Cap on Annual Compensation of Executives in Health Care Facilities

The Los Angeles City Council will soon decide whether to adopt an initiative as an ordinance or refer it to voters for the 2024 ballot. If the initiative officially qualifies for the ballot, the Los Angeles City Council will…more

Bonuses, City of Los Angeles, Employee Retirement Income Security Act (ERISA), Enforcement Actions, Executive Compensation

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Preserving California’s Tied-House Rules - Ninth Circuit en banc decision upholds decades-old law restricting alcohol beverage supplier-paid advertising in retail establishments

On June 14, 2017, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, issued its decision in Retail Digital Network LLC v. Ramona Prieto, Case No. 13-56069, D.C. No 2:11-cv-09065-CBM-PJW. The decision rejects a…more

Advertising, Commercial Speech, First Amendment, Marketing, Retailers

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A New Era in Compensatory Equity Offerings?

SEC increases Rule 701(e) disclosure threshold to $10 million, effective immediately, and explores revamp of Rule 701 and Form S-8. The final rule increasing the Rule 701(e) disclosure threshold to $10 million leaves open…more

Amended Rules, Disclosure Requirements, Form S-8, Qualified Restricted Stock Units (RSUs), Registration Requirement

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The U.S. Moves Toward a Comprehensive Privacy Law (One More Time)

On April 7, 2024, U.S. Sen. Maria Cantwell (D-WA), Chair of the Senate Committee on Commerce, Science and Transportation, and U.S. Rep. Cathy McMorris Rodgers (R-WA), Chair of the House Committee on Energy and Commerce, released…more

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

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SCOTUS Strikes Down Student-Loan Forgiveness Act

On June 30, 2023, the Supreme Court held that the Secretary of Education did not have the authority to implement the Biden Administration’s student loan forgiveness plan (“Biden Plan”). The decision will cancel the forgiveness…more

Biden Administration, Debt Relief, Department of Education, Loan Forgiveness, SCOTUS

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Distressed Real Estate During COVID-19: Mezzanine Loans Behind Construction Loans—Special Considerations and Intercreditor Agreement Provisions

Construction loans with companion mezzanine loans raise a host of concerns that are unique to more standard ICAs between a mortgage lender and a mezzanine lender. An intercreditor agreement (ICA) involving a construction loan…more

Borrowers, Construction Loans, Coronavirus/COVID-19, Foreclosure, Intercreditor Agreements

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California Lawmakers Propose Constitutional Amendment to Abolish the State Board of Equalization

California Democratic lawmakers recently introduced Assembly Constitutional Amendment 11 (“ACA 11”) which proposes to abolish the State Board of Equalization (“BOE”) and reassign its responsibilities to other state tax agencies…more

Board of Equalization, Constitutional Amendment, Property Tax, Tax Assessment

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ICSID Issues an Amended Set of Arbitration Rules

The amended rules issued by the International Centre for Settlement of Investment Disputes mandate certain disclosures, increase transparency and reduce costs, among other things. …more

Amended Rules, Arbitration, ICSID, Mediation, Third Party Funding

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China Issues Rules to Clarify and Relax Cross-Border Data Transfer Controls

A data controller that is not a critical information infrastructure operator that cumulatively exports personal information (excluding any sensitive personal information) of less than 100,000 individuals since January 1 of the…more

China, Critical Infrastructure Sectors, Cross-Border Transactions, Data Controller, Data Security

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Authorized vs. Issued Shares

Our startup clients are sometimes asked by investors or government agencies to provide their number of authorized and issued shares—the difference between the two isn’t always obvious but is critical to understand…more

Investors, Restricted Stocks, Startups, Stock Options, Stocks

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USAID’s Proposed AIDAR Clause Protects Children from Sexual Exploitation and Abuse

The proposed clause will require USAID contractors to develop new standards, policies, or procedures designed to protect children from sexual exploitation. The Agency for International Development Acquisition Regulation…more

Exploitation, Federal Acquisition Regulations (FAR), Human Trafficking, Minor Children, Policies and Procedures

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Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes

The Final Rule, if it survives significant legal challenges and the challenges yet to come, will ban all existing and future non-compete agreements with workers, with only narrow exceptions. The FTC Final Rule imposes a…more

Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC), Final Rules

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New York Law Authorizing Taxation of Spent Nuclear Fuel Storage Facilities Raises Property Tax Issues for the U.S. Nuclear Industry

A recent change in New York law requires local authorities to assess spent nuclear fuel storage facilities at permanently shutdown nuclear power plants as real property for ad valorem tax purposes. The legislation raises a…more

Ad Velorum Property Taxes, Energy Storage, Governor Cuomo, New Legislation, New York

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Expropriations Related to the Russia Sanctions May Trigger Liability under Investment Treaties

Recent news reports out of Russia have advised that it may expropriate or nationalize assets of foreign investors. Investors should be aware that such actions may breach bilateral or multilateral treaties that include…more

