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Department of Labor (DOL), Exempt-Employees, Fair Labor Standards Act (FLSA), Final Rules, Minimum Salary

Joshua Abel

DOL's New Salary Rule on Overtime Will Impact Many Nonprofits

As you’ve likely heard, the U.S. Department of Labor (DOL) released its final regulations on May 18, 2016, changing the overtime exemptions under the Fair Labor Standards Act (FLSA). In short, most salaried employees currently…more

Consumer Product Companies, Personal Jurisdiction, Venue

David Abernethy

How to Succeed in Business (in Philadelphia) Without Really Trying (Your Case There, Because Venue Isn’t Proper)

Venue rulings in Pennsylvania affect many defendants in products cases. Those incorporated here, and those sued on allegations that their products caused harm here, of course. And, for now at least, it includes corporate…more

Estate Planning, Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax

Beth Abraham

The 2020 Election and the Effect on Current Gift, Estate and Generation-Skipping Transfer Taxes

Based on recent election results, attention has focused on what is in store for the federal transfer tax system. This article discusses the status of the current transfer tax laws and President Biden’s proposals for changes. We…more

Affirmative Action, CSALs, Department of Labor (DOL), Federal Acquisition Regulations (FAR), Federal Contractors

Jessica Abrahams

Third Quarter 2023 Government Contracts Policy and Regulatory Review

The third quarter had government contractors staring down the possibility of a government shutdown while also contending with some significant regulatory developments. We review some of those developments below…more

Centers for Medicare & Medicaid Services (CMS), Data Privacy, Data Protection, GINA, Medicare Advantage Organizations (MAOs)

Reed Abrahamson

U.S. Protectionism in Health Data Flows

As privacy laws continue to proliferate in the U.S. and globally, there is one trend that companies, especially those operating in the health and pharmaceutical sectors, can no longer overlook. This is the trend towards data…more

Caitlin Abram

Helping Trustees Avoid Liability — The Duty of Enforcement and Defense of Claims

When there is a potential legal claim involving a trust, the trustee must act. A trustee has the duty to evaluate affirmative claims of the trust and to pursue those claims when enforcement would benefit the trust. A trustee…more

Beneficiaries, Trustees, Trusts

Background Checks, Criminal Records, Employer Liability Issues, Employment Discrimination, Hiring & Firing

Gregory Abrams

Restrictions on Hiring Personnel with Criminal Histories in the Insurance Industry

Over the last several years, federal and state governments have pushed employers to reemploy offenders, such as through tax incentives and subsidized training. Despite the public interest in such initiatives and programs, the…more

Coronavirus/COVID-19, Food and Drug Administration (FDA), Medicaid, Medicare, PDUFA

Michael Adelberg

Outlook for the 2022 Federal Health Legislative Landscape

As the 117th Congress moves into its second legislative session, there is no shortage of health care policy issues dotting the landscape. The COVID-19 pandemic, legislative gridlock and a 2021 that was largely locked down by…more

Clean Water Act, Environmental Protection Agency (EPA), Hazardous Substances, New Rules, Water Supplies

David Adeleye

New EPA Rule Mandates Worst Case Discharge Response Plans for Facilities Handling Hazardous Substances

On March 14, 2024, Environmental Protection Agency (EPA) Administrator Michael Regan signed a final rule requiring a broad swath of facilities to develop response plans (FRP) for a worst-case discharge of Clean Water Act (CWA)…more

Matthew Adler

Attention to Detail — and the Defense — Prevails in Two Recent Cases

Two recent decisions emphasize the necessity of precisely examining a plaintiff’s complaint for potential defenses while keeping each element of the TCPA in mind. First, in Hulce v. Zipongo, Inc., No. 23-C-0159, 2024 WL…more

Advertising, Auto-Dialed Calls, Class Action, Goods or Services, Rule 8

Health Care Providers, Home Health Care, Medicaid, State Legislatures

Russell Adler

Eligibility Changes Coming to New York Medicaid Home Care

On October 1, 2020, significant changes will come to New York’s Medicaid home care services program. The New York Legislature has enacted new restrictions on eligibility for Medicaid home care and other community-based long-term…more

Antitrust Division, Antitrust Provisions, Competition, Department of Justice (DOJ), Federal Trade Commission (FTC)

Alison Agnew

Antitrust Scrutiny of Private Equity in Health Care Intensifies

In recent years, federal and state antitrust agencies have been increasingly focused on the impact of private equity involvement in the health care sector. Two recent developments in March 2024 reinforce that this heightened…more

Admissibility, Daubert Standards, Evidence

Bridget Ahmann

The Death of Frye: The District of Columbia Embraces Daubert

In a landmark decision, the District of Columbia Court of Appeals recently adopted the Daubert standard, superseding the District’s nearly century-long application of the Frye test. In its October 20 decision on Motorola, Inc…more

Daniel Aiken

What All Employers Can Learn From Most Recent Railway Dispute

On September 15, 2022, railroad companies and unions representing railway workers reached a tentative agreement to potentially prevent a strike that would have caused significant harm to the American supply chain and economy…more

Corporate Counsel, Railroads, Railway Labor Act, Railways, Strike

Joan Akalaonu

Growing International Coordination of Multi-jurisdictional FCPA Enforcements

In remarks at the American Conference Institute’s 37th International Conference on the Foreign Corrupt Practices Act (FCPA) on December 3, 2020, Gen. Brian C. Rabbit, then acting assistant attorney general of the U.S. Department…more

Anti-Bribery, Anti-Corruption, Bribery, Compliance, Corporate Counsel

Artificial Intelligence, Data Privacy, Data Protection, Opioid, State Attorneys General

Nicholas Alford

State AG Updates: Data Privacy & Security; Artificial Intelligence; Predatory & Deceptive Real Estate Practices; Consumer Protection; Opioid Epidemic; and Federal Regulations

Data Privacy & Security - DoorDash to Pay a $375,000 Civil Penalty Under the CCPA for Participation in Marketing Collective - Clarifying that California considers participation in a marketing cooperative to be a “sale”…more

Bryan Michael Allen

New House Appropriations Committee Chair Makes Important Changes to FY 2025 Earmark Process

Following the long-delayed passage of Fiscal Year (FY) 2024 appropriations funding legislation, the House is moving forward by setting deadlines for FY 2025 programmatic, language and Community Project Funding (CPF) requests…more

Appropriation, Colleges, LGBTQ, Universities

Cyber Attacks, Cybersecurity, Denial of Service Attacks, Distributed Denial of Service, Popular

Kathryn Allen

Capping Cyber Casualties: Steps to Avoid Cyberattacks Flowing From Hostilities in Ukraine

The televised “thud” of explosions in Ukraine has an ominous but deceptively distant tone. For many organizations the hostilities are closer at hand, in the form of cyberattacks that could spread beyond the Russian-Ukrainian…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), CMMI, Department of Health and Human Services (HHS), Fraud and Abuse

Matthew Amodeo

New Stark Exceptions Mark Shift to Value-Based Care

On November 20, 2020, the Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS) issued the final rule “Modernizing and Clarifying the Physician Self-Referral Regulations” (Final Rule)…more

Hodon Anastasi

U.K. Immigration 101

There are various types of visas for the U.K. They are designed for different purposes and lengths of stay. U.K. visas are available under many diverse categories. This article gives a high-level overview of some of the key…more

Foreign Nationals, Foreign Workers, Immigrants, Immigration Procedures, Spouses

Coronavirus/COVID-19, Ethanol, Food and Drug Administration (FDA), Pharmaceutical Industry

Andrew Anderson

FDA Revises Guidance on Using Ethanol in Hand Sanitizer Products During the COVID-19 Pandemic

On April 15, 2020, the Food and Drug Administration (FDA) updated its three hand sanitizer guidance documents to address the use of fuel- and technical-grade ethanol as an active pharmaceutical ingredient (API) in hand sanitizer…more

Artificial Intelligence, Department of Health and Human Services (HHS), Draft Guidance, Life Sciences, NIST

Hannah Anderson

Race Against the Clock: Federal Agencies Issue Their Six-Month Updates on AI Activities in Accordance With President Biden’s Executive Order on AI

Since President Biden issued his sweeping Executive Order on the Safe, Secure and Trustworthy Development of AI on October 30 of last year (EO), federal agencies have been operating in high gear to meet the deadlines and…more

Article III, Class Action, Diversity, Diversity and Inclusion Standards (D&I), Race Discrimination

Lynne Anne Anderson

Key U.S. District Court Ruling: Plaintiff’s Challenge to DEI Program Under Section 1981 Fails When She Lacked Standing Because She Did Not Apply

In our October 2023 alert on Defending Litigation Attacks on DEI Programs: A Status Update, we advised to “stay tuned” regarding a pending motion to dismiss filed by Amazon in response to a class action complaint challenging its…more

Blockchain, Innovation, Intellectual Property Protection, Patent Applications, Patents

Nicholas Anderson

Welcome to the Block Party: Blockchain Patent Trends in 2018

More than just one of the hottest buzzwords of 2018, “blockchain” is “a quiet revolution.” The impact of blockchain technology on our day-to-day lives is still uncertain. But one thing is clear: The opportunity is ripe for…more

Shane Anderson

Texas Supreme Court Refocuses on Causation and Affirms Summary Judgment in Herbicide Drift Case

The question of whether a particular application of herbicide on one property caused damage on another’s property requires expert testimony. When a plaintiff claims that herbicide drift caused reduced crop yields, it is not…more

Causation, Daubert Standards, Expert Testimony, Herbicides, Pesticides

Corporate Governance, Corporate Social Responsibility, Environmental Social & Governance (ESG)

Sheremy Anderson

Practical Tips for ESG Reports

More and more companies are voluntarily publishing reports to provide information about their operations and performance that goes beyond what is traditionally provided or required in financial statements and annual reports,…more

Bradley Andreozzi

Seventh Circuit’s back-to-back rulings shed light on TCPA’s applicability to unsolicited faxes

The 7th Circuit recently issued a decision in Smith v. First Hospital Laboratories, Inc., holding that in some “narrow situations” a fax offering to buy a product or service might be considered an advertisement under the TCPA if…more

Advertising, Contests & Promotions, Faxes, Healthcare, TCPA

Carbon Capture and Sequestration, Greenhouse Gas Emissions, Inflation Reduction Act (IRA), Internal Revenue Code (IRC), IRS

Joshua Andrews

IRS Releases Proposed Regulation to Section 45V of Internal Revenue Code

In connection with the Inflation Reduction Act (IRA), on December 22, 2023, the Internal Revenue Service (IRS) released a Proposed Regulation related to Section 45V of the Internal Revenue Code. The Proposed Regulation,…more

CFTC, Criminal Prosecution, Department of Justice (DOJ), Foreign Corrupt Practices Act (FCPA), Incentives

Victoria Andrews

DOJ Becomes Latest Agency to Offer Financial Incentives for Whistleblowers

On March 7, 2024, Deputy Attorney General Lisa Monaco announced that the U.S. Department of Justice (DOJ) is creating a program that will offer financial rewards to whistleblowers who bring the DOJ information concerning…more

Constitutional Challenges, Healthcare, Illinois, Medical Malpractice, Prejudgment Interest

Blake Angelino

Illinois Court Finds Prejudgment Interest Statute Unconstitutional

On May 27, 2022, the Circuit Court of Cook County ruled that Illinois’ recently enacted prejudgment interest statute is unconstitutional. Hyland v. Advocate Health and Hospitals Corporation, et al., No. 2017-L-003541..…more

Jared Angle

USTR to Review List of Additional Products Subject to Tariffs in Connection With Large Civil Aircraft Dispute With the EU

In response to an ongoing trade dispute between the United States and the European Union (EU), the Office of the U.S. Trade Representative (USTR) is considering adding additional products to the existing list of EU imported…more

Aircraft, EU, Imports, Tariffs, USTR

CFIUS, Foreign Ownership, Real Estate Investments, Real Estate Market

Lily Ansel

Influx of State Statutes Regulating Foreign Ownership of U.S. Real Estate

As we enter the new year, it is a good time to reflect on and consider trends and developments from 2023. One such development that we find important and will be keeping an eye on in 2024 is the proliferation of state…more

Automotive Industry, C-Suite Executives, Consumer Product Safety Commission (CPSC), Corporate Counsel, Corporate Officers

Haroon Anwar

Pin the Blame on the Corporate Officer: Senators Introduce Hide No Harm Act

Three Senate Democrats recently introduced a bill that seeks to hold company executives of a product maker or seller criminally liable for knowingly "failing to inform and warn of serious dangers" associated with a product…more

Borrowers, Commercial Bankruptcy, Debtors, Financial Statements, Uniform Commercial Code (UCC)

Laura Appleby

Do You Know Your Debtor’s Name? Minor Mistakes in UCC-1 Financing Statements Might Be Seriously Misleading

Zero tolerance continues to be the name of the game in drafting Uniform Commercial Code (UCC) financing statements. While in some states, minor mistakes in UCC financing statements may be forgiven, in at least Florida, no safe…more

Consent Agreements, Data Security, Federal Trade Commission (FTC), Personally Identifiable Information, Settlement

Katherine Armstrong

FTC Settlement with Zoom Concerning Alleged Data-Security Lapses

On November 9, 2020, the United States Federal Trade Commission (FTC) announced that it had entered into a consent agreement, subject to final approval, with videoconferencing company Zoom Video Communications, Inc. (Zoom). The…more

Employee Benefits, Individual Retirement Account (IRA), IRS, Required Minimum Distributions, Retirement Plan

Sarah Armstrong

Stretching Expectations: Planning with the New Life Expectancy Tables for Retirement Plans’ Required Minimum Distributions

For the first time in nearly twenty years, on January 1, 2022, the Internal Revenue Service (IRS) updated its actuarial tables for determining required minimum distributions (RMDs) from retirement plans. These new tables affect…more

April Risk Arnett

3 Estate and Gift Planning Tips During Uncertain Times

As the COVID-19 pandemic changes financial and life circumstances, here are three estate and gift planning ideas that individuals might want to consider during these uncertain times…more

Estate Planning, Gift Tax, Income Taxes, Tax Planning

Vijayasri Aryama

Florida Court Finds One Unwanted Text Message Does Not Cause Concrete Harm, Remands FTSA Case to State Court

In Weitz v. Genting New World LLC, No. 1:22-cv-23209-BLOOM, 2023 WL 2328365, at *1 (S.D. Fla. Mar. 2, 2023), Plaintiff Brandon Weitz brought suit against Defendant Genting New World LLC on behalf of himself and a putative class…more

Article III, Florida, Jurisdiction, Remand, Solicitation

Commercial Real Estate Market, Financial Institutions, FinCEN, Money Laundering, Real Estate Investments

Lenny Asaro

FinCEN Warns of Potential Sanction Evasion by Russian Entities Involved in U.S. Commercial Property Investments

On January 25, 2023, the Financial Crimes Enforcement Network (FinCEN) published an alert to financial institutions warning of the heightened risk of investment in commercial real estate by sanctioned Russian elites, oligarchs,…more

Benefit Plan Sponsors, Best Interest Standard, Broker-Dealer, Department of Labor (DOL), Employee Benefits

Bruce Ashton

The New DOL Fiduciary “Rule” For Investment Advisers and Broker-Dealers and the December 20 Deadline: The Time to Act is Now

The DOL’s new fiduciary “rule” became effective on February 16, 2021. The rule is a combination of a new and expansive definition of fiduciary advice (and status) and an exemption from the prohibitions of ERISA and the Internal…more

Insurance Industry, Insurance Litigation, Life Insurance, Policy Terms

Eric Au

Age Adjustment Not a “Contest”

In Nicolaou v. United of Omaha Life Insurance Co., No. 3:22-CV-202 (JAM), 2023 WL 130540 (D. Conn. Jan. 9, 2023), the District of Connecticut confirmed that a life insurance policy’s contestable provision and the age adjustment…more

Brent Auberry

New Indiana Statute Opens Door to Lower Property Tax Assessments for Apartments in 2024

Indiana apartment owners and operators enter 2024 with new opportunities to lower their real property tax assessments. Under an updated law effective this year, Ind. Code § 6-1.1-4-39 (Section 39), for property tax assessment…more

Property Owners, Property Tax, Property Valuation, Tax Appeals, Tax Assessment

Article 50 Treaty of the EU, EU, EU Single Market, European Economic Area (EEA), Free Trade Agreements

Cristina Audran-Proca

Countdown to Brexit: How Businesses Can Prepare

In the coming days, the U.K. government is expected to formally notify the European Council of its intention to withdraw from the European Union under Article 50 of the Treaty on European Union. Formal notification will start…more

Affordable Care Act, Biden Administration, Constitutional Challenges, Health Insurance, Healthcare Reform

David Ault

The Affordable Care Act at Risk: American Health Policy at a Crossroads

We are at a major crossroads in U.S. health policy. The direction for American health care in 2021 and beyond will depend in large part on events that are unfolding now, and that will come to fruition in the first half of 2021…more

Carita Austin

New NLRB Leader Identifies Possible Changes

Employers who have watched the National Labor Relations Board — the nation’s primary enforcer of labor law — over the years anticipate that it will reshuffle its priorities soon after the White House changes parties. The agency…more

Arbitration Agreements, Employee Handbooks, NLRB, Unions

Board of Directors, Breach of Duty, Business Judgment Rule, Duty of Care, Fiduciary Duty

Pierre Avalos

Delaware Chancery MFW Framework Does Not Require Best Deal

As Kahn v. M&F Worldwide Corp. (MFW) establishes, the Business Judgment Rule must be applied to a transaction involving a controlling shareholder, if the deal is conditioned upon the approval of: (1) an independent special…more

Compliance, Corporate Misconduct, Department of Justice (DOJ), Self-Disclosure Requirements, Voluntary Disclosure

Andrew Ayala

DOJ Policy Changes Aimed at Increasing White Collar Prosecutions and Incentivizing Companies to Cooperate With the Government

During a speech on September 15, 2022, Deputy Attorney General Lisa Monaco announced significant policy changes to DOJ’s corporate enforcement strategy. Expanding on her October 28, 2021, speech and the memorandum that followed,…more

Constitutional Challenges, Gerrymandering, Moore v Harper, Political Question Doctrine, Redistricting

Abdullah Azkalany

Supreme Court Decides Moore v. Harper

On June 27, 2023, the Supreme Court of the United States decided Moore v. Harper, No. 21–1271, holding that the Elections Clause of the United States Constitution does not preclude state courts from reviewing state legislative…more

Article 50 Treaty of the EU, EU, EU Single Market, European Economic Area (EEA), Free Trade Agreements

Douglas Badder

Countdown to Brexit: How Businesses Can Prepare

In the coming days, the U.K. government is expected to formally notify the European Council of its intention to withdraw from the European Union under Article 50 of the Treaty on European Union. Formal notification will start…more

Brian Balduzzi

Splitting the Difference: Why Careful Structuring and Regular Monitoring of a Split-Dollar Life Insurance Plan Might Benefit Employers and Employees

Split-dollar life insurance can serve a multitude of uses. In times of a tight and competitive hiring market, employers may consider split-dollar life insurance as one of many diverse strategies to attract and retain desired…more

Beneficiaries, Estate Planning, Estate Tax, Life Insurance

Artificial Intelligence, Cybersecurity, Information Governance, UK

Peter Baldwin

UK and US Announce Partnership on Science of AI Safety

On 1 April 2024, the UK and US signed a memorandum of understanding on the science of AI safety. This partnership is the first of its kind and will see the two countries work together to assess risks and develop safety tests for…more

Andrew Ball

Colorado Privacy Act: The Patchwork of State Privacy Regimes Grows

With Colorado Governor Jared Polis expected to sign the Colorado Privacy Act, SB-190 into law in the coming days, Colorado will join California and Virginia as the third state with a comprehensive data privacy law.1 The Colorado…more

Colorado, Data Privacy, Governor Polis, Personal Data, Privacy Laws

Controlled Substances, Health Care Providers, Pharmaceutical Industry, Prescription Drugs, Substance Abuse

Libby Baney

Remote Prescribing of Controlled Substances via Telehealth: Stakeholders Urge DEA to Address Geographic Red Flag for Pharmacists

Due to convenience and effectiveness, patients are increasingly seeking care via telehealth, including for conditions that require treatment with medication. During the pandemic, patients gained access to telehealth for…more

Corporate Counsel, Mass Tort Litigation, Multidistrict Litigation, Rules of Civil Procedure

Zoha Barkeshli

The Trend Toward MDLs in Products Cases

A review of multidistrict litigation (MDL) statistics confirms the increasing percentages of federal cases being consolidated into MDLs. According to the Judicial Panel on Multidistrict Litigation (JPML) website, as of June…more

Drinking Water, Environmental Protection Agency (EPA), Hazardous Substances, PFAS, Toxic Chemicals

Bonnie Allyn Barnett

April 2024 is EPA’s Month of PFAS: National Drinking Water Requirements and So Much More

Background The U.S. Environmental Protection Agency (EPA) has been extremely busy over the past few weeks with additional PFAS actions — and the designation of PFOA and PFOS as hazardous substances under CERCLA is expected…more

Department of Labor (DOL), Employer Liability Issues, Exempt-Employees, Fair Labor Standards Act (FLSA), Final Rules

Samantha Barnfather

Hurry Up (But Also Wait): The DOL’s Final Rule for Overtime Exemptions and Likely Legal Challenges

On April 23, 2024, the U.S. Department of Labor (DOL) issued its much-anticipated final rule raising the salary threshold for certain workers exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). As…more

Jason Baron

An Update on Federal Policy Regarding Chief Data Officers and Data Governance: New OMB Memo

The Office of Management and Budget (OMB) has issued a recent memorandum that moves the federal government forward in embracing the importance of the “governance” of data. On July 10, 2019, OMB issued M-19-23, a memorandum…more

Data Management, Data Privacy, Data Protection, Data Security, Evidence

Daniel Barta

Practitioner Guilty of Inequitable Conduct: Considerations and Takeaways From the American Calcar v. Honda Decision

In its 2011 Therasense, Inc. v. Becton Dickinson & Co. decision, the Court of Appeals for the Federal Circuit set forth a more forgiving "but-for" causality standard for determining whether a patent is unenforceable due to…more

Appeals, Automotive Industry, Honda, Inequitable Conduct, Inventors

Anti-Kickback Statute, Department of Justice (DOJ), Kickbacks, OIG, Pharmaceutical Industry

Jessica Barth

Pacira Pharmaceuticals Pays $3.5M to Settle Allegations of Using Grants as Kickbacks

On July 28, 2020, the Department of Justice (DOJ) announced a $3.5 million settlement to resolve allegations against Pacira Pharmaceuticals Inc. that it paid kickbacks to doctors in the form of “bogus” research grants to induce…more

Corporate Governance, No-Action Requests, Proxy Statements, Rule 14a-8, Securities and Exchange Commission (SEC)

Sarah Bartlett

Amendments to Exchange Act Rule 14a-8

Background: Rule 14a-8 provides the mechanism by which shareholders may submit proposals to companies for inclusion in the annual proxy statement to be voted upon by shareholders. On September 23, 2020, the U.S. Securities and…more

Affiliated-Business Arrangements, Appeals, Bob Richards Rule, Commercial Bankruptcy, Consolidated Tax Returns

David Bartoletti

Supreme Court Decides Rodriguez v. Federal Deposit Insurance Corporation

On February 25, 2020, the Supreme Court decided Rodriguez v. Federal Deposit Insurance Corporation, No. 18-1269, overruling a federal common law rule that was used in some circumstances to determine how to distribute the tax…more

Employee Rights, Employer Liability Issues, Governor Murphy, Staffing Agencies, Temporary Employees

Thomas Barton

Gov. Phil Murphy Signs the New Jersey Temporary Workers’ Bill of Rights

Despite strong opposition from New Jersey business groups, on February 6, 2023, Gov. Phil Murphy signed the Temporary Workers’ Bill of Rights into law (A1474/S511). This new law places significant burdens upon “temporary help…more

Marjan Batchelor

Supreme Court Decides Howell v. Howell

On May 15, 2017, the U.S. Supreme Court decided Howell v. Howell, No. 15-1031, holding that where a veteran waives retirement pay to receive service-related disability benefits, federal law preempts state courts from ordering…more

Divorce, Marital Assets, Retirement, Retirement Plan, SCOTUS

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

Alicia Batts

Proposed HSR Rules Upend M&A and Merger Control Review

On June 27, 2023, the Federal Trade Commission (FTC), in collaboration with the Department of Justice (DOJ) Antitrust Division, announced proposed changes to the Hart-Scott-Rodino (HSR) filing and notification form that…more

Colleges, Ornamental Design, Trademark Act, Trademark Application, Trademark Registration

Kaela Bauer

College T-shirts and Trademarks – Ornamental, or Protectable?

As college freshmen head to campus for the start of classes, there is one vital campus bookstore purchase before classes begin: a T-shirt bearing the college’s logo. This purchase is not only a rite of passage for freshmen; it…more

Cannabidiol (CBD) oil, Drug Pricing, Prescription Drugs, State and Local Government, State Funding

Andrew Bauman

Indiana Legislative Council Unveils Summer Study Topics

The Indiana Legislative Council convened on Tuesday, May 21 at the Indiana State House to approve the topics that will be studied in the 2019 interim study committees. Throughout the legislative session, lawmakers urged the…more

Advertising, Disclosure Requirements, Federal Trade Commission (FTC), Holidays, Influencers

Emily Bayton

Ho, Ho, Ho … Hold On … Did Legal Approve That?

The holidays are upon us — and so too are holiday advertising campaigns. With an unusual holiday season last year, many retailers are gearing up for what they hope to be a robust holiday season. Even with concerns over supply…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Employer Mandates, Healthcare Workers, Infectious Diseases

Jeffrey Beck

Supreme Court Blocks OSHA Vaccination-or-Test Mandate and Upholds CMS Rule Mandating Vaccines – Now What?

On January 13, 2022, the U.S. Supreme Court issued two significant opinions: In Nat’l Fed. of Independent Business v. Occupational Safety and Health Administration, the Supreme Court stayed enforcement of the Occupational…more

Wayne Beck

The Return of Crown Preference — Implications for Borrowers and Lenders

The first day of December witnessed an early visit from the ghost of Christmas past for the rules relating to the order of priority on insolvency. For insolvencies commenced on or after 1 December 2020, Her Majesty’s Revenue and…more

Borrowers, Creditors, Crown Preference, Debtors, HMRC

Corporate Counsel, Employer Liability Issues, Employment Contract, Non-Compete Agreements, Restrictive Covenants

Rhiannon Beckendorf

Minnesota Legislature Agrees to Complete Ban on Noncompetes

On May 11, 2023, the Minnesota Legislature agreed to a new law rendering void and unenforceable all future covenants not to compete, with limited exceptions for agreements entered into in connection with the sale or dissolution…more

Artificial Intelligence, Centers for Medicare & Medicaid Services (CMS), Federal Trade Commission (FTC), Food and Drug Administration (FDA), Health Insurance

Tricia Beckmann

Artificial Intelligence Briefing: House Launches Bipartisan AI Task Force

The House of Representatives aims to keep the U.S. at the leading edge of AI policy and innovation with a bipartisan task force while the FTC considers expanding a rule to crack down on AI impersonation. Meanwhile, a recent…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

Anna Behrmann

History in the Making: Conservatives Work Quickly to Challenge FTC’s Final Rule Banning Noncompete Agreements

Last week, the Federal Trade Commission (FTC) voted in favor of its controversial final rule banning nationwide nearly all noncompete agreements. While the potential noncompete ban has been politically controversial since it was…more

Appeals, Cause of Action Accrual, Failure To Warn, Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA)

Clark Belanger

Blurry Vision in Two Courts Leads to Denial of Preemption in Intraocular Lens Implant Case

A recent Second Circuit preemption decision illustrates the importance of a clear-eyed approach to medical device preemption issues. In Glover v. Bausch & Lomb, Inc., 6 F.4th 229 (2d Cir. 2021), the district court dismissed…more

Department of Labor (DOL), Employee Benefits, Employee Retirement Income Security Act (ERISA), Individual Retirement Account (IRA), Preemption

David Belcher

ERISA Litigation Roundup: Ninth Circuit Holds State IRA Plans Not Preempted by ERISA

In a matter of first impression, the Ninth Circuit affirmed that ERISA does not preempt a California law that created a state-managed retirement program for certain private employers. Howard Jarvis Taxpayers Association v…more

Argentina, Declaration of Use, Trademark Registration, Trademarks

Julie Bellville

Mid-Term Declarations Now Required in Argentina

On May 27, 2019, the Argentine Trademark Office issued Resolution No. 123/2019 (the Resolution), which added mid-term declarations of use, created grace periods for renewals and created response periods of 30 days for most…more

CERCLA, Contamination, Environmental Protection Agency (EPA), Hazardous Substances, PFAS

Douglas Benevento

PFOA & PFOS: CERCLA Liability is Coming

On August 26, the EPA announced their long-anticipated proposed rule to designate two PFAS substances, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive…more

Corporate Counsel, E-Verify, Form I-9, Hiring & Firing, Pregnancy Discrimination

Sarah Benjes

Three New Colorado Employment Laws on the Horizon: Employment Verification, Pregnancy Accommodations and Personnel-File Inspection

The Colorado General Assembly passed three laws in 2016 that affect Colorado employers. This legal update briefly describes the new laws and suggests steps employers should take to assure future compliance: - Colorado…more

American Arbitration Association, Arbitration, ICDR, International Arbitration

Desmonne Alana Bennett

2022 Arbitration Trends From AAA and ICDR

The American Arbitration Association (AAA) and the International Centre for Dispute Resolution (ICDR) recently released their statistics for 2022, providing some insight into the state of domestic and international arbitration…more

Food and Drug Administration (FDA), Life Sciences, Manufacturers, Medical Devices, Pharmaceutical Industry

James Stephen Bennett

FDA Aligns Quality Systems Regulation With International Standards

After publishing the proposed regulation nearly two years ago, the FDA has issued its final rule that will make its regulatory framework more closely aligned with the international framework used by many other regulatory…more

Abraham Benson

New Indiana Statute Opens Door to Lower Property Tax Assessments for Apartments in 2024

Indiana apartment owners and operators enter 2024 with new opportunities to lower their real property tax assessments. Under an updated law effective this year, Ind. Code § 6-1.1-4-39 (Section 39), for property tax assessment…more

Property Owners, Property Tax, Property Valuation, Tax Appeals, Tax Assessment

Affordable Care Act, Emotional Distress Damages, Rehabilitation Act, SCOTUS, Spending Clause

Alexandra Benton

Supreme Court Decides Cummings v. Premier Rehab Keller, P.L.L.C.

