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July 24, 2014

Emerging Legal News Headlines:

Takeaway: Leave to file a motion for additional discovery will only be granted if a party can show that the discovery will go to the merits of the patentability issues upon which trial had been instituted.

In its ...

Employer's Exclusive Remedy Provision Eroded

Earlier this year both houses of the Illinois General Assembly passed Senate Bill 3287, which affects the application of section 5'...

Bitcoin, one of the best-known virtual currencies, has experienced some growing pains recently.  Once hailed by Bill Gates as a “techno tour de force,” 2014 has been less kind to this digital...

A three-story porch collapsed during a party resulting in the deaths of 12 people and injuries to 29 others. The estates of the deceased and the injured plaintiffs ultimately settled their claims...

Two Federal Circuit Court of Appeals decisions were released on July 22, 2014 regarding the ability of the federal government to provide tax credits to individuals purchasing coverage on a federally run...

The Equal Employment Opportunity Commission has issued new enforcement guidance explaining when an employer’s policies affecting pregnant employees might violate federal law.  The new guidance appears in an...

A myriad of investigators have descended upon Ukraine ostensibly to find out what happened to the downed Malaysian plane.  But much is already plain:  pro-Russian separatists, trained by Russia and...

Under the new law, trade unions are limited and monitored.

New Law No. 211-V of the Republic of Kazakhstan on Trade Unions, dated 27 June 2014, (the Law) has been adopted in Kazakhstan. The Law came...

The FLSA’s technical “white collar exemption” regulations, slated for review and potential overhaul ...

On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) issued long-awaited guidance relating to pregnancy discrimination and pregnancy-related issues.  The guidance was highly anticipated...

First Guidance following Hobby Lobby released: The Department of Labor (DOL) published a notice on Thursday, July 17th that all “closely held” for-profit companies are required to inform their employees if...

Faced with a mounting caseload of whistleblower complaints (more than 6,000 since 2011), the Securities and Exchange Commission has brought its first-ever whistleblower retaliation case under the Dodd-Frank Wall Street Reform and Consumer...

Cloud services are all the rage, and the race is on to adopt this new technology, but what if we just sit back and gaze? What is the hard data telling us? Skyhigh Networks recently released its latest quarterly Cloud...

Judge Claude M. Hilton of the Eastern District of Virginia recently issued a Memorandum Opinion following up on his June 27, 2014 order (on which we previously wrote ...

In Branin v. Stein Roe Inv. Counsel, LLC, C.A. 8481-VCN, 2014 WL 2961084 (Del. Ch. June 30, 2014), the Delaware Court of Chancery held that a vested right to indemnification may not be rescinded by a subsequent amendment to...

Takeaway: The Board, in its decision to institute, did not overstep its role as adjudicator when it cited to sections of the prior art not specifically relied-upon in the petition.

In its Decision, the Board denied...

Takeaway: Citations to prior art references that are in an expert’s declaration but not in a petition may not be considered by the Board in its decision on institution.

In its Decision, the Board denied institution...

Takeaway: Claim terms of an unexpired patent are interpreted under the broadest reasonable interpretation (BRI) standard, where claim terms of an expired patent are construed using the so-called Phillips standard.

In its ...

Wage & Hour class actions are being filed at a pace that dwarfs almost all other types of litigation. With a myriad of federal and state laws and regulation, employers not only need to take steps to minimize the risk of a suit, but also...

Panelists at the PCAOB’s June 25 Standing Advisory Group Meeting discussed cybersecurity and the potential implications for financial reporting and auditing. Some of the highlights...

Federal Court News & National Administrative Law Issues:

Energy and Climate Debate

The House Appropriations Committee approved July 15 a fiscal year 2015 spending bill for the Interior Department, the Environmental Protection Agency, and related agencies after Republicans...

Takeaway: Potentially inconsistent statements made in patent applications that are not publicly available could provide the basis for a successful motion for additional discovery.

In its Decision, the Board granted Patent...

You know the drill.  An employee or ex-employee files a discrimination charge against your company with the Equal Employment...

In proposing to approve NERC’s new Physical Security Reliability Standard, FERC also seeks the ability to identify facilities that must be protected.

On July 17, the Federal Energy Regulatory Commission (FERC)...

Employees may have an understanding of their own “work week” for various employment purposes based on different business practices or employer scheduling.  However, with respect to calculating hours worked for...

It has become a fairly common practice for a single petitioner to file more than one IPR against a single patent.  To date, approximately 200 patents have been the subject of multiple IPRs filed by a single...