Bilateral Investment Treaties, Economic Sanctions, EU, Export Controls, Expropriation

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A Year-End Review of the Environmental Regulatory Landscape

Anne Austin recently joined Industry Insights host Joel Simon to discuss the key considerations and drivers of the Biden administration’s major regulatory initiatives. Our guest today is Anne Idsal Austin, a nationally…more

Biden Administration, Environmental Policies, Environmental Protection Agency (EPA), Environmental Social & Governance (ESG), Public Policy

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“If You Don’t Make It There, You Can’t Make It Anywhere:” New York’s Zero Manufacturing Rate Requires New York Property

A New York State administrative law judge (ALJ) found that Raytheon did not qualify for the state’s zero percent tax rate for manufacturers or the reduced tax rate for qualified emerging technology companies (QETCs)…more

Administrative Law Judge (ALJ), Appeals, Manufacturers, New York, Tax Rates

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ASBCA Confirms the “Goldilocks Principle” in Government Contract Appeals

A letter from the contracting officer unequivocally directing the contractor to exclude specific costs from its cost submissions as unallowable may not be an appealable final decision. Contractors should seek clarification…more

Appeals, Armed Services Board of Contract Appeals, Board of Contract Appeals, Contract Disputes Act, Contractors

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Use It or Lose It! Indemnification Rights May Not Be Asserted against a Post-Confirmation Liquidation Trust

The Fifth Circuit recently held that claims and defenses arising from an indemnification agreement with a debtor could not be asserted against a liquidation trust because the chapter 11 plan barred those claims and defenses, and…more

Beneficiaries, Bondholders, Bonds, Chapter 11, Commercial Bankruptcy

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SCOTUS Upholds Civil RICO Lawsuit for a Foreign Defendant’s Acts in the United States to Evade Enforcement of a Foreign Arbitral Award

The Supreme Court held that a defendant’s acts to prevent a foreign plaintiff from collecting on an overseas arbitration award in the U.S. may give rise to a civil RICO claim. The Court held that whether there is a U.S…more

Enforcement, Foreign Defendants, Injunctive Relief, International Arbitration, RICO

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New DOJ Clawback Policy Brings Compensation and Employment Questions Front and Center for Companies

Can a new Department of Justice enforcement approach make clawback policies covering criminal activities a best practice? The DOJ is implementing a new policy under which prosecutors will make clawback policies for employee…more

Clawbacks, Compensation, Corporate Misconduct, Department of Justice (DOJ), Dodd-Frank

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Enhanced Infrastructure Districts: A Flexible New Tool for Local Governments

After the dissolution of California redevelopment agencies (RDAs) in 2011, many local governments desired a tool to raise capital to invest in infrastructure and community revitalization. On September 29, 2014 SB 628 was signed…more

Infrastructure, Infrastructure Financing Districts, Jerry Brown, Municipalities, Neighborhood Revitalization

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Expropriations Related to the Russia Sanctions May Trigger Liability under Investment Treaties

Recent news reports out of Russia have advised that it may expropriate or nationalize assets of foreign investors. Investors should be aware that such actions may breach bilateral or multilateral treaties that include…more

Bilateral Investment Treaties, Economic Sanctions, EU, Export Controls, Expropriation

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What to Expect from the New York Department of Financial Services in 2023

In 2023, the NYDFS is poised to finalize several significant new regulations and will likely continue its aggressive cybersecurity, anti-money laundering (AML) and consumer protection enforcement. The New York Department of…more

Anti-Money Laundering, Community Reinvestment Act, Consumer Protection Laws, Cyber Attacks, Cybersecurity

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Biden Administration Publishes Final Version of Title IX Regulations

The New Rules expand the scope of Title IX and change requirements for schools. The New Rules expand the definitions of sex-based harassment and hostile environment harassment and cover certain off-campus conduct…more

Biden Administration, Hostile Environment, Jurisdiction, New Regulations, Notice of Proposed Rulemaking (NOPR)

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Distressed Real Estate during the Coronavirus Pandemic: Conducting a Mezzanine Loan Foreclosure Under the UCC

Mezzanine lenders enforcing Uniform Commercial Code remedies that do not comply with applicable requirements may face economic losses, costly litigation and potential liability. Mezzanine lenders have specific and limited…more

Coronavirus/COVID-19, Mezzanine Lenders, Real Estate Investments, Uniform Commercial Code (UCC)

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Taking the Market’s Temperature on Coverage for Climate Change-Related Property Damage

Temperatures in Arizona this week reached over 110 degrees Fahrenheit. The water temperature in the Florida Keys was reported to reach sauna-like levels, threatening the life of habitat-sustaining coral. Atmospheric conditions…more

Business Interruption, Climate Change, Insurance Claims, Insurance Industry, Property Damage

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Significant Changes to the SBIR and STTR Programs

In the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Extension Act of 2022, Congress reauthorized these programs for another three years and added new requirements to reduce foreign…more

China, Conflicts of Interest, Due Diligence, Foreign Entities, Iran

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Biden Administration Continues Campaign to Crack Down on Junk Fees

Recent actions by the Federal Trade Commission (FTC) and Consumer Financial Protection Bureau (CFPB), with support from the Biden administration, signal that protecting consumers from so-called “junk fees” remains a key…more

Biden Administration, Consumer Financial Protection Bureau (CFPB), Excessive Fees, Federal Trade Commission (FTC), Fees

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FTC Will “Vigorously Enforce” the Law Against Companies That Fail to Protect Consumer Privacy

It’s no secret that every move you make on the internet can be tracked. Even when you are not actively searching, scrolling through a social media feed, or using your phone to navigate to a new local restaurant, your digital…more

Compliance, Consumer Privacy Rights, Data Collection, Data Privacy, Enforcement

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New Jersey Strengthens the Structural Integrity of Its Residential Builds

In response to the June 2021 Champlain Towers collapse in Florida, New Jersey supplemented its State Uniform Construction Code Act by enacting legislation (effective January 8, 2024) to strengthen laws related to the structural…more

Condominiums, Construction Industry, Inspections, New Jersey, Real Estate Development

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FTC Announces HSR Threshold and Filing Fee Increases for 2024 Transactions

The size-of-transaction threshold under the Hart-Scott-Rodino Act will increase to $119.5 million, and the largest filing fee will increase to $2.335 million. As a result of the increase in the U.S. Gross National Product…more

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

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Daimler AG v. Bauman: Court Again Rejects a “Sprawling View of General Jurisdiction”

On January 14, 2014, the U.S. Supreme Court in Daimler AG v. Bauman held that Argentinian plaintiffs could not sue a German car manufacturer in California for human rights violations allegedly committed in Argentina. The Court…more

Attorney General, DaimlerChrysler, DaimlerChrysler v Bauman, Foreign Corporations, Foreign Nationals

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Automated Drug Dispensing

Despite its plain text, the California Board of Pharmacy (the “BoP”) has adopted an interpretation of state statute requiring stocked removable pockets for automated drug dispensing systems (“ADDS”) to be transported to and…more

Home Health Agencies, Hospice, Pharmacies, Prescription Drugs, Public Health

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Fed Updates its Guidance for the Main Street Lending Program

The update generally provides further clarifications to existing guidance, but one change regarding the Expanded Loan Facility could enable eligible borrowers to access additional funding that was previously unavailable to…more

Borrowers, Collateralized Debt Obligations, Collateralized Loan Obligations, EBITDA, Lenders

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When the Tigers Broke Free: A Primer on the Clemson/Atlantic Coast Conference Lawsuits

Clemson University is challenging in court the Atlantic Coast Conference’s (ACC) financial exit fee and the scope of Clemson’s grant of its media rights to the ACC, each of which pose significant financial obstacles to Clemson…more

College Athletes, Colleges, Commercial Litigation, Contract Terms, Fees

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SEC Issues Landmark Climate-Related Disclosure Proposal

The U.S. Securities and Exchange Commission issued proposed rule amendments requiring climate disclosures by public companies. The SEC’s new climate disclosure rule will require all companies to report Scope 1 and Scope 2…more

Climate Change, Disclosure Requirements, Financial Statements, Greenhouse Gas Emissions, Hydrogen Power

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California Supreme Court Decision Changes the Transfer Tax World

In 926 North Ardmore Avenue LLC v. County of Los Angeles, the California Supreme Court concluded that, subject to certain limitations, California’s Documentary Transfer Tax Act (the California DTTA), applicable to direct sales…more

CA Supreme Court, Change of Ownership, Proposition 13, Real Estate Companies, Real Estate Transfers

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English Court Trumps Arbitration Clause in Favor of One-Stop Litigation

The English High Court in Monde Petroleum SA v WesternZagros Ltd [2015] EWHC 67 (Comm) recently decided whether a dispute resolution clause in a settlement agreement referring disputes to the English court superseded an…more

Arbitration, Settlement Agreements, UK

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Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes

The Final Rule, if it survives significant legal challenges and the challenges yet to come, will ban all existing and future non-compete agreements with workers, with only narrow exceptions. The FTC Final Rule imposes a…more

Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC), Final Rules

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Conflicting Court Rulings on Subchapter V Eligibility Leave Small Businesses in Limbo

Two recent bankruptcy court decisions reflect a split of authority on subchapter V eligibility. In re Macedon Consulting Inc. finds that all future amounts due under an unexpired lease qualify as “noncontingent and…more

Bankruptcy Code, Bankruptcy Court, Business Ownership, Chapter 11, Commercial Leases

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COVID-19 and Leveraged Finance: Some Issues to Consider

With many borrowers facing a current or looming liquidity crunch but having a committed revolving line of credit potentially available to them, borrowers and lenders need to carefully review their loan documentation when…more

Business Interruption, Coronavirus/COVID-19, EBITDA, EU, Investment

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Natural Hydrogen May Seem New in Town, but It’s Been Here All Along

When it comes to renewable energy, hydrogen is hailed as a pivotal resource in the zero-carbon game plan. Hydrogen energy is accessible, produces lower greenhouse gas emissions and can use existing gas infrastructure to power…more

Carbon Emissions, Clean Energy, Energy Projects, Energy Sector, Greenhouse Gas Emissions

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Subrogation 101 (and Why Should I Care?)

