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April 23, 2014

Emerging Legal News Headlines:

Beginning in September 2014, the Centers for Medicare and Medicaid Services (“CMS”) will publish a list of all payments and transfers of value paid by drug manufacturers to physicians and teaching hospitals on a...

Port Miami and Port Canaveral, two of the busiest ports in Florida, are preparing to get busier as both equip to undergo major expansion projects....

The U.S. Tax Court recently held, in Frank Aragona Trust v. Commissioner, that a trust can “materially participate” in a trade or business. When a taxpayer materially participates in a trade or business,...

On March 25th, EPA released a draft of the long-awaited and highly-anticipated ...

A gunshot that cracks the silence of an old west desert canyon creates an echo coming from all directions.  A Supreme Court decision can make similar reverberations throughout the legal world.  Last year, just such a sound was heard....

On April 15th, the National Association of Home Builders (NAHB) ...

Insight Bank has been acquired by First Financial Bancorp.  With its $6.4 billion in assets, First Financial has 100 branches including ones located in Kentucky.

Insight apparently had a number of concerns back in 2012 due to the...

April 17, the Texas Commission on Environmental Quality’s new greenhouse gas (GHG) regulations became effective, establishing the framework for a new GHG permitting program at TCEQ, which the agency hopes to begin...

On April 1, 2014, President Obama signed legislation that delays the scheduled Sustainable Growth Rate (SGR) cut to physician payments for one year.  The legislation contains a number of other provisions, including...

On April 14, 2014, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in the conflicts minerals case, National Association of Manufacturers, et al., v. Securities and Exchange Commission....

New York City Mayor Bill de Blasio has signed into law a bill protecting interns in the City from job discrimination to the extent as is presently available to employees. The law, amending the New York City administrative code, was approved by...

ENERGY AND CLIMATE DEBATE

With Congress in recess for another week, most of Washington’s attention will be focused on President Obama’s trip this week to Asia, which is likely to focus primarily on trade...

The U.S. Tax Court recently issued a taxpayer favorable opinion regarding how a trust materially participates in its activities. The court’s holding will make it easier for trusts to currently deduct expenses against non-passive income and...

Marketing has become a critical function of all law firms, big and small.  Large law firms (over 200 attorneys) tend to have vast resources that can be devoted to all marketing aspects, while small to midsize firms (40-200 attorneys) must be...

In Runzheimer International, Ltd. v. Friedlen, the Wisconsin Court of Appeals was asked the age-old noncompete question: is continued employment sufficient to support a non-compete agreement entered into...

On April 15,[1] Georgia passed a law[2] amending its tax code to provide a limited tax credit to qualified interactive entertainment companies. The law provides incentives for mid-...

The Arizona appellate courts continue to reinforce Arizona's anti-deficiency law by finding that a prospective waiver of anti-deficiency protections violates public policy and is prohibited.

Many of us are familiar with Arizona...

Last week Kevin O’Keefe (@kevinokeefe) and I had an interesting discussion on Twitter about the goal of social media for law firms. Nancy Myrland (@NancyMyrland) and Jabez LeBret (@jabezlebret) graciously joined in. Then Kevin...

In an April 16, 2014 one-paragraph opinion, the Fifth Circuit rejected the NLRB’s rehearing petition in D.R. Horton v. NLRB, which sought reconsideration of the Court’s December 2013 decision...

The Affordable Care Act is driving innovation at all levels of the healthcare system, creating opportunities for small start-ups to compete with industry giants. One such start-up is Oscar, a venture-backed health insurance...

Granted that many workers are not sophisticated in legal matters and severance agreements are not always written in plain English, but it seems fairly intuitive that when an employer offers an employee the choice of 13 weeks...

Federal Court News & National Administrative Law Issues:

On April 14, the US Court of Appeals for the District of Columbia Circuit issued an opinion in the lawsuit challenging the Securities and Exchange Commission’s conflict minerals rule which reversed, in part, the prior decision of the US...

This week, it was announced that Kentucky State Treasurer, Todd Hollenbach, has returned more than $100 million in unclaimed property to its rightful owners during his six years in office. According to ...

California isn’t exactly known as a business-friendly state.  In some ways, the governor has tried to change that.  He’ll have an interesting choice to make if a recently-passed senate bill reaches his desk.

Last week...

A federal district court in Kansas concluded that attaching a statement of ERISA rights, i.e., a two page document listing and explaining the rights and protections provided by ERISA to plan participants, to a life insurance...

The Employee Retirement Income Security Act of 1974, as amended (“ERISA”), requires trustees of multiemployer pension and benefit funds to collect contributions required to be made by contributing employers under...

On April 3, the Securities and Exchange Commission brought a lawsuit against Walter Wagner and Alexander Osborn, alleging that the two friends realized almost $1 million in profits by illegally trading securities of The...

This month’s Federal Register Updates include four important changes that will impact the day-to-day activities of Government Contractors and Agencies alike.  The first, a final DFARS rule on Performance-Based Payments...

The Department of Labor (DOL) recently issued a proposal to require a 408(b)(2) “guide.” The guide has also been referred to as a roadmap. But I think of it as an index to the disclosures.

...

The ADA lesson from this case goes beyond limitations related to golf and sex.

The day after the plaintiff told his employer that he had scheduled his back surgery, the employer terminated him. The plaintiff sued, claiming...

Last month, the Supreme Court of the United States (please, there is no such thing as the "United States Supreme Court") decided a very interesting case about easements.  "Easements?", you ask.  Yes, easements....

In communities that have adopted zoning regulations, boards of adjustment serve as a relief valve that can allow for the use of property that is not otherwise permitted under the property’s specific zoning...

The National Labor Relations Board (NLRB) is likely weighing an appeal to the U.S. Supreme Court after the Fifth Circuit Court of Appeals ...

Since the last report was compiled, there have been no new filings before PTAB of requests for inter partes review (IPR) or covered business methods review (CBM).  Listed below are all newly-posted requests for ex parte...

On April 4, the Securities and Exchange Commission filed a complaint against Matthew D. Sample, founder of hedge fund Lobo Volatility Fund, LLC, for fraudulently raising approximately $1 million from five...

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...

In Peace v. Premier Primary Care Physicians, the District Court for the Northern District of Illinois considered whether a medical practice could be required to disclose patient names and contact...

The U.S. Supreme Court may resolve a split among the federal appeals courts on whether the Equal Employment Opportunity Commission’s efforts at conciliation before bringing suit against an employer are open to judicial review. Most circuit...

Winner Spring 2014 Student Legal Writing Contest

I. Introduction

Social media has become an integral part of society. It is the cornerstone of sharing information. Social media is used in advertisements, heard in conversations, and everything is connected through social media. Many...

Today is a day that, until recently, I wasn't aware had any independent significance other than being April 16. However, April 16 is – and has been for the past seven years – National Healthcare Decisions Day. You...

State Court News & State Administrative Law Issues:

New York has recently passed new laws that significantly reform its current estate, generation-skipping transfer (GST) tax and income tax scheme. This Private Client Group Client Alert provides a brief overview of New York’...

Attention employers – the use of interns remains a hot topic in the legal realm, as protections for interns continue to grow.  In fact, just this week, New York City Mayor Bill de Blasio signed off on...

The New York Court of Appeals reversed a decision of the New York State Tax Appeals Tribunal (the "Tribunal") and rejected years of administrative interpretation regarding New York's statutory resident test. Under New York tax law,...

Two years ago, the Nevada Supreme Court in an en band decision held that a state district court may exercise jurisdiction over the nonresident officers and directors of a Nevada corporation with its principal place of business in...

CME Group has issued an advisory notice prohibiting transitory exchange for related positions (EFRPs) on each of the Chicago Mercantile Exchange (CME), the Chicago Board of Trade...

Adopting restrictions on employers’ ability to access the social media accounts of employees and job applicants, Wisconsin has joined 12 other states with similar restrictions. 

...

In recent years, Kentucky physicians have dealt with the state’s prescription drug abuse problem head-on – by adding substance disorder recovery services to their practices or establishing separate addiction recovery...

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...

Wisconsin's landlord/tenant laws have received much attention over the last two years as sweeping legislative changes have forced landlords to review the way they do business. 2013 Wis. Act 76 ("Act 76") is the newest round of...

Minnesota Governor Mark Dayton has signed a law increasing the minimum wage in Minnesota to $9.50 an hour by 2016. The first of three increases will be effective August 1, 2014.

The state’s current minimum wage, $6....

The California Office of Environmental Health Hazard Assessment (“OEHHA”) issued a pre-regulatory proposal for new regulations that would change the requirements for warnings provided under ...

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, ...

Last week, Magistrate Judge David S. Cayer of the U.S. District Court for the Western District of North Carolina ...

A New York Appellate Court held for the first time that a judgment issued by a foreign country’s criminal court awarding monetary compensation to a fraud victim is civil, not penal in nature, and therefore...

International Legal News & Immigration Law News:

On April 14, 2014, China’s Ministry of Commerce (MOFCOM) filed an amicus brief asking the Second Circuit to overturn a ruling by the Eastern District of New York against Chinese vitamin...

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...

The Decedent committed suicide in September 2011. Shortly before, he created a series of documents on his iPhone. One document stated, "This is the last Will and Testament" of the Decedent and referred to his address....

While recent case law developments under Chapter 15 might suggest a retrenchment from the international comity and cooperation goals of cross-border insolvency law, reports from Mexico indicate that there might yet be hope for...

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...

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...

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