On July 15, the National Labor Relations Board (NLRB or Board) let its deadline to seek Supreme Court review of the Fifth’s Circuit decision (D.R. Horton v. NLRB) upholding class action waivers...

The Sixth Circuit recently addressed the question of whether an excess insurer must provide a defense when the primary insurer fails to do so.  In IMG Worldwide v. Westchester Fire Insurance...

On July 17, 2014, USCIS released updated processing times for EB-5 related petitions. The following chart provides the average processing times for cases being adjudicated by the Immigrant Investor...

On June 27, 2014, the IRS published a letter outlining the steps taxpayers should take in order to obtain a refund for taxes paid on the value of employer-sponsored health coverage...

On July 14, 2014, the EEOC issued Updated Enforcement Guidance on Pregnancy Discrimination, as well as a set of ...

This blog post is devoted to a recent District of Columbia Court of Appeals case that may affect advocacy clients in certain child custody cases in the District of Columbia.

The District of Columbia Court of Appeals...

Takeaway: Evidence to support an inherency-based anticipation ground of unpatentability must establish that a limitation is necessarily present in a prior art reference, not merely that the limitation is desirable in light of the reference...

The President today signed a much anticipated Executive Order prohibiting workplace discrimination against employees and applicants for employment based on sexual orientation or gender identity.  Here is a link to the...

Hey, you know what's weird?

It’s this: there are 46 different state data breach laws in the United States. Seriously. 46! And most of them have some sort of provision that says that if a breach requires...

In response to reported on-going confusion regarding how to satisfy the “verifiable parental consent” requirements in Children’s Online Privacy Protection Act (“COPPA”) 15 U.S.C. §6501 et. seq....

On July 15, the Federal Deposit Insurance Corporation (FDIC) proposed (1) to revise the ratios and ratio thresholds for capital evaluations used in its risk-based deposit insurance assessment system (the FDIC...

It’s summer now, mid-year 2014. Open enrollment for the 2015 health plan year is just around the corner...

We want to make sure that all employers are ready. We want to ensure, as well, that ...

It is a general tenet that competition serves customers well, enabling them to acquire better products at lower prices.  Of course, this premise underlies the antitrust laws.  In the aerospace and defense...

There has been much attention paid to the Supreme Court’s recent decision in Riley v. California, Nos. 13-132 and 13-212 (June 25, 2014), and justifiably so. It was notable because it was a 9-0 decision in a criminal...

Utility Air Regulatory Group v. EPA et al. 573 U.S. ____ (2014)

On June 23, 2014, the United States Supreme Court held that the Environmental Protection Agency (EPA) overstepped its authority under the...

On July 14, the U.S. Court of Appeals for the District of Columbia Circuit decided Ralls Corporation v. Committee on Foreign Investment in the United States — the first ruling by a federal circuit court on a...

On July 15, 2014, the Department of Defense (“DoD” or “Department”) issued a proposed rule to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) in order to...

State Court News & State Administrative Law Issues:

In 2005, California OSHA (Cal-OSHA) promulgated its Heat Illness Prevention standard, Section 3395, regulating employees’ exposure to heat for all outdoor places of employment.  This standard is unique to California....

Chapter 5 of the California Corporations Code imposes specific limitations on “distributions to shareholders”, a term defined in Corporations Code section 166.  Directors who approve the making of any...

Otay Tijuana Venture announced this week that a cross-border pedestrian bridge linking San Diego with Tijuana’s A.L. Rodríguez International airport will be set to open next year....

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the "Act"), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on...

Employers with at least 50 full-time employees in the San Francisco Bay Area must offer commuter benefits, such as payments for commuter transit passes made with employees’ pre-tax earnings, to any employee who works at least 20 hours...

On June 18, 2014, the New York State Department of Taxation and Finance (Department) published a revised version of its Nonresident Audit Guidelines (Audit Guidelines).2 The Audit Guidelines are (and...

An insured under an errors and omissions policy gives timely notice of circumstances during the policy period in effect when it first became aware of its potential civil liability. The E&O insurer...

The Fiscal Year 2015 budget for the Commonwealth of Massachusetts, which was signed into law earlier in the week, included a broad prohibition on clinical laboratory self-referrals.  This ...

This has certainly been the week of legislative hostage-taking, unhappy people and bad feelings.

Although the Senate made a mid-week budget offer to the House that looked promising to us, the House's lack of enthusiasm over it...

Last week, the California Supreme Court granted review of Ramos v. Brenntag Specialties, Inc. to resolve a split in the Second Appellate District regarding the application of California’s...

On July 17, the New York State Department of Financial Services (DFS) released the draft “BitLicense,” a proposed regulatory framework to license Virtual Currency Business Activity....

Despite optimism early this week over a Senate budget conference position proposal that made serious concessions to the House budget position, we are at a new stalemate Friday.

The Senate budget position including reducing their...

What happens when an existing condominium property regime is found to be invalid? Well, the Louisville Yacht Club recently encountered that exact problem. The case, Steenrod v. Louisville Yacht Club Ass’n, Inc....

As reported more than a year ago, the U.S. Supreme Court remanded the Fisher v. University of Texas case back to the Court of Appeals for stricter scrutiny of the University’s consideration of race in its...

In February 2012, Pennsylvania adopted comprehensive revisions to its Oil and Gas Act known as “Act 13.”  Among the changes was an expanded preemption of local regulation of oil...

In an important win for employers seeking to resolve disputes with former employees outside of the circuit courts, the West Virginia Supreme Court of Appeals recently upheld a circuit court decision that compelled a former employee to submit his...

Ensuring contracts and agreements reflect when incentive compensation – usually “commissions” – is earned is of paramount importance to New York employers who wish to maximize their rights...

In an opinion released on June 19, 2014, the Office of the Tennessee Attorney General stated that Physical Therapists cannot lawfully perform Intramuscular Manual Therapy or Trigger-Point Dry...

International Legal News & Immigration Law News:

Around $700 billion of energy projects are currently underway or planned in the United Arab Emirates, according to MEED, with Abu Dhabi occupying a dominant position within this sizeable market.

The question of who will...

There are a variety of options open to companies for structuring their businesses to serve the Abu Dhabi energy market including joint participation ventures, appointing commercial agents and...

Canada’s Anti-Spam Legislation (CASL) took effect July 1, 2014. CASL prohibits sending commercial electronic messages (CEMs) such as email, to parties in Canada without consent. If you don’t have...

According to recent reports, foreign investment in commercial U.S. real estate exceeded $38.7 billion in 2013 - a 40 percent increase over 2012. Leading the way in 2013 were investors from Canada, China, Australia, Germany, and...

The fast tracking of the Kingdom of Saudi Arabia’s (KSA) first major offshore natural gas fields in the Red Sea heralds the start of a massive new energy programme for the Kingdom, which...

On July 16, 2014, the Obama Administration responded further to developments in Ukraine by imposing another new round of sanctions on...

Distribution of audiovisual content is blooming at a very fast pace, and while the consumer is still demanding for more new content, producers are struggling with this new competitive era. While appetite for content is at its highest peak, and...

China’s legislature, the National People’s Congress (NPC), has released a draft of the revised Food Safety Law (2014 Draft FSL) for public comment. The comments are due on July 31, 2014. The Food...

The State Council has released the Several Opinions on Promoting Fair Competition and Maintaining Regular Order in the Market (the “Opinions”) (in Chinese, “关于促进市场公平竞争维护市场正常秩序的若干意见...

Two public relations firms have filed documents with the Department of Justice revealing that they provided public relations and media services in the United States for the government of Ecuador without being...

According to recent figures provided by the Latin American Private Equity and Venture Capital Association, 2013 was a record year for private equity in Latin America, with approximately $8.9 billion of total investments (a six-...

On July 16, 2014, the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) imposed an additional wave of sanctions against Russian entities in the financial, energy,...

On July 14, 2014, a panel of the World Trade Organization (WTO) ruled in favor of China against certain policies employed by the U.S. Department of Commerce (Commerce) in conducting countervailing duty...

Significant momentum in European markets and London

The European IPO market has enjoyed the most successful first quarter in seven years. According to PwC’s “IPO Watch Europe...

The Dutch Supreme Court recently concluded that Australian Redeemable Preference Shares (RPS) should be regarded as equity for the purposes of the Dutch participation exemption.

Facts

A private limited liability...

The Italian government extensively amended the laws governing corporate bonds throughGrowth Decrees1 and Destinazione Italia Decree,2 with the aim of...

On June 23, 2014, the European Commission adopted a decision establishing new ecological criteria for awarding the EU Ecolabel certification for bed mattresses (Decision).1

EU Ecological guidance already existed...

On June 5th, the highest European court—the Court of Justice (ECJ) –issued a watershed ruling in Kone and Others, C-557/12 (Kone), holding that members of a cartel potentially can be held responsible...

The United States and China recently concluded two days of high-level talks as part of the sixth U.S.-China Strategic and Economic Dialogue (“S&ED” or the “Dialogue”), which took place...

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