On April 28, 2022, the U.S. Supreme Court decided Cummings v. Premier Rehab Keller, P.L.L.C., No. 20-219, holding that damages for emotional distress are not recoverable in private actions brought to enforce the Rehabilitation…more

Employer Liability Issues, Employment Policies, Governor Newsom, Minimum Wage, Popular

Pascal Benyamini

New California Laws for 2024 and Beyond: What Employers Should Know

California Gov. Gavin Newsom signed several laws impacting California employers in 2023. Some of the new laws became effective immediately and others, including some that were signed into law just weeks ago, take effect January…more

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

Christopher Berendt

Five Things to Know About California’s New Climate Disclosure Bills

Governor Gavin Newsom has signed the Climate Corporate Data Accountability Act (SB 253) and the Climate-Related Financial Risk Act (SB 261) into law, which means the California Air Resources Board (CARB) is now tasked with…more

Richard Bernard

FDIC Finds Buyer for Silicon Valley Bank

Silicon Valley Bank (SVB) - SVB failed on Friday, March 10; and on Monday, March 13, the Federal Deposit Insurance Corporation (FDIC) transferred all deposits — both insured and uninsured — and substantially all of SVB’s…more

Banking Sector, Banks, FDIC, Receivership, Silicon Valley

Cooperation, Department of Justice (DOJ), False Claims Act (FCA), Government Investigations, Remedial Actions

Yasmin Best

Disclosure, Cooperation and Remedial Action Necessary for Credit in False Claims Act Matters, DOJ Says

Disclosure, cooperation and remedial action are the three ways that entities or individuals can receive cooperation credit from the U.S. Department of Justice (DOJ) in False Claims Act (FCA) matters, according to guidelines…more

Carrie Bethea

House Democratic Leadership Unveils Its China-Focused Legislative Package, Setting Up Potential Clash on Capitol Hill over Trade Policy

On January 25, 2022, Democratic leadership of the U.S. House of Representatives unveiled long-awaited legislation, the America Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength…more

Exports, Imports, Tariffs, US Trade Policies

American Arbitration Association, Arbitration, ICDR, International Arbitration

Kathryn Bettini

2022 Arbitration Trends From AAA and ICDR

The American Arbitration Association (AAA) and the International Centre for Dispute Resolution (ICDR) recently released their statistics for 2022, providing some insight into the state of domestic and international arbitration…more

Catherine Betts

Visa Options and Immigration Strategies for Manufacturers - Update

This alert was originally published on February 5, 2019. It has been updated as of June 23, 2021. Many visa options exist to enable U.S. manufacturing companies to employ talented professionals, researchers and managers who…more

F-1 Visa, Foreign Nationals, Foreign Workers, Green Cards, H-1B

Artificial Intelligence, Cybersecurity, Information Governance, UK

Huw Beverley-Smith

UK and US Announce Partnership on Science of AI Safety

On 1 April 2024, the UK and US signed a memorandum of understanding on the science of AI safety. This partnership is the first of its kind and will see the two countries work together to assess risks and develop safety tests for…more

Elie Biel

Southern District of Texas Holds Learned Intermediary Doctrine Applies to Clinical Trials

Does the learned intermediary doctrine apply in the context of a clinical trial? According to the Southern District of Texas, it does. The case in question is Butler et al. v. Juno Therapeutics, Inc., a tragic case involving…more

Cancer, Causation, Clinical Trials, Failure To Warn, Life Sciences

Advertising, Corporate Counsel, Environmental Claims, Federal Trade Commission (FTC), FTC Act

Jared Black

'Greenwashing' Claims Strike Consumer-Facing Companies: How to Avoid the Increasing Threat of Litigation

Consumers are increasingly conscious of how the products they buy impact the environment. Due to this heightened focus on environmental issues, consumer-facing companies frequently highlight the environmentally friendly…more

Sarah Blackadar

Ever-Expanding Jurisdiction of the National Labor Relations Board

On the eve of the NCAA’s March Madness Tournament, the National Labor Relations Board (the Board) produced a little March madness of its own when it held the first-ever union election for a collegiate basketball team. On March…more

College Athletes, Employer Liability Issues, NLRB, Union Elections, Unions

Benjamin Blair

Marion County, Indiana, Set to Increase Many 2022 Property Tax Assessments 10% or More

Taxpayers in Indianapolis and Marion County, Indiana, may be in for an unpleasant surprise when property tax bills are mailed out in the coming days. Based on assessment data available on the Marion County Assessor’s website,…more

Appraisal, County Assessors, Property Owners, Property Tax, Property Valuation

Data Privacy, Data Protection, Health Insurance Portability and Accountability Act (HIPAA), Healthcare, Insurance Industry

Jane Blaney

NAIC Privacy Protections Working Group Meets to Discuss New Model Privacy Law

On June 5-6, 2023, the NAIC Privacy Protections (H) Working Group (“PPWG”) held an in-person interim meeting (“session”) to continue its work on drafting a new model privacy law, the Insurance Consumer Privacy Protection Model…more

Ben Blanton

Watch Out for Disaster Scams: A Guide to Giving to Hurricane Relief

A time of crisis can bring out the best in people — a desire to help others in need — but it can also bring out the worst. Unfortunately, natural disasters create opportunities for scammers to prey on generous people who are…more

Donations, Hurricane Season, Natural Disasters, Scams

Centers for Medicare & Medicaid Services (CMS), Data Privacy, Data Protection, GINA, Medicare Advantage Organizations (MAOs)

Peter Blenkinsop

U.S. Protectionism in Health Data Flows

As privacy laws continue to proliferate in the U.S. and globally, there is one trend that companies, especially those operating in the health and pharmaceutical sectors, can no longer overlook. This is the trend towards data…more

Centers for Medicare & Medicaid Services (CMS), CMMI, Department of Health and Human Services (HHS), Drug Pricing, Food and Drug Administration (FDA)

Lauren Bloch

Three New Prescription Drug Innovation Models Latest Action on Drug Pricing

As the Biden administration moves ahead to implement provisions of the Inflation Reduction Act (IRA), including those related to drug negotiation and inflationary rebate, the administration announced three Medicare and Medicaid…more

Bryan Bloom

Splitting the Difference: Why Careful Structuring and Regular Monitoring of a Split-Dollar Life Insurance Plan Might Benefit Employers and Employees

Split-dollar life insurance can serve a multitude of uses. In times of a tight and competitive hiring market, employers may consider split-dollar life insurance as one of many diverse strategies to attract and retain desired…more

Beneficiaries, Estate Planning, Estate Tax, Life Insurance

Beneficial Owner, Corporate Transparency Act, FinCEN, Investment Advisers Act of 1940, Reporting Requirements

Jeffrey Blumberg

Implications of the Corporate Transparency Act in the Investment Management Industry

The Corporate Transparency Act, as we have previously reported1, is a new federal law designed to combat money laundering, tax evasion, and other illicit financial activities by requiring “reporting companies” to disclose…more

Elizabeth Boggia

SEC Examinations 2022 Priorities: Reg BI, ESG, Private Funds, Information Security & Operational Resiliency, and Crypto

The SEC Division of Examinations recently released its 2022 Division of Examinations “Priorities.” The 2022 Priorities provide critical insight into what the Division of Examinations (the “Division”) considers the most…more

Broker-Dealer, Compliance, Cryptoassets, Data Security, Emerging Technologies

Bureau of Industry and Security (BIS), NDAA, Office of Foreign Assets Control (OFAC), Prohibited Transactions, Securities Exchange Act

Nate Bolin

Scope of U.S. Ban on Transactions in Securities of ‘Communist Chinese Military Companies’

On January 13, 2021, President Trump amended the November 12, 2020, Executive Order (EO) 13959 providing greater clarity to the scope of the EO’s ban on trading and investing in certain designated publicly traded securities of…more

Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Physicians, Telehealth, Telemedicine

Maya Bolter

ATA EDGE Policy Conference 2024: Preparing for the “Superbowl of Telehealth”

The American Telemedicine Association (ATA) brought key telehealth stakeholders and policymakers together for the annual ATA EDGE policy conference on December 13-15, 2023, in Washington, D.C. Since 2020, patients and providers…more

Coronavirus/COVID-19, Due Diligence, Real Estate Market, Real Estate Transactions

Jon Bomberger

Can We Close? Real Estate Transactions In The Age Of COVID-19

The COVID-19 pandemic is wreaking havoc in real estate markets throughout the nation and promises to create additional disruption until the economic shockwaves of the pandemic have settled. As we advise clients who have…more

Acquisitions, Confidential Information, Confidentiality Agreements, Mergers, Non-Disclosure Agreement

Lance Bonner

M&A 101: Key Concepts in Non-Disclosure Agreements

Contemplating an M&A transaction? Negotiating a confidentiality agreement, often referred to as a non-disclosure agreement or “NDA,” is one of the first steps in the M&A process. Although NDA negotiations may seem like a…more

Louise Bonner

Change of Beneficiary Forms Submitted and Processed in Good Order Do Not Provide Grounds for Imposing Liability on the Issuing Company

The death of a loved one brings stress, despair and grief. It also often precipitates disagreements regarding the intended beneficiary of an annuity, life insurance policy or other account of the decedent. The financial…more

Annuities, Insurance Industry, Life Insurance, Policy Terms

Competition, Drug Pricing, Federal Trade Commission (FTC), Pharmaceutical Industry, Pharmacy Benefit Manager (PBM)

Evan Bonnstetter

FTC Issues Policy Statement Putting PBMs on Notice

On June 16, 2022, the FTC unanimously voted to issue an enforcement policy statement putting Pharmacy Benefit Managers (PBMs) on notice that the payment of rebates and fees by drug manufacturers to PBMs resulting in the…more

Energy Sector, Infrastructure, Trump Administration

Mary Bono

Building an Infrastructure Package: Energy & Environment Symposium Examines Issues Driving the Infrastructure Debate

A major infrastructure package is a legislative priority for both Congress and the Trump administration. What policy considerations will shape the debate on how to execute an infrastructure bill? And what issues need to be…more

Final Rules, Food and Drug Administration (FDA), Food Labeling, Food Manufacturers, Gluten-Free

Kevin Boot

FDA Finalizes Requirements for ‘Gluten-Free’ Labeling of Fermented or Hydrolyzed Foods

On August 12, 2020, the Food and Drug Administration (FDA) issued a final rule, “Gluten-Free Labeling of Fermented or Hydrolyzed Foods,” to establish compliance requirements for fermented and hydrolyzed foods, as well as foods…more

Algorithms, Artificial Intelligence, Machine Learning, Popular

Bennett Borden

Artificial Intelligence Briefing: D.C. Hits Pause on Stop Discrimination by Algorithms Act of 2021

Our latest briefing explores a suspension of activity on the Stop Discrimination by Algorithms Act of 2021, an IAIS discussion on discrimination in advertising, and the anticipated release of a U.S./EU AI roadmap…more

Altitude Express Inc v Zarda, Bostock v Clayton County Georgia, Civil Rights Act, EEOC v RG & GR Harris Funeral Homes, Employer Liability Issues

Ellen Boshkoff

‘Answer Is Clear’: Title VII Forbids Discrimination Based on Sexual Orientation and Gender Identity

On June 15, 2020, in the month and year that marks the 50th anniversary of LGBTQ+ Pride traditions, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and…more

Disclosure Requirements, Dodd-Frank, Lending, Proposed Rules, Securities and Exchange Commission (SEC)

Jillian Bosmann

SEC Proposes New Securities Lending Disclosure Rule

Pursuant to Section 984 of the Dodd-Frank Act, the Securities and Exchange Commission (SEC) published for comment proposed Rule 10c-1 (Rule), which is meant to “increase transparency and efficiency” in the securities lending…more

Civil Liability, Coronavirus/COVID-19, Health Care Providers, Immunity, Infectious Diseases

Brad Boswell

Indiana Passes COVID-19 Civil Tort Immunity Bill

This past week, the Indiana General Assembly passed, and Governor Eric Holcomb signed, Senate Bill 1 to provide civil tort immunity from claims arising from COVID-19. This immunity includes claims related to premises liability…more

Antitrust Division, Biologics, Biosimilars, Department of Justice (DOJ), Drug Pricing

Julianne Brainard

Biologic and Biosimilar Settlement Agreements Now Must Be Disclosed to DOJ and FTC

Recent amendments to the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA), titled the Patient Right to Know Drug Prices Act, require parties to inform regulatory authorities of executed settlement…more

Federal Industry Standards, Food and Drug Administration (FDA), Health Care Providers, Healthcare, Labeling

Zena Braish

FDA Solicits Feedback to Create Consistent Process for Labeling Devices

The Food and Drug Administration Center for Devices and Radiological Health is soliciting feedback on how materials information about medical devices should be communicated to patients and healthcare providers. On May 20, 2021,…more

Jessica Brennan

LG Chem Secures a Second Look at Jurisdictional Issues in NJ Vape Battery Suit

The New Jersey Appellate Division has held that Korean company LG Chem Ltd. (“LG Chem”)will have another opportunity to dispute New Jersey’s jurisdiction over it in a product liability lawsuit concerning a vaping device battery…more

Appeals, Discovery, E-Cigarettes, Electronic Devices, LG Electronics

Affordable Care Act, Association Health Plans, Health Insurance, Healthcare Reform, Medicaid

Kevin Brennan

The Election’s Impact on Health Care Interests

The results of the midterm elections will bring about a significant change to the federal health care policy landscape in 2019. Democratic control of the House of Representatives will effectively end any legislative threats…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA), Public Health Emergency

Jennifer Breuer

A New Normal: Preparing Compliance Programs for Changes to Federal Telehealth Policy in a Post-Pandemic World

The rapid growth of telehealth during the COVID-19 pandemic continued and expanded access to care for millions of patients. Despite telehealth’s success in promoting continuity of care amid stay-at-home orders and social…more

Beverage Manufacturers, Food and Drug Administration (FDA), Food Labeling, Food Manufacturers, Nutrition Facts Labels

Sarah Brew

FDA Proposes to Update the Definition of “Healthy” on Food Labels

On September 28, 2022, the Food and Drug Administration (FDA) announced its proposal to update its 1994 definition of “healthy” when used on food labels and labeling to align with the current nutrition science, the Dietary…more

Copyright, Intellectual Property Protection, IP Litigation, Trademarks

Jared Briant

IP Litigation Considerations in Light of Court Closures and Stay at Home Orders

The mechanics of litigation in the federal courts have changed dramatically over the course of the past two months. Intellectual property enforcement is certainly not immune to these changes. Now that stay at home orders have…more

Coronavirus/COVID-19, Infrastructure, State and Local Government

Michael Brink

Creative Thinking Amid COVID-19: Distilling Value From Community Infrastructure Assets

Despite a decade of economic growth, many communities had modest general fund balances and high levels of debt even before the COVID-19 pandemic arrived. Now, their situation is significantly worse. While additional federal aid…more

Automotive Industry, Connected Cars, Department of Transportation (DOT), Driverless Cars, Motor Vehicles

Ted Bristol

Congress Fails to Enact First-Ever Significant Federal Legislation on Autonomous Vehicles

Despite hopeful last-minute efforts, the 115th Congress failed to pass the AV Start Act, a bipartisan bill that would have been the first significant federal legislation on autonomous vehicles in the U.S. Meanwhile, vehicles…more

Arbitration, Arbitration Agreements, Class Action, Class Action Arbitration Waivers, Employee Benefits

Caitlin Britos

District Court Finds Arbitration and Class Action Waiver Provision Enforceable in Retirement Plan

The Eastern District of Kentucky recently became the latest court to weigh in on arbitration and class action waiver provisions in ERISA-governed defined contribution plans. In Merrow v. Horizon Bank, the court found such a…more

Agricultural Sector, Farms, Liens, Uniform Commercial Code (UCC)

Kayla Britton

FSA Compliance, Lien Management Critical for Protecting Interests in Farm Products

Uncertainty in the agricultural industry resulting from the global trade war and falling agricultural prices has increased risk to participants in the agricultural economy. Farm bankruptcies continue to increase, and farm debt…more

J. Benjamin Broadhead

Expert’s Failure to Identify Product Defect in Pressure Cooker or Inadequacy in Warnings Leads to Summary Judgment

It is axiomatic that a plaintiff must offer evidentiary support for each element of her claim in order to survive summary judgment. And a ubiquitous feature of product liability actions is the use of expert witnesses by both…more

Design Defects, Expert Witness, Failure To Warn, Negligence, Product Defects

Data Privacy, Data Protection, Health Insurance Portability and Accountability Act (HIPAA), Healthcare, Insurance Industry

Steven Brogan

NAIC Privacy Protections Working Group Meets to Discuss New Model Privacy Law

On June 5-6, 2023, the NAIC Privacy Protections (H) Working Group (“PPWG”) held an in-person interim meeting (“session”) to continue its work on drafting a new model privacy law, the Insurance Consumer Privacy Protection Model…more

Alternative Reference Rates Committee (ARRC), Credit Facilities, ICE Benchmark Administration (IBA), Lenders, Libor

Jill Eiseman Bronson

Have a LIBOR-Based Credit Facility? You May Soon Get a Notice From Your Lender

If you have a credit facility based on the London Interbank Offered Rate (LIBOR), you may soon get a notice from your lender or the administrative agent on your credit facility saying that a “Benchmark Transition Event” has…more

Employer Liability Issues, Equal Pay, Pay Transparency, State Labor Laws, Wage and Hour

Taylor Brook

New Year, New Rules for Colorado Employers

This year brought many changes to Colorado’s employment laws, as we discussed in our previous Insight. On January 1, 2024, implementing rules for the Colorado Family and Medical Leave Insurance (FAMLI) Act and the Colorado Equal…more

Article III, Breach of Duty, Defined Benefit Plans, Duty of Loyalty, Duty of Prudence

Jason Brost

Split Supreme Court Awards U.S. Bank a Win in ERISA Pension Lawsuit

In a 5-4 decision in Thole v. U.S. Bank N.A., the Supreme Court found that participants in a defined benefit pension plan lacked Article III standing to sue under the Employee Retirement Income Security Act of 1974 (ERISA) for…more

Commercial General Liability Policies, Indemnification, Insurance Industry, Policy Terms

Janeia Brounson

What to Consider When Negotiating Indemnification Provisions

Indemnification provisions are common in many contracts. At first glance, these provisions can all appear to be roughly the same. But hidden in a “standard” indemnification term can be language that shifts unreasonable amounts…more

Federal Trade Commission (FTC), FTC Act, Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA), PHI

Simonne Brousseau

So, What’s “Consumer Health Data,” Anyway?

The U.S. privacy landscape has changed rapidly over the past few years. But the most significant recent changes relate to “consumer health data” — health information about identified or identifiable consumers that falls outside…more

Brian Brown

Proposed $13 Million Settlement in LinkedIn Privacy Case Awaits Court Approval

Lawyers in a privacy class action against LinkedIn have urged the U.S. District Court in the Northern District of California to give final approval to a $13 million settlement that was made public last year. The deadline for…more

Class Action, Data Privacy, LinkedIn, Misappropriation, Settlement

Cryptocurrency, Digital Assets, Digital Currency, Enforcement Actions, Financial Industry Regulatory Authority (FINRA)

Emmanuel Brown

Crypto is Here to Stay in 2024, So Be Careful How You Talk About It

More than ever before, financial services regulators must increasingly adapt to technological advances. Perhaps no other technological advancement is more important right now than crypto currency. Crypto currency is defined as…more

Benefit Plan Sponsors, Compensation & Benefits, Defined Contribution Plans, Employee Benefits, New Legislation

Mark Brown

SECURE 2.0 Adds New Distribution Options for Defined Contribution Plans

SECURE 2.0 introduced several new distribution options and tax reporting rules for defined contribution plan sponsors. Below is an overview of the new provisions and their potential implementation dates..…more

Confidentiality Agreements, Defend Trade Secrets Act (DTSA), Non-Disclosure Agreement, Popular, Trade Secrets

Katherine Bruce

Employers Must Amend Confidentiality and Similar Agreements to Ensure Full Protection of the New Federal Trade Secrets Act

The federal Defend Trade Secrets Act (DTSA), which President Obama signed into law last week, puts a new and significant arrow in the quiver of employers seeking to enforce trade secret protections, as previously discussed in…more

Chief Information Security Officer (CISO), Corporate Counsel, Cyber Attacks, Cyber Threats, Cybersecurity

Jay Brudz

Discerning Data Cyber Vulnerability Alert: Four Emerging Cyber Threats

According to several recent media reports, malicious cyber actors have begun to utilize four new types of cyberattacks as part of their current destructive repertoire. The website www.databreachtoday.com noted that these new…more

Coronavirus/COVID-19, Department of Health and Human Services (HHS), Health Care Providers, Immunity, Public Readiness and Emergency Preparedness Act (PREP Act)

Lora Brzezynski

Whether Negligence, IP or Contract Claims – All May Be Covered Under PREP Act Immunity

This alert discusses the scope of claims that may be covered under the Public Readiness and Emergency Preparedness Act’s (the PREP Act) immunity provision. If you are a product manufacturer or distributor, government contractor,…more

Ben Buckles

New Indiana Statute Opens Door to Lower Property Tax Assessments for Apartments in 2024

Indiana apartment owners and operators enter 2024 with new opportunities to lower their real property tax assessments. Under an updated law effective this year, Ind. Code § 6-1.1-4-39 (Section 39), for property tax assessment…more

Property Owners, Property Tax, Property Valuation, Tax Appeals, Tax Assessment

Automation Systems, Automotive Industry, Connected Cars, Department of Transportation (DOT), Driverless Cars

Elsa Bullard

2023 Legislative and Regulatory Developments Affecting Autonomous Vehicles

Although the federal government implemented some new regulations on autonomous vehicles (AVs) in 2023, states remain the predominant source of new regulations affecting AVs. In fact, 25 states and the District of Columbia have…more

28 U.S.C. § 1782, Arbitration, Discovery, Foreign Tribunals, International Arbitration

Kerry Bundy

U.S. Supreme Court Curtails Discovery in International Arbitration

The U.S. Supreme Court has ruled in the case of ZF Automotive US v. Luxshare that parties to private foreign or international arbitrations may not seek discovery assistance from U.S. federal courts for use in their arbitration…more

Homeowners, Homeowners Association (HOA), New Legislation, State Legislatures

Rachel Burkhart

Coming to the Neighborhood: Colorado Passes New HOA Laws

The Colorado legislature recently enacted several new laws that will significantly impact the conduct of homeowners’ associations (HOAs) across the state. These changes range from detailed procedures governing the collection of…more

Christopher Burrell

Supreme Court Decides Google LLC v. Oracle America, Inc.

On April 5, 2021, the U.S. Supreme Court decided Google LLC v. Oracle America, Inc., holding that Google’s copying of a portion of an Application Programming Interface (API) for Java SE, in which Oracle was presumed to have a…more

Copyright, Copyright Infringement, Copyright Litigation, Fair Use, Google

Environmental Protection Agency (EPA), Final Rules, Greenhouse Gas Emissions, Proposed Rules

Adrienne Franco Busby

EPA’s Final EtO Rule Has Landed: What Now?

The U.S. Environmental Protection Agency (EPA) recently released their long-awaited final rule regulating ethylene oxide (EtO) emissions from commercial sterilizers. The final rule comes after five years of development, over…more

Deeds, Real Estate Market, State and Local Government, Tax Sales

Maureen (Molly) Moss Buscher

So You Want to Buy Property at a Tax Sale: What Should You Know?

Purchasing real property at a tax sale can be a smart investment, but before you take the plunge, there are some things you should know about the process and your rights as a purchaser. Here are six basics to keep in mind before…more

Food and Drug Administration (FDA), Life Sciences, Manufacturers, Medical Devices, Pharmaceutical Industry

Abigail Butler

FDA Aligns Quality Systems Regulation With International Standards

After publishing the proposed regulation nearly two years ago, the FDA has issued its final rule that will make its regulatory framework more closely aligned with the international framework used by many other regulatory…more

Stuart Buttrick

The New Critical Importance of a Union Request for Recognition

What does it mean if a union makes a “demand for recognition,” or “request for voluntary recognition” to an employer? What does a union mean when it says it has a “showing of interest” or “proof of majority support” or “majority…more

Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Corporate Counsel, Meat Processing Plants, OSHA

Jacob Bylund

Federal Judge Dismisses Lawsuit Against Meat Processing Plant Related to Alleged COVID-19 Issues

On May 5, 2020, United States District Judge Greg Kays issued an order dismissing a federal lawsuit against Smithfield Foods, Inc. and Smithfield Fresh Meats Corp. (collectively, “Smithfield”) related to alleged COVID-19 issues…more

Advertising, Advertising Substantiation, Better Business Bureau, Comparative Advertising, Environmental Protection Agency (EPA)

Darren Cahr

Healthy Choices: The Power and Perils of Health and Wellness Claims in Advertising

Even before COVID-19 had turned each of us into an amateur epidemiologist, companies in nearly every industry had begun to recognize the magnetic appeal of health and wellness claims in consumer advertising. Marketers of…more

Department of Health and Human Services (HHS), Health Care Providers, Information Blocking Rules, OIG

Doriann Cain

HHS OIG Posts Long Awaited Information Blocking Enforcement Rule, Provides for Penalties of up to $1 Million Per Violation

Key Takeaways - The HHS Office of Inspector General (HHS OIG) posted its long-awaited final rule implementing information blocking penalties on June 27, 2023. This final rule — which applies to health IT developers of…more

510(k) RTA, Federal Industry Standards, Food and Drug Administration (FDA), Manufacturers, Medical Devices

Victoria Calhoon

Not Just a Rubber Stamp: FDA Revises Its 510(k) Refuse to Accept Policy

Is the decision to submit a 510(k) application versus a Premarket Application (PMA) at the sole discretion of a medical device manufacturer? The answer is not always clear to product liability lawyers, judges, and juries. FDA…more

Affordable Housing, Burden of Proof, Disparate Impact, Fair Housing Act (FHA), Fourteenth Amendment

J. William Callison

Developers: Beware of Disparate Impact After Supreme Court Ruling

Following the Supreme Court’s decision in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, state agencies and real estate developers should carefully consider the effects of their low-income housing…more

Cyber Attacks, Cybersecurity, Data Breach, Federal Food Drug and Cosmetic Act (FFDCA), Federal Industry Standards

Andrew Campbell

The Omnibus Appropriations Act Grants FDA Formal Authority to Require Cybersecurity Action by Medical Device Manufacturers

Cyberattacks affecting internet-connected medical devices like insulin pumps, intracardiac defibrillators, mobile cardiac telemetry, pacemakers and intrathecal pain pumps have increased in recent years. And such attacks show no…more

Department of Labor (DOL), Employee Benefits, Employee Retirement Income Security Act (ERISA), Fiduciary Duty, Investment Adviser

Bradford Campbell

The Department of Labor’s Fiduciary Proposals

On November 3, 2023 the Department of Labor (DOL) published its new proposed regulatory package redefining fiduciary investment advice and materially amending prohibited transaction exemptions for compensation resulting from…more

Arbitration, Arbitration Agreements, Arbitrators, International Arbitration, Jurisdiction

Robert Campbell

Anti-suit Injunctions, Enka v Chubb and the Arbitration Bill

The recent RusChemAlliance LLC cases in the English High Court considered the practical impact of EU sanctions on Russian entities and the interaction between English and French jurisprudence in international arbitration. The…more

Breach of Duty, Class Action, Dismissals, Employee Retirement Income Security Act (ERISA), Federal Rules of Civil Procedure

Jamie Campisi

LTCi Carrier Secures Dismissal of Class Action Case Alleging ERISA Violations Stemming from LTC Insurance Premium Rate Increases

A federal judge has dismissed a putative class action case brought by a plaintiff asserting ERISA violations against The Prudential Company of America (“Prudential”) and Tufts University (“Tufts”), stemming from premium rate…more

Caitlin Canahai

New Trademark Fees Implemented by the United States Patent and Trademark Office

On November 17, 2020, the USPTO enacted a rule that will adjust trademark fees and Trademark Trial and Appeal Board fees. This is the first time that trademark fees have been adjusted since 2017. In the final rule, the USPTO…more

Fees, Final Rules, Patents, Trademark Application, Trademark Registration

401k, 529 Plans, Beneficiary Designations, Estate Planning, Individual Retirement Account (IRA)

Megan Cannella

The SECURE Act and its Impact on Retirement and Estate Planning

On December 20, 2019, President Trump signed into law landmark legislation titled “Setting Every Community Up for Retirement Enhancement” Act (“SECURE Act”). While the SECURE Act is intended to simplify the retirement system and…more

Coronavirus/COVID-19, Electronically Stored Information, Food and Drug Administration (FDA), Health Care Providers, Medical Devices

Mary Devlin Capizzi

FDA Relaxes Modification Restrictions for Non-Invasive Remote Monitoring Devices During COVID-19 Public Health Emergency

On March 20, 2020, the Food and Drug Administration (FDA) Center for Devices and Radiological Health (CDRH) issued a new guidance document for industry and FDA staff, attempting to “help expand the availability and capability of…more

Automatic Renewals, Cancellation Rights, Consumer Contracts, Contract Terms, Subscription Services

John Cappel

Summer 2022 Automatic Renewal Law Update: Changes in California, Idaho, Tennessee, Florida and Virginia

The first half of 2022 saw significant activity affecting the state automatic renewal laws (ARLs) that regulate continuing or renewing contracts: • Lawsuits were filed against prominent companies such as Amazon and Google…more

Copyright Infringement, Intellectual Property Litigation, Intellectual Property Protection, Misappropriation, Trade Secrets

Rachel Cardwell

Under New York Law, Trade Secret Damages Must Reflect Plaintiff’s Actual Loss, Not Just Defendant’s Wrongful Gain

A recent trade secret case from New York highlights the importance of how damages are calculated and emphasizes the need to conform those damages calculations to the applicable standards in your jurisdiction. In Syntel…more

Customs and Border Protection, Government Shutdown, H-1B, Immigration Procedures, US Department of State

Beth Carlson

Federal Government Shutdown Would Affect Some Immigration Processing

With Congress deadlocked on passing needed budget legislation, it is looking increasingly likely that there will be a federal government shutdown at midnight on September 30, 2023. The shutdown will affect some federal agencies…more

Britt Teply Carlson

United States Supreme Court Hears Argument in Tyson Foods' FLSA Collective Action

On November 10, 2015, the United States Supreme Court heard argument in Tyson Foods v. Bouphakeo, a case that has the potential to reshape the contours of when employees may bring class claims against their employer. Tyson is a…more

Collective Actions, Doffing, Donning, Fair Labor Standards Act (FLSA), SCOTUS

Laura Carlson

Tax Refunds for Trusts With Minnesota Grantors? Minnesota Trust Income Tax Statute Ruled Unconstitutional

Certain irrevocable trusts created by Minnesota residents after 1995 may be able to claim income tax refunds as a result of the Minnesota Tax Court’s decision in Fielding v. Commissioner of Revenue, handed down on May 31,…more

Estate Planning, Grantors, Income Taxes, Trusts

Climate Change, Disclosure Requirements, Greenhouse Gas Emissions, Proposed Rules, Regulation S-K

Hamilton Carpenter

Proposed Climate Disclosure Rules for Public Companies

On March 21, 2022, the Securities and Exchange Commission (SEC) issued highly anticipated proposed rules that would require public companies to include climate-related disclosures in their annual reports and registration…more

Article III, Attorney's Fees, IP License, Judgment on the Pleadings, Patent Infringement

James Carpenter

Lack of Co-ownership for Terminally Disclaimed Patents May Doom a Lawsuit and Result in an Award of Attorneys’ Fees

Can lack of co-ownership for a terminally disclaimed patent render your otherwise well-founded infringement lawsuit baseless, requiring you to pay your adversary’s attorneys’ fees? At present, the answer may depend on the…more

William Carr

State AG Updates: Massachusetts, New York, District of Columbia, Connecticut and Multistate Settlements

In this edition of Faegre Drinker’s State Attorneys General Update, we discuss: • Google’s $391.5 million multistate settlement relating to its location tracking practices..…more

Child Labor, Google, Location Data, Nursing Homes, State Attorneys General

Joe Carrafiello

For In-House Counsel: 12 Questions to Ask When the Business Team Wants to Launch a Sweepstakes or Contest (Tomorrow)

We’ve seen this scenario (one too) many times before: the business/marketing team comes to the in-house legal team and wants to run a sweepstakes or contest to promote a brand or a new product line. Surprise! They are hoping to…more

Advertising, Brand, Contests & Promotions, In-House Perspective, Influencers

Consumer Fraud, Misrepresentation, NJ Supreme Court, Strict Product Liability

Daniel Carroll

Certain Express Misrepresentation Consumer Fraud Act Claims and Product Liability Claims May Coexist According to NJ Supreme Court

In the case on certification from the Third Circuit, the New Jersey Supreme Court ruled that claims for express or affirmative misrepresentations under New Jersey’s Consumer Fraud Act (NJCFA) may be brought simultaneously with…more

Department of Labor (DOL), Exempt-Employees, Fair Labor Standards Act (FLSA), Minimum Salary, Over-Time

Thomas Carroll

DOL Steps Back From Obama Overtime Rule but Defends Salary-Test Authority

The U.S. Department of Labor (DOL) will not defend the Obama-era salary test for certain exemptions from overtime-pay requirements under the Fair Labor Standards Act (FLSA), according to its June 30, 2017 briefing to the Fifth…more

Antitrust Provisions, Competition, Department of Justice (DOJ), Enforcement Actions, Federal Trade Commission (FTC)

Dylan Carson

With a Full Slate of Commissioners, the FTC Is Poised to Tackle the Chair’s Ambitious Antitrust Enforcement Agenda

With the May 16, 2022, confirmation of Commissioner Alvaro Bedoya, the Federal Trade Commission finally has a 3–2 Democratic majority and can move forward with Chair Lina Khan’s ambitious agenda. The Commission majority has…more

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

Amie Peele

As CCPA Pressure Heats Up, Here’s What Should Be on Your Summer To-Do List

The world has markedly changed since the California Consumer Privacy Act (CCPA) became effective on January 1, 2020. Under shelter-in-place orders and even amid gradual reopenings, many states have required businesses to slow or…more

Local Elections, Political Candidates, Primary Elections, State and Local Government, State Elections

Diane Masariu Carter

2018 Indiana Primary Election Preview

After a busy 2018 legislative session, the Indiana State Senate and House of Representatives are gearing up for the 2018 Indiana Primary Election. Half of the Senate and all of the House seats are up for election. The upcoming…more

Property Owners, Property Tax, Property Valuation, Tax Assessment

Elizabeth Carter

Commercial and Industrial Tax Assessments Jump Across Iowa: The Protest Window Closes May 1

Property tax assessments have sharply increased across Iowa, particularly for commercial and industrial property. One report in Polk County noted that “most commercial properties saw their valuations jump 18.9%.” That same…more

Best Practices, Coronavirus/COVID-19, Franchises, Franchisors, Infectious Diseases

Hannah Carter

Franchisor Best Practices for COVID-19 (Updated #2)

A Message Regarding Racial Inequality: Faegre Drinker is deeply affected by the disturbing and terrible events surrounding the senseless deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and Rayshard Brooks. While these…more

Elizabeth Casey

Supreme Court Decides DeVillier v. Texas

On April 16, 2024, the U.S. Supreme Court decided DeVillier v. Texas, No. 22-913, holding that owners of property north of U.S. Interstate Highway 10 adversely affected by the flood evacuation barrier constructed by Texas should…more

Fifth Amendment, Just Compensation, Property Owners, SCOTUS, Takings Clause

Christopher Casolaro

Florida Rule Change Permits Immediate Appeals on Punitive Damages

The Florida Supreme Court has accepted a proposed rule amendment to permit interlocutory appeals of court orders on punitive damages claims. On January 6, 2022, the Florida Supreme Court approved by 6-1 an amendment to Florida…more

Appeals, Damages, Proposed Amendments, Punitive Damages

Arbitration Agreements, Disclosure Requirements, Health Care Providers, Healthcare Costs, Healthcare Facilities

Julia Cassidy

Update on Federal and New Jersey Surprise Billing Legislation

The Consolidated Appropriations Act, 2021, signed by President Trump on December 27, 2020, included within its over 5,900 pages the controversial and long-debated No Surprises Act (the Act), addressing surprise medical bills…more

Cristina Castanier Kennedy

Florida Extends E-Verify Requirement to Private Employers

The Department of Homeland Security’s E-Verify program is a free web-based verification tool for employers to confirm newly hired employees’ work authorization in the United States. Although participation in E-Verify is…more

E-Verify, Foreign Workers, Form I-9, Immigrants, Immigration Procedures

M. Angella Castille

Congress’s Emerging Vision of an ‘Outbound Investment Screening Mechanism’

Ready or Not: Momentum Continues to Build in Washington for Outbound Investment Screening Mechanism - On May 9, 2023, a bipartisan group of U.S. House members introduced the National Critical Capabilities Defense Act of 2023…more

CFIUS, Foreign Investment, National Security, USTR

Brandee Caswell

Unfunded and Delayed Infrastructure Projects: Concerns for Landowners Facing Condemnation

Both Democrats and Republicans support a major infusion of funding into rebuilding the nation’s infrastructure. We’re not just talking about roads, bridges and highways — airports, the smart grid, water systems, electricity…more

Condemnation, Infrastructure, Land Owners, Property Owners

Barbora Cechova

English High Court Sets out Principles for COVID-19 Adjournments and Time Extensions

In a recent ruling of the English High Court, a judge has set out the principles which the English Courts should apply when considering applications to adjourn hearings and for extensions of time made against the background of…more

Adjournment, Coronavirus/COVID-19, Evidence, Time Extensions, UK

Americans with Disabilities Act (ADA), Artificial Intelligence, Department of Justice (DOJ), Disability Discrimination, Employer Liability Issues

Terran Chambers

EEOC, DOJ: Using AI Technology in Employment-Related Decisions May Violate ADA

Employers increasingly rely on computer-based tools to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing terms and conditions of employment. Automatic resume-screening…more

510(k) RTA, Food and Drug Administration (FDA), Manufacturers, Medical Devices, Pharmaceutical Industry

Isabelle Chammas

Top Five Drug and Device Developments of 2018

It’s that time of year again—the end of one and beginning of another—when we pause, reflect and look forward to the year ahead. In this retrospective, we consider the past year’s legal developments in the drug and medical device…more

Cybersecurity, Investment Adviser, Investment Advisers Act of 1940, Investment Company Act of 1940, Policies and Procedures

Heaven Chandler

SEC Proposes New Cybersecurity Risk Management Rules for Registered Investment Advisers, Registered Investment Companies and Business Development Companies

On February 9, 2022, the U.S. Securities and Exchange Commission (SEC) voted to propose cybersecurity rules applicable to investment advisers and registered investment companies, including business development companies. If…more

Chief Compliance Officers, Corporate Fines, Enforcement Actions, Financial Industry Regulatory Authority (FINRA), Investment Advisers Act of 1940

Christina Chapin

CCO Barred for Altering Reports to Mislead SEC Staff

Recently, the U.S. Securities and Exchange Commission (the “SEC”) charged a dually registered firm and its Chief Compliance Officer (“CCO”) with multiple violations of the Investment Advisers Act of 1940 (“Advisers Act”). The…more

Criminal Background Checks, Drug Testing, Job Applicants, Legislative Agendas, Medical Leave

Samantha Chapman

2017 Indiana Legislative Update: Employment Law Bills to Watch

The Indiana General Assembly returned for its 2017 session on January 3, 2017. While the budget is a central focus this year, there are many employment-related bills that have been introduced that could have a significant impact…more

Breach of Duty, Corporate Counsel, Employee Benefits, Employee Retirement Income Security Act (ERISA), ERISA Litigation

Elizabeth Charles

ERISA Litigation Roundup: Ninth Circuit Partially Reverses Dismissal of Two Proposed Class Actions

The U.S. Court of Appeals for the Ninth Circuit partially reversed the dismissal of two proposed class actions alleging mismanagement of separate 401(k) plans in violation of ERISA. In Davis v. Salesforce.com, Inc., 2022 WL…more

Construction Contracts, Construction Industry, Construction Project, Contractors, Coronavirus/COVID-19

Elizabeth Charnowski

Why Careful Payment Practices Are Important in Post-Pandemic Construction Projects

Construction project partners considering new projects in the post-COVID-19 market face some unfamiliar challenges, including challenges related to prompt payment. Escalating material costs, a still-constricted labor market and…more

Sophie Chau

Supreme Court Decides Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC

On February 21, 2024, the U.S. Supreme Court decided Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC, No. 22-500. The Court held that choice-of-law provisions in maritime contracts are presumptively enforceable under…more

Choice-of-Law, Fiduciary Duty, Insurance Industry, Public Policy, SCOTUS

Americans with Disabilities Act (ADA), Disability Discrimination, IDEA, Public Schools, SCOTUS

Jennifer Chawla

Supreme Court Decides Perez v. Sturgis Public Schools

On March 21, 2023, the Supreme Court decided Perez v. Sturgis Public Schools, No. 21-887, holding that the Individuals with Disabilities Education Act’s (IDEA) exhaustion requirement, 20 U.S.C. § 1415(l), does not preclude an…more

Jason Chen

China Releases New Regulation on Cross-Border Data Transfers

Six months after the release of the draft Provisions on Regulating and Facilitating Cross-Border Data Flow, the Cyberspace Administration of China (CAC) officially released the long-awaited finalized Provisions on Facilitating…more

China, Corporate Counsel, Cross-Border, Cybersecurity, Data Privacy

Stephen Chen

China Eases Retaliatory Tariffs on U.S. Imports and Purchases U.S. Agricultural Products

Since March 2020, the Chinese government has allowed Chinese companies to file exclusion applications for products currently subject to China’s retaliatory tariffs on U.S. imports. In the official announcement, there is…more

China, Imports, Retaliatory Tariffs, Tariffs, Trade Relations

Xinyi Chen

China Release New Draft Rules on Cross-Border Data Transfers

On September 28, 2023, China’s data protection and cybersecurity regulator — the Cyberspace Administration of China (CAC) — released the draft provisions on Regulating and Facilitating Cross-Border Data Flow (Draft Provisions)…more

China, Cybersecurity, Data Privacy, Data Protection, Data Security

Intellectual Property Protection, Misappropriation, Trade Secrets

Martin Chester

Fourth Circuit Holds a Trade Secret’s Value Must Not Merely Be Commercial, but Must Come From Its Secrecy

At a Glance - The Fourth Circuit’s decision in Synopsys, Inc. v. Risk Based Sec., Inc., No. 22-1812, 2023 WL 4009505 (4th Cir. June 15, 2023), highlights that trade-secret plaintiffs must prove that their secret information…more

Jackson Chi

China to Remove All Restrictions on Foreign Investment Access in the Manufacturing Sector

At the opening ceremony of the third Belt and Road Forum for International Cooperation on October 18, 2023, President Xi Jinping announced that China will remove all restrictions on foreign investment access in the manufacturing…more

China, Foreign Investment, Investors, Manufacturers

Biometric Information, Biometric Information Privacy Act, Data Collection, Data Privacy, Emerging Growth Companies

Russell Chibe

Biometric Data Privacy: Why Illinois Regulation Is Relevant to Manufacturers Nationwide

Our federal system and the often dysfunctional nature of Congress can be vexing for cutting-edge manufacturers. Emerging technologies are rarely addressed at the federal level, leaving states to pass piecemeal regulations that…more

Diversity, Diversity and Inclusion Standards (D&I), Employer Liability Issues, Employment Discrimination, SCOTUS

A. Scott Chinn

Life After Students for Fair Admissions: Dissecting Challenges to Employers’ Diversity Programs | Publications | Insights

In our recent post, we discussed seven steps organizations may consider when evaluating potential legal challenges to their diversity, equity and inclusion (DE&I) policies and programs following the Supreme Court’s Students for…more

Maria Cho

Silver Linings: COVID-Response Law Offers Expanded Preference Protections

Creditors face unanticipated risks when customers file for bankruptcy protection. One such risk is “preference liability,” where the bankruptcy estate seeks to claw-back payments made to a creditor within the 90-day period…more

Bankruptcy Code, Creditors, Debtors, Section 547

Biotechnology, Obviousness, Patent Examinations, Patents, Pharmaceutical Patents

Tyler Cho

3 Areas of Renewed Interest for Biotechnology, Chemical and Pharmaceutical Patents

The United States Patent & Trademark Office (USPTO) has renewed its interest in obviousness, functional claiming and requests for information, especially for biotechnology, chemical and pharmaceutical patents. The USPTO outlined…more

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

Emily Chow

New HSR Act Size-of-Transaction Increasing to $119.5 Million; Filing Fee Increases Going Into Effect Soon

On January 22, 2024, the Federal Trade Commission (FTC) published its adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The FTC revises the HSR Act thresholds…more

Elizabeth Camille Christen

Online Retailers Beware: Texas Supreme Court to Consider Whether Amazon Is a “Seller” - Faegre Drinker on Products

The Texas Supreme Court is set to determine whether Amazon can be considered a “seller,” and thus held liable, for a defective product sold through its website, in the case of McMillan v. Amazon.com, Inc., No. 20-20108, 2020 WL…more

Amazon, Appeals, CA Supreme Court, Coronavirus/COVID-19, Distributors

Capital Gains, Community Development, Economic Development, Investment Funds, IRS

Angela Christy

Is Your Investment Eligible for Opportunity Zone Funding?

The 2017 Tax Cuts and Jobs Act provides tax incentives for investments in “Opportunity Zones,” in an effort to promote economic development in selected communities. Investors can reduce by up to 15 percent taxes on existing…more

Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board, Patents, Post-Grant Review, Sovereign Immunity

Doowon Chung

Sovereign Immunity and Inter Partes Review: Protection From Post-Grant Proceedings for Universities and Affiliated Entities?

Since its inception in 2012, the Patent Trial and Appeal Board (PTAB) has invalidated a slew of patents in inter partes review (IPR), leading some to characterize the nascent body as the “patent death squad.” As such, patentees’…more

FEMA, Flood Insurance, Insurance Industry, National Flood Insurance Program, Property Damage

Adrian Ciacci

National Flood Insurance Program: 2023 Refresher and Updates

As we enter the last quarter of a year that saw historic flooding across the country, including most recently in New York City, it is a good time to review the National Flood Insurance Program (NFIP) and highlight a few recent…more

Jo Cicchetti

Insurance Industry: Mid-2023 Privacy and Data Security Updates

The first half of 2023 saw a flurry of activity in the privacy and data security spaces. We outline below some of the key developments of interest to the insurance industry…more

Cybersecurity, Data Privacy, Data Protection, Data Security, Insurance Industry

Local Elections, Political Candidates, Primary Elections, State and Local Government, State Elections

Elizabeth Kelley Cierzniak

2018 Indiana Primary Election Preview

After a busy 2018 legislative session, the Indiana State Senate and House of Representatives are gearing up for the 2018 Indiana Primary Election. Half of the Senate and all of the House seats are up for election. The upcoming…more

Local Elections, Political Candidates, Primary Elections, State and Local Government, State Elections

J. Murray Clark

2018 Indiana Primary Election Preview

After a busy 2018 legislative session, the Indiana State Senate and House of Representatives are gearing up for the 2018 Indiana Primary Election. Half of the Senate and all of the House seats are up for election. The upcoming…more

Constitutional Challenges, Consumer Financial Protection Bureau (CFPB), Dodd-Frank, Removal For-Cause, Reversal

Matthew Clark

Supreme Court Decides Seila Law LLC v. Consumer Financial Protection Bureau

On June 29, 2020, the U.S. Supreme Court decided Seila Law LLC v. Consumer Financial Protection Bureau, holding that the director of the Consumer Financial Protection Bureau (CFPB) must be removable at will by the…more

Anti-Money Laundering, Beneficial Owner, Corporate Transparency Act, FinCEN, Reporting Requirements

William Clark Jr.

Corporate Transparency Act: Congress Ensnares Small Business in the Fight Against Money Laundering

Every small business will be required to identify its beneficial owners to the U.S. Treasury under recently enacted federal legislation intended to crack down on the abuse of shell companies. The purpose of the new law is stop…more

Consumer Protection Laws, Domain Names, Email, FBI, Federal Trade Commission (FTC)

Olivia Clavio

Make your Company a Hard Target for Job Scams

Your company’s talent is its lifeblood. Job postings for qualified individuals and other recruitment activities are vital to its operations. What happens, then, when scammers disrupt your business by conducting phishing schemes…more

Age Discrimination, Criminal Background Checks, Disability Discrimination, Employer Liability Issues, Employment Discrimination

E. Meaghan Clayton

State & Local Employment Law Developments: Q1 2021

The year 2021 continues the trend of increasing regulation of the workplace by state and local governments. Although it is not possible to discuss all state and local laws, this update provides an overview of recent and upcoming…more

Commercial General Liability Policies, Indemnification, Insurance Industry, Policy Terms

Brian Clifford

What to Consider When Negotiating Indemnification Provisions

Indemnification provisions are common in many contracts. At first glance, these provisions can all appear to be roughly the same. But hidden in a “standard” indemnification term can be language that shifts unreasonable amounts…more

Breach Notification Rule, Cybersecurity, Data Breach, Data Security, Insurance Industry

Shaun Healy Clifford

‘Tis the Season . . . for Insurance Model Laws

They seem to come earlier every year, don’t they? Grab your seasonally spiced latte and huddle around the bonfire to read the final version of the Insurance Data Security Model Law (Data Security Model) adopted by the National…more

Corporate Counsel, Employee Mobility, Employees, Employer Liability Issues, Employment Contract

Raphael Coburn

Top Noncompete Developments of 2022

2022 was a relatively quiet year in terms of noncompete developments. However, both state legislatures and courts continued to take steps to narrow the circumstances under which noncompetition and employee non-solicitation…more

Appeals, Breach of Duty, Fiduciary Duty, Limited Liability Company (LLC)

Michael Cockson

Indiana Court of Appeals Affirms Defense Judgment in LLC Members' Claim for Breach of Fiduciary Duty

In Jarboe v. Moore, two LLC members sued each other for alleged breaches of fiduciary duties and fraud. The members tried their cases to a judge, who denied relief to both sides. The Indiana Court of Appeals affirmed and…more

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

Richard Coe

Defenses to Breach of Contract Claims Arising From COVID-19 Business Disruptions in Pennsylvania

There is no question that, in addition to creating an unprecedented health crisis, the COVID-19 pandemic has severely disrupted commerce in the United States and globally. In Pennsylvania, Governor Tom Wolf ordered all…more

28 U.S.C. § 1782, Arbitration, Discovery, Foreign Jurisdictions, Foreign Tribunals

Kelvin Dionel Collado

Supreme Court Decides ZF Automotive US, Inc. v. Luxshare, Ltd.

On June 13, 2022, the U.S. Supreme Court decided ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21-401, holding that Section 1782 requires a “foreign or international tribunal” to be governmental or intergovernmental in nature,…more

Estate Planning, Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax

Susan Collings

Use It or Lose It? Plan Now for a Potential Reduction in Estate, Gift and GST Tax Exemptions

The federal government taxes the transfer of assets via three separate but interrelated taxes: the estate tax, which taxes the transfer of assets at death, the gift tax, which taxes gratuitous transfers during your lifetime, and…more

CFTC, Department of Justice (DOJ), Enforcement Actions, Internal Investigations, Securities and Exchange Commission (SEC)

Dan Collins

Watershed White Collar Decision? Assessing the Impact of U.S. v. Connolly One Year Later

A year ago, the talk of the white collar bar was the decision in United States v. Connolly, 2019 WL 2120523 (S.D.N.Y.). Presiding over the case in the Southern District of New York on May 2, 2019, Judge Colleen McMahon’s…more

Canada, Content Publishing, Digital Service Providers, International Labor Laws, Internet

Erika Collins

Canada’s Online Harms Act Aimed to Address Harmful Online Content

Earlier this week, Canada introduced Bill C-63, also referred to as the Online Harms Act (the “Act”), which would require online content providers to act responsibly with regard to the platforms they operate and to remove…more

Rory Collins

Federal Court Strikes Down NLRB’s New Joint Employer Rule, Leaving 2020 Rule in Place for Now

On March 8, 2024, a federal district court in Texas vacated the National Labor Relations Board’s 2023 joint employer rule. The 2023 rule, which was set to take effect on March 11, would have expanded the joint employer test to…more

Collective Bargaining, Employer Liability Issues, Joint Employers, NLRB, Unions

Amy Comer

Two Months On: EU & U.K. Continue Expanding Russia Sanctions

Two months into Russia’s invasion of Ukraine, the EU and the U.K. have continued to expand their Russia sanctions programs. Here we summarise the measures introduced since our previous update and we overview where the EU and…more

Asset Freeze, Economic Sanctions, EU, Exports, Foreign Policy

EFTA, EU, European Economic Area (EEA), European Patent Office, European Union Trade Mark (EUTM)

Theodore Cominos Jr.

Brexit: What to Expect and How to Prepare for the ‘New Normal'

The U.K. has voted, in a popular referendum, to leave the EU. The referendum is not legally binding and the result was extremely narrow: 51.9 percent in favor of leaving, 48.1 percent in favor of remaining. This partly reflected…more

403(b) Plans, 501(c)(3), Benefit Plan Sponsors, Determination Letter, Employee Benefits

Summer Conley

New Kids on the Block: IRS Creates Determination Letter Program for Individually Designed 403(b) Plans

The Internal Revenue Service (IRS) has announced that beginning June 1, 2023, it will accept determination letter applications for individually designed 403(b) retirement plans. As background, 403(b) plans are a distinct type of…more

Health Care Providers, Kickbacks, Opioid, Pharmaceutical Industry, Prescription Drugs

Colleen Conners

Cracking Down on Opioid Opportunists

The opioid epidemic is causing a rise in the number of treatment centers and recovery residences that offer services for people with substance use disorder (SUD). SUD treatment and recovery entities are less regulated than other…more

Anti-Dumping Duty, Countervailing Duties, Importers, Imports, International Trade Commission (ITC)

Carolyn Bethea Connolly

New Antidumping Duty and Countervailing Duty Petitions on High Chrome Cast Iron Grinding Media From India

On April 26, 2024, antidumping duty (AD) and countervailing duty (CVD) petitions were filed on high chrome cast iron grinding media from India. The petitioner is Magotteaux Inc. (Petitioner)…more

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

Eileen Considine

The CARES Act: Relief for Health Care Providers

The $2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law on March 27, 2020, contains significant relief to assist health care providers faced with the double burden of an onslaught of COVID-19…more

Amended Regulation, Choice of Entity, Ireland, Privately Held Corporations

Frankie Cooke

New Irish Companies Act 2014 Brings Changes to Private Irish Companies in June 2015

On 1 June 2015, Ireland’s new Companies Act 2014 (Act) will come into effect. The Act repeals and consolidates a total of 32 existing enactments relating to Irish company law into a single statute. It represents the largest…more

Arbitration, Arbitration Agreements, Federal Arbitration Act, Labor Law Violations, Preemption

Ryan Cooney

Supreme Court Decides Viking River Cruises, Inc. v. Moriana

On June 15, 2022, the U.S. Supreme Court decided Viking River Cruises, Inc. v. Moriana, No. 20-1573, holding that the Federal Arbitration Act (FAA) preempts a rule of California law insofar as it precludes agreeing to arbitrate…more

Marcelo Copat

Supreme Court Decides SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC

On March 21, 2017, the Supreme Court of the United States decided SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, No. 15-927, holding that a defendant cannot invoke laches against a damages claim asserted…more

Laches, Patent Infringement, Patent Litigation, Patents, USPTO

Jessica Cordero

Regulatory Actions Impacting Health Insurers and Managed Care Companies in Response to COVID-19

As health insurers and managed care companies work to serve their patient communities during the COVID-19 pandemic, they must also track and adapt to a multitude of new state and federal COVID-19-related regulatory actions…more

Coronavirus/COVID-19, Cost-Sharing, Deductibles, HDHPs, Health Insurance

Coronavirus/COVID-19, Corporate Governance, Corporate Insolvency and Governance (CIG) Act 2020, Insolvency, Moratorium

Patrick Corr

Key Takeaways From the Corporate Insolvency and Governance Act 2020: The Standalone Moratorium

On 26 June 2020 the Corporate Insolvency and Governance Act 2020 (the Act) came into force, introducing a number of permanent reforms to English insolvency and restructuring law. Among these reforms is a standalone moratorium…more

Corporate Governance, Corporate Insolvency and Governance (CIG) Act 2020, Insolvency, Ipso Facto Clauses

Raphaela Cotoulas

Key Takeaways From the Corporate Insolvency and Governance Act 2020: Restriction on Ipso Facto Clauses

On 26 June 2020 the Corporate Insolvency and Governance Act 2020 (the Act) came into force, introducing a number of permanent reforms to English insolvency and restructuring law. Among these reforms is a restriction on the…more

Enforcement Actions, Investment Adviser, Investment Advisers Act of 1940, Investment Funds, Securities and Exchange Commission (SEC)

Kiara Covarrubias

Key Takeaways: 2023 Annual Rocky Mountain Fund Advisers Summit

On October 5, 2023, Faegre Drinker, PINE Advisor Solutions and RSM (US) LLP (RSM) co-hosted the annual Rocky Mountain Fund Advisers Summit (the Summit) in Denver. Interactive panels of industry specialists discussed recent…more

Consumer Product Companies, Cosmetics, Hazardous Substances, Personal Care Products, PFAS

Jessica Benson Cox

PFAS in Cosmetics Continue to Draw Attention as Litigation and Legislation Efforts Mount

In June 2021, we published Cosmetics Companies: Beware of PFAS, highlighting the recently introduced No PFAS In Cosmetics Act and recommending that cosmetics and personal-care product companies examine their products and supply…more

Contract Terms, Employment Contract, Federal Trade Commission (FTC), Non-Compete Agreements, Proposed Rules

Karli Cozen

FTC Seeks Feedback on Proposed Rule on Use of Non-Competition Agreements

The Federal Trade Commission (FTC) recently announced that it will host a virtual public forum on Thursday, February 16, 2023, from noon to 3 p.m. ET to elicit reaction to the FTC’s proposed rule on the use of non-competition…more

Corporate Governance, Corporate Insolvency and Governance (CIG) Act 2020, Insolvency, Ipso Facto Clauses

Katie Crispi

Key Takeaways From the Corporate Insolvency and Governance Act 2020: Restriction on Ipso Facto Clauses

On 26 June 2020 the Corporate Insolvency and Governance Act 2020 (the Act) came into force, introducing a number of permanent reforms to English insolvency and restructuring law. Among these reforms is a restriction on the…more

Jennifer Criss, Ph. D.

Supreme Court Decides Google LLC v. Oracle America, Inc.

On April 5, 2021, the U.S. Supreme Court decided Google LLC v. Oracle America, Inc., holding that Google’s copying of a portion of an Application Programming Interface (API) for Java SE, in which Oracle was presumed to have a…more

Copyright, Copyright Infringement, Copyright Litigation, Fair Use, Google

Dietary Supplements, Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA), Medical Devices, Mobile Health Apps

Patrick Cross

Christmas in July for Wellness Apps and Devices

The Food and Drug Administration (FDA) released a final guidance on July 29, 2016, saying that it does not plan to require pre-market review for low-risk "general wellness products," such as wearable fitness monitors, pedometers…more

401k, Benefit Plan Sponsors, Breach of Duty, Employee Benefits, Employee Retirement Income Security Act (ERISA)

James Crossen

Another 401(k) Plan Fiduciary Defeats Breach of Fiduciary Duty Claims at Trial

Following a bench trial in a Pennsylvania federal district court in Nunez v. B. Braun Medical, Inc., 401(k) plan fiduciaries defeated a lawsuit alleging that the fiduciaries imprudently managed and paid excessive recordkeeping…more

Administrative Appointments, Enforcement Authority, Gary Gensler, Securities and Exchange Commission (SEC)

Michael Crosson

Chair Gensler Appoints NJ AG SEC Enforcement Director

On Tuesday, the U.S. Securities and Exchange Commission (“SEC”) announced that Gurbir Grewal will be the Director of the Division of Enforcement, effective July 26, 2021. Grewal has been the Attorney General of New Jersey since…more

Coronavirus/COVID-19, FEMA, Public Assistance, State of Emergency, Trump Administration

Lisa Crum

Understanding COVID-19 Public Assistance Funds

On March 13, 2020, President Trump declared that the ongoing COVID-19 pandemic warranted an emergency declaration for all states, tribes, territories and the District of Columbia pursuant to the Stafford Act. This declaration…more

Christopher Cullen

NIST Releases New Draft of Artificial Intelligence Risk Management Framework for Comment

The National Institute of Standards and Technology (NIST) has released the second draft of its Artificial Intelligence (AI) Risk Management Framework (RMF) for comment. Comments are due by September 29, 2022. NIST, part of…more

Artificial Intelligence, Cybersecurity, Data Protection, NIST, NYDFS

Jodie Curtis

USTR Outlines the Biden Administration’s ‘New Approach’ to the U.S.-China Trade Relationship

On October 4, 2021, United States Trade Representative (USTR) Katherine Tai unveiled the contours of the Biden administration’s long-awaited trade policy with respect to China. As hoped for among many in the U.S. business…more

Biden Administration, China, Section 301, Tariffs, Trade Relations

Sinead Cuthill

Invasion of Ukraine and Related Sanctions: The Impact on Commercial Litigation in England

In our recent update Assessing the LCIA’s 2021 Annual Casework Report we reported that there had been a dip in the number of cases referred to international arbitration institutions in 2021. Further, the London Court of…more

Economic Sanctions, Foreign Policy, Russia, UK, Ukraine

Collective Bargaining Agreements (CBA), Coronavirus/COVID-19, Employer Liability Issues, Employer Responsibilities, NLRA

Gregory Dale

Question & Answer Employer Guide: Return to Work in the Time of COVID-19 (Updated)

As government authorities look to implement business reopening measures, employers are now planning to move employees back into the workplace as state and local stay-at-home orders expire and other COVID-19 business restrictions…more

Michael Daly

FTSA Litigation Trends: Federal and State Courts Diverge on Retroactivity

At a Glance - - HB 761 amended the FTSA, requiring a 15-day notice-and-cure period before a plaintiff can sue for damages from text message solicitations. - HB 761 also stated that it should be applied retroactively to…more

Class Certification, Florida, Governor DeSantis, New Legislation, Retroactivity

Biometric Information, Biometric Information Privacy Act, Data Collection, Data Privacy, Employer Liability Issues

Emily Damman

How Collecting Fingerprints Could Cost Your Company: Biometric Laws on the Rise

Corporations in Illinois, Texas and Washington could be subject to extensive monetary damages if they collect any biometric identifier, including fingerprints or voice scans. Businesses should carefully comply with privacy laws…more

Class Action, Environmental Protection Agency (EPA), Food and Drug Administration (FDA), Human Genome Project, Life Sciences

Frances Daniels

5 Major Drug and Medical Device Developments in 2023

A popular New Year’s trend is to say “goodbye” to all the things that didn’t serve you in 2023, as you usher in new intentions and habits for 2024. Although there were many great trial outcomes and continuing scientific wins in…more

Rachel Dansky

Conflicting Decisions Illustrate Uncertainty as to Whether TCPA Extends to Text Messages

Two recent District Court opinions highlight an ongoing dispute as to whether the TCPA and its implementing regulations should apply to mobile (cellular) phones and text messages received thereon, as opposed to the more limited…more

Cell Phones, Do Not Call List, FCC, Mobile Devices, TCPA

Breach of Contract, Choice-of-Law, Mortgages, Statute of Limitations

Kyle Darch

New York Federal Court Concludes That Choice-of-Law Clause Does Not Control Application of the Statute of Limitations

A New York federal court ruled that a pooling and servicing agreement (PSA) and mortgage loan purchase agreement (MLPA) that select New York as their governing law may not require application of New York’s statute of limitations…more

Criminal Convictions, Disestablishment, Federal Jurisdiction, Federal v State Law Application, Fee Simple

Bethany Davidson

Creek Nation Affirmed: Supreme Court Maintains Congress Must Clearly Express Intent to Disestablish a Reservation

On July 9, 2020, the U.S. Supreme Court held in McGirt v. Oklahoma, No. 18-9526, that the Creek Nation’s reservation in northeastern Oklahoma has never been disestablished. The decision resolves not only McGirt, but its…more

Cyber Insurance, Cybersecurity, Departments of Commerce, Financial Stability Board, Framework Agreement

Thomas Dawson

International Capital Standard, Holistic Framework, Cyber Insurance Highlight NAIC International Insurance Forum in D.C

On May 13-14, 2019, the National Association of Insurance Commissioners (NAIC) hosted its annual International Insurance Forum in Washington, D.C. Highlights of the event included remarks from U.S. Department of the Treasury…more

Intellectual Property Protection, Trademark Application, Trademark Infringement, Trademark Registration, Trademarks

Jennifer Dean

Trademark Toolkit for In-House Counsel: “Can We Trademark This?”

Most in-house counsel periodically encounter branding questions — and the business team wants answers … yesterday! To give you a head start, this article discusses a key branding question that companies frequently face and…more

Tore Thomas DeBella

For In-House Counsel: 12 Questions to Ask When the Business Team Wants to Launch a Sweepstakes or Contest (Tomorrow)

We’ve seen this scenario (one too) many times before: the business/marketing team comes to the in-house legal team and wants to run a sweepstakes or contest to promote a brand or a new product line. Surprise! They are hoping to…more

Advertising, Brand, Contests & Promotions, In-House Perspective, Influencers

Employer Liability Issues, Employment Contract, Non-Compete Agreements, Restrictive Covenants, State Labor Laws

Lawrence Del Rossi

New York Legislature Agrees to Ban Noncompete Agreements

New York is poised to become the fifth state in the nation to impose a complete ban on employment-related noncompete agreements, joining California, Oklahoma, North Dakota, and most recently, Minnesota. On June 20, 2023,…more

Acquisitions, Competition, Department of Justice (DOJ), Horizontal Merger Guidelines, Mergers

Daniel Delaney

Final Merger Guidelines Will Result in Increased Scrutiny for M&A Deals

On December 18, 2023, the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) jointly announced the issuance of the final version of new Merger Guidelines, after publishing a draft in July 2023. We previously…more

Bureau of Industry and Security (BIS), Criminal Prosecution, Department of Justice (DOJ), Export Administration Regulations (EAR), Export Controls

Carrie Elizabeth DeLange

Return to Sender: New DOJ/Commerce Strike Force Aims to Broaden Export Control Enforcement and Prosecutions

On February 16, 2023, the U.S. Department of Justice (DOJ) and the U.S. Department of Commerce announced the creation of the “Disruptive Technology Strike Force” — a multi-agency, multi-geographical effort to ratchet up the…more

Biden Administration, Documentation, Enforcement Actions, Investigations, Obama Administration

Natalie DeLave

SEC Enforcement Restores Subpoena Power

The U.S. Securities and Exchange Commission (SEC) has restored the authority of senior Division of Enforcement (Enforcement) officials to initiate investigations, which had been revoked during the Trump administration. On…more

Summary Judgment, TCPA, Unsolicited Advertisements, Unsolicited Faxes

Kevin DeMaio

Eighth Circuit Affirms Summary Judgment, Finding that Fax was not “Unsolicited Advertisement”

The Eighth Circuit in BPP v. CaremarkPCS Health, L.L.C., 2022 WL 16955461 (8th Cir. 2022), recently affirmed a district court’s decision to grant summary judgment because the fax at issue was not an “unsolicited advertisement”…more

Martin Demoret

Texas Supreme Court Refocuses on Causation and Affirms Summary Judgment in Herbicide Drift Case

The question of whether a particular application of herbicide on one property caused damage on another’s property requires expert testimony. When a plaintiff claims that herbicide drift caused reduced crop yields, it is not…more

Causation, Daubert Standards, Expert Testimony, Herbicides, Pesticides

Antitrust Division, Antitrust Violations, Bid Rigging, Criminal Antitrust Litigation, Department of Justice (DOJ)

Laurence DeMuth, III

DOJ Antitrust Division Secures $8.5 Million in Bid-Rigging Penalties From Engineering Firm on Highway Water Projects

The U.S. Department of Justice’s Procurement Collusion Strike Force has struck again. Launched in November 2019, PCSF is a multi-agency task force led by DOJ’s Antitrust Division and designed to combat antitrust crimes and…more

Dustin DeNeal

One Step Forward, One Step Back? Reyes's Impact on TCPA Claims

Courts continue to chip away at the reach of the Telephone Consumer Protection Act (TCPA). In Reyes v. Lincoln Automotive Financial Services, the Second Circuit recently held that consumers cannot revoke consent to receive…more

Consent, Contract Terms, Revocation, TCPA

Corporate Counsel, Employee Retirement Income Security Act (ERISA), Investment Management, Joint and Several Liability, Partnership-in-Fact

David Denious

First Circuit Hands Down Significant Private Equity Ruling in Sun Capital Litigation

In an important decision, the U.S. First Circuit Court of Appeals recently ruled that two separate but related private equity funds – Sun Capital Partners III and Sun Capital Partners IV – are not jointly and severally liable…more

Corporate Counsel, Employer Liability Issues, Hiring & Firing, International Labor Laws, Non-Compete Agreements

Alex Denny

UK Employment Law Update: Family Acts, UK Government Legislative Proposals and Recent Case Developments

At a Glance - The UK government has passed three family-related Acts that employers should be aware of: the Neonatal Care Act; the Protection from Redundancy Act; and the Carer’s Leave Act…more

Construction Contracts, Construction Industry, Construction Project, Contractors, Coronavirus/COVID-19

Karen Denys

Construction Contracting and COVID-19: Negotiating in Uncertain Times

Determining what is foreseeable when embarking on a new construction project can be difficult, especially during a worldwide pandemic. Events that once seemed unfathomable may actually now be considered foreseeable. Since early…more

Carbon Capture and Sequestration, Greenhouse Gas Emissions, Inflation Reduction Act (IRA), Internal Revenue Code (IRC), IRS

Jason Deppen

IRS Releases Proposed Regulation to Section 45V of Internal Revenue Code

In connection with the Inflation Reduction Act (IRA), on December 22, 2023, the Internal Revenue Service (IRS) released a Proposed Regulation related to Section 45V of the Internal Revenue Code. The Proposed Regulation,…more

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

Joshua Deringer

SEC Adopts Amendments to Share Repurchase Disclosure Rules, Including for Listed Closed-End Funds

In a three-to-two vote at an open meeting held on May 3, 2023, the U.S. Securities and Exchange Commission (SEC) adopted amendments (Share Repurchase Disclosure Amendments) to the existing share repurchase disclosure…more

Affordable Care Act, Centers for Medicare & Medicaid Services (CMS), Medical Loss Ratio, Risk Corridors Statute

Jonathan Dettmann

CMS Proposes Reopening MLR Filings to Account for Risk Corridor Payouts

The Centers for Medicare & Medicaid Services (CMS) has issued guidance on how health insurers must report and rebate recoveries obtained from the federal government under the Supreme Court’s 8-1 decision in Maine Community…more

Antitrust Division, Collaboration, Competition, Coronavirus/COVID-19, Department of Justice (DOJ)

Andrew Dettmer

DOJ Provides Further Guidance to Competitor Collaborations Related to COVID-19 Response

In response to the COVID-19 pandemic, the Antitrust Division of the Department of Justice (DOJ) committed to issuing expedited “Business Review Letters” (BRLs) to provide requested guidance concerning permissible types of…more

Scarlett Diamond

Brexit Update: U.K. Prime Minister’s Decision to Prorogue Parliament Unlawful

Background - The exit of the United Kingdom from the European Union is heading towards another periodic climax with the exit date currently set for 31 October 2019. The U.K. Supreme Court today held that the Prime Minister’s…more

Article 50 Treaty of the EU, EU, Prime Minister, UK, UK Brexit

Choice-of-Law, Contract Terms, Coronavirus/COVID-19, Force Majeure Clause

Allen Dickey

Checklist for Issuing and Responding to Force Majeure Notices in Real Estate Contracts and Loan Agreements

COVID-19 is occasioning executive orders, regulations and other statutes enacting business restrictions, closures and shelter-in-place lockdowns. Consequently, many businesses are sending notices to selected counterparties…more

Rikke Dierssen-Morice

Don't WannaCry? Then You Better Prepare: Advice for Legal and Compliance Leaders in the Wake of a Global Cyberattack

In the aftermath of the WannaCry ransomware attack, all organizations should take the opportunity to examine their cybersecurity protocols with an eye for optimizing practices and mitigating risks. We've outlined action items…more

Cyber Attacks, Cyber Crimes, Cybersecurity, Hackers, Malware

Amended Rules, Disclosure Requirements, Financial Statements, Publicly-Traded Companies, Regulation S-K

Ryan Dieter

SEC’s Modernization and Simplification Efforts Continue: Changes Coming to Disclosures for Acquisitions and Dispositions by Public Companies

The efforts of the U.S. Securities and Exchange Commission (SEC) to modernize and simplify public company disclosure rules continue, with the latest round of changes including a final order adopted on May 21, 2020 addressing…more

Corporate Counsel, Corporate Governance, Environmental Social & Governance (ESG), EU, Reporting Requirements

Elizabeth Diffley

EU Sustainability Reporting Legislation Ramps Up

With U.S. companies facing increased scrutiny of their environmental, social and governance (ESG) efforts and reporting, European Union (EU) incorporated companies — and companies incorporated outside the EU with operations in…more

Francis DiGiovanni

The Restoration of (Bad) Faith: The Proper Standard for a Factual Finding of Willful Infringement

Enhanced Damages Under the Patent Act - The Patent Act provides that once infringement has been established, a district court may “increase the damages up to three times the amount found or assessed.” 35 U.S.C. § 284. The…more

35 U.S.C. § 284, Attorney's Fees, Cisco, Damages, Enhanced Damages

Advertising, Endorsements, Enforcement Actions, Fake Reviews, Federal Trade Commission (FTC)

Melissa Dillenbeck

Under Review: The FTC’s Focus on the Fakes

You are thinking about buying a new laptop, or you want to try a new restaurant that’s been open a few months, so what do you do first? You check the online reviews, of course. Most consumers rely heavily on online reviews to…more

Robert Dillon

3 Estate and Gift Planning Tips During Uncertain Times

As the COVID-19 pandemic changes financial and life circumstances, here are three estate and gift planning ideas that individuals might want to consider during these uncertain times…more

Estate Planning, Gift Tax, Income Taxes, Tax Planning

Final Rules, Form N-CEN, Investment Company Act of 1940, Securities and Exchange Commission (SEC)

Catherine DiValentino

SEC Adopts Final Fund of Funds Rule

Rule 12d1-4 - In October 2020, the Securities and Exchange Commission (SEC) adopted Rule 12d1-4 (final rule) and other amendments under the Investment Company Act of 1940, as amended (1940 Act), which allows funds (acquiring…more

Internet Retailers, Overstock.com, Sales & Use Tax

Francina Dlouhy

South Dakota Takes Action Against Out-of-State Sellers

On Thursday, April 28, 2016, South Dakota filed a lawsuit against Wayfair Inc., Overstock.com Inc., Newegg Inc. and Systemax Inc. — all large, online retailers — to enforce its new law, Senate Bill 106, imposing sales tax…more

Centers for Medicare & Medicaid Services (CMS), Health Insurance, Medicare, Medicare Advantage

Aaron Dobosenski

An Early Look at 2021 Medicare Advantage Benefits: Part II

Medicare Advantage (MA) is the private plan option in the Medicare program. Enrollment in the program has grown nearly 10% a year in recent years and now tops 25 million. More than one-third of Medicare beneficiaries (people…more

Emily Dodane

Talc Targeted: Personal Care Products Latest Subject of Product Liability Litigation

Asbestos litigation has been around for nearly a century — but in a new twist, personal care products are becoming the latest targets of these actions. Lawsuits against makers of products containing talcum or magnesium silicate…more

Cosmetics, Damages, Mesothelioma, Personal Care Products, Toxic Exposure

Algorithms, Artificial Intelligence, Insurance Industry, Machine Learning, Popular

Luke Dodge

Insurers’ Use of Artificial Intelligence: Opportunities and Challenges

Like most financial services industries, insurance companies and regulators have in recent years increasingly utilized algorithms, machine learning and artificial intelligence in their day-to-day operations. Indeed, a 2019 study…more

Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board, Patents, Post-Grant Review, Sovereign Immunity

Reid Dodge

Sovereign Immunity and Inter Partes Review: Protection From Post-Grant Proceedings for Universities and Affiliated Entities?

Since its inception in 2012, the Patent Trial and Appeal Board (PTAB) has invalidated a slew of patents in inter partes review (IPR), leading some to characterize the nascent body as the “patent death squad.” As such, patentees’…more

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

Christopher Dolan

EPA Proposes First Hazardous Substance Designation for Two PFAS Chemicals

The Environmental Protection Agency (EPA) is kicking off 2022 — a year expected to be particularly active for the regulation of per- and poly-fluoroalkyl substances (PFAS) — by moving forward with one of the agency’s keystone…more

Estate Planning, Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax

Daniel Donovan

The 2020 Election and the Effect on Current Gift, Estate and Generation-Skipping Transfer Taxes

Based on recent election results, attention has focused on what is in store for the federal transfer tax system. This article discusses the status of the current transfer tax laws and President Biden’s proposals for changes. We…more

Construction Contracts, Construction Industry, Contractors, Mechanics Lien

Shawn Doorhy

Illinois Appellate Decision Highlights Importance of Enforcing Mechanics Liens Against All ‘Known’ Necessary Parties

On March 26, 2021, the Illinois Appellate Court issued an opinion affirming dismissal, with prejudice, of a contractor’s mechanics lien enforcement action. The decision highlights the importance of strict adherence to the…more

Employer Liability Issues, Employment Contract, Non-Compete Agreements, Restrictive Covenants, State Labor Laws

Daniel Dorson

New York Legislature Agrees to Ban Noncompete Agreements

New York is poised to become the fifth state in the nation to impose a complete ban on employment-related noncompete agreements, joining California, Oklahoma, North Dakota, and most recently, Minnesota. On June 20, 2023,…more

Cyber Attacks, Cybersecurity, Denial of Service Attacks, Distributed Denial of Service, Popular

Kenneth Dort

Capping Cyber Casualties: Steps to Avoid Cyberattacks Flowing From Hostilities in Ukraine

The televised “thud” of explosions in Ukraine has an ominous but deceptively distant tone. For many organizations the hostilities are closer at hand, in the form of cyberattacks that could spread beyond the Russian-Ukrainian…more

Banking Sector, Banks, Financial Institutions, Money Transfer

Michael Doty

Banks Urged to Create Payment Notice Standards After $900M Transfer Error

The Federal District Court for the Southern District of New York provided guidance to banks regarding payment notices in the case of In re Citibank August 11, 2020 Wire Transfers after Citibank erroneously transferred over $900…more

Agricultural Workers, Cedar Point Nursery v Hassid, Farm Workers, Farms, Fifth Amendment

Sarah Doty

Supreme Court Decides Cedar Point Nursery et al. v. Hassid et al.

On June 23, 2021, the U.S. Supreme Court decided Cedar Point Nursery et al. v. Hassid et al., holding that a California regulation that granted labor organizations a right to take access to an agricultural employer’s property to…more

Agricultural Sector, Farms, Liens, Uniform Commercial Code (UCC)

Colin Dougherty

FSA Compliance, Lien Management Critical for Protecting Interests in Farm Products

Uncertainty in the agricultural industry resulting from the global trade war and falling agricultural prices has increased risk to participants in the agricultural economy. Farm bankruptcies continue to increase, and farm debt…more

Gifts, Political Candidates, Political Contributions, Voter Registration

Tenley Drescher-Rhoades

Five Things to Know About Election Participation as November 8 Approaches

As general election day approaches, businesses, corporate executives and employees may take opportunities to become involved in the administrative and political processes central to determining the outcomes of local, state and…more

Admissible Evidence, Class Action, Class Certification, Daubert Standards, Evidence

Erica Drew

Listen Up Class: The Role of Daubert at the Class Certification Stage in the Ninth Circuit

Class certification is the feature fight of any putative class action lawsuit. If granted, it can multiply the stakes of a case several hundred- or thousand-fold. If denied, it can signal the end of the litigation. Because of…more

Biotechnology, Obviousness, Patent Examinations, Patents, Pharmaceutical Patents

Jamie Drewry

3 Areas of Renewed Interest for Biotechnology, Chemical and Pharmaceutical Patents

The United States Patent & Trademark Office (USPTO) has renewed its interest in obviousness, functional claiming and requests for information, especially for biotechnology, chemical and pharmaceutical patents. The USPTO outlined…more

Renée Dudek

District Courts Find ATDS Allegations Implausible Following Facebook

Courts in the Southern District of California and District of Arizona recently added to the line of decisions addressing ATDS pleading requirements in the wake of the Supreme Court’s landmark ruling in Facebook v. Duguid. …more

ATDS, Auto-Dialed Calls, Dismissals, Facebook, Facebook Inc v Duguid

Artificial Intelligence, European Patent Office, Intellectual Property Protection, USPTO

Ryan Duebner

Can AI Be Considered an Inventor? USPTO, EPO Say No

Both the United States Patent & Trademark Office (USPTO) and the European Patent Office (EPO) have confirmed that patent law on both sides of the Atlantic Ocean does not permit artificial intelligence (AI) to be identified as an…more

Health Care Providers, Medicare, Medicare Advantage, Medicare Advantage Organizations (MAOs)

Kacey Dugan

Medicare Advantage Continues to Innovate With Rapid Growth in New Benefits

Medicare Advantage (MA) is the private plan option in the Medicare program. Enrollment in the program has surged in the past decade and now tops 30 million — nearly half of all Medicare enrollees. Notably, MA is the preferred…more

ACPERA, Antitrust Division, Antitrust Violations, Corporate Counsel, Department of Justice (DOJ)

Tina Dukandar

Self-Reporting Criminal Antitrust Violations Can Be in a Company’s and its Employees’ Best Interests

The Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA), which provides additional benefits to the Leniency Program within the Department of Justice (DOJ), was reauthorized by President Trump on October 1, 2020. Most…more

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

Richard Duncan

FTC Publishes Revised HSR Thresholds for 2022

On January 24, 2022, the Federal Trade Commission (FTC) published its adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act) in the Federal Register. The FTC revises…more

Amy Grewal Dunn

Disruptionware: A New Cyber Threat Targeting Critical Infrastructure

Disruptionware is an emerging type of cyberattack calculated not only to disrupt the availability, integrity and confidentiality of victims’ data, systems and networks, but also to interrupt or shut down the essential business…more

Critical Infrastructure Sectors, Cyber Attacks, Cybersecurity, Hackers, Popular

Community Development, Opportunity Zones, Public Private Partnerships (P3s), Tax Cuts and Jobs Act

Brooke Dunn

Developing Story: Tools and Resources to Spur Economic Development and Job Creation in Distressed Communities

As resources have declined, cities are increasingly seeking creative ways to drive healthy growth and innovative means of funding this growth. Through federal programs and other innovative funding sources, cities have had…more

Katharina Earle

Silicon Valley Bank and Signature Bank Failures

Silicon Valley Bank (SVB) - SVB failed on Friday, March 10; and on Monday, March 13, the Federal Deposit Insurance Corporation (FDIC) transferred all deposits — both insured and uninsured — and substantially all of SVB’s…more

Banking Sector, Banks, Deposit Accounts, Deposit Insurance, FDIC

Christin Jaye Eaton

Courts Are Citing the Rule 702 Amendments – And Litigants Should, Too

Though the pending amendments to Federal Rule of Evidence 702 have not taken effect officially yet, courts already have begun to cite them. Early signs indicate the potential that, consistent with the comments by the Advisory…more

Admissibility, Daubert Standards, Evidence, Expert Testimony, Expert Witness

Antitrust Provisions, Intellectual Property Protection, Sherman Act, USPTO

Alyssa Eckerley

District of Connecticut Decision Highlights Confluence of Antitrust, IP Law

Attorneys and business people working remotely can learn some antitrust and intellectual property law from those little building blocks keeping some children occupied during stay-at-home orders. In October of 2018, Hong…more

Cha'yra Eddie

Treating Physician’s Informed Consent Process and Decision-Making in Device Selection Lead to Partial Summary Judgment for Device Manufacturer

A series of recent rulings out of the Southern District of Texas in an inferior vena cava (IVC) filter case reflect how well-planned discovery can lead to a successful multipronged summary judgment motion and can effectively…more

Decision-Making Process, Design Defects, Discovery, Evidence, Failure To Warn

Bianca Eddy

Ninth Circuit Affirms Exclusion of Expert and Resulting Summary Judgment in In re: Incretin-Based Therapies MDL

Early last year, the In re: Incretin-Based Therapies MDL court held that the plaintiffs’ warnings claims were preempted, excluded plaintiffs’ general causation experts, and granted summary judgment to all defendants on dual…more

Causation, Daubert Standards, Evidence, Expert Testimony, Failure To Warn

Clean Water Act, Climate Change, Environmental Justice, Environmental Protection Agency (EPA), PFAS

Brianna Edwards

What You Need to Know About U.S. EPA’s New Federal Enforcement Priorities

U.S. Environmental Protection Agency (EPA) recently announced its federal enforcement priorities for 2024 to 2027. U.S. EPA selects its National Enforcement and Compliance Initiatives every four years to prioritize resources for…more

Paige Edwards

Immigration Update: UK Government Unveils Remote Work Perks for Short-Term Visitors

UK Changes - In December 2023, the UK Home Office announced changes for those traveling to the United Kingdom as visitors. The changes were prompted in an effort to relax the rules for individuals being granted entry to the…more

Foreign Nationals, Foreign Workers, Immigrants, Immigration Procedures, UK

Benefit Plan Sponsors, Employee Benefits, Employer Liability Issues, Internal Revenue Code (IRC), IRS

Allison Egan

IRS Announces Phase 2 of Pre-Examination Compliance Pilot Program

Recently, the IRS announced phase two of its expansion of the Pre-Examination Compliance Pilot Program. Under the pilot program, an employer may limit or entirely avoid an impending IRS audit if they promptly correct any…more

Appeals, Breach of Contract, Insurance Litigation, Policy Terms, Statute of Limitations

Susan Egeland

Texas Court of Appeals Clarifies Accrual of Statute of Limitations for Property Claims

When does a cause of action arise against an insurer in the property and casualty setting? Are there “magic words” by the insurer that start the clock? No; but an insurance company may better evaluate the accrual date for future…more

Clean Water Act, Environmental Protection Agency (EPA), Hazardous Substances, New Rules, Water Supplies

Delmar Ehrich

New EPA Rule Mandates Worst Case Discharge Response Plans for Facilities Handling Hazardous Substances

On March 14, 2024, Environmental Protection Agency (EPA) Administrator Michael Regan signed a final rule requiring a broad swath of facilities to develop response plans (FRP) for a worst-case discharge of Clean Water Act (CWA)…more

Cal-OSHA, California Privacy Rights Act (CPRA), Coronavirus/COVID-19, Fast-Food Industry, Human Trafficking

Sara Ehsani-Nia

New California Laws for 2023 and Beyond: What Employers Should Know

In 2022, California Gov. Gavin Newsom signed many laws impacting California employers. Some of the new laws became effective immediately and others, including some that were signed into law just weeks ago, take effect January 1,…more

Shawna Meyer Eikenberry

Cybersecurity for Contractors and Design Professionals

Data breaches and the resulting havoc for companies that must deal with them are all over the news. While most construction industry businesses do not handle large amounts of consumer data, you cannot simply ignore cybersecurity…more

Architects, Construction Industry, Contractors, Cybersecurity, Risk Assessment

Class Action, Corporate Counsel, Employer Liability Issues, Fair Labor Standards Act (FLSA), Independent Contractors

Susan Elgin

Eleventh Circuit Determines Written Consent is Sufficient for FLSA Party Status

On Wednesday, April 18, 2018, the Eleventh Circuit held — in a case of first impression in every circuit — that an “opt-in” plaintiff need only file a written consent to become a party-plaintiff under the Fair Labor Standards…more

Artificial Intelligence, Corporate Counsel, Machine Learning, Technology Sector, United Nations

Summer Elliot

Artificial Intelligence Briefing: UN Unanimously Adopts Landmark AI Resolution

The United Nations unanimously adopts a landmark resolution mapping a path for international cooperation on AI, and the Financial Stability Oversight Council announces a two-day conference exploring the benefits and risks of AI…more

Artificial Intelligence, Data Privacy, Data Protection, Opioid, State Attorneys General

Matthew Elliott

State AG Updates: Data Privacy & Security; Artificial Intelligence; Predatory & Deceptive Real Estate Practices; Consumer Protection; Opioid Epidemic; and Federal Regulations

Data Privacy & Security - DoorDash to Pay a $375,000 Civil Penalty Under the CCPA for Participation in Marketing Collective - Clarifying that California considers participation in a marketing cooperative to be a “sale”…more

Legislative Agendas, State and Local Government, State Budgets, State Legislatures

Sonnie Elliott

2021 Minnesota Legislative Session and Budget Recap

Minnesota legislative leaders and Governor Tim Walz reached a biennial budget agreement on May 17, 2021 (with another month needed for the legislature to work out details and pass budget bills). The budget spends approximately…more

James Ellis-Rees

Further Developments in UK Sanctions: Does Putin Control Every Company in Russia?

A recent decision in the High Court illustrates a further development in the landscape of the UK sanctions regime that we explored in our article for the Global Legal Post. This decision is the first significant judicial…more

Economic Sanctions, Foreign Policy, Foreign Relations, Popular, Russia

CFTC, Commodity Exchange Act (CEA), Cryptocurrency, Digital Assets

Kareem Elsheryie

Digital Asset Enforcement: Between Proposed Legislation and CFTC Enforcement

While most people would agree that bitcoin and cryptocurrency would be classified as digital assets, no one has quite defined what exactly is a digital asset. The Commodities Futures Trading Commission (CFTC) released a primer…more

Biotechnology, Obviousness, Patent Examinations, Patents, Pharmaceutical Patents

John Emanuele

3 Areas of Renewed Interest for Biotechnology, Chemical and Pharmaceutical Patents

The United States Patent & Trademark Office (USPTO) has renewed its interest in obviousness, functional claiming and requests for information, especially for biotechnology, chemical and pharmaceutical patents. The USPTO outlined…more

Bruce Engler

How High Can We Fly: Cautious Optimism for M&A in 2019

After several strong years, the mergers and acquisitions (M&A) market stumbled a bit in the last few months of 2018. According to early reports, the number of middle market M&A transactions completed in the U.S. declined by as…more

Acquisitions, Buyers, Contract Terms, Mergers, Sellers

Anti-Money Laundering, Bitcoin, Department of Justice (DOJ), Digital Assets, Howey

Leslie Epstein

U.S. District Judge Rejects Argument that Sale of “Stand-In” Tokens Was Not a Sale of Unregistered Securities

On January 8, 2021, Judge Richard Seeborg of the United States District Court for the Northern District of California issued an Order denying a motion to dismiss in S.E.C. v. NAC Foundation, LLC, et al. The U.S. Securities &…more

Bodily Injury, Dismissals, Personal Jurisdiction, Product Defects, Strict Product Liability

Emilie Keuntjes Erickson

Where No Forum Contacts “Relate To” Claims at Issue, Ninth Circuit Affirms Dismissal for Lack of Specific Personal Jurisdiction

Specific personal jurisdiction can be a very straightforward concept. If a plaintiff claims to have been injured by a product that the defendant itself sold directly to plaintiff at a store within the forum state, disputes over…more

Department of Health and Human Services (HHS), Health Care Providers, Information Blocking Rules, OIG

Alex Eschenroeder

HHS OIG Posts Long Awaited Information Blocking Enforcement Rule, Provides for Penalties of up to $1 Million Per Violation

Key Takeaways - The HHS Office of Inspector General (HHS OIG) posted its long-awaited final rule implementing information blocking penalties on June 27, 2023. This final rule — which applies to health IT developers of…more

William Essig

Let Me Google That for You: A Recent Central District of Illinois Opinion Highlights the Limits of Googling by Expert Witnesses Under Rule 702 and Daubert

While we all rely on Google or other internet search engines to find and absorb information quickly these days, a recent decision in the Central District of Illinois highlights the problems for expert witnesses relying on…more

Admissibility, Amended Rule 702, Causation, Daubert Standards, Discovery

Administrative Authority, Attorney General, Congressional Intent, Constitutional Challenges, Gundy v United States

Kyle Essley

Supreme Court Decides Gundy v. United States

On June 20, 2019, the Supreme Court of the United States decided Gundy v. United States, No. 17-6086, holding that Congress’s delegation of authority to the Attorney General to specify offenders to whom the registration…more

Emily Evans

Digitalising the UK Immigration System

The UK government is in the process of fully digitalising the UK immigration system. Immigration documents in the UK are gradually being converted from hard copies to online records. These are known as eVisas, and they have been…more

Foreign Nationals, Immigrants, Immigration Procedures, UK, Visas

Centers for Medicare & Medicaid Services (CMS), Data Privacy, Data Protection, GINA, Medicare Advantage Organizations (MAOs)

John Evans

U.S. Protectionism in Health Data Flows

As privacy laws continue to proliferate in the U.S. and globally, there is one trend that companies, especially those operating in the health and pharmaceutical sectors, can no longer overlook. This is the trend towards data…more

Toni Everton

Sixth Circuit Holds National Labor Relations Act Applicable to Indian Tribe's Casino

Weighing in on a hotly contested issue, a panel of the Sixth Circuit has found that federal labor law applies to Indian tribes’ casinos, notwithstanding the tribes’ inherent sovereignty. However, the panel only did so because it…more

Casinos, Corporate Counsel, Native American Issues, NLRA, NLRB

Economic Sanctions, EU, Loan Syndication and Trading Association (LSTA), Office of Foreign Assets Control (OFAC), SDN List

Nicola Ezra

U.S. and European Loan Markets: Comparative Approach to Sanctions Provisions

Economic sanctions, when imposed by a regime, have the purposes of advancing national security, foreign policy or economic goals. Sanctions can take multiple forms, including restrictions on investment, restrictions on trade,…more

Compliance, Corporate Misconduct, Department of Justice (DOJ), Self-Disclosure Requirements, Voluntary Disclosure

Megan Farooqui

DOJ Announces Corporate Compliance Policy Changes and Provides New Guidance on Compensation Clawbacks and Personal Device Messaging

In recent weeks, the U.S. Department of Justice (DOJ) has implemented significant changes to its corporate enforcement policies in an attempt to encourage companies to root out and voluntarily disclose corporate misconduct. The…more

Proposed Legislation, Trustees, Uniform Trust Code

Peter Farrell

New Minnesota Trust Code in the Works

An overhaul of Minnesota trust law is in the works, as the Minnesota House and Senate consider a bill to enact the “Minnesota Trust Code.” Minnesota would join 30 other states that have adopted a version of the Uniform Trust…more

Construction Contracts, Construction Industry, Construction Project, Contractors, Coronavirus/COVID-19

Julie Fealey

COVID-19 Workforce Shortages Threatening Your Construction Project? Review Your Indemnity Rights

COVID-19 has created chaos in the construction world. Because of stay-at-home orders, a public and workforce concerned about job-site infection risks, and an already diminished construction labor force in many markets, many…more

Matthew Fedor

Court Rejects Healthcare Facility’s Use of Emergency Purpose Exception

The Middle District of Florida recently held that a defendant cannot invoke the “emergency purposes” exception to the TCPA if the defendant continues to send messages after the plaintiff has instructed the defendant to stop. In…more

Coronavirus/COVID-19, Emergency Rule, FCC, Florida, Health Care Providers

Coronavirus/COVID-19, International Trade Commission (ITC), Personal Protective Equipment, Supply Chain

Karmina Fefferman

ITC to Investigate Supply Chain Challenges of COVID-19 Products

On August 21, the U.S. International Trade Commission (ITC) stated that it will conduct an investigation and prepare a report containing more detailed information on supply chain challenges and constraints for COVID-19-related…more

Katie Feiereisel

Supreme Court Decides Star Athletica, L.L.C. v. Varsity Brands, Inc.

On March 22, 2017, the Supreme Court of the United States decided Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, holding that artistic designs on cheerleading uniforms were eligible for copyright…more

Cheerleaders, Copyright, Copyright Infringement, Fashion Design, SCOTUS

Financial Industry Regulatory Authority (FINRA), Financial Services Industry, Penalties, Robinhood Financial

Nicholas Feltham

Robinhood’s $70 Million FINRA Penalty: Growing Pains, Reliance on Technology and Push to Offer New Products

Robinhood, “an introducing broker-dealer that provides commission-free trading to retail customers through its website and mobile applications,” recently agreed to pay a record-setting amount of $70 million — consisting of a $57…more

Acquisitions, China, Foreign Investment, Foreign Investment Entities (FIEs), Joint Venture

Judy Feng

A New Era of China's Foreign Investment Regime

On September 3, 2016, the Standing Committee of the National People’s Congress (NPC) adopted the Decision on Revising Four Laws, Including the Law of the People’s Republic of China on Wholly Foreign-Owned Enterprises (NPC…more

Delays, European Patent Office, Information Disclosure Statement, Intellectual Property Protection, Patent Applications

Zhengyu Feng, Ph.D.

After Supernus: It’s Up to You to Keep Your Patent Alive All Its Days

Patentees may obtain additional PTA if the USPTO’s calculation of “applicant delay” includes a period of time during which the patentee could have taken “no identifiable effort” to avoid. However, the onus is entirely on the…more

California Consumer Privacy Act (CCPA), Employer Liability Issues, FEHA, Independent Contractors, Medical Marijuana

Katharine Fenn

State & Local Employment Law Developments: Q1 2022

The first quarter of 2022 continued the trend of increasing regulation of the workplace by state and local governments. Although it is not possible to discuss all state and local laws, this update provides an overview of recent…more

Department of Energy (DOE), Energy Projects, Energy Sector, Inflation Reduction Act (IRA), Tax Credits

Brian Fennerty

48C Qualified Advanced Energy Project Tax Credit: One Year Into the Inflation Reduction Act

The Inflation Reduction Act (IRA) recently celebrated its first anniversary with some programs becoming increasingly oversubscribed even before the funding is released. One of those programs is the qualifying advanced energy…more

Audrey Ann Fenske

Proposed 409A Regulations Provide Clarity and Some Flexibility

On the same day it released proposed regulations under Section 457 — as reported in our "New 457 Regulations for Nonqualified Deferred Compensation Plans of Tax-Exempt and Government Employers" update —the IRS released proposed…more

Deferred Compensation, IRS, Proposed Regulation, Section 409A, Section 457(f)

Affordable Care Act, Cost-Sharing, Health Insurance, Healthcare Reform, Trump Administration

Kelly Fermoyle

What Can Health Plans Do Now That the Trump Administration Has Stopped Making CSR Payments?

On October 12, 2017, the Trump administration announced that it will immediately stop making cost-sharing reduction (CSR) subsidy payments, which allow health insurers to defray out-of-pocket costs to insure low-income…more

Anti-Dumping Duty, Countervailing Duties, Importers, Imports, International Trade Commission (ITC)

Richard Ferrin

New Antidumping Duty and Countervailing Duty Petitions on High Chrome Cast Iron Grinding Media From India

On April 26, 2024, antidumping duty (AD) and countervailing duty (CVD) petitions were filed on high chrome cast iron grinding media from India. The petitioner is Magotteaux Inc. (Petitioner)…more

Altitude Express Inc v Zarda, Bostock v Clayton County Georgia, Civil Rights Act, EEOC v RG & GR Harris Funeral Homes, Employer Liability Issues

Adriana Figueroa

‘Answer Is Clear’: Title VII Forbids Discrimination Based on Sexual Orientation and Gender Identity

On June 15, 2020, in the month and year that marks the 50th anniversary of LGBTQ+ Pride traditions, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and…more

Cyber Insurance, Cybersecurity, Departments of Commerce, Financial Stability Board, Framework Agreement

John Finston

International Capital Standard, Holistic Framework, Cyber Insurance Highlight NAIC International Insurance Forum in D.C

On May 13-14, 2019, the National Association of Insurance Commissioners (NAIC) hosted its annual International Insurance Forum in Washington, D.C. Highlights of the event included remarks from U.S. Department of the Treasury…more

Artificial Intelligence, Corporate Counsel, Machine Learning, Technology Sector, United Nations

Michael William Fires

Artificial Intelligence Briefing: UN Unanimously Adopts Landmark AI Resolution

The United Nations unanimously adopts a landmark resolution mapping a path for international cooperation on AI, and the Financial Stability Oversight Council announces a two-day conference exploring the benefits and risks of AI…more

Acquisition Agreements, CARES Act, Coronavirus/COVID-19, Material Adverse Effects, Merger Agreements

James Fischer

How Has COVID-19 Impacted M&A Agreements?

The global outbreak of COVID-19 hit the United States in March 2020. Over a year later, it has irrevocably altered the way that M&A parties negotiate and structure agreements for the purchase and sale of private companies. …more

Affordable Care Act, Cost-Sharing, Department of Health and Human Services (HHS), Health Insurance, Insurance Industry

Katelyn Fisher

Considerations for Entry or Reentry Into the Individual Health Insurance Market

Many health insurers and HMOs may be considering entering or reentering the individual health insurance market, either on or off a federal or state-based health insurance marketplace. Over the last two years, the individual…more

Amy Fiterman

Expert Witnesses Not Required to Rule Out All Possible Causes in Product Liability Actions

On June 6, 2014, the 8th Circuit Court of Appeals reversed a district court decision excluding three experts, who were critical to the plaintiff to show causation, on the basis that they did not reliably rule out alternative…more

Appeals, Bodily Injury

Sean FitzGerald

Certain Insights on Important 2023 Tax Cases for Private Funds

The year just past, 2023, brought three significant U.S. Tax Court decisions that raise important ongoing tax considerations for private funds. These cases addressed: whether a non-U.S. credit fund had income effectively…more

Investment Management, Investors, Private Funds, Self-Employment Tax, Tax Court

Employment Tribunals, Gig Economy, Independent Contractors, Misclassification, UK

Victoria FitzGerald

Latest "Gig Economy" Case: Courier Held to Be a Worker

In the latest in a string of cases concerning the employment status of those working in the “gig economy”, the Employment Tribunal in Dewhurst v City Sprint UK Ltd ET2202512/2016 considered whether a courier was a worker or a…more

Corporate Counsel, Employee Retirement Income Security Act (ERISA), Investment Management, Joint and Several Liability, Partnership-in-Fact

James Fitzsimmons

First Circuit Hands Down Significant Private Equity Ruling in Sun Capital Litigation

In an important decision, the U.S. First Circuit Court of Appeals recently ruled that two separate but related private equity funds – Sun Capital Partners III and Sun Capital Partners IV – are not jointly and severally liable…more

Page Fleeger

409A/162(m) Payment Delay Provisions

Public companies that sponsor nonqualified deferred compensation plans that require Internal Revenue Code Section 162(m) payment delays may want to consider whether removing the payment delay provision from a plan is warranted…more

Deadlines, Deferred Compensation, Employees, Internal Revenue Code (IRC), IRS

Cease and Desist, Civil Monetary Penalty, Consumer Fraud, Consumer Protection Act, Coronavirus/COVID-19

Molly Flynn

FTC Continues Crack Down on Unfounded COVID Claims

Last month, the Federal Trade Commission (FTC) announced that it “ordered more than 20 marketers nationwide to immediately stop making baseless claims that their products and supposed therapies can treat or prevent COVID-19.”…more

Charitable Donations, Charitable Organizations, Donors, Endowment Funds

Angela Fogt

Georgia and Kentucky Allow Donor Standing for Endowment Violations, While Similar Efforts Are Pending in Ohio and Vermont

Georgia and Kentucky Allow Donor Standing for Endowment Violations - On April 9, 2024, Kentucky’s governor signed Senate Bill 70, which will take effect on July 15, 2024, and will amend Kentucky’s version of the Uniform…more

Mark Foley

The New Critical Importance of a Union Request for Recognition

What does it mean if a union makes a “demand for recognition,” or “request for voluntary recognition” to an employer? What does a union mean when it says it has a “showing of interest” or “proof of majority support” or “majority…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

Matthew Fontana

Total Ban: FTC Issues Final Rule Banning Employment Noncompete Agreements

On April 23, 2024, the U.S. Federal Trade Commission (FTC) voted (in a 3-2 vote along party lines) to finalize and promulgate a final rule that bans noncompete agreements for the vast majority of workers…more

Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Corporate Counsel, Meat Processing Plants, OSHA

Adam Foresman

Federal Judge Dismisses Lawsuit Against Meat Processing Plant Related to Alleged COVID-19 Issues

On May 5, 2020, United States District Judge Greg Kays issued an order dismissing a federal lawsuit against Smithfield Foods, Inc. and Smithfield Fresh Meats Corp. (collectively, “Smithfield”) related to alleged COVID-19 issues…more

Election Results, Political Candidates, State and Local Government, State Elections

Richard Forschler

Minnesota Legislative Update: 2018 Election Results

On Tuesday, November 6, Minnesotans went to the polls in large numbers to vote in the first midterm election of the Trump presidency. Minnesota took center stage, as both U.S. Senate seats,all eight Congressional seats (four of…more

Derivatives, Form S-3, Publicly-Traded Companies, Securities and Exchange Commission (SEC)

Griffin Foster

The “Baby Shelf” Requirements: A Compliance Guide for Issuers

For smaller public companies looking to access the capital markets, the baby shelf requirements contained in Instruction I.B.6 applicable to a Form S-3 registration statement can be a significant limitation. This guide is…more

Abstract Ideas, Guidance Update, Intellectual Property Protection, Manual of Patent Examining Procedure (MPEP), New Guidance

William Foster Jr.

October 2019 Patent Eligibility Guidance Update

Earlier this year, the United States Patent and Trademark Office (USPTO or “the Office”) published the 2019 Revised Subject Matter Eligibility Guidance (2019 PEG), which set forth newly revised procedures to be used by USPTO…more

Condemnation, Eminent Domain, Just Compensation, Property Owners, Takings Clause

Ehren Fournier

A Roadmap to Illinois Eminent Domain Cases

For property owners, the process of eminent domain — the legal proceeding through which the government can acquire private property for a public purpose — can be a long and intimidating journey. Once an owner becomes aware that…more

Actual Injuries, Article III, Class Action, Fair Credit Reporting Act (FCRA), Jurisdiction

Alison Fox

Next Supreme Court Term Promises Significant Class Action Ruling

Next term, the U.S. Supreme Court will decide whether Congress has the power to grant jurisdiction to plaintiffs who have suffered no concrete harm by authorizing them to sue based solely on violations of federal statutes. The…more

Affirmative Action, CSALs, Department of Labor (DOL), Federal Acquisition Regulations (FAR), Federal Contractors

Michelle Francois

Third Quarter 2023 Government Contracts Policy and Regulatory Review

The third quarter had government contractors staring down the possibility of a government shutdown while also contending with some significant regulatory developments. We review some of those developments below…more

Biologics, Draft Guidance, Food and Drug Administration (FDA), PDUFA, Prescription Drugs

Timothy Franson M.D.

Weighing Benefits and Risks: New Draft Guidance Offers Insights on FDA Decision-Making

In late September, the Food and Drug Administration (FDA) released a draft guidance on benefit-risk assessments for drugs and biological products. The draft guidance includes considerations the agency uses when weighing the…more

Artificial Intelligence, Department of Health and Human Services (HHS), Draft Guidance, Life Sciences, NIST

Jim Frederick

Race Against the Clock: Federal Agencies Issue Their Six-Month Updates on AI Activities in Accordance With President Biden’s Executive Order on AI

Since President Biden issued his sweeping Executive Order on the Safe, Secure and Trustworthy Development of AI on October 30 of last year (EO), federal agencies have been operating in high gear to meet the deadlines and…more

Tom Freeman

2023 Minnesota Legislative Session Report

In November, voters gave the Democratic Farmer Labor Party (DFL) total control of the legislature and the governor’s office for the first time in nearly a decade, which included flipping the Minnesota Senate by the narrowest of…more

GILTI tax, Marijuana, Medical Leave, Non-Compete Agreements, Paid Leave

Jennifer Frias

USCIS Suspends Premium Processing for All H-1B Petitions Starting April 3

On March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced the suspension of premium processing for all H-1B petitions. This suspension starts April 3, 2017, and affects all types of H-1B cases. As outlined in…more

H-1B, USCIS, Visas

Eric Friedman

Expert’s Results-Driven Methodology Leads to Exclusion and Summary Judgment in Paraquat MDL

An expert witness is not supposed to pick a desired result and then reverse engineer inputs and methods that reach that result. As the Ninth Circuit observed 30 years ago, “[c]oming to a firm conclusion first and then doing…more

Admissibility, Causation, Daubert Standards, Design Defects, Evidence

Janet Fries

New Frontier: Ten Tips for Navigating Brand Protection in the Metaverse

Advances in technology have taken the world by storm in recent years and brand owners must adapt to new forms of expression and brand awareness. Enter the metaverse: an online virtual world where users can interact with each…more

Advertising, Brand, Copyright, Corporate Branding, Design Patent

CARES Act, Coronavirus/COVID-19, Filing Deadlines, Filing Requirements, Paycheck Protection Program (PPP)

Zachary Froelich

Tax Relief for Businesses Included in the CARES Act

The Coronavirus Aid, Relief and Economic Security Act (H.R. 748) (the CARES Act or the Act) contains a group of eight provisions that are designed to provide significant tax benefits to businesses. Prompt actions will be needed…more

Appeals, Class Action, Class Certification, Consumer Product Safety Act (CPSA), Failure To Warn

Jack Frost Jr.

Ninth Circuit Confirms That Winning Early Summary Judgment May Be the Ultimate Preemptive Tactic for Beating Class Certification

The Ninth Circuit has confirmed that a lack of summary judgment evidence linking a product to concrete injury may properly halt a would-be class action in its tracks if a defendant preemptively moves for summary judgment before…more

Civil Rights Act, Employer Liability Issues, Equal Employment Opportunity Commission (EEOC), Sex Discrimination, Sexual Orientation

Rozlyn Fulgoni-Britton

Title VII Prohibits Discrimination Based on Sexual Orientation, Says Seventh Circuit

Discrimination on the basis of one’s sexual orientation is a form of unlawful sex discrimination under Title VII, according to an April 4, 2017 ruling by the Seventh Circuit Court of Appeals (which covers Indiana, Illinois and…more

Cemex, Employees, Employer Liability Issues, Employment Litigation, Labor Regulations

Ryan Funk

Key Takeaways From the 28th Annual Bernard Gottfried Labor Law Symposium

On October 19, 2023, Faegre Drinker Partner Ryan Funk gave remarks at the 28th Annual Bernard Gottfried Labor Law Symposium, which was sponsored by the National Labor Relations Board, the Wayne State Law School, and the State…more

Lexi Fuson

Can a Person Marry Into Consortium Damages in a Wrongful Death Claim? Florida’s Fourth and Fifth District Courts of Appeal Are in Conflict

Permitting an injured plaintiff’s spouse to claim loss of consortium where the injury in question occurred prior to the marriage would enable the spouse to marry into a cause of action. Florida’s common law rejects this…more

Damages, Loss of Consortium, Marriage, Spouses, Surviving Spouse

Robert Gallup

Supreme Court Decides Bartenwerfer v. Buckley

On February 22, 2023, the U.S. Supreme Court decided Bartenwerfer v. Buckley, No. 21-908, affirming the Ninth Circuit and holding that 11 U.S.C. § 523(a)(2)(A), which bars debtors from discharging any debt obtained by fraud,…more

Bankruptcy Code, Creditors, Debtors, Dischargeable Debts, SCOTUS

Biden Administration, Coronavirus/COVID-19, Diversity and Inclusion Standards (D&I), Insurance Industry, NAIC

Jigar Gandhi

Insurance in a Time of Transition: Highlights From the 16th Annual NFI Insurance Public Policy Summit

Biden administration priorities, NAIC direction, diversifying the talent pipeline in the insurance space and the insurance industry’s response to the COVID-19 pandemic were among the issues covered during the 16th annual…more

Department of Health and Human Services (HHS), Health Care Providers, Information Blocking Rules, OIG

Jeffrey Ganiban

HHS OIG Posts Long Awaited Information Blocking Enforcement Rule, Provides for Penalties of up to $1 Million Per Violation

Key Takeaways - The HHS Office of Inspector General (HHS OIG) posted its long-awaited final rule implementing information blocking penalties on June 27, 2023. This final rule — which applies to health IT developers of…more

Amazon Marketplace, Corporate Counsel, Diversity, Diversity and Inclusion Standards (D&I), Race Discrimination

Marc-Joseph Gansah

A Tale of Two Cases – DEI Programs Under Scrutiny

Last month, two courts reached different conclusions about the legality of companies’ diversity equity and inclusion (DEI) programs under Section 1981. The cases display different tactics and defenses and raise questions about…more

Carrie Garber Siegrist

Immigration and Employment Considerations for Nonprofit Organizations

Nonprofit tax-exempt organizations have unique considerations with respect to navigating U.S. immigration processes and entity formation. Organizations hiring new talent or bringing employees across borders need to be aware of…more

Department of Justice (DOJ), E-3, F-1 Visa, Foreign Nationals, Form I-9

Claudia Garcia

A Warranty Claim by Any Other Name Remains a Warranty Claim – Illinois Federal Court Dismisses Claims Against Aloe Vera Retailer

An Illinois federal court recently reinforced the distinction between a properly plead consumer fraud claim and an express warranty claim merely masquerading as a consumer fraud claim, while granting a defendant’s motion to…more

Class Action, Consumer Fraud, Motion to Dismiss, Warranties

Charitable Donations, Charitable Organizations, Donors, Endowment Funds

John Gardner

Georgia and Kentucky Allow Donor Standing for Endowment Violations, While Similar Efforts Are Pending in Ohio and Vermont

Georgia and Kentucky Allow Donor Standing for Endowment Violations - On April 9, 2024, Kentucky’s governor signed Senate Bill 70, which will take effect on July 15, 2024, and will amend Kentucky’s version of the Uniform…more

Brian Garrison

The New Critical Importance of a Union Request for Recognition

What does it mean if a union makes a “demand for recognition,” or “request for voluntary recognition” to an employer? What does a union mean when it says it has a “showing of interest” or “proof of majority support” or “majority…more

Agribusiness, Food and Drug Administration (FDA), Food Labeling, USDA

Rachel Gartner

Key Takeaways From the 2021 Food & Agribusiness National Conference: Food Manufacturing, Processing and Distribution

Faegre Drinker’s 2021 Food & Agribusiness National Conference assembled speakers from global, market-leading companies from across the industry to discuss major issues and trends of note from across market segments and product…more

Local Elections, Political Candidates, Primary Elections, State and Local Government, State Elections

Chip Garver

2018 Indiana Primary Election Preview

After a busy 2018 legislative session, the Indiana State Senate and House of Representatives are gearing up for the 2018 Indiana Primary Election. Half of the Senate and all of the House seats are up for election. The upcoming…more

Cannabidiol (CBD) oil, Cannabis Products, Dietary Supplements, Food and Drug Administration (FDA), Hemp

Michael Gastineau

Citizen’s Petition Filed for FDA Pathway to Legally Market Supplements With CBD

On June 17, 2020, The Council for Responsible Nutrition (CRN) filed a Citizen’s Petition with the Food and Drug Administration (FDA) requesting that the FDA establish a regulatory pathway to legally market dietary supplements…more

Bankruptcy Code, CARES Act, Chapter 11, Commercial Bankruptcy, Coronavirus/COVID-19

Scott Gautier

Global Pandemic: Subchapter V Debt-Eligibility Limits Extended Beyond One Year

The recently enacted COVID-19 Bankruptcy Relief Extension Act extends the $7.5 million debt-eligibility limit for small businesses seeking to utilize subchapter V of chapter 11 of title 11 of the United States Code (the…more

Automatic Renewals, Consumer Contracts, Federal Trade Commission (FTC), Proposed Rules, ROSCA

Meaghan Geatens

Summer 2023 Automatic Renewal Law Update: FTC Proposes Sweeping Amendments to Negative Option Rule

Over the last few years, perhaps prompted by the proliferation of subscriptions for consumer goods and services during the pandemic, several states have passed new automatic renewal laws (ARLs) that regulate continuing or…more

CARES Act, Coronavirus/COVID-19, EBITDA, Federal Reserve, Main Street Lending Programs

Andrew Geier

CARES Act: Updated Main Street Lending Program Summary

On April 30, 2020, the Federal Reserve Board (the Board) announced it is expanding the scope and eligibility for the Main Street Lending Program (the Program). When the initial terms of the Program were announced, the Board…more

Benefit Plan Sponsors, Employee Benefits, Employer Liability Issues, Internal Revenue Code (IRC), IRS

Karen Gelula

IRS Announces Phase 2 of Pre-Examination Compliance Pilot Program

Recently, the IRS announced phase two of its expansion of the Pre-Examination Compliance Pilot Program. Under the pilot program, an employer may limit or entirely avoid an impending IRS audit if they promptly correct any…more

Anya Gersoff

OMB Issues Final Guidance on BABA Domestic Sourcing Requirements

On August 14, 2023, the Office of Management and Budget (OMB) released final guidance on implementing the statutory requirements of the Build America, Buy America Act (BABA) provisions of the Infrastructure Investment and Jobs…more

Buy America, Buy American Act, Federal Contractors, Final Rules, OMB

§ 315(b), America Invents Act, Appeals, Corporate Counsel, Cuozzo Speed Technologies v Lee

Edwin Getz

Following Up after Oral Argument in Thryv, Inc. fka Dex Media Inc. v. Click-to-Call Technologies, LP

On June 24, 2019, the Supreme Court granted the petition for certiorari in Thryv, Inc. fka Dex Media Inc. v. Click-to-Call Technologies, LP on the question of whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and…more

Benefit Plan Sponsors, Defined Contribution Plans, Employee Benefits, Individual Retirement Account (IRA), IRS

Mona Ghude

IRS Issues 2-Year Delay for Roth Catch-Up Contribution Requirements

On August 25, 2023, the IRS announced a two-year delay for the Roth catch-up contribution requirement for employees making $145,000 or more in the prior calendar year that would have applied in 2024. The Roth catch-up…more

Fraud, Insurance Claims, Insurance Industry, Life Insurance, Material Misrepresentation

Ava Giacobbo

To Rescind or Not to Rescind, That’s Only Half the Question

An insured applies for a life insurance policy, answering “no” to all medical and health-related questions. She dies within two years of her application, and the insurer discovers she was in fact diagnosed with cancer two months…more

Acquisitions, Criminal Prosecution, Department of Justice (DOJ), Mergers, Self-Disclosure Requirements

Kerry Gibbons

DOJ Emphasizes Focus on Self-Disclosure in New Safe Harbor Policy for Mergers & Acquisitions

During a speech on October 4, 2023, Deputy Attorney General Lisa Monaco addressed the Department of Justice’s (DOJ) continued focus on incentivizing corporate compliance through self-disclosure and announced DOJ’s new safe…more

Matt Giffin

Supreme Court Decides WesternGeco LLC v. ION Geophysical Corp.

On June 22, 2018, the Supreme Court decided WesternGeco LLC v. ION Geophysical Corp., No. 16-1011, holding that the damages provision of the Patent Act, 35 U.S.C. § 284, allows a plaintiff to recover lost foreign profits…more

35 U.S.C. § 271(f)(2), 35 U.S.C. § 284, Appeals, Damages, Domestic Injury

Medicare, Medicare Advantage, Medicare Advantage Organizations (MAOs), Supplemental Benefits

Vincent Giglierano

2024 Preventive Supplemental Benefit Landscape in Medicare Advantage: Insight Into MA’s Most Competitive Market to Date

Introduction As the Medicare Advantage (MA) program continues to evolve, so does the robust competition among health plans to attract new members. Enrollment in MA has surged past 30 million (more than half of all…more

Admissible Evidence, Daubert Standards, Design Defects, Expert Testimony, Firearms

Dona Trnovska Gilliland

Missing the Mark: Summary Judgment Granted Where Plaintiff’s Experts Opine on Defect but Fail to Support Causation

Product liability claims require proof of causation. To be sure, they also require proof of some defect in the product and/or its accompanying warnings and product literature. But defect and causation are separate elements of…more

Analytics, Artificial Intelligence, Broker-Dealer, Comment Period, Conflicts of Interest

Justin Ginter

Investors Versus Machines: The SEC Cracks Down on AI, Robo-Advisors and Potential Conflicts of Interest

We are probably still years away from Wall Street being overrun by actual robots. Nonetheless, artificial intelligence (AI) tools are divisively integrating into all aspects of society—from the classroom to the courtroom. Many…more

Attorney-Client Privilege, Confidential Information, Disclosure Requirements, Pennsylvania, Privileged Communication

Heather Giordanella

Rejection of Improper “Attorneys’ Eyes Only” Disclosure Process Relating to Attorney-Client Privilege Challenges

The attorney-client privilege is one of “the most revered” privileges established to protect certain communications. The Pennsylvania Superior Court recently held that it was improper for a trial court to order the disclosure of…more

CFTC, Department of Justice (DOJ), Enforcement Actions, Internal Investigations, Securities and Exchange Commission (SEC)

Levi Giovanetto

Watershed White Collar Decision? Assessing the Impact of U.S. v. Connolly One Year Later

A year ago, the talk of the white collar bar was the decision in United States v. Connolly, 2019 WL 2120523 (S.D.N.Y.). Presiding over the case in the Southern District of New York on May 2, 2019, Judge Colleen McMahon’s…more

Employer Liability Issues, Equal Employment Opportunity Commission (EEOC), Harassment, Hostile Environment, Remote Working

Michael Giudicessi

Hostile Environment Claims in a Work-From-Home World

An October 2020 Forbes.com article on harassment in the work-from-home world identified eight “red flag” signs of harassment. “Just like the working environment has changed to a home-based environment, so has workplace…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

David Given

History in the Making: Conservatives Work Quickly to Challenge FTC’s Final Rule Banning Noncompete Agreements

Last week, the Federal Trade Commission (FTC) voted in favor of its controversial final rule banning nationwide nearly all noncompete agreements. While the potential noncompete ban has been politically controversial since it was…more

Immigration Reform, International Labor Laws, UK

Alexander Glibbery

What Are the New Changes to the U.K. Immigration Rules?

On November 3, 2016, the U.K. Government made a Statement of Changes to Parliament, setting out changes to the Immigration Rules that will go into effect November 24, 2016, including: - Closing the Tier 2 ICT Skills…more

Tess Godhardt

Snapchat’s ‘Speed Filter’: Georgia Supreme Court Revives Negligent Design Claim

On March 15, 2022, the Georgia Supreme Court revived a negligent design claim that had been brought against Snapchat, Inc. (n/k/a Snap, Inc.) involving Snap’s “Speed Filter.” As one of the few decisions across the country…more

Appeals, Causation, Design Defects, Electronics, GA Supreme Court

David Gogol

Who's Who in the Trump Administration: A Cabinet Reference Guide

After nearly six weeks of nominations, committee hearings and confirmation votes, President Trump’s White House is beginning to take shape. The federal affairs leaders at Faegre Baker Daniels Consulting have created a reference…more

Trump Administration

Arbitration, Arbitration Agreements, CA Supreme Court, Employment Litigation, Motion to Compel

Jason Goldwater

California Supreme Court: PAGA Plaintiffs Can Pursue Representative State Court Claims Even if Their Individual PAGA Claims Are Compelled to Arbitration

On July 17, 2023, the California Supreme Court unanimously held in Adolph v. Uber Technologies, Inc. that even if a plaintiff who brings a claim under California’s Private Attorneys General Act (PAGA) has their individual PAGA…more

3D Printing, Copyright, Copyright Infringement, Copyright Ownership, Copyright Registration

David Gomez

Why 3D Printing Doesn’t Have to be a Pandora’s Box for IP Rights

Personal 3D printing has seen leaps in advancement in recent years, allowing users to render increasingly sophisticated creations from the comfort of their own home. These creations can include anything from gaming miniatures to…more

Coronavirus/COVID-19, Department of Health and Human Services (HHS), Public Readiness and Emergency Preparedness Act (PREP Act)

Ruben Gonzalez

HHS PREP Act Declaration Offers Broad-Based Tort Immunity to Those Involved in COVID-19 Fight

Pursuant to the Public Readiness and Emergency Preparedness (PREP) Act, the Department of Health and Human Services (HHS) has declared COVID-19 a public health emergency. Pursuant to this Declaration, certain qualifying…more

Employer Liability Issues, Employment Policies, Minimum Wage, Paid Leave, Sick Leave

Katherine Gordon

State & Local Employment Law Developments: Q1 2024

California - COVID-19 Definitions and Procedures: On January 9, 2024, the California Department of Health (CDPH) revised several COVID-19 definitions and testing requirements. The state has revised testing rules for close…more

Peter Goss

As the Popularity of Health Care IoT Rises, So Do Privacy and Security Risks

Internet-connected medical devices are nothing new. From x-ray machines to infusion pumps, these devices have helped push major advancements in clinical care. Increasingly, we see health care technology moving out of controlled…more

Cybersecurity, Data Privacy, Data Security, Internet of Things, Medical Devices

Compliance, Corporate Misconduct, Department of Justice (DOJ), Self-Disclosure Requirements, Voluntary Disclosure

Sophie Gotlieb

DOJ Announces Corporate Compliance Policy Changes and Provides New Guidance on Compensation Clawbacks and Personal Device Messaging

In recent weeks, the U.S. Department of Justice (DOJ) has implemented significant changes to its corporate enforcement policies in an attempt to encourage companies to root out and voluntarily disclose corporate misconduct. The…more

Americans with Disabilities Act (ADA), Coronavirus/COVID-19, Employer Liability Issues, Employment Policies, Equal Employment Opportunity Commission (EEOC)

Stephanie Dodge Gournis

COVID-19 Vaccination Planning for Employers: Questions to Consider for Policy and Practice

As COVID-19 vaccines become more widely accessible, and certain localities relax COVID-19 restrictions, employers hoping to ramp up on-site operations or reduce absenteeism face a new challenge: navigating employee vaccination…more

Department of Homeland Security (DHS), Equal Protection, Immigration and Nationality Act, SCOTUS, US v Texas

Henry Grabbe

Supreme Court Decides United States v. Texas

On June 23, 2023, the U.S. Supreme Court decided United States v. Texas, No. 22-58, holding that Texas and Louisiana did not have standing to challenge guidelines for the enforcement of certain immigration laws promulgated by…more

Analytics, Artificial Intelligence, Broker-Dealer, Comment Period, Conflicts of Interest

Sandra Dawn Grannum

Investors Versus Machines: The SEC Cracks Down on AI, Robo-Advisors and Potential Conflicts of Interest

We are probably still years away from Wall Street being overrun by actual robots. Nonetheless, artificial intelligence (AI) tools are divisively integrating into all aspects of society—from the classroom to the courtroom. Many…more

Canada, Content Publishing, Digital Service Providers, International Labor Laws, Internet

Megan Childs Grant

Canada’s Online Harms Act Aimed to Address Harmful Online Content

Earlier this week, Canada introduced Bill C-63, also referred to as the Online Harms Act (the “Act”), which would require online content providers to act responsibly with regard to the platforms they operate and to remove…more

Condemnation, Coronavirus/COVID-19, Eminent Domain, Just Compensation, Property Owners

Katie Gray

COVID-19 and the Declaration of Taking Act: The Federal Government’s ‘Take Now, Pay Later’ Eminent Domain Power

When the federal government takes property through its eminent domain power, the Constitution requires that it pay just compensation. The Constitution, however, does not require the government to pay before it takes possession…more

Coronavirus/COVID-19, IRS, Registered Investment Companies (RICs), REIT

Thomas Gray

IRS Eases Liquidity Requirements for Publicly Offered RICs and REITs

To alleviate the cash needs of regulated investment companies (RICs) and real estate investment trusts (REITs) in the face of the economic effects of COVID-19, on May 4, 2020, the Internal Revenue Service (IRS) released an…more

ETFs, Securities Act of 1933, Securities and Exchange Commission (SEC), Shareholders

Kellilyn Greco

SEC Proposes to Transform and Modernize Mutual Fund and ETF Disclosure Framework

On August 5, 2020, the Securities and Exchange Commission (SEC) unanimously approved the release of a proposal (the proposing release) to adopt new Rule 498B under the Securities Act of 1933, as amended, and other corresponding…more

Business Litigation, Due Process, Mallory v Norfolk Southern Railway Co, Out-of-State Companies, Personal Jurisdiction

Teresa Griffin

Supreme Court Reinstates Statutory “Consent” to General Personal Jurisdiction

On June 27, 2023, the United States Supreme Court decided Mallory v. Norfolk Southern Railway Co., 2023 WL 4187749, 600 U.S. ___ (June 27, 2023), a decision that likely will reinvigorate forum-shopping efforts by plaintiffs in…more

Department of Justice (DOJ), Health Insurance, Insurance Industry, McCarran-Ferguson Act

Kevin Griffith

Members of Congress Continue to Press DOJ on Health and Dental Insurance Antitrust Enforcement

Congressional leaders continue to seek information from the U.S. Department of Justice (DOJ) concerning the DOJ’s efforts to enforce the Competitive Health Insurance Reform Act (CHIRA), which partially repealed the…more

Claim Construction, Clear Error Standard, De Novo Standard of Review, Federal Rules of Civil Procedure, Patent Litigation

Timothy Grimsrud

Supreme Court Decides Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc.

On January 20, 2015, the U.S. Supreme Court decided Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., No. 13-854, holding that the Federal Circuit must review a district court’s subsidiary factual findings made in the course of…more

Coronavirus/COVID-19, Criminal Investigations, Department of Justice (DOJ), Economic Injury Disaster Loans, Fraud

Joelle Groshek

DOJ Announces Additional Steps to Combat COVID-19 Related Fraud

In a press release issued on September 14, 2022, the U.S. Department of Justice (DOJ) announced additional enhancements to its initiative to combat COVID-19 related fraud. Expanding on Attorney General Merrick Garland’s existing…more

Consumer Product Companies, Personal Jurisdiction, Venue

Benjamin Grossman

How to Succeed in Business (in Philadelphia) Without Really Trying (Your Case There, Because Venue Isn’t Proper)

Venue rulings in Pennsylvania affect many defendants in products cases. Those incorporated here, and those sued on allegations that their products caused harm here, of course. And, for now at least, it includes corporate…more

Cal-OSHA, California Privacy Rights Act (CPRA), Coronavirus/COVID-19, Fast-Food Industry, Human Trafficking

Caroline Guensberg

New California Laws for 2023 and Beyond: What Employers Should Know

In 2022, California Gov. Gavin Newsom signed many laws impacting California employers. Some of the new laws became effective immediately and others, including some that were signed into law just weeks ago, take effect January 1,…more

Automotive Industry, Connected Cars, Department of Transportation (DOT), Driverless Cars, Motor Vehicles

Bethany Gullman

Congress Fails to Enact First-Ever Significant Federal Legislation on Autonomous Vehicles

Despite hopeful last-minute efforts, the 115th Congress failed to pass the AV Start Act, a bipartisan bill that would have been the first significant federal legislation on autonomous vehicles in the U.S. Meanwhile, vehicles…more

Brand, INTA, Intellectual Property Protection, International Trademark Protection, Singapore

Stephanie Gumm

Singapore – Where Global IP Professionals Came Together

I just recently left Singapore, where the lush gardens and iconic city skyline served as the backdrop for The International Trademark Association’s (INTA) 145th Annual Meeting. This was the second time that INTA’s Annual Meeting…more

Acquisitions, Foreign Acquisitions, Foreign Direct Investment, Foreign Investment

Jonathon Gunn

EU Commission Publishes Third Annual Report on FDI Screening in the EU

The EU Commission recently published its ‘Third Annual Report on the screening of foreign direct investments into the Union’ (Report). The Report examines the application of the EU Foreign Direct Investment (FDI) Screening…more

Mithila Gupte

Pre-Action Disclosure – Moving Beyond the U.K.'s Borders

A weapon of value to litigants in England is the ability to seek disclosure of documents from a likely party to litigation before proceedings begin. The benefits of such disclosure are numerous; the applicant can obtain crucial…more

Brokers, Disclosure, Litigation Strategies, UK

Ballot Measures, Colorado, Donald Trump, Eligibility Determination, Fourteenth Amendment

Stephanie Gutwein

Supreme Court Decides Trump v. Anderson

On March 4, 2024, the Supreme Court decided Trump v. Anderson, No. 23-719, holding that States may enforce Section 3 of the Fourteenth Amendment of the U.S. Constitution against federal officeholders or candidates only to the…more

Advocate Health Care v Stapleton, Church Plans, Employee Retirement Income Security Act (ERISA), Exemptions, Pensions

Philip Gutwein II

Supreme Court Decides Advocate Health Care Network v. Stapleton

On June 5, 2017, the Supreme Court decided Advocate Health Care Network v. Stapleton, No. 16-74, holding that an employee benefit plan that is maintained by an organization that is controlled by or associated with a church and…more

Best Practices, Coronavirus/COVID-19, Franchises, Franchisors, Infectious Diseases

Lucie Guyot

Franchisor Best Practices for COVID-19 (Updated #2)

A Message Regarding Racial Inequality: Faegre Drinker is deeply affected by the disturbing and terrible events surrounding the senseless deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and Rayshard Brooks. While these…more

Customs and Border Protection, Department of Homeland Security (DHS), Forced Labor, Importers, Imports

Nicolas Guzman

CBP and DHS Issue Guidance on Implementation of the Uyghur Forced Labor Prevention Act

The week of June 12, 2022, the Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) released two important guidance documents to prepare the public for the implementation of the Uyghur Forced Labor…more

Health Care Providers, Home Health Care, Medicaid, State Legislatures

Elizabeth Haag

Eligibility Changes Coming to New York Medicaid Home Care

On October 1, 2020, significant changes will come to New York’s Medicaid home care services program. The New York Legislature has enacted new restrictions on eligibility for Medicaid home care and other community-based long-term…more

Coronavirus/COVID-19, Health and Safety, Infectious Diseases, Masks, New Guidance

Conor Hafertepe

Philadelphia Reintroduces Mask Requirements in Response to Delta Variant Concerns

On August 11, 2021, the City of Philadelphia announced that in order to curb the spread of the Delta variant of COVID-19, it would be reintroducing certain mask requirements throughout the city. Specifically, the new mask…more

Corporate Counsel, Employee Retirement Income Security Act (ERISA), Investment Management, Joint and Several Liability, Partnership-in-Fact

Neil Haimm

First Circuit Hands Down Significant Private Equity Ruling in Sun Capital Litigation

In an important decision, the U.S. First Circuit Court of Appeals recently ruled that two separate but related private equity funds – Sun Capital Partners III and Sun Capital Partners IV – are not jointly and severally liable…more

Antibiotic Resistance, Antibiotics, Executive Orders, Healthcare, Medical Research

Scott Halbur

Administration Moves to Address Antibiotic Resistance

On September 18, 2014, the Obama administration announced a comprehensive initiative to combat the growing threat of antibiotic-resistant bacteria. The initiative centers largely on preventing overuse of antibiotics and…more

Breach of Duty, Corporate Counsel, Employee Benefits, Employee Retirement Income Security Act (ERISA), Fiduciary Duty

Isaac Hall

ERISA Litigation Roundup: Seventh Circuit Sets Forth Pleading Standard in ERISA Duty of Prudence Claims in Hughes v. Northwestern University

On March 23, 2023, the Seventh Circuit issued a long-awaited decision in Hughes v. Northwestern University, the case remanded from the Supreme Court’s 2022 decision of the same name. See Hughes v. Northwestern University, 142 S…more

Enis Hallaçoglu

Corporate Trust: English Court Adopts “Conservative Mindset” Against Exercising Discretion to Grant Declaratory Relief to Note Trustee in Part 8 Proceedings

While English courts have wide powers to give guidance to trustees, they’re generally reluctant to exercise their discretionary jurisdiction to make a declaration unless there’s a real dilemma requiring their…more

Declaration, Trust Deeds, Trustees, UK

Local Elections, Political Candidates, Primary Elections, State and Local Government, State Elections

Jennifer Hallowell

2018 Indiana Primary Election Preview

After a busy 2018 legislative session, the Indiana State Senate and House of Representatives are gearing up for the 2018 Indiana Primary Election. Half of the Senate and all of the House seats are up for election. The upcoming…more

Peter Halls

4 Considerations for Mechanic's Liens on Alternative Energy Projects

Securing payment is critical for contractors, and contractors, subcontractors and suppliers often rely on their mechanic’s lien rights. However, on wind and solar electrical generation projects, unusual considerations can…more

Construction Industry, Contractors, Mechanics Lien, Popular, Solar Energy

Employer Liability Issues, Employment Policies, Governor Newsom, Minimum Wage, Popular

Kristin Halsing

New California Laws for 2024 and Beyond: What Employers Should Know

California Gov. Gavin Newsom signed several laws impacting California employers in 2023. Some of the new laws became effective immediately and others, including some that were signed into law just weeks ago, take effect January…more

Amy Hamilton

Federal Circuit Holds Again That BPCIA's 180-day Notice Is Mandatory

On July 5, 2016, the Federal Circuit affirmed a district court's preliminary injunction against proposed biosimilar manufacturer Apotex, holding that Apotex was enjoined from entering the market until Apotex: (1) provides notice…more

Marva Deskins Hamilton

OMB Halts Controversial Pay Data Collection Portion of EEO-1

Employer concerns regarding the upcoming burdensome EEO-1 reporting requirements will be relieved by the welcome news that the Office of Management and Budget (OMB) issued a memorandum yesterday to the U.S. Equal Employment…more

Data Collection, EEO-1, Equal Pay, OMB, Wage and Hour

Stephen Hamilton

Certain Insights on Important 2023 Tax Cases for Private Funds

The year just past, 2023, brought three significant U.S. Tax Court decisions that raise important ongoing tax considerations for private funds. These cases addressed: whether a non-U.S. credit fund had income effectively…more

Investment Management, Investors, Private Funds, Self-Employment Tax, Tax Court

Corporate Crimes, Corporate Misconduct, Criminal Liability, Department of Justice (DOJ), White Collar Crimes

Joel Hammerman

Attorney General Garland Reiterates DOJ’s Focus on Disclosure of Individual Accountability at the ABA’s Institute on White Collar Crime

Speaking at the ABA Institute on White Collar Crime earlier this month, Attorney General Merrick Garland outlined the Department of Justice’s continued emphasis in prosecuting individuals “who commit and profit from corporate…more

Employer Liability Issues, Timekeeping, Wage and Hour

Chanelle Han

In Dispute Over Timecard Rounding, California Court of Appeals Issues ‘Balanced’ Ruling

Timecard rounding is a tricky area of employment law. Employers like rounding because it streamlines timekeeping and payroll; employees like it because it gives them the chance to get paid for time they did not actually work…more

Antitrust Division, Comment Period, Department of Justice (DOJ), Federal Trade Commission (FTC), Horizontal Merger Guidelines

Joie Hand

FTC and DOJ Seek Comment on Revisions to Merger Guidelines

Following guidance from the White House to the Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice (DOJ) to modernize their merger guidelines, the FTC and DOJ announced on January 18, 2022…more

Criminal Prosecution, Department of Justice (DOJ), Disclosure Requirements, False Claims Act (FCA), Government Investigations

J.P. Hanlon

DOJ Unveils New Policy Directing Federal Prosecutors to Hold Individuals Accountable for Corporate Misconduct

On September 9, 2015, the Deputy Attorney General issued an internal memo directing federal prosecutors to focus on individuals when investigating allegations of corporate misconduct and to hold individuals accountable in…more

Business Continuity Plans, Enforcement Actions, Investor Protection, OCIE, Securities and Exchange Commission (SEC)

Mary Hansen

SEC OCIE and Enforcement Are Still Watching

As the world is navigating through COVID-19 and as we are focused on our health and well-being as we self-quarantine and engage in social distancing to do our part to stop the spread, our markets remain open, active, and…more

William Hanssen

Challenging Price Premium Allegations Can Pay Off for Defendants

Motions to dismiss in consumer fraud cases often focus on the element of deception—whether a reasonable consumer would be deceived by the statement or practice at issue. But there is another element of statutory consumer fraud…more

Class Action, Consumer Fraud, Dismissals, False Advertising, Food Products .

Certifications, Compensation, Compliance, Covered Employer, Department of Labor (DOL)

Taylor Haran

Illinois Department of Labor Publishes Final Rules Regarding Illinois Equal Pay Registration Certificates

The Illinois Department of Labor (IDOL) recently published its final rules regarding Illinois Equal Pay Registration Certificates (EPRC). The final rules largely adopt the proposed rules issued last June, which was discussed…more

Christopher Harayda

Third Circuit Axes Triangular Setoffs in Bankruptcy

In a March 19, 2021, decision in In re Orexigen Therapeutics, Inc., the Third Circuit joined the Second, Fifth and Seventh Circuits, prohibiting triangular setoff in a bankruptcy proceeding. A triangular setoff occurs when Party…more

Bankruptcy Code, Commercial Bankruptcy, Creditors, Section 553, Setoff Rights

Banking Sector, Business E-Mail Compromise (BEC), Corporate Counsel, Cyber Attacks, Cybersecurity

Grayson Harbour

Federal Court Holds Bank Liable For Business Email Compromise Losses

We have written on previous occasions about the rise in frequency and severity of Business Email Compromise (BEC) cyberattacks. As explained in other posts, BEC attacks are a type of phishing scam typically targeting companies…more

Matt Hardin

The CARES Act and HUD Program Participants: Takeaways and Questions Raised

In response to the (hopefully) once-in-a-lifetime havoc wreaked by the COVID-19 pandemic, President Trump signed the CARES Act into law on March 27, 2020, offering sweeping relief to Americans in many facets of daily life. While…more

CARES Act, Coronavirus/COVID-19, Forbearance Agreements, HUD, Lenders

State and Local Government

Steven Hardin

Noblesville Common Council, Plan Commission and Architectural Review Board Member Updates

The Noblesville Common Council recently elected Megan Wiles to serve as President of the Common Council in 2017 and Chris Jensen to serve as Vice President…more

Clinical Trials, Coronavirus/COVID-19, Food and Drug Administration (FDA), Infectious Diseases, Pharmaceutical Industry

Maureen Donahue Hardwick

FDA Issues Final Guidance on Conduct of Clinical Trials of Medical Products During COVID-19 Pandemic

On March 18, the U.S. Food and Drug Administration (FDA) issued a final guidance titled FDA Guidance on Conduct of Clinical Trials of Medical Products During COVID-19 Pandemic, providing important guidance for industry,…more

Alex Harrell

Supreme Court Decides Rudisill v. McDonough, Secretary of Veterans Affairs

On April 16, 2024, the U.S. Supreme Court decided Rudisill v. McDonough, Secretary of Veterans Affairs, No. 22-888, holding that servicemembers who, through separate periods of service, accrue educational benefits under both the…more

GI Bill, Military Service Members, Rudisill v McDonough, SCOTUS, Veterans

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

Julian Harrell

Five Things to Know About California’s New Climate Disclosure Bills

Governor Gavin Newsom has signed the Climate Corporate Data Accountability Act (SB 253) and the Climate-Related Financial Risk Act (SB 261) into law, which means the California Air Resources Board (CARB) is now tasked with…more

Air Pollution, Carbon Emissions, Clean Air Act, Clean Power Plan, Environmental Protection Agency (EPA)

Colin Harris

Supreme Court Decides West Virginia v. Environmental Protection Agency

On June 30, 2022, the U.S. Supreme Court decided West Virginia v. Environmental Protection Agency, No. 20-1530, holding that the Environmental Protection Agency does not have the authority to require existing coal-fired power…more

Evidence, Expert Testimony, Medical Devices, Teva Pharmaceuticals

Elaena Harris

Seventh Circuit Clarifies Expert Evidence Requirements for Medical Device Cases in Indiana

On June 4, 2018, the Seventh Circuit affirmed an Indiana federal judge’s determination that a woman’s product liability suit for a broken intrauterine contraceptive device (IUD) required expert evidence under the Indiana…more

Employer Liability Issues, Franchises, Joint Employers, McDonalds

Matthew Harris

Franchise Industry Victory: McDonald's Defeats Joint Employment Claim Based on Ostensible Agency Theory

On March 10, 2017, a federal court in California granted summary judgment in favor of McDonald’s and dismissed joint employment claims that had been brought against it by employees of one of its franchisees. In Salazar v…more

Construction Industry, Construction Project, Contractors, Mechanics Lien

James Hartnett

Understanding Mechanic’s Liens and Arbitration Provisions

As construction companies continue to operate under the stresses of the COVID-19 pandemic and social unrest, projects are starting and stopping as a result. These interrupted schedules, along with our overall disrupted economy,…more

Eldin Hasic

EU Reaches Legislative Deal on Proposed ‘Digital Age’ Updates to Product Liability Directive

This week, the European Union made a significant breakthrough towards its goal of overhauling the 40-year-old Product Liability Directive for the demands of the “digital” age and modern economy. To amend the directive, the…more

EU, EU Directive, Manufacturers, Software

Department of Labor (DOL), Economic Realities Test, Employer Liability Issues, Fair Labor Standards Act (FLSA), Independent Contractors

Gerald Hathaway

The U.S. DOL Issues Final Rule on Independent Contractor Classifications

On January 10, 2024, the U.S. Department of Labor (the DOL) published its Final Rule significantly changing the existing standard for the independent contractor classification under the Fair Labor Standards Act. This Final Rule…more

Family Businesses, IRC Section 2704, IRS, Proposed Regulation, Transfer of Assets

Peter Hatinen

Discounts for Transfers of Interests in Family-Controlled Entities May Be Limited Severely Under IRS Proposal

The Internal Revenue Service has issued long-anticipated proposed regulations under Section 2704 of the Internal Revenue Code. These proposed regulations are broad and far-reaching. If the proposed regulations are finalized in…more

Advertising, Direct to Consumer Sales, Food and Drug Administration (FDA), Life Sciences, Pharmaceutical Industry

Jacob Hauschild

FDA Issues Final Rule and FAQ Regarding Direct-to-Consumer Drug Advertising

In a stride toward transparency and heightened consumer awareness, the Food and Drug Administration (FDA) has issued a final rule, dated November 21, 2023, to amend its regulations regarding direct-to-consumer (DTC)…more

Justin Hay

COVID-19 Driving Increased Use of Electronic Execution of Contracts

Practical uses and demand for electronic signatures have become widespread in the United States in the two decades since Congress enacted the Electronic Signatures in Global and National Commerce Act (the E-SIGN Act) in 2000…more

Coronavirus/COVID-19, E-SIGN, E-Signatures, Notarization, UETA

Article III, Class Action, Diversity, Diversity and Inclusion Standards (D&I), Race Discrimination

Brian Hayes

Key U.S. District Court Ruling: Plaintiff’s Challenge to DEI Program Under Section 1981 Fails When She Lacked Standing Because She Did Not Apply

In our October 2023 alert on Defending Litigation Attacks on DEI Programs: A Status Update, we advised to “stay tuned” regarding a pending motion to dismiss filed by Amazon in response to a class action complaint challenging its…more

Deanna Hayes

Court Rejects Healthcare Facility’s Use of Emergency Purpose Exception

The Middle District of Florida recently held that a defendant cannot invoke the “emergency purposes” exception to the TCPA if the defendant continues to send messages after the plaintiff has instructed the defendant to stop. In…more

Coronavirus/COVID-19, Emergency Rule, FCC, Florida, Health Care Providers

Anti-Kickback Statute, Civil Monetary Penalty, Department of Health and Human Services (HHS), Dialysis Providers, Final Rules

Kelley Taylor Hearne

OIG Issues Final Rule Regarding the Exception for the Provision of Telehealth Technologies for In-Home Dialysis

On November 20, 2020, the Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued final rules to implement the new exception provided under the Anti-Kickback Statute and the Civil Monetary Penalty…more

Artificial Intelligence, Automation Systems, Bots, Employee Benefits, Employee Retirement Income Security Act (ERISA)

Douglas Heffernan

Can ChatGPT be Your ERISA Counsel?

Is ChatGPT sufficiently reliable to provide advice on employee benefits matters? Not yet, but ChatGPT and generative Artificial Intelligence may likely be useful tools for employee benefits attorneys in the future…more

Anti-Dumping Duty, Countervailing Duties, Importers, Imports, International Trade Commission (ITC)

Douglas Heffner

New Antidumping Duty and Countervailing Duty Petitions on High Chrome Cast Iron Grinding Media From India

On April 26, 2024, antidumping duty (AD) and countervailing duty (CVD) petitions were filed on high chrome cast iron grinding media from India. The petitioner is Magotteaux Inc. (Petitioner)…more

Andrew Heiring

The Stages of an Eminent Domain or Condemnation Case in Minnesota

For landowners, learning that the government intends to take their property is always a rude awakening. After receiving notice that the government seeks to acquire a piece of land, the landowner sets off on a difficult journey…more

Condemnation, Eminent Domain, Just Compensation, Land Owners, Private Property

Employee Retirement Income Security Act (ERISA), ESOP, Fiduciary Duty, FIfth Third Bancorp v Dudenhoeffer, Fifth Third Mortgage Company

Paul Heiring

Supreme Court Nixes "Presumption of Prudence" in Employer Stock Cases

On June 25, 2014, the U.S. Supreme Court unanimously rejected the "presumption of prudence" that had been applied by lower courts in cases where a retirement plan holds stock of the employer sponsoring the plan. Fifth Third…more

Coronavirus/COVID-19, Goods or Services, Price Gouging, State Attorneys General, Wholesale

Carly Ann Helman

N.Y. Appellate Court Resurrects NYAG’s COVID-19 Price-Gouging Claim Against Lysol Wholesaler

The early days of the COVID-19 pandemic may not involve memories anyone wants to relive, but lawsuits claiming that businesses unconscionably raised prices for emergency-related goods in those first weeks of the emergency are…more

Broker-Dealer, Disclosure Requirements, Financial Industry Regulatory Authority (FINRA), Influencers, Investment Adviser

Jamie Helman

Hiring Social Media Influencers? How You Influence Matters

FINRA, as part of its targeted exam of member firms’ social media practices for gaining new customers, recently announced an $850,000 fine against M1 Finance LLC (“M1 Finance”) stemming from promotional social media posts made…more

Anti-Money Laundering, Beneficial Owner, Corporate Transparency Act, FinCEN, Reporting Requirements

Caroline Henry

Corporate Transparency Act: Congress Ensnares Small Business in the Fight Against Money Laundering

Every small business will be required to identify its beneficial owners to the U.S. Treasury under recently enacted federal legislation intended to crack down on the abuse of shell companies. The purpose of the new law is stop…more

Abstract Ideas, CLS Bank v Alice Corp, Covered Business Method Patents, Google, Patent Litigation

Joel Henry

Post-Alice Federal Circuit Finds Software-Related Patent Not Patent Eligible; Tips on Business Method Patents in New Landscape

In its first precedential decision regarding a business-related invention since the Supreme Court's 2014 Alice v. CLS Bank decision, the Federal Circuit held claims invalid for lack of patent eligibility under Section 101 of the…more

Artificial Intelligence, Corporate Counsel, Machine Learning, Technology Sector, United Nations

Megan Herber

Artificial Intelligence Briefing: UN Unanimously Adopts Landmark AI Resolution

The United Nations unanimously adopts a landmark resolution mapping a path for international cooperation on AI, and the Financial Stability Oversight Council announces a two-day conference exploring the benefits and risks of AI…more

Contraceptives, Food and Drug Administration (FDA), Pharmaceutical Industry, Pharmacies, Pharmacist

Caroline Herion

New Jersey Pharmacies Will Soon Be Able to Sell Birth Control Without a Prescription

The state of New Jersey recently passed a law that will allow pharmacists to provide self-administered hormonal contraceptives to patients without a prescription. The law, which was signed by Governor Philip Murphy on January…more

Claim Construction, Patent Infringement, Patent-Eligible Subject Matter, Patents, Software

Joaquin Hernandez

Software-Related Claim Construction: How to Steer Clear of "No-Man's Land"

In Allvoice Developments US, LLC v. Microsoft Corp., the Federal Circuit affirmed a district court finding that claims were invalid under 35 U.S.C. § 101. The Federal Circuit noted that although the claims were directed to…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Employer Liability Issues, Employer Mandates, Essential Workers

Mary Hershewe

Circuits Split on CMS Vaccine Mandate, Highlighting “Great Significance” of Issue as It Heads to Supreme Court

Three circuit court decisions issued in the past two weeks have considered the CMS vaccine mandate, bringing the issue – and similar vaccine mandate lawsuits – to the Supreme Court in the final weeks of the year. The CMS mandate…more

Building Permits, George Sheetz v County of El Dorado, Housing Developers, Impact Fees, Land-Use Permits

Ever Hess

Supreme Court Decides Sheetz v. El Dorado County

On April 12, 2024, the United States Supreme Court decided Sheetz v. El Dorado County, No. 22-1074, holding that the Takings Clause “does not distinguish between legislative and administrative permit conditions,” but instead…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Compensation, Health Care Providers, Physicians

Katie Hickey

CMS Overhauls Stark Law Regulations as Part of Regulatory Sprint to Coordinated Care

On November 20, 2020, in addition to new Stark Law regulations intended to accommodate value-based financial arrangements with physicians, the Centers for Medicare and Medicaid Services (CMS) issued final regulations that…more

D. Alicia Hickok

Supreme Court Decides Rudisill v. McDonough, Secretary of Veterans Affairs

On April 16, 2024, the U.S. Supreme Court decided Rudisill v. McDonough, Secretary of Veterans Affairs, No. 22-888, holding that servicemembers who, through separate periods of service, accrue educational benefits under both the…more

GI Bill, Military Service Members, Rudisill v McDonough, SCOTUS, Veterans

Coronavirus/COVID-19, Department of Health and Human Services (HHS), Health Care Providers, Immunity, Public Readiness and Emergency Preparedness Act (PREP Act)

Heidi Hilgendorff

Whether Negligence, IP or Contract Claims – All May Be Covered Under PREP Act Immunity

This alert discusses the scope of claims that may be covered under the Public Readiness and Emergency Preparedness Act’s (the PREP Act) immunity provision. If you are a product manufacturer or distributor, government contractor,…more

Department of Health and Human Services (HHS), Drug Pricing, Medicare Part D, Pharmaceutical Industry, Prescription Drugs

Alec Hinojosa

American Patients First: The Trump Administration's Blueprint to Lower Drug Prices

On Friday, May 11, 2018, President Trump delivered a highly anticipated speech addressing high drug prices and unveiling his administration’s blueprint to lower drug prices and reduce out-of-pocket costs. American Patients…more

Fixing America’s Surface Transportation Act (FAST Act), Regulation S-K, Reporting Requirements, Securities and Exchange Commission (SEC), Securities Exchange Act

Miranda Hirner

SEC Simplifies, Modernizes Reporting Requirements for Public Companies

Public companies will soon receive a bit of relief from reporting requirements under the Securities Exchange Act of 1934, courtesy of amendments recently adopted by the Securities and Exchange Commission (SEC)…more

401k, 403(b) Plans, Employee Benefits, Employer Liability Issues, Profit Sharing

Megan Hladilek

New Stats on Employer Retirement Plans

On June 8, 2022, the Congressional Research Service published “Private-Sector Defined Contribution Pension Plans: An Introduction.” We reviewed the report and wanted to highlight a few key data points. Defined contribution plans…more

ATDS, Auto-Dialed Calls, Facebook, Facebook Inc v Duguid, Random or Sequential Number Generator

Erin Hoffman

Supreme Court Decides Facebook, Inc. v. Duguid

On April 1, 2021, the U.S. Supreme Court decided Facebook, Inc. v. Duguid, holding that to qualify as an “automatic telephone dialing system” (commonly referred to as an “autodialier”) under Section 227(a)(1)(A) of the Telephone…more

Lindsey Hogan

Supply and Service Federal Contractors and Subcontractors Should Immediately Review the OFCCP’s Second 2023 Pre-Audit Corporate Scheduling Announcement List

On September 8, 2023, the Office of Federal Contract Compliance Programs (OFCCP) released its second 2023 Corporate Scheduling Announcement List (CSAL) of the year. The CSAL notifies 1,000 supply and service establishments…more

Affirmative Action, Audits, CSALs, Federal Contractors, OFCCP

Dawn Holicky Pruitt

Losing LIBOR in the Capital Markets — A Reprieve?

As reported in our previous alert “Losing LIBOR in the Capital Markets — Are You Ready?,” the anticipated date for discontinuation of the London Interbank Offered Rate (LIBOR) is approaching. While LIBOR is a widely used…more

Benchmarks, Capital Markets, Financial Conduct Authority (FCA), Libor, UK

Coronavirus/COVID-19, Infectious Diseases, Occupational Exposure, Take-Home Exposure, Workers' Compensation Claim

Edward Hollis

When a Paycheck Isn’t All That’s Brought Home From Work

In the midst of the worldwide pandemic, mass layoffs and high unemployment, many workers are grateful to still have a job. But what happens when an employee contracts COVID-19 in the workplace, brings it home and infects one or…more

Affirmative Action, CSALs, Department of Labor (DOL), Federal Acquisition Regulations (FAR), Federal Contractors

John Horan

Third Quarter 2023 Government Contracts Policy and Regulatory Review

The third quarter had government contractors staring down the possibility of a government shutdown while also contending with some significant regulatory developments. We review some of those developments below…more

Brand, EU, European Trade Mark Regulation (EUTMR), European Union Trade Mark (EUTM), Intellectual Property Protection

Kelly Horein

Tips for developing an efficient worldwide trademark application filing strategy

So you’re launching a new product line worldwide. Or maybe you’re rebranding a division of your global business. Or perhaps you’ve recently conducted an audit of your trademark portfolio and noticed several gaps in coverage…more

Deadlines, Department of Labor (DOL), EEO-1, Employees, Employer Liability Issues

William Horwitz

What Happens on March 24, 2022? And Other Things You Should Know About the Illinois Pay Data Reporting Law

On March 24, 2022, a new pay data reporting requirement will take effect for certain private employers in Illinois. Detailed discussions of this requirement and other aspects of the recent amendments to the Illinois Equal Pay…more

Coronavirus/COVID-19, First Amendment, Free Exercise Clause, Freedom of Religion, Injunctions

Kyle Hosmer

Supreme Court Decides Tandon v. Newsom

On April 9, 2021, the Supreme Court held in Tandon v. Newsom that California’s limitations on religious gatherings in homes likely violate the Free Exercise Clause of the First Amendment. The Court therefore enjoined enforcement…more

Citibank, Contract Interpretation, Intercreditor Agreements, Jurisdiction, Trustees

Eric Howe

English High Court Tackles Jurisdiction, New York Law Indentures and English Law Intercreditor Agreements

In Part 8 proceedings in Citibank, N.A., London Branch v Oceanwood Opportunities Master Fund, the English High Court grappled with an Indenture governed by New York law and an Intercreditor Agreement (ICA) governed by English…more

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

X. Christina Huang

Keeping Pace With IP Law as it Evolves on Generative AI

Generative artificial intelligence (AI) is an innovative new technology that is being rapidly developed for integration into a wide variety of products…more

Adverse Events, California, Failure To Warn, Food and Drug Administration (FDA), Medical Devices

Rodney Hudson

California’s Parallel State Law Duty to Report Adverse Events to U.S. Food and Drug Administration Cannot Be Reconciled with Legal Precedent

Earlier this year, the California Court of Appeals in Mize v. Mentor Worldwide LLC, 51 Cal.App.5th 850 (2020), reversed a trial court’s dismissal of failure to warn and other claims against a medical device manufacturer, holding…more

CARES Act, Coronavirus/COVID-19, Loan Forgiveness, Paycheck Protection Program (PPP), Relief Measures

Angela Hughes

Paycheck Protection Program: Loan Forgiveness Guidance

The Department of the Treasury posted the Loan Forgiveness Application for borrowers with Paycheck Protection Program (PPP) loans on May 15, 2020. Below is a summary of key takeaways, an overview of certain procedures for…more

Patrick Hughes

2023 NFI Insurance Public Policy Summit Highlights “Balancing Act”

The “balancing act” of insurance regulation across jurisdictions, policymakers, and stakeholders took center stage at the 18th Annual Networks Financial Institute Insurance Public Policy Summit on May 17 in Washington D.C…more

Cybersecurity, Insurance Industry, Life Insurance, NAIC, Popular

Jennifer Bickley Hull

Another December, Another Flurry of Pro-Employer NLRB Changes

The National Labor Relations Board (NLRB) likes to act in December, partly because that’s often when Board member terms end, and 2019 is no exception. Democrat Member Lauren McFerran’s term expired on December 16, leaving only…more

NLRB, Union Elections, Union Representatives, Unions

Donovan Hurd

2023 Minnesota Legislative Session Report

In November, voters gave the Democratic Farmer Labor Party (DFL) total control of the legislature and the governor’s office for the first time in nearly a decade, which included flipping the Minnesota Senate by the narrowest of…more

GILTI tax, Marijuana, Medical Leave, Non-Compete Agreements, Paid Leave

Confidential Information, Intellectual Property Protection, Trade Secrets

Ryan Hurley

Five Trade Secret Protection Risks Companies Should Consider During the Pandemic

In light of the COVID-19 pandemic, companies have made changes to their core business operations and instituted new practices and procedures in the blink of an eye. These changes have, perhaps unknowingly, created risks that…more

Coronavirus/COVID-19, Employees, Employer Liability Issues, Global Workforce, Private Sector

Ryan Hutzler

The Next Wave of COVID-19 Vaccination Requirements?

As the global community continues to manage the ever-evolving COVID-19 pandemic, countries have taken different approaches to addressing COVID-19 vaccinations. As we have discussed, Italy requires both public- and private-sector…more

Coronavirus/COVID-19, Employer Liability Issues, Remote Working, Return-to-Work Agreements

Gracie Hyland

A Primer on Return-to-Work for Insurers

Over the past two years, the real estate sector has been disrupted by a host of frontpage events, including the COVID-19 pandemic, natural disasters and civil unrest, just to name a few. These events have forced many commercial…more

Marsha Indych

FTSA Litigation Trends: Federal and State Courts Diverge on Retroactivity

At a Glance - - HB 761 amended the FTSA, requiring a 15-day notice-and-cure period before a plaintiff can sue for damages from text message solicitations. - HB 761 also stated that it should be applied retroactively to…more

Class Certification, Florida, Governor DeSantis, New Legislation, Retroactivity

Casualty Insurance, Coronavirus/COVID-19, Insurance Claims, Insurance Industry, Property Insurance

Sara Inman

Virtual Claims Handling Quickly Delivers Accurate Results

Property and casualty insurers are integrating drones and other means of virtual claims handling as part of their routine property inspections. But, in litigation, virtual claims handling is unfairly getting a bad rap from…more

College Admissions, Colleges, Department of Education, Diversity, Educational Institutions

Cindy Irani

U.S. Department of Education Publishes Guidance on Permissible Strategies to Increase Diversity and Opportunity in Higher Education

In the wake of the U.S. Supreme Court’s decision in Students for Fair Admissions, many postsecondary institutions have engaged in a review of their recruiting, admissions, and other policies and procedures. To guide…more

CARES Act, Coronavirus/COVID-19, Federal Reserve, Main Street Lending Programs, Special Purpose Vehicles

Nicholas Isaacson

Main Street Nonprofit Organization Loan Facilities: Summary of Proposed Terms and Considerations

In early April, the Federal Reserve announced proposed terms for the Main Street Loan Program. The program is designed to provide small and medium-sized businesses that were in sound financial condition prior to the outbreak of…more

Corporate Crimes, Corporate Entities, Corporate Governance, Corporate Transparency Act, Criminal Liability

Paige Lauren Izquierdo

New UK ‘Failure to Prevent Fraud’ Offence in Outline

The Economic Crime and Corporate Transparency Act (ECCTA) received Royal Assent and became law on 26 October 2023. It contains a new ‘failure to prevent fraud’ offence whereby large organisations will be held criminally liable…more

Damages, Governor DeSantis, Insurance Claims, Insurance Industry, Joint and Several Liability

Andrew Jackson

Tort Reform Comes to Florida

On Friday, March 24, 2023, Gov. Ron DeSantis signed into law HB 837: Civil Remedies, bringing sweeping tort reform in the state of Florida. In a statement, the governor said, “Florida has been considered a judicial hellhole for…more

Katie Jackson

Strike Two for Amazon in the California Court of Appeal

A California Court of Appeal has held that Amazon may be strictly liable for injuries to customers who bought products from third-party sellers offered on Amazon’s website. (See discussion of Bolger decision...) In Kisha…more

Amazon, Amazon Marketplace, Appeals, Duty to Indemnify, Online Platforms

Environmental Social & Governance (ESG), Institutional Investors, Investors, Private Equity, Private Equity Funds

Brian Jacobson

Following the Trends: Endowment Investing in Private Equity

As institutional investors, university and college endowments have several characteristics that harmonize with the private equity investment timelines, such as longer return horizons and indeterminate liabilities. So, it should…more

Advertising, Ambiguous, Consumer Fraud, Consumer Protection Laws, Deceptively Misdescriptive

Jeffrey Jacobson

The Ninth Circuit Just Provided a Roadmap On How to Defend California Consumer Fraud Claims

Companies that may face consumer fraud claims in West Coast courts will want to take a close look at the Ninth Circuit’s decision this month in McGinity v. Procter & Gamble Co., __ F.4th __, 2023 WL 3911531 (9th Cir. June 9,…more

Artificial Intelligence, Cybersecurity, Information Governance, UK

Samuel Jacques

UK and US Announce Partnership on Science of AI Safety

On 1 April 2024, the UK and US signed a memorandum of understanding on the science of AI safety. This partnership is the first of its kind and will see the two countries work together to assess risks and develop safety tests for…more

Automatic Renewals, Cancellation Rights, Consumer Contracts, Contract Terms, Subscription Services

Michael Jaeger

Fall 2021 Automatic Renewal Law Update: New Requirements in California, Delaware and Illinois

Automatically renewing contracts — which have become increasingly popular for the convenient, uninterrupted delivery of goods and services they provide — continue to be targeted by state legislatures concerned about supposedly…more

Jay Jaffe

Supreme Court Decides Bullard v. Blue Hills Bank

On May 4, 2015, the U.S. Supreme Court decided Bullard v. Blue Hills Bank, No. 14-116, holding that a bankruptcy court’s order denying confirmation of a Chapter 13 debtor’s proposed repayment plan is not a final order and thus…more

Appeals, Chapter 11, Chapter 13, Consumer Bankruptcy, SCOTUS

Disclosure Requirements, Investment Companies, Investment Company Act of 1940, Recordkeeping Requirements, Securities and Exchange Commission (SEC)

Veena Jain

SEC Adopts Amendments to the Investment Company Names Rule

On September 20, 2023, during its first in-person open meeting since the COVID-19 pandemic, the U.S. Securities and Exchange Commission (SEC) adopted amendments (the Amendments) to the Names Rule under Section 35(d) of the…more

AIA Construction Forms, Construction Contracts, Liability Insurance, Property Insurance, Risk of Loss

Michael James

When Contract Forms Cause Unintended Consequences

Inclusion of unrevised Standard AIA contract forms in your construction agreements can cause serious unintended consequences. A case decided by the Indiana Supreme Court, Bd. of Comm’rs. Cty of Jefferson v. Teton Corp., 30 N.E…more

Consent, Federal Rule 12(b)(1), Florida, Motion to Dismiss, Professional Plaintiffs

Anthony Jankoski

Middle District of Florida Analyzes Standing for Professional Plaintiffs

The U.S. District Court for the Middle District of Florida recently denied a defendant’s motion to dismiss on standing grounds even though plaintiff remained on the line to discover the identity of the caller solely for the…more

Property Tax, Property Valuation, Section 1031 Exchange, Tax Assessment

David Jann

Minnesota Supreme Court Rejects Section 1031 Exchange as Evidence of Property’s Value

Property tax assessors often operate under the belief that a property’s sale price represents the best indication of that property’s market value, and thus should form the basis of its next assessment. Generally speaking,…more

Abilio Jaribu

Digitalising the UK Immigration System

The UK government is in the process of fully digitalising the UK immigration system. Immigration documents in the UK are gradually being converted from hard copies to online records. These are known as eVisas, and they have been…more

Foreign Nationals, Immigrants, Immigration Procedures, UK, Visas

Arbitration, Arbitration Awards, CIETAC, Hong Kong International Arbitration Centre (HKIAC), ICSID

Christopher Jefferies

Arbitration Institution Digest (Part 1): China, World Bank and the Netherlands

International arbitration statistics are back in season. In the first couple of months of 2024, the China International Economic and Trade Arbitration Commission (CIETAC), the World Bank’s International Centre for Settlement of…more

Charitable Organizations, Charitable Trusts, Governor Inslee

Sarah Jenkins

Washington State Updates Nonprofit Law Consistent With UPMIFA

Washington State Governor Inslee recently signed SB 5034 into law. The law completely replaces the current form of the Washington Nonprofit Act, which was adopted in 1967, with more modernized provisions. The new version of…more

Customs and Border Protection, Government Shutdown, H-1B, Immigration Procedures, US Department of State

Thomas Jensen

Federal Government Shutdown Would Affect Some Immigration Processing

With Congress deadlocked on passing needed budget legislation, it is looking increasingly likely that there will be a federal government shutdown at midnight on September 30, 2023. The shutdown will affect some federal agencies…more

Gustavo Jimenez

New Year, Old NLRB: Board Restores Deferential Standard for Arbitration Decisions

The National Labor Relations Board (NLRB) helped employers ring in the new year by overturning yet another Obama-era decision that was unfavorable to employers. On December 23, 2019, the Board’s unanimous decision in United…more

Arbitration, NLRA, NLRB

Biologics, Clinical Trials, Coronavirus/COVID-19, Food and Drug Administration (FDA), Life Sciences

Amy Johnson

What Is Involved in Clinical Trials and What Has Changed During COVID-19: A Brief Primer

Why Do Clinical Trials? Clinical trials are an important — and government-required — step on the way from an idea to a commercial medicinal product. All new pharmaceutical and biological products and most generic “follow-on”…more

Employer Liability Issues, Minimum Wage, Paid Sick Leave, State Labor Laws, Wage and Hour

Angela Johnson

Update: Michigan Court of Appeals Restores More Employer-Friendly Minimum Wage and Paid Sick Time Laws

On July 19, 2022, the Michigan Court of Claims ruled that the “adopt-and-amend” strategy the Michigan Legislature used in 2019 to enact minimum wage and paid sick time laws was unconstitutional. Those laws were regarded as more…more

David Johnson

Next Stage Considerations About the Supreme Court’s Affirmative Action Decision: How to Put the Warning Letter from the State Attorneys General in Context

As higher education institutions, state and local governments, private employers and federal contractors grapple with understanding the impacts of the U.S. Supreme Court’s decision in Students for Fair Admissions v. President &…more

Affirmative Action, Civil Rights Act, College Admissions, Colleges, Diversity

ETFs, Securities Act of 1933, Securities and Exchange Commission (SEC), Shareholders

Evan Johnson

SEC Proposes to Transform and Modernize Mutual Fund and ETF Disclosure Framework

On August 5, 2020, the Securities and Exchange Commission (SEC) unanimously approved the release of a proposal (the proposing release) to adopt new Rule 498B under the Securities Act of 1933, as amended, and other corresponding…more

ATDS, Auto-Dialed Calls, Barr v American Association of Political Consultants Inc, FCC, SCOTUS

Ingrid Johnson

The Sixth Circuit Adopts Expansive Interpretation of ATDS

In Allan v. Pennsylvania Higher Education Assistance Agency, the Sixth Circuit weighed in on the definition of an ATDS, joining the Second and Ninth Circuits in reading it expansively. The opinion was issued twenty days after…more

Causation, Disclosure Requirements, Discovery, Expert Witness, Federal Rules of Civil Procedure

Ross Johnson

Can a Treating Physician Opine on Causation? Eleventh Circuit Says It’s About Intent, not Content

Federal Rule of Civil Procedure 26(a)(2) outlines two different sets of pretrial disclosure requirements, imposing more onerous requirements on “retained” than “non-retained” experts. Relatedly, when non-retained expert…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

Susanne Johnson

History in the Making: Conservatives Work Quickly to Challenge FTC’s Final Rule Banning Noncompete Agreements

Last week, the Federal Trade Commission (FTC) voted in favor of its controversial final rule banning nationwide nearly all noncompete agreements. While the potential noncompete ban has been politically controversial since it was…more

Yana Johnson

SEC Clawback Update: Listing Requirements for NYSE and Nasdaq Exchanges, and Preparing for Compliance

After a threatened accelerated timeline, and then several welcomed delays, the Securities and Exchange Commission (SEC) has approved final clawback policy listing requirements for both the NYSE and Nasdaq markets. The listing…more

Clawbacks, Executive Compensation, Listing Standards, Nasdaq, NYSE

Environmental Social & Governance (ESG), Institutional Investors, Investors, Private Equity, Private Equity Funds

Zeke Johnson

Following the Trends: Endowment Investing in Private Equity

As institutional investors, university and college endowments have several characteristics that harmonize with the private equity investment timelines, such as longer return horizons and indeterminate liabilities. So, it should…more

Amazon Marketplace, Corporate Counsel, Diversity, Diversity and Inclusion Standards (D&I), Race Discrimination

Thomas Johnson II

A Tale of Two Cases – DEI Programs Under Scrutiny

Last month, two courts reached different conclusions about the legality of companies’ diversity equity and inclusion (DEI) programs under Section 1981. The cases display different tactics and defenses and raise questions about…more

America Invents Act, Appeals, Broadest Reasonable Interpretation Standard, Claim Construction, Cuozzo Speed Technologies

Victor Jonas

Recent IPR Guidance From a Trio of Forums

As inter partes review (IPR) practice continues to develop and practitioners feel their way around the edges, the last month brought helpful guidance from a trio of forums: the Federal Circuit, the Central District of…more

Counterman v Colorado, Criminal Prosecution, Intent, Mens Rea, Objective Standard

Bruce Jones

Supreme Court Decides Counterman v. Colorado

On June 27, 2023, the U.S. Supreme Court decided Counterman v. Colorado, No. 22-138, holding that a criminal prosecution based on a true threat of violence requires proof that the defendant subjectively understood the…more

Best Practices, China, Coronavirus/COVID-19, Corporate Counsel, Health and Safety

Kevin Jones

(Back to) Work in the Time of Coronavirus: A Guide for Employers in China

Due to the outbreak of the coronavirus (COVID-19), most companies in China have been completely shut down or operating at a fraction of their capacity for almost a month and a half, since the beginning of Chinese New Year in…more

401k, Breach of Duty, Employee Benefits, Employee Retirement Income Security Act (ERISA), Fiduciary Duty

Kimberly Jones

ERISA Litigation Roundup: 401(k) Fee Suits Tossed for Pleading Deficiencies Is Positive Trend for Plan Fiduciaries

A judge in the Eastern District of Wisconsin recently issued a trio of decisions on the same day, which tossed suits alleging 401(k) plan mismanagement because all three complaints contained insufficient pleadings that did not…more

Sandra Jones

COVID-19 Brings a Spike in Pet Insurance

Throughout the pandemic in both the U.S. and abroad, shelters, nonprofit rescues, private breeders and pet stores have reported higher demand for pet ownership than the number of pets to fill it. Not surprisingly, new pet…more

Coronavirus/COVID-19, Infectious Diseases, Insurance Industry, NAIC, Pets

Department of Justice (DOJ), Environmental Litigation, Environmental Protection Agency (EPA), Supplemental Environmental Project (SEP) Policy

Travis Jordan

Department of Justice Eliminates Use of Supplemental Environmental Projects in Civil Settlements

Most enforcement actions for violations of environmental law are resolved through settlement agreements or consent decrees. A March 12, 2020, memo issued by U.S. Department of Justice (DOJ) Environment and Natural Resources…more

Breach of Duty, Corporate Counsel, Employee Benefits, Employee Retirement Income Security Act (ERISA), Fiduciary Duty

James Jorden

ERISA Litigation Roundup: A Ninth Circuit Ruling Reminds ERISA Plans of the Importance of Administrative Accuracy

The Ninth Circuit’s recent decision in Bafford v. Northrop Grumman (April 15, 2021) affirmed the district court’s dismissal of the plaintiffs’ breach of fiduciary duty claims under ERISA but vacated the district court’s holding…more

Centers for Medicare & Medicaid Services (CMS), Food and Drug Administration (FDA), Medical Devices, Medicare

Amy Judge-Prein

Proposed CMS Regulation Pushes Alignment Between Medicare Coverage and FDA Breakthrough Device Approvals

On August 31, 2020, the Centers for Medicare & Medicaid Services (CMS) proposed a rule to align Medicare coverage decisions with breakthrough technologies approved by the Food and Drug Administration (FDA), thereby speeding…more

Civil Rights Act, Employer Liability Issues, Groff v DeJoy, Religious Accommodation, SCOTUS

Jeffrey Justman

Supreme Court Decides Groff v. DeJoy

On June 29, 2023, the Supreme Court of the United States decided Groff v. DeJoy, No. 22-174, holding that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation…more

Copyright Infringement, Intellectual Property Litigation, Intellectual Property Protection, Misappropriation, Trade Secrets

Randall Kahnke

Under New York Law, Trade Secret Damages Must Reflect Plaintiff’s Actual Loss, Not Just Defendant’s Wrongful Gain

A recent trade secret case from New York highlights the importance of how damages are calculated and emphasizes the need to conform those damages calculations to the applicable standards in your jurisdiction. In Syntel…more

Class Action, Environmental Protection Agency (EPA), Food and Drug Administration (FDA), Human Genome Project, Life Sciences

Christine Kain

5 Major Drug and Medical Device Developments in 2023

A popular New Year’s trend is to say “goodbye” to all the things that didn’t serve you in 2023, as you usher in new intentions and habits for 2024. Although there were many great trial outcomes and continuing scientific wins in…more

Benefit Plan Sponsors, Centers for Medicare & Medicaid Services (CMS), Consolidated Appropriations Act (CAA), Department of Health and Human Services (HHS), Department of Labor (DOL)

Yael Kalman

DOL Issues Long Awaited Mental Health Parity Guidance

Plan sponsors, insurers, and third-party administrators should pay close attention to the new guidance to facilitate health plan compliance with complex nonquantitative treatment limitation comparative analyses requirements…more

Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Employer Liability Issues, Employer Responsibilities, Risk Assessment

Gail Kamal

Virginia’s Emergency Temporary Standard Addressing COVID-19 and Workplace Safety Takes Effect

On July 27, 2020, the Virginia Department of Labor and Industry’s Safety and Health Codes Board published its Emergency Temporary Standard on Infectious Disease Prevention: SARS-CoV-2 That Causes COVID-19 (§16 VAC 25-220) (the…more

Novartis, Patent Term Adjustment, Patent Terms, Patents, Request for Continued Examination

Matthew Kamps

Some Patents Could Be Entitled to Later Expiration Dates Than Previously Thought

Your patent may be entitled to a later expiration date if the U.S. Patent and Trademark Office (USPTO) characterized time periods during which you could not engage in reasonable efforts to conclude prosecution as “applicant…more

Constitutional Challenges, Healthcare, Illinois, Medical Malpractice, Prejudgment Interest

Michael Kanute

Illinois Court Finds Prejudgment Interest Statute Unconstitutional

On May 27, 2022, the Circuit Court of Cook County ruled that Illinois’ recently enacted prejudgment interest statute is unconstitutional. Hyland v. Advocate Health and Hospitals Corporation, et al., No. 2017-L-003541..…more

Construction Contracts, Construction Industry, Express Warranty, Implied Warranties, Uniform Commercial Code (UCC)

Samina Kapadia

What's in Your Warranty? A Guide to Avoiding Warranty-Related Surprises

A warranty is meant to protect a purchaser from any faults or defects in goods or services purchased. But warranties are as different as the products and services that they protect. What’s more, because courts interpret…more

Brittany Kaplan

New Frontier: Ten Tips for Navigating Brand Protection in the Metaverse

Advances in technology have taken the world by storm in recent years and brand owners must adapt to new forms of expression and brand awareness. Enter the metaverse: an online virtual world where users can interact with each…more

Advertising, Brand, Copyright, Corporate Branding, Design Patent

Health Insurance Portability and Accountability Act (HIPAA), Medical Records, OCR

Gina Kastel

OCR Announces Guidance on Individual's Right to Access Health Information Under HIPAA

On January 7, 2016, the Office of Civil Rights (OCR) of the Department of Health and Human Services released a fact sheet and the first of a series of Frequently Asked Questions (FAQs) to explain an individual’s rights under…more

Immigration and Customs Enforcement (ICE), No-Match Letters, Social Security Administration (SSA), Social Security Numbers, W-2

Allison Katona

The Return of No-Match Letters: A Social Security Saga

The Social Security Administration (SSA) has resumed the practice of sending thousands of Social Security Employer Correction Request Notices (known as "no-match letters") to employers, informing them that some number of…more

Artificial Intelligence, Corporate Counsel, Patent Trial and Appeal Board, Patent-Eligible Subject Matter, Patents

Braden Katterheinrich

Artificial Intelligence at the Patent Trial and Appeal Board

Since the United States Patent and Trademark Office (USPTO) released its 2019 Revised Patent Subject Matter Eligibility Guidance, the Patent Trial and Appeal Board (PTAB) has published over 50 decisions that apply the Guidance…more

Michael Kaupa

SEC Disgorgement Claim Challenged After Supreme Court’s Decision in Liu

The SEC’s disgorgement request in a litigated proceeding in federal district court is being challenged in the wake of the Supreme Court’s 2020 decision in Liu v. SEC, which limited how much the agency can seek in disgorgement…more

Accounting, Audits, Broker-Dealer, Business Expenses, Disgorgement

Biometric Information, Biometric Information Privacy Act, Data Privacy, Data Protection, Data Security

Justin Kay

Illinois Supreme Court Finds Narrow BIPA Exception for Health Care Workers

Background - The Illinois Biometric Information Privacy Act (BIPA) prohibits companies from collecting, capturing or otherwise obtaining a person’s biometric identifier or biometric information (biometrics) without informed…more

Caroline Keefe

Critical Minerals: An Opportunity in the Sustainable Asset Markets

As nations and businesses around the world continue to transition to more sustainable sources for their energy and transportation needs, a renewed focus on critical minerals has spurred ingenuity and investment in the space…more

Clean Energy, Energy Sector, Minerals, Sustainability

Investment Adviser, Investment Advisers Act of 1940, Proxy Advisors, Proxy Solicitations, Proxy Voting Guidelines

T.J. Keefe

SEC Adopts Amendments to Proxy Solicitation Rules

At an open meeting held on July 22, 2020, the Securities and Exchange Commission (SEC) adopted reforms to the proxy solicitation rules (Proxy Advice Amendment) that govern how proxy advisory firms (e.g., Glass, Lewis & Co. and…more

Fred Kelleher

UK Launches Fully Digital Application Process for BNO Visas

If you’re from Hong Kong and are a British National (Overseas) citizen, you and your family members can apply for a British National (Overseas) visa. The visa will entitle you to live, work and study in the U.K. The visa…more

Immigrants, Immigration Procedures, UK, Visas

Advertising, Direct to Consumer Sales, Food and Drug Administration (FDA), Life Sciences, Pharmaceutical Industry

Jonathan Keller

FDA Issues Final Rule and FAQ Regarding Direct-to-Consumer Drug Advertising

In a stride toward transparency and heightened consumer awareness, the Food and Drug Administration (FDA) has issued a final rule, dated November 21, 2023, to amend its regulations regarding direct-to-consumer (DTC)…more

Clean Water Act, Environmental Protection Agency (EPA), Hazardous Substances, New Rules, Water Supplies

H. Max Kelln

New EPA Rule Mandates Worst Case Discharge Response Plans for Facilities Handling Hazardous Substances

On March 14, 2024, Environmental Protection Agency (EPA) Administrator Michael Regan signed a final rule requiring a broad swath of facilities to develop response plans (FRP) for a worst-case discharge of Clean Water Act (CWA)…more

Commercial Property Owners, Property Owners, Property Tax, Property Valuation, Reassessments

Sarah Kellner

Don’t Get Overtaxed: A Guide to Colorado Property Taxes and Appeals in 2021

The pandemic has upended industries across the globe. And while federal and state governmental programs have generously provided aid to certain individuals and corporate entities, such aid currently does not relieve taxpayers…more

Commercial Leases, Commercial Real Estate Market, Commercial Tenants, Coronavirus/COVID-19, Popular

Sloan Kelly

What’s Next for U.K. Commercial Real Estate?

2021 is already off to a surreal start, but it has nonetheless been coined a “completely new beginning” for the real estate sector as businesses look to turn the page on 2020 and confront the realities of a market that has been…more

Cybersecurity, Department of Defense (DOD), False Claims Act (FCA), Federal Contractors, NIST

Thomas Kelly, Jr.

Second Quarter 2023 Government Contracts Policy and Regulatory Review

From increased cybersecurity requirements to updated Inflation Reduction Act guidance, to a long-awaited Supreme Court decision on the False Claims Act, federal contractors had a lot to think about during the second quarter of…more

Economic Development, Investment Funds, Opportunity Zones, Popular, Real Estate Investments

Bo Kemp

Big Opportunities in Indian Country: How Tribal Nations Can Leverage Opportunity Zones for Economic Growth

The Opportunity Zone (OZ) program, a community development program created out of the Tax Cuts and Jobs Act of 2017, presents the largest potential capital equity infusion into tribal nations in the history of the United States…more

Arbitration Agreements, Disclosure Requirements, Health Care Providers, Healthcare Costs, Healthcare Facilities

George Kendall

Update on Federal and New Jersey Surprise Billing Legislation

The Consolidated Appropriations Act, 2021, signed by President Trump on December 27, 2020, included within its over 5,900 pages the controversial and long-debated No Surprises Act (the Act), addressing surprise medical bills…more

Board of Directors, Breach of Duty, Derivative Suit, Fiduciary Duty, Shareholder Litigation

Matthew Kilby

Minnesota Supreme Court Articulates Test for Direct Versus Derivative Claims in In re Medtronic, Inc. Shareholder Litigation

On August 16, 2017, the Minnesota Supreme Court decided In re Medtronic, Inc. Shareholder Litigation, holding that a shareholder’s claim is properly characterized as a direct claim, not a derivative claim, if the shareholder…more

Emily Kile-Maxwell

Plan Fiduciaries Continue to Defeat BlackRock Target Date Fund Class Actions

Last August, we summarized the string of cases filed against fiduciaries of401(k) plans that offer the BlackRock target date funds (TDFs) as investment options to plan participants. All of the complaints were nearly identical…more

401k, Employee Benefits, Fiduciary Duty, Retirement Plan

Department of Homeland Security (DHS), H-1B, Immigration Procedures, USCIS, Visas

Sarah Kilibarda

H-1B Cap Registration and Process; Form I-944 No Longer Required

The FY2022 H-1B cap season is now underway. U.S. Citizenship and Immigration Services (USCIS) adopted the same H-1B registration process as was used last year. Before filing a cap-subject H-1B petition, USCIS requires that…more

William Killion

Game-Changing Developments Threaten Franchise Business Model

The National Labor Relations Board (NLRB) and Service Employees International Union (SEIU) have been coordinating attacks on the franchise business model. These activities were a primary focus for all attendees at the May 2015…more

Franchises, Franchisors, Hospitality Industry, NLRB, Popular

Advertising, Advertising Substantiation, Better Business Bureau, Comparative Advertising, Environmental Protection Agency (EPA)

Heili Kim

Healthy Choices: The Power and Perils of Health and Wellness Claims in Advertising

Even before COVID-19 had turned each of us into an amateur epidemiologist, companies in nearly every industry had begun to recognize the magnetic appeal of health and wellness claims in consumer advertising. Marketers of…more

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

Jason Kimpel

New HSR Act Size-of-Transaction Increasing to $119.5 Million; Filing Fee Increases Going Into Effect Soon

On January 22, 2024, the Federal Trade Commission (FTC) published its adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The FTC revises the HSR Act thresholds…more

Biometric Information, Biometric Information Privacy Act, Data Collection, Data Privacy, Employer Liability Issues

Colby Anne Kingsbury

How Collecting Fingerprints Could Cost Your Company: Biometric Laws on the Rise

Corporations in Illinois, Texas and Washington could be subject to extensive monetary damages if they collect any biometric identifier, including fingerprints or voice scans. Businesses should carefully comply with privacy laws…more

Bureau of Industry and Security (BIS), Export Administration Regulations (EAR), Export Controls, Exports, U.S. Commerce Department

Matthew Kinsman

New License Exception for Medical Devices Destined for Russia, Belarus and Certain Regions of Ukraine: BIS Announces a Final Rule Amending the Russia and Belarus Sanctions Under the Export Administration Regulations (EAR)

On April 25, 2024, the Department of Commerce’s Bureau of Industry and Security (BIS) announced the issuance of a final rule that amends the Russian and Belarus Sanctions under the Export Administration Regulations (EAR) to “add…more

Biden Administration, Coronavirus/COVID-19, Imports, Manufacturers, Semiconductors

Brandon Kirkham

Congressional Outlook Comes into Focus

When Congress returns from its two-week District Work Period this week, it will begin the ‘home stretch’ prior to the 2022 elections. The House is currently scheduled to be in D.C. for roughly 10 weeks prior to the August recess…more

Carbon Capture and Sequestration, Greenhouse Gas Emissions, Inflation Reduction Act (IRA), Internal Revenue Code (IRC), IRS

John Kirkwood

IRS Releases Proposed Regulation to Section 45V of Internal Revenue Code

In connection with the Inflation Reduction Act (IRA), on December 22, 2023, the Internal Revenue Service (IRS) released a Proposed Regulation related to Section 45V of the Internal Revenue Code. The Proposed Regulation,…more

Kyle Kistinger

Two Recent Chapter 15 Cases Clarify Just How Low the Bar Is for Recognition

Two recent bankruptcy cases have further established the perfunctory nature of a petition to recognize a foreign bankruptcy petition in the United States under Chapter 15 of the U.S. Bankruptcy Code (the “Bankruptcy Code”). In…more

Bankruptcy Code, Chapter 15, Commercial Bankruptcy, Cross-Border, Debtors

Americans with Disabilities Act (ADA), Employer Liability Issues, Pregnancy, Pregnancy Discrimination, Pregnant Workers Fairness Act

Susan Kline

Employees Gain New Protections for Pregnancy, Childbirth Recovery and Lactation

The Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022, and will become effective as of June 27, 2023, generally will require employers to accommodate pregnant applicants and employees…more

Attorney-Client Privilege, Discovery, Document Productions, Motion to Compel, Privileged Communication

Nicholas Klinefeldt

Supreme Court to Resolve Three-Way Circuit Split Involving Attorney-Client Privilege

For the first time in 25 years, the U.S. Supreme Court is considering the scope of the attorney-client privilege in the case In re Grand Jury, No. 21-1397. The Court heard oral arguments earlier this week about when the…more

Causation, Daubert Standards, Expert Testimony, Rule of Evidence 702, Summary Judgment

Konstantina Kloufetos

What Dose Makes the Poison? Where Expert Cannot Say, Eleventh Circuit Affirms Summary Judgment

A central tenet of toxicology is that “the dose makes the poison.” Every chemical is toxic if enough of it is consumed, and every chemical has some dose – even if miniscule – at which it poses no significant risk. A chemical…more

Charles Knapp

Top 10 Noncompete Developments of 2023

2023 was an eventful year for those following state and federal noncompete law developments. Federal agencies, state legislatures and courts continued to take steps to narrow the circumstances under which noncompetition…more

Corporate Counsel, Employer Liability Issues, Employment Contract, NLRA, NLRB

Claim Preclusion, Discretionary Functions, Exceptions, Federal Employees, Federal Tort Claims Act (FTCA)

Aaron Knoll

Supreme Court Decides Simmons v. Himmelreich

On June 6, 2016, the Supreme Court of the United States decided Simmons v. Himmelreich, No. 15–109, holding that the judgment-bar provision of the Federal Tort Claims Act (FTCA) does not apply to claims dismissed for falling…more

Automotive Industry, Causation, Ford Motor, Ford Motor Co. v Bandemer, Ford Motor Co. v Montana Eighth Judicial District Court

Elliot Ko

Supreme Court Decides Ford Motor Co. v. Montana Eighth Judicial District Court

On March 25, 2021, the U.S. Supreme Court decided Ford Motor Co. v. Montana Eighth Judicial District Court, holding that a state’s courts can exercise specific personal jurisdiction over a manufacturer in a product liability…more

Ted Koehler

Supreme Court Decides Lorenzo v. SEC

On March 27, 2019, the Supreme Court decided Lorenzo v. SEC, No. 17-1077, holding that a defendant who disseminates false or misleading statements to potential investors with the intent to defraud can violate Securities and…more

Appeals, Enforcement Actions, False Statements, Fines, Intent to Defraud

David Koller

Sue Generous and the Laws of Legal Physics: Preventing Asbestos Mission Creep in California Courts

It is virtually a law of legal physics in California that liability tends to expand until a critical mass of appellate courts rule that it has reached its limit, or the Supreme Court puts up a stop sign (a vanishingly rare…more

Appeals, Asbestos, Asbestos Litigation, CA Supreme Court, California

Enforcement Actions, Investment Adviser, Investment Advisers Act of 1940, Investment Funds, Securities and Exchange Commission (SEC)

Jeremy Kollitz

Key Takeaways: 2023 Annual Rocky Mountain Fund Advisers Summit

On October 5, 2023, Faegre Drinker, PINE Advisor Solutions and RSM (US) LLP (RSM) co-hosted the annual Rocky Mountain Fund Advisers Summit (the Summit) in Denver. Interactive panels of industry specialists discussed recent…more

Stephanie Koltookian

Supreme Court Decides Dubin v. United States

On June 8, 2023, the U.S. Supreme Court decided Dubin v. United States, No. 22-10, holding § 1028A(a)(1), aggravated identity theft, is violated when the defendant’s misuse of another person’s means of identification is at the…more

Dubin v United States, Healthcare Fraud, Identity Theft, Medicaid, SCOTUS

Amended Regulation, Compensation & Benefits, Deferred Compensation, Employees, Grandfathering Rules

Christine Kong

Section 162(m) Final Regulations Clarify Grandfathering Rules to Compensation Payable under Account Balance and Nonaccount Balance Nonqualified Plans

Pubic companies that sponsor nonqualified deferred compensation plans with grandfathered benefits will want to be aware of helpful payment guidance in the Internal Revenue Code Section 162(m) final regulations. The final…more

CERCLA, Contamination, Environmental Protection Agency (EPA), Hazardous Substances, PFAS

Patrick Konrath

PFOA & PFOS: CERCLA Liability is Coming

On August 26, the EPA announced their long-anticipated proposed rule to designate two PFAS substances, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive…more

Advertising, Antimicrobials, Coronavirus/COVID-19, Environmental Protection Agency (EPA), FIFRA

Lynn Kornfeld

Antimicrobial Marketing Claims: What You Need to Know to Mitigate the Risk of EPA Enforcement

Since the SARS-CoV-2 pandemic began, many companies have continued to develop antimicrobial products and devices to address health and safety concerns. Many of those companies are surprised to learn that the way in which they…more

Corporate Counsel, Employer Liability Issues, Employment Litigation, EU, Jurisdiction

Adam Kosmalski

Suing Your Employee? Don't Try This at Home

In Petter v EMC Corporation [2015] EWCA Civ 828, a U.K. subsidiary and its U.S. parent company were prevented by the English courts from continuing non-compete proceedings against an employee in the court of Massachusetts. The…more

Artificial Intelligence, Corporate Counsel, Machine Learning, Technology Sector, United Nations

Scott Kosnoff

Artificial Intelligence Briefing: UN Unanimously Adopts Landmark AI Resolution

The United Nations unanimously adopts a landmark resolution mapping a path for international cooperation on AI, and the Financial Stability Oversight Council announces a two-day conference exploring the benefits and risks of AI…more

Estate Planning, Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax

Elizabeth Koster

The 2020 Election and the Effect on Current Gift, Estate and Generation-Skipping Transfer Taxes

Based on recent election results, attention has focused on what is in store for the federal transfer tax system. This article discusses the status of the current transfer tax laws and President Biden’s proposals for changes. We…more

Coronavirus/COVID-19, Due Diligence, Real Estate Market, Real Estate Transactions

Andy Krafcheck

Can We Close? Real Estate Transactions In The Age Of COVID-19

The COVID-19 pandemic is wreaking havoc in real estate markets throughout the nation and promises to create additional disruption until the economic shockwaves of the pandemic have settled. As we advise clients who have…more

CARES Act, Loan Forgiveness, Paycheck Protection Program (PPP), Paycheck Protection Program Flexibility Act of 2020 (PPPFA), Payroll Taxes

Natalie Jane Kraft

Paycheck Protection Program Flexibility Act Passes, Increasing PPP Accessibility for Businesses

On June 5, 2020, the Paycheck Protection Program (PPP) Flexibility Act was signed by President Trump. This loan program has been popular, but its rules made it not fully useful to many small borrowers. This amendment provides…more

Antitrust Conspiracies, Criminal Antitrust Litigation, Department of Justice (DOJ), Price-Fixing, Sherman Act

Chantel Kramme

DOJ Slaps Wristband Maker With Price-Fixing Fine

The U.S. Department of Justice recently announced that Zaappaaz Inc., a Texas-based online retailer of customizable promotional products, and the company’s president, Azim Makanojiya, have agreed to plead guilty to conspiring to…more

Daniel Krane

The Faegre Drinker Five: An NAIC Watchlist

Faegre Drinker’s insurance team will once again be well-represented at the National Association of Insurance Commissioners’ Spring National Meeting from April 4-8 in Kansas City. As pandemic restrictions ease, we expect broad…more

Proposed Legislation, Trustees, Uniform Trust Code

Michael Krauss

New Minnesota Trust Code in the Works

An overhaul of Minnesota trust law is in the works, as the Minnesota House and Senate consider a bill to enact the “Minnesota Trust Code.” Minnesota would join 30 other states that have adopted a version of the Uniform Trust…more

Justin Krypel

Minnesota Court of Appeals Articulates Test for Direct Shareholder Claims in In re Medtronic, Inc. Shareholder Litigation

On January 25, 2016, the Minnesota Court of Appeals decided In re Medtronic, Inc. Shareholder Litigation, holding that a shareholder’s claim is properly characterized as a direct claim, not a derivative claim, even where all…more

Dilution, Fiduciary Duty, Inversion, Medtronic, Merger Agreements

Acquisitions, Consumer Product Companies, Distressed Assets, Indemnity, Inflation Adjustments

Matt Kuhn

Distressed M&A Considerations

With continued headwinds that include rising interest rates, high inflation and the general sentiment of a recission that is always right around the corner, the outlook for merger and acquisition activity generally – and for the…more

Coronavirus/COVID-19, Corporate Governance, Corporate Insolvency and Governance (CIG) Act 2020, Insolvency, Moratorium

Buvini Kularatne

Key Takeaways From the Corporate Insolvency and Governance Act 2020: The Standalone Moratorium

On 26 June 2020 the Corporate Insolvency and Governance Act 2020 (the Act) came into force, introducing a number of permanent reforms to English insolvency and restructuring law. Among these reforms is a standalone moratorium…more

Elaine Kumpula

Food and Ag Industry: Know Your Visa Options and Immigration Strategies (Updated)

This article was originally published January 21, 2020, and has been updated as of August 2022. The food and agribusiness industry includes farms, restaurants and food manufacturing, processing and storage facilities…more

Foreign Nationals, Foreign Workers, H-1B, Immigrants, Immigration Procedures

Confidential Information, Product Defects, Product Labels

Thomas Kus

Protecting Confidential Information and Avoiding ‘Public Hazard’ Labeling Under the Florida Sunshine in Litigation Act

“Public hazard” is not a label that any company would want associated with its product. Such a label can have far-reaching consequences for product manufacturers, especially if a product is involved in mass litigation…more

Sergey Kvitkin

Regulatory Implications of Brexit on the UK and EU Aerospace Industry

The U.K.’s exit from the European Union may appear to be a fait accompli, but despite the monumental size of the Trade and Cooperation Agreement (TCA) agreed by the two sides, many details were left to be thrashed out at a later…more

Aerospace, EU, Member State, UK, UK Brexit

First Amendment, Misleading Statements, Proposition 65, Warning Labels

Tarifa Laddon

California Federal Court Bars Enforcement of Proposition 65 Warning on Glyphosate Products

In a memorandum and order on summary judgment issued Monday, June 22, 2020, Judge William B. Shubb in the Eastern District of California issued a permanent injunction blocking enforcement of California’s Proposition 65 warnings…more

Article 50 Treaty of the EU, EU, EU Single Market, European Economic Area (EEA), Free Trade Agreements

Gary Laitner

Countdown to Brexit: How Businesses Can Prepare

In the coming days, the U.K. government is expected to formally notify the European Council of its intention to withdraw from the European Union under Article 50 of the Treaty on European Union. Formal notification will start…more

Broker-Dealer, Exemptions, Finders, Securities and Exchange Commission (SEC), Securities Exchange Act

Stacie Lamb

SEC Proposes Exemptive Relief for Finders

After numerous calls for the U.S. Securities and Exchange Commission (SEC) to provide clarity on the role of “finders” in the capital markets ecosystem, the SEC sought to provide that clarity at a meeting held on October 7,…more

Delays, European Patent Office, Information Disclosure Statement, Intellectual Property Protection, Patent Applications

M. Curt Lambert

After Supernus: It’s Up to You to Keep Your Patent Alive All Its Days

Patentees may obtain additional PTA if the USPTO’s calculation of “applicant delay” includes a period of time during which the patentee could have taken “no identifiable effort” to avoid. However, the onus is entirely on the…more

Champerty, Contingency Fees, Litigation Fees & Costs, Litigation Funding

Julie Landy

Minnesota Supreme Court Takes on Litigation Financing for Second Time in Single Suit

For the second time in a single litigation (Maslowski v. Prospect Funding Partners, LLC, et al. v. James Schwebel, Esq., et al.), the Minnesota Supreme Court will consider the propriety and permissible scope of private…more

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

Meaghan Lane

SEC Adopts Amendments to Share Repurchase Disclosure Rules, Including for Listed Closed-End Funds

In a three-to-two vote at an open meeting held on May 3, 2023, the U.S. Securities and Exchange Commission (SEC) adopted amendments (Share Repurchase Disclosure Amendments) to the existing share repurchase disclosure…more

Charles Lange

Living in a Material(ity) World: SEC Adopts Regulation S-K Amendments Rooted in Materiality

Continuing a trend favoring a principles-based, materiality-driven disclosure regime, on August 26, 2020, the Securities and Exchange Commission (SEC) adopted amendments to the description of business (Item 101), legal…more

Amended Rules, Disclosure Requirements, Item 101, Item 103, Item 105

Corporate Counsel, Corporate Governance, Environmental Social & Governance (ESG), EU, Reporting Requirements

Elizabeth Lange

EU Sustainability Reporting Legislation Ramps Up

With U.S. companies facing increased scrutiny of their environmental, social and governance (ESG) efforts and reporting, European Union (EU) incorporated companies — and companies incorporated outside the EU with operations in…more

Agricultural Sector, Biden Administration, Competition, USDA

Lance Lange

Biden Administration Announces New Competition Enforcement Efforts in Agriculture

On September 26, 2022, the Biden administration announced two new efforts from the U.S. Department of Agriculture to encourage competition in the meat and poultry industry, protect producers, and reduce costs. Included in these…more

Todd Langel

District Court Delivers Significant Blow to GS CleanTech's Patents

A recent ruling in a closely watched patent infringement case involving several patents relating to methods for processing ethanol byproducts — and specifically recovering oil from thin stillage — could significantly impact the…more

Ethanol, Oil & Gas, Patent Infringement, Patent Litigation, Patents

Banking Sector, Banks, Consumer Financial Protection Bureau (CFPB), Dodd-Frank, Financial Institutions

Jeffrey Langer

A ‘Goldilocks' Dodd-Frank Change

The U.S. House and Senate have now passed a bill (S. 2155) that would make changes in the Dodd-Frank Act. Although the bill already has prompted both high praise and intense criticism, the actual changes reflect a moderate…more

Coronavirus/COVID-19, Health and Safety, Infectious Diseases, Vaccinations, Virus Testing

Elise Lanteri

Living With COVID-19: What Is Changing in England and What Does It Mean for Employers?

On 21 February 2022, the U.K. government announced its “Living with COVID-19’” plan. This month’s U.K. Employment Law Update outlines the key changes in England and what it means for employers. Key Changes - As of 24…more

Employer Liability Issues, Minimum Wage, Unpaid Wages, Wage and Hour, Wage Theft

Michael Lapicola

Denver Revises Municipal Code to Increase Civil Penalties Related to Wage Theft Violations and Expands “Up the Chain” Liability

On Tuesday, January 10, 2023, Denver Mayor Michael Hancock signed Bill 22-1614 after it passed the Denver City Council the previous day by unanimous vote. With the Bill’s passage comes increased penalties and new requirements…more

Defend Trade Secrets Act (DTSA), Economic Espionage Act, Theft, Trade Secrets

Debra Lappin

Company Trade Secrets May Get Federal Protection

Tomorrow, a U.S. Senate Judiciary subcommittee will hold a hearing to address whether current trade secret laws are strong enough to meet current threats of trade secret theft. A new bill introduced in Congress would give trade…more

Arbitration, Arbitration Agreements, Federal Arbitration Act, International Arbitration, Preemption

Larry LaTarte

First Circuit Holds That New York Convention Preempts Contrary State Laws Barring International Arbitration of Insurance Disputes

Background On May 19, 2023, the First Circuit Court of Appeals ruled in Green Enterprises, LLC v. Hiscox Syndicates Ltd. at Lloyd’s of London that the New York Convention on the Recognition and Enforcement of Foreign Arbitral…more

William (Joshua) Lattimore

Court Rejects Habitual TCPA Plaintiff’s Procedural Gamesmanship

In a recent condemnation of procedural “gamesmanship of the lowest order,” District Judge Michael M. Baylson not only denied a plaintiff’s request for a default judgment and for sanctions, but also sua sponte ordered the…more

Class Action, Default Judgment, Dismissals, Professional Plaintiffs, Sanctions

Food and Drug Administration (FDA), Food Labeling, Food Manufacturers, Nutrition Facts Labels

Courtney Lawrence

FDA Officially Extends Deadline to Comply With Nutrition Facts Panel Regulation

The U.S. Food & Drug Administration announced on May 3, 2018, that it would officially extend the deadline for food manufacturers to comply with the new nutrition facts panel regulation. The agency had previously published a…more

Chemicals, Environmental Litigation, Environmental Protection Agency (EPA), Federal Industry Standards, Manufacturers

Jenna Lawson

Updated EPA Analysis on Long-Term Health Effects of Formaldehyde Exposure Could Have Lasting Implications for Manufacturers

On April 14, 2022, the Environmental Protection Agency (EPA) released draft conclusions in a report updating its analysis regarding formaldehyde exposure, suggesting that long-term exposures to small amounts of formaldehyde in…more

Alan Lazarus

The Zantac Rule 702 Order: TLBR (Too Long, But Read)

On opening an opinion, lawyers habitually roll their eyes when they see a table of contents. Even more so when they learn the opinion is over 300 pages. The MDL order granting defense motions to exclude experts and for summary…more

Cancer, Causation, Daubert Standards, Expert Testimony, Expert Witness

Clawbacks, Corporate Officers, Executive Compensation, Financial Statements, Incentive Compensation

Marc Leaf

SEC Adopts Rule to Require Listed Companies to Adopt Clawback Policies

In October, the Securities and Exchange Commission (SEC) adopted Exchange Act Rule 10D-1, directing securities exchanges to adopt listing standards requiring listed companies to adopt and implement policies to recover…more

Jeanine Leahy

The European Commission Adopts Adequacy Decision on EU-U.S. Data Privacy Framework

On 10 July 2023, the European Commission adopted its long-awaited adequacy decision for the EU-U.S. Data Privacy Framework (the DPF). With immediate effect, the adequacy decision provides a new lawful basis for transfers from…more

Data Privacy, Data Protection, Data Security, EU, EU Data Protection Laws

Daniel Lechleiter

Supreme Court Decides WesternGeco LLC v. ION Geophysical Corp.

On June 22, 2018, the Supreme Court decided WesternGeco LLC v. ION Geophysical Corp., No. 16-1011, holding that the damages provision of the Patent Act, 35 U.S.C. § 284, allows a plaintiff to recover lost foreign profits…more

35 U.S.C. § 271(f)(2), 35 U.S.C. § 284, Appeals, Damages, Domestic Injury

Ronda Leduc

Health Care Organizations and Immigration: Employer Considerations

Health care organizations of all types, including hospitals, health systems, insurers, pharmaceutical companies and research universities, seek to employ the best and the brightest to deliver quality care and pursue the…more

Foreign Workers, H-1B, Health Care Providers, Healthcare Facilities, J-1 Visas

Amended Rules, Derivatives, Final Rules, Investment Company Act of 1940, Rule 18f-4

Bomi Lee

SEC Adopts Final Derivatives Rule and Related Amendments

The Securities and Exchange Commission (SEC) voted 3-2 on October 28, 2020 to adopt Rule 18f-4 under the Investment Company Act of 1940, as amended (1940 Act), and related amendments (Rule 18f-4 or Final Rule) related to the use…more

Cynthia Lee

Benefit Plan FAQs on COVID-19 – Part 2

In these difficult times, some employees may want to donate some of their accrued paid-time off, vacation, or leave to help other employees take leave to recover from COVID-19 or to care for family members with COVID-19. This…more

Donations, Employee Benefits, IRS, Leave-Sharing Plans, Paid Leave

Artificial Intelligence, European Patent Office, Intellectual Property Protection, USPTO

Brian Lefort

Can AI Be Considered an Inventor? USPTO, EPO Say No

Both the United States Patent & Trademark Office (USPTO) and the European Patent Office (EPO) have confirmed that patent law on both sides of the Atlantic Ocean does not permit artificial intelligence (AI) to be identified as an…more

Bridgette Lehman

Seventh Circuit’s back-to-back rulings shed light on TCPA’s applicability to unsolicited faxes

The 7th Circuit recently issued a decision in Smith v. First Hospital Laboratories, Inc., holding that in some “narrow situations” a fax offering to buy a product or service might be considered an advertisement under the TCPA if…more

Advertising, Contests & Promotions, Faxes, Healthcare, TCPA

Food and Drug Administration (FDA), Life Sciences, Manufacturers, Medical Devices, Pharmaceutical Industry

Blake Lehr

FDA Aligns Quality Systems Regulation With International Standards

After publishing the proposed regulation nearly two years ago, the FDA has issued its final rule that will make its regulatory framework more closely aligned with the international framework used by many other regulatory…more

Hannah Leiendecker

Supreme Court Decides Lac du Flambeau Band of Lake Superior Chippewa Indians et al. v. Coughlin

On June 15, 2023, the U.S. Supreme Court decided Lac du Flambeau Band of Lake Superior Chippewa Indians et al. v. Coughlin, No. 22-227, holding that the Bankruptcy Code unambiguously abrogates the sovereign immunity of all…more

Appeals, Bankruptcy Code, Bankruptcy Court, Chapter 11, FACTA

Fixing America’s Surface Transportation Act (FAST Act), Regulation S-K, Reporting Requirements, Securities and Exchange Commission (SEC), Securities Exchange Act

Nicole Leimer

SEC Simplifies, Modernizes Reporting Requirements for Public Companies

Public companies will soon receive a bit of relief from reporting requirements under the Securities Exchange Act of 1934, courtesy of amendments recently adopted by the Securities and Exchange Commission (SEC)…more

Martha Lemert

Second Circuit Upholds That Facebook "Likes" Can Be Protected, Concerted Activity

On October 21, 2015, the Second Circuit upheld the National Labor Relations Board’s (NLRB) earlier ruling that clicking the Facebook “Like” button can be protected concerted activity. The Triple Play Sports Bar & Grill fired two…more

Employer Liability Issues, Facebook, Hiring & Firing, NLRA, NLRB

James Leonard

Name, Image and Likeness Scouting Report, Week 6: Midseason Update — Five NIL Trends We’re Watching

The Iron Bowl is the name given to the annual Alabama–Auburn football rