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April 18, 2014

Emerging Legal News Headlines:

Importer Saves Millions of Clams in White Sauce Appeal

On April 14, 2014 the U.S. Court of Appeals for the Federal Circuit (CAFC) handed down an opinion, International Customs Products, Inc. v. United States...

On March 4, 2014 the USPTO issued new patent subject matter eligibility guidelines in an attempt to provide examiners and patent practitioners with some guidance on which claims improperly encompass laws of...

The Eleventh Circuit recently dismissed a participant's fiduciary breach claims against SunTrust's 401(k) plan fiduciary committee members on the ground that the claims for imprudently selecting certain investment...

On April 15, 2014, in the case Caldera v. The J.M. Smucker Co., CV 12-4936-GHK, J.M. (C.D. Cal.), Smucker Company (“Defendant”) defeated the plaintiff’s motion for class...

White Stallion Energy Center, LLC v. EPA, No. 12-1100 (D.C. Cir. Apr. 15, 2014).

The D.C. Circuit upheld the controversial Utility MACT Rule, also known as the Mercury and Air Toxics Standard or MATS...

On March 5, 2014, the Department of Health and Human Services released a Final Rule addressing, among other things, transitional reinsurance fees payable in the 2014 through 2016 benefit years.

By way of...

Though the multi-billion dollar medical tourism industry is dominated by Asia, it is on the rise in the United States, with many wealthy international patients eyeing the U.S.’s innovative treatments in...

Michael Lewis' new book, Flash Boys concerns high frequency traders using advance notice of a stock purchase to reap extra profits.  Fittingly, the North Carolina Supreme Court's decision in Beroth Oil...

Nearly five years into the lawsuit, a District Court denied defendant NCAA’s summary judgment motion, and ordered that the antitrust claims of current and former student-athletes denied compensation for the...

The framework provides standards and best practices for identifying, assessing, and managing cybersecurity risk.

Now that the Obama administration has unveiled the final version of its anticipated...

On February 26, 2014, U.S. Congressman Dave Camp released a comprehensive tax reform proposal that includes several provisions intended to limit or restrict executive compensation. Congressman Camp's proposal...

In Cyberlock Consulting, Inc. v. Information Experts, Inc., 939 F.Supp.2d 572 (E.D. Va. 2003), the United States District Court for the Eastern District of Virginia granted summary judgment in favor of a prime...

In 2010, LendingTree sued our client NexTag for patent infringement. A litigation hold was first implemented when the suit was filed in 2010. However, back in 2004, LendingTree’s in-house counsel analyzed the NexTag system and concluded it...

The Centers for Medicare & Medicaid Services (CMS) has begun implementation of fingerprint-based background checks for designated Medicare suppliers and providers. The Affordable Care Act (ACA...

The Decedent in this case owned a 23.44% interest in a family holding company, Person Holding Co. ("PHC"). PHC's assets consisted of publicly traded securities. Decedent was one of the three largest shareholders.

In the years...

The April applicable federal rate ("AFR") for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 2.2%, the same rate as March. The rate for use with a sale to a defective grantor trust, self-cancelling...

A district court has rejected a lawsuit brought by several Kentucky coal companies to recover damages against MSHA employees following their refusal to allow the operator to recover mining equipment before it was ruined by...

In a significant move, the Court of Justice of the European Union (CJEU) has ruled that the Data Retention Directive 2006/24/EC (Directive) is invalid. This decision is expected to have wide-reaching implications...

Nina Witt

Recently, the European Court of Justice ruled on the applicability of European copyright law in the case of placing hyperlinks or embedded links on websites to works protected by copyright, published elsewhere on...

Federal Court News & National Administrative Law Issues:

On May 9th the Patent Office is hosting a forum to receive public feedback from organizations and individuals on the “Guidance”(link below). As followers of Patents4Life are well aware, I have not been shy in posting...

The FTC recently conducted an investigation of shoe manufacturer Cole Haan's "Wandering Sole" photo contest. The investigation focused on compliance with FTC guidelines requiring disclosure of...

A SLAPP is a strategic lawsuit against public participation.  California enacted Code of Civil Procedure Section 425.16 as an antidote to SLAPP suits.  In general, a SLAPP is subject to a special motion to strike unless the court...

The Federal Trade Commission (“FTC” or “Commission”) has often stated that merger analysis requires more than a simplistic determination that high market concentration leads to anticompetitive effects....

FINRA to Examine Broker-Dealers for Cybersecurity Threats

In its 2014 Regulatory and Examination Priorities Letter, FINRA noted that cybersecurity remains a priority and that it will focus on "the integrity of...

Earlier this week, the National Labor Relations Board (NLRB) ordered a hospital employer to pay the negotiating costs of the union representing its employees as a remedy for the hospital’s unlawful refusal...

On March 27, in the latest major development in Motorola Mobility’s lawsuit alleging price-fixing of liquid crystal display modules (LCDs), a three-judge panel of the Seventh Circuit, including renowned...

An employee’s inability to sit for a prolonged period may be a disability under the ADA, according to the United States Court of Appeals for the Second Circuit. ...

Dealing with employees who abuse FMLA can be difficult. Letting abuse run rampant, however, can impact business productivity and put a damper on company morale (as present employees often have to pick up the...

On April 14th, the Court of Appeals for the D.C. Circuit issued its opinion in the challenge to the SEC’s Conflict Minerals Rule.  We have reviewed the D.C. Court of Appeals decision and find that it leaves much of the SEC’s rule...

In legal circles, disgorgement is known as an equitable remedy used to force a defendant to return money or property earned from illegal conduct.  Traditionally, disgorgement has not been used as punishment, but a recent Second Circuit...

On April 14, 2014, the U.S. Court of Appeals for the District of Columbia Circuit held that requiring companies to disclose to the Securities and Exchange Commission (the "SEC") on new Form SD and on their websites that...

An arbitration clause survived the termination of the underlying agreement even though the clause was not specifically referenced in the agreement’s survival clause, the U.S. Court of Appeals for the Sixth...

Attached please find the updated Foreign Listed Stock Index Futures and Options Approvals Chart, current as of April 16, 2014. All prior versions are superseded and should be discarded. Please note the following...

Companies preparing to comply with the Securities and Exchange Commission’s (“SEC”) conflict minerals due diligence and disclosure requirements by May 31st will need to assess several breaking...

On March 28, 2014, a New York federal court issued an opinion that may have a significant impact on the already increasing number of lapse-related lawsuits in the life insurance industry. In Lebovits v. PHL...

Making your way through the FMLA regulations may often feel like weaving your way through a complicated maze. And, as with anyone facing such a maze, you’re just hoping you don’t get lost and find yourself at a dead...

OSHA’s standard, 29 C.F.R. § 1926.1427, which sets out operator qualification and certification requirements for cranes used in the construction industry is currently set to take effect on November 10, 2014.  However, after...

On March 28, 2014, Judge Daniels of the Southern District of New York dismissed antitrust and unjust enrichment claims against over 20 banks accused of manipulating prices in the Euroyen interbank lending market by submitting false rate quotes to...

In O'Donnell v. Passport Health Communications, Inc., the Third Circuit reviewed a case in which a sales executive was discharged during her medical leave because she refused to sign a non-compete agreement for a new position...

Last week, on April 8, 2014, the District Court for the Eastern District of Michigan dismissed the remaining claims of indirect purchaser plaintiffs (IPPs) in the ongoing Refrigerant Compressors litigation....

State Court News & State Administrative Law Issues:

On April 7, 2014, in a landmark decision with broad implications for American businesses, the U.S. District Court for the District of New Jersey upheld the U.S. Federal Trade Commission’s authority to regulate data...

Plans of New Passenger Rail Link from Miami-to-Miami Beach

On several occasions we have written about transportation public-private partnerships in the Miami area. These have included posts on ...

In AGR Halifax Fund, Inc. v. Fiscina, 743 A.2d 1188 (1999), the Delaware Court of Chancery was asked to decide whether a consent given by persons before they became directors could...

On April 15th, Minnesota Governor Mark Dayton signed legislation which will increase Minnesota’s minimum wage to $8.00 per hour for...

On April 13, 2014, Georgia's governor signed SB 365 to, in part, protect employers that hire and retain employees with criminal convictions. Under the new law, if the Department of Corrections issues a "Program and Treatment Completion...

The Serious Fraud Office has issued a code of practice for deferred prosecution agreements, which are now available as an alternative to conviction for certain white-collar offences in the UK.

On 24 February, ...

On April 10, 2014, Kentucky became the 47th state to enact breach notification legislation.  Under the new law, companies that conduct business in Kentucky and hold consumer data of Kentucky residents will now be...

After years of losses in court and an estimated $3 million in legal fees, the Glendale, Arizona City Council appeared to ease its opposition to the location of an Indian casino in Glendale within the Phoenix metropolitan area and voted to begin...

The latest swerve in the rollercoaster that is Puerto Rico public finance occurred on April 11 with the release of the Puerto Rico Supreme Court’s ruling striking down as unconstitutional the bulk of the territory’s teacher pension...

Individuals often start-up a business with a new idea to market, but they often need the additional financing to back it up. These businesses will often seek the assistance of other companies to help them get a start.

One entrepreneur...

Eastern Pompano Beach has quickly positioned itself to become the next hot spot for development in South Florida. Investors are betting that recent public sector efforts will translate into a thriving community. The growing interest in the once...

On April 8, 2014, Governor Scott Walker signed Wisconsin Act 208 to prohibit employers from requiring or requesting that prospective and current employees disclose usernames and passwords for their personal Internet accounts. Wisconsin becomes...

Simply stated: “[a] collateral attack is not a substitute for an appeal” reasoned the Second Appellate District Court in Bowman v. California...

In Scot Netherlands, Inc. v. State of New Jersey, Department of Environmental Protection, Docket No. A-5156-11T3 (App. Div. April 7, 2014), the Appellate Division reconfirmed that not every impairment in property value establishes a...

In Oneida Seven Generations Corporation v. City of Green Bay (WI App. 2014), Oneida Seven Generations Corporation (OSG), a wholly owned subsidiary of the Oneida Tribe of Wisconsin, had obtained...

Wisconsin enacted a new law on April 8, 2014 prohibiting employers, educational institutions, and landlords from requesting or requiring access to personal Internet accounts. The...

The federal district courts of the United States provide an efficient and stable dispute resolution forum for marine lenders with distressed shipping debt on their hands. However, because the federal district courts are courts of limited...

International Legal News & Immigration Law News:

The Office of Compliance and Examinations (OCIE) announced a new "Never-Before Examined Initiative" focusing on conducting examinations of investment advisers that have been SEC-registered for at least...

New laws have come into force in the UK that will eventually require all UK businesses (including U.S. businesses with operations in the UK) to auto-enroll their eligible workers into a workplace pension scheme.

What is a workplace...

The proposal covers shareholder votes on remuneration policies and related party transactions and greater transparency obligations on certain market participants.

The European Commission (EU Commission) recently...

Electronic certification applications may be submitted beginning April 15, 2014.

In late 2013, the Mexican legislature passed sweeping tax reforms that financially impact several Mexican industries, including the maquiladora industry....

Domestic Chinese private equity managers should take notice of new provisional regulations requiring registration of domestic Chinese private equity managers and filings with the Asset Management Association of China (“AMAC”).  ...

The European Parliament has voted emphatically in support of a report produced by its Civil Liberties, Justice and Home Affairs Committee (LIBE) on the mass surveillance undertaken by the U.S. National Security...

The proposed directive seeks to coordinate national requirements concerning the formation, registration, and operation of single-member companies.

On 9 April, the European Commission published a...

"The Government has carefully considered the views of the respondents to the call for evidence and has decided to proceed with ratification of the treaty" – para. 1.4 - Convention on International Interests in...

The European Parliament has voted emphatically in support of a report produced by its Civil Liberties, Justice and Home Affairs Committee (LIBE) on the mass surveillance undertaken by the...

As ties between Canada and Florida continue to strengthen, Canadian investment in the region continues to increase. Tricon Capital Group, the Canadian company whose profit rose five-fold last year after betting on U.S....

For the first time, the European Commission has decided on comprehensive rules for the assessment of State aid in the energy sector. The new text adopted on 9 April 2014 will create the framework for the ability of EU Member...

On January 18 2014, Republic of Kazakhstan President Nursultan Nazarbayev signed several amendments to Kazakhstan’s public procurement regulations into law; they came into force on January 302014.

Major adjustments...

Recently, the high court of appeals in Paris upheld an art expert’s right to refuse to authenticate a work of art.  While this decision took nine years to come to fruition, it validates an art expert’s freedom to make an...

Multinational companies increasingly have internationally mobile employees (IMEs) who perform services in more than one country, other than their country of citizenship, during a single taxable year.

It can be quite...

Enterprise Florida recently opened business development offices in Hong Kong and Shanghai.  Enterprise Florida is a partnership between Florida’s businesses and government leaders that strives to increase job growth...

There have been two recent developments in the expansion of private antitrust actions in the United Kingdom and ...

Background

As part of the 2014 UK Budget, HM Treasury and HM Revenue and Customs published a position paper on the Organisation for Economic Co-operation and Development’...

In its decision of 2 April 2014 in relation to the underground and submarine high voltage power cables cartel case (COMP/39610), the European Commission (Commission) held the parent companies of the producers...

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