What is subrogation? Why am I being asked to waive it? Should I care? To answer that last question, let’s take a quick run at the first two. What Is Subrogation? “Subrogation” refers to the act of one person or party standing in…more

Additional Insured, Breach of Contract, Construction Defects, Contractors, Insurance Industry

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New Copyright Rule Makes Registration Easier for Bloggers

A new copyright rule allows for easy group registration of blog entries and even copyrightable tweets. The new rule is designed to benefit authors who publish their works online. The rule incentivizes those who continually…more

Copyright, New Rules, Registration, Social Media

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FinCEN Extends Beneficial Ownership Reporting Deadline for Companies Created or Registered in 2024

The Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a rule that extends the deadline from 30 days to 90 days for reporting companies created or registered in 2024 to file initial beneficial…more

Beneficial Owner, Business Entities, Corporate Transparency Act, Filing Deadlines, FinCEN

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AAA Revises Construction Industry Arbitration Rules and Mediation Procedures

The American Arbitration Association (AAA) has revised its Construction Industry Arbitration Rules and Mediation Procedures (Rules), effective July 1, 2015. Although some changes are relatively modest, others expand the powers…more

American Arbitration Association, Arbitration, Arbitration Agreements, Case Management, Construction Contracts

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Under the Right Circumstances: Some Considerations for Submitting a Notice of Circumstances

An oft-repeated maxim in self-help literature is: “Do not let your circumstances define who you are.” In a similar vein, policyholders should proactively manage situations in which known circumstances may potentially give rise…more

D&O Insurance, Insurance Claims, Insurance Industry, Insurance Litigation, Policy Exclusions

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FAA Issues Licensing Guidance for Launch and Reentry of Space Nuclear Systems

The guidance will provide clarity and a compliance path to companies seeking permission to launch or reenter space-based nuclear technologies. The U.S. Federal Aviation Administration’s newly released Advisory Circular AC…more

Compliance, Department of Transportation (DOT), Federal Aviation Administration (FAA), Guidance Update, Licensing Rules

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DoD Contractor Requirement to Disclose Greenhouse Gas Emissions Has Been Halted

In response to the 2024 National Defense Authorization Act (NDAA), the Department of Defense (DoD) issued a class deviation postponing the proposed requirement to disclose greenhouse gas emissions. On November 14, 2022, the…more

Department of Defense (DOD), Disclosure Requirements, Federal Acquisition Regulations (FAR), Federal Contractors, Greenhouse Gas Emissions

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Four New State Consumer Privacy Laws Are Slated to Take Effect in 2024

In 2023, four consumer privacy laws went into effect in Colorado, Connecticut, Virginia and Utah. Entities should prepare for a new class of consumer data privacy laws to take effect in Florida, Montana, Oregon and Texas…more

California Consumer Privacy Act (CCPA), Compliance, Consumer Privacy Rights, Corporate Counsel, Privacy Laws

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SCOTUS Holds Rogers Test Is All Bark and No Bite in Jack Daniel’s Trademark Suit Against Dog Toy Maker

On June 8, 2023, a unanimous U.S. Supreme Court resolved the petition in Jack Daniel’s Properties, Inc. v. VIP Products LLC with two narrow holdings: (1) the threshold trademark infringement test espoused by the Second Circuit…more

First Amendment, Intellectual Property Protection, Jack Daniels Properties Inc v VIP Products LLC, Lanham Act, Likelihood of Confusion

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Recoupment Survives the Discharge Injunction Permitting Dollar-for-Dollar Recovery on a Prepetition Debt

The Ninth Circuit Bankruptcy Appellate Panel held that the Social Security Administration’s withholding of post-petition benefits to satisfy the debtor’s prepetition obligation to repay overpayments qualifies as recoupment and…more

Bankruptcy Appellate Panel (BAP), Chapter 7, Debtors, Injunctions, Pensions

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Congress Sets Sights on Limiting Access to Chinese Biotech Companies

The BIOSECURE Act would prohibit federal agencies from contracting with, extending loans to, or awarding grants to, any company with existing or pending agreements with identified biotechnology companies. This limits funding to…more

Biotechnology, CFIUS, China, Federal Acquisition Regulations (FAR), Federal Procurement Systems

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President Biden and Senators Support the Ramp Up in IRS Audits on Corporate Aircraft

President Biden announced that he will focus on ending tax breaks for corporate aircraft and “cracking down on corporate jet loopholes.” Several aviation and labor organizations, including the National Business Aviation…more

Aircraft, Airlines, Audits, Biden Administration, Department of Transportation (DOT)

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Crafting Blockchain Claims to Avoid Enforcement Pitfalls and Maximize Potential Damages

As we approach 2020, distributed ledger technologies (DLT) appear likely to have a far-reaching, comprehensive impact on our global economy. But core components of that economy—intellectual property rights in particular—sit in…more

Blockchain, Distributed Ledger Technology (DLT), Intellectual Property Protection, Patent Infringement, Patents

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Federal Court Finally Issues an Opinion Analyzing LEG 3 (and It’s a Win for Policyholders)

The London Engineering Group’s LEG 3 exclusion—one of three standard form provisions issued by the London Engineering Group addressing coverage arising from construction or design defects—is an increasingly common defects…more

Design Defects, Federal Court Litigation, Insurance Industry, Rectification, Replacement Costs

See all updates »

Airline Stimulus Plans in the U.S. and Europe in Response to the COVID-19 Pandemic

CARES Act includes $61 billion relief package for U.S. airlines, consisting of grants to passenger airlines, loans to passenger airlines, grants to cargo airlines, loans to cargo airlines and aid to airline contractors. UK…more

Airlines, Aviation Industry, CARES Act, Coronavirus/COVID-19

See all updates »

SEC Adopts Long-Anticipated Rules for SPACs: Considerations for Market Participants and SEC Enforcement Objectives in the New Regulatory Environment

The rules, originally proposed in March 2022, realign disclosures, marketing practices and other obligations in de-SPAC transactions more closely with traditional IPOs and add increased risk and uncertainty for market…more

Conflicts of Interest, Corporate Counsel, Disclosure Requirements, Enforcement, Fairness Standard

See all updates »

DOI Rule Endorses Seminole Tribe’s Model of Remote Wagering

On March 22, 2024, a new federal rule published by the U.S. Department of the Interior (Department or DOI) went into effect, governing the Department’s review and oversight of certain tribal gaming arrangements…more

Department of the Interior, Gambling, Gaming, Indian Gaming Regulation Act, New Rules

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Ebasco Choice of Law: A Decision Half a Century in the Making

Following the breakup of large utility holding companies by trust busters in the 1930s, General Electric created Ebasco (Electric Bond and Share Company), a construction company and consultancy that, among other things, assisted…more

Asbestos, Climate Change, General Electric, Insurance Industry, PFAS

See all updates »

California Trial Court Denies FTB’s Motion to Vacate and Modify Judgment that Declared Technical Advice Memorandum 2022-01 and FTB Publication 1050 Invalid

A California trial court denied the Franchise Tax Board’s (FTB) motion to vacate and modify the judgment declaring FTB Technical Advice Memorandum (TAM) 2022-01 and FTB Publication 1050 invalid underground regulations adopted in…more

ACMA, California, Franchise Taxes, Income Taxes, Trials

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PPP Loan-Funded Expenses Nondeductible If Borrower Has “Reasonable Expectation” Loan Will Be Forgiven

On November 18, 2020, in Rev. Rul. 2020-27, the IRS reaffirmed its position that deductions for eligible expenses will be disallowed if a PPP loan is forgiven and extended the rule to deny deductions paid or incurred in a…more

Business Expenses, CARES Act, Coronavirus/COVID-19, Income Taxes, Internal Revenue Code (IRC)

See all updates »

Establishing and Managing a Business in the UK 2023

Establishing and Managing a Business in the UK”, authored by the attorneys of Pillsbury’s London office, is a concise and practical guide for foreign investors in the UK. The guide covers key concerns and topics such as choice…more

CFIUS, Economic Sanctions, Foreign Corrupt Practices Act (FCPA), Foreign Investment, Investment

See all updates »

China Year-in-Review: Securing the Battery Supply Chain

During 2023 both Congress and the Biden Administration repeatedly expressed the need to secure critical supply chains, particularly batteries that rely heavily on lithium and critical minerals sourced from China. Concerns have…more

Batteries, China, Entity List, Exports, Forced Labor

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Ready, Set, Action: Camera-Shy Insurers Are Subject to Recording

Resolving an issue of first impression, the California First District Court of Appeal recently decided that property policyholders required to submit to an examination under oath (EUO) have a right to record the entire…more

Appeals, California, Insurance Adjusters, Insurance Industry, Property Insurance

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SCOTUS Relaxes Standards for Title VII Plaintiffs in Workplace Discrimination Claims

In Muldrow v. City of St. Louis, No. 22-193, 2024 WL 1642826 (U.S. Apr. 17, 2024), the U.S. Supreme Court ruled that an employee alleging that an involuntary lateral job transfer constituted workplace discrimination in violation…more

Civil Rights Act, Discrimination, Diversity and Inclusion Standards (D&I), Employee Transfers, Employer Liability Issues

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China Amends the Counter-Espionage Law

With the amended Counter-Espionage Law, China has broadened its definition of “espionage” to give information related to “national security and interests” the same protections already given to state secrets. The amended law…more

China, Enforcement, Espionage, Infrastructure, Investigations

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Subrogation 101 (and Why Should I Care?)

What is subrogation? Why am I being asked to waive it? Should I care? To answer that last question, let’s take a quick run at the first two. What Is Subrogation? “Subrogation” refers to the act of one person or party standing in…more

Additional Insured, Breach of Contract, Construction Defects, Contractors, Insurance Industry

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DOL Ups Its Game on Cybersecurity Program Oversight, Begins Audit Initiative

In light of a new DOL audit initiative and increasing cybersecurity threats to ERISA benefit plans, ERISA plan sponsors and fiduciaries should be prepared to answer some important questions: Do the cybersecurity programs of you…more

401k, Audits, Cybersecurity, Data Protection, Department of Labor (DOL)

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Employers Beware: FTC Announces Final Rule Banning Worker Non-Competes

The Final Rule, if it survives significant legal challenges and the challenges yet to come, will ban all existing and future non-compete agreements with workers, with only narrow exceptions. The FTC Final Rule imposes a…more

Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC), Final Rules

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Establishing and Managing a Business in the UK 2022

Overseas investors are welcome in the UK. Save as set out below, there are no specific laws prohibiting foreign investment in the UK nor are there any business requirements for UK participation in the ownership or management of…more

Capital Gains, Certificates of Incorporation, Corporate Taxes, Excise Tax, Financing

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The Ayes Have It: Dartmouth Men’s Basketball Team Is the First Student-Athletes to Unionize

The Dartmouth Men’s Basketball Team voted 13-2 in favor of being represented by SEIU Local 560. Dartmouth now has until March 12 to file objections to the election results…more

Joint Employers, NCAA, NLRA, NLRB, SEIU

See all updates »

Legal Implications of Secondary SAFT Sales

Simple Agreements for Future Tokens pose difficult and controversial legal questions under U.S. securities, commodities and tax laws. SAFT holders face significant difficulties in securing liquidity, and regulatory issues…more

Commodities, Commodity Exchange Act (CEA), Eligible Contract Participant, Forward Contracts, Income Taxes

See all updates »

1 De Haro: A Case Study on Successful Cross-Laminated Timber Design and Construction in San Francisco

At the intersection of San Francisco’s SOMA, Potrero Hill and Showplace Square districts, a first-of-its-kind building offers an example of the potential widespread success of mass timber construction in the United States. 1 De…more

Construction Industry, Construction Project, Lumber Industry, Sustainability, Timber

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Adolph v. Uber Technologies, Inc.: Plaintiffs Compelled to Arbitrate Their Individual PAGA Claims May Still Litigate Representative PAGA Claims

To have Private Attorneys General Act (PAGA) standing, a plaintiff must be an “aggrieved employee,” which is an individual who worked for an alleged violator and personally sustained at least one Labor Code violation…more

Appeals, California, Labor Code, Private Attorneys General Act (PAGA), SCOTUS

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FinCEN’s Proposed Rule to Regulate Investment Advisers: The Questions Industry Should Be Following

FinCEN is focused on customer due diligence, and both the 2024 Investment Adviser Risk Assessment and proposed rule indicate that investment advisers will be expected to assess customer identity, business model, and sources of…more

AML/CFT, Anti-Corruption, Anti-Money Laundering, Bank Secrecy Act, Beneficial Owner

See all updates »

The Demise of LIBOR and the Challenges of Replacing It

Following the announcement that LIBOR is to be replaced, the process of finding a suitable replacement is proving troublesome. Financial Institutions will no longer be required by the FCA to provide LIBOR rates after December…more

Banking Sector, Benchmarks, Financial Conduct Authority (FCA), Financial Institutions, Interest Rates

See all updates »

Labeling and Pedigree Requirements of the Drug Supply Chain Security Act

Counterfeit and adulterated prescription drugs in the supply distribution chain pose a significant risk to patient safety. On November 27, 2013, President Obama enacted the Drug Supply Chain Security Act (DSCSA), which amends…more

Drug Distribution, DSCSA, Food and Drug Administration (FDA), Labeling, Pharmaceutical Industry

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Protecting Fashion through Copyrights: The Supreme Court Will Decide Whether Cheer Uniform Designs Are Protectable

Last week, the U.S. Supreme Court announced that it will address the issue whether apparel can be protected by copyright law—a question described by the petitioners in the case as “the single most vexing, unresolved question in…more

Cheerleaders, Copyright, Copyright Infringement, Fashion Design, SCOTUS

See all updates »

COVID-19 and Leveraged Finance: Some Issues to Consider

With many borrowers facing a current or looming liquidity crunch but having a committed revolving line of credit potentially available to them, borrowers and lenders need to carefully review their loan documentation when…more

Business Interruption, Coronavirus/COVID-19, EBITDA, EU, Investment

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Supreme Court Unanimously Rules “Pure Omissions” Not Actionable under SEC Rule 10b-5 Even If Disclosure Required by Item 303 of Regulation S-K

A company cannot be sued by private parties under Rule 10b-5(b) for a “pure omission” but can be liable for omissions that render other statements misleading. “Pure omissions” cannot be attacked in private 10b-5(b) actions…more

Disclosure, Disclosure Requirements, Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Misleading Statements

See all updates »

Commercial Real Estate Partnership Cancellation of Debt Income

The complexities of cancellation of debt income (CODI), including bankruptcy and insolvency implications, are important to understand. When debt is cancelled or discharged, the borrowed funds become taxable income, or…more

See all updates »

SEC Adopts Long-Anticipated Rules for SPACs: Considerations for Market Participants and SEC Enforcement Objectives in the New Regulatory Environment

The rules, originally proposed in March 2022, realign disclosures, marketing practices and other obligations in de-SPAC transactions more closely with traditional IPOs and add increased risk and uncertainty for market…more

Conflicts of Interest, Corporate Counsel, Disclosure Requirements, Enforcement, Fairness Standard

See all updates »

Divided Ninth Circuit Expands Liability for Universities

An en banc panel held that a reasonable jury could find that the University of Arizona had control over the “context” of alleged sexual harassment that occurred in off-campus housing. A university can be held liable under…more

Code of Conduct, En Banc Review, Harassment, Sexual Assault, Sexual Harassment

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New UK and EU Sanctions Introduced Against Russia

The United Kingdom (“UK”) introduced new sanctions against Russia on December 14, 2023 with the European Union (“EU”) also adopting its 12th package of sanctions against Russia on December 18, 2023…more

Economic Sanctions, EU, Export Controls, Exports, Imports

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Got Remote Workers? Supreme Court of Ohio Upholds Pandemic Rule for Municipality Tax

The Supreme Court of Ohio has held the Ohio legislature did not violate the Due Process Clause of the U.S. Constitution by directing an Ohio citizen to pay taxes to the municipality where the employee’s principal place of work…more

Constitutional Challenges, Due Process, Municipal Taxes, OH Supreme Court, State and Local Government

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Los Angeles Initiative Seeks to Impose $450,000 Cap on Annual Compensation of Executives in Health Care Facilities

The Los Angeles City Council will soon decide whether to adopt an initiative as an ordinance or refer it to voters for the 2024 ballot. If the initiative officially qualifies for the ballot, the Los Angeles City Council will…more

Bonuses, City of Los Angeles, Employee Retirement Income Security Act (ERISA), Enforcement Actions, Executive Compensation

See all updates »

SEC Mandates Electronic Filing for Form 144 and Certain Other Filings

The SEC’s amendments mandate electronic filing of Form 144 and certain other documents, providing investors with more immediate access to information. Individuals who wish to sell restricted securities that will require the…more

Annual Reports, EDGAR, Investors, Perfected Security Interest, Regulatory Mandates

See all updates »

Federal Banking Regulators Issue Final Rule Overhauling Community Reinvestment Act Regulations

The expansive final rule overhauls how banks are evaluated for lending to low- and moderate-income customers. The federal banking regulators issued a joint final rule that will govern Community Reinvestment Act (CRA)…more

Banking Regulators, Community Reinvestment Act, Data Collection, FDIC, Final Rules

See all updates »

How Scared Should We Be? Arbitrator Disclosure and Award Enforceability in the Wake of Monster Energy

Ninth Circuit’s interpretation of Federal Arbitration Act may lead to many efforts to have arbitration awards thrown out. The Ninth Circuit’s decision in Monster Energy Co. v. City Beverages, LLC—and the U.S. Supreme Court’s…more

Actual or Constructive Knowledge, Arbitration, arbitrator, Disclosure, Federal Arbitration Act

See all updates »

Recent Measures Establish Unprecedented Tax Increases on Real Property in California Cities

In the City of Los Angeles, Measure ULA will impose an additional city real estate transfer tax of 4% on transactions between $5 million and $10 million and an additional 5.5% on transactions over $10 million. In the City of…more

California, Property Tax, Tax Increases, Transfer Taxes

See all updates »

Extort Me Not: Supreme Court Expands Protections for Permit Applicants Under the Takings Clause

The high court’s decision in Koontz v. St. John’s River Water Management District extends the landmark decisions in Nollan and Dolan, which set standards on when an agency can condition a land use permit on the relinquishment of…more

Dolan v City of Tigard, Fifth Amendment, Koontz v St John's River Water Management, Land Developers, Nexus

See all updates »

Recoupment Survives the Discharge Injunction Permitting Dollar-for-Dollar Recovery on a Prepetition Debt

The Ninth Circuit Bankruptcy Appellate Panel held that the Social Security Administration’s withholding of post-petition benefits to satisfy the debtor’s prepetition obligation to repay overpayments qualifies as recoupment and…more

Bankruptcy Appellate Panel (BAP), Chapter 7, Debtors, Injunctions, Pensions

See all updates »

IRS Issues Guidance Related to Executive Order Permitting the Deferral of Employee Social Security Tax during COVID-19 Pandemic

Based on IRS guidance, the deferral is not mandatory. Considering the minimal benefit that the deferral provides to employees, a cost/benefit assessment seems to weigh against offering deferrals. On August 28, the IRS issued…more

Coronavirus/COVID-19, Executive Orders, IRS, New Guidance, Popular

See all updates »

The U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule in EPA v. EME Homer City Generation, L.P., Paving the Way to Further Use of Cap-and-Trade Programs to Control Emissions of SO2 and NOx from Electric Power Plants.

On April 24, the Supreme Court issued a 6-2 decision in EPA v. EME Homer City Generation, L.P., No. 12-1182, 572 U. S. ____, 2014 WL 1672044 (2014), upholding EPA’s latest version of a regional cap-and-trade program under the…more

Cap-and-Trade, Carbon Emissions, Clean Air Act, EPA v EME Homer City, NAAQS

See all updates »

Cal/OSHA Approves Stricter Standards for Occupational Lead Exposure

Because Cal/OSHA significantly lowered the exposure thresholds that require an employer to comply with its lead regulations, more employers may fall within the ambit of the revised regulations. Revised regulations, effective…more

Cal-OSHA, Health and Safety, Lead, Occupational Exposure, Regulatory Standards

See all updates »

China Issues Rules to Clarify and Relax Cross-Border Data Transfer Controls

A data controller that is not a critical information infrastructure operator that cumulatively exports personal information (excluding any sensitive personal information) of less than 100,000 individuals since January 1 of the…more

China, Critical Infrastructure Sectors, Cross-Border Transactions, Data Controller, Data Security

See all updates »

Human Rights Due Diligence—ESG Impact on M&A Transactions

As environmental, social and governance (ESG) considerations continue to gain global importance in the context of mergers and acquisitions (M&A), many buyers are requiring human rights in their due diligence processes. As the…more

Acquisitions, Child Labor, Due Diligence, Environmental Social & Governance (ESG), Human Rights

See all updates »

The Banking Crisis of 2023: Outlook for the U.S. Banking Sector, Possible Regulatory and Legislative Responses, Lessons for Bank Customers and Management

Legislative responses to recent banking industry failures could include reinstating various rules that formerly applied to banks with more than $100 billion in assets. There are a variety of measures which bank depositors may…more

Bank Notes, Banking Crisis, Banking Sector, Depository Institutions, FDIC

See all updates »

U.S. Education Department’s New Accountability and Transparency Rules for Postsecondary Institutions to Take Effect in July 2024

The rules impose new extensive reporting requirements on postsecondary institutions and could cause 1,700 programs to lose Title IV eligibility as early as 2026. The Education Department will begin collecting information…more

Department of Education, Eligibility, Fees, Gainful Employment, Grants

See all updates »

Point Taken: The UK Supreme Court Finally Confirms the General Law of Liquidated Damages (LDs)

In a long-awaited decision which overturned the Court of Appeal’s ruling in the Triple Point Technology vs PTT Public Company case, the UK Supreme Court confirmed the general law of LDs, which is that—absent clear words to the…more

Construction Contracts, Contract Termination, Contract Terms, Liquidated Damages, Service Contracts

See all updates »

South Carolina Legislature Forces New Standards for Forced Combination on Revenue Department

Under a new bill signed into law on March 11, 2024, the South Carolina Department of Revenue will have to satisfy additional standards before it may force affiliated corporate taxpayers to file a unitary combined return.  These…more

Apportionment, Corporate Taxes, Income Taxes, New Legislation, State and Local Government

See all updates »

EPA Finalizes Rule Designating PFAS Substances as Hazardous Constituents Under CERCLA

On April 19, 2024, the Environmental Protection Agency (EPA) finalized its long-awaited rule designating two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under…more

CERCLA, Contamination, Drinking Water, Environmental Policies, Environmental Protection Agency (EPA)

See all updates »

New CISA Rule Would Require Widespread Cyber Incident Reporting, Updated Timelines and Penalties for Critical Infrastructure Sector

Most businesses in the United States will have to file incident reports—including for ransomware payments—under the Proposed Rule. The Department of Homeland Security has the authority to issue subpoenas and even penalties for…more

Covered Entities, Critical Infrastructure Sectors, Cyber Incident Reporting, Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA), Cybersecurity

See all updates »

SEC Mandates Electronic Filing for Form 144 and Certain Other Filings

The SEC’s amendments mandate electronic filing of Form 144 and certain other documents, providing investors with more immediate access to information. Individuals who wish to sell restricted securities that will require the…more

Annual Reports, EDGAR, Investors, Perfected Security Interest, Regulatory Mandates

See all updates »

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JD Supra Privacy Policy

Updated: Dec 28, 2021:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and companies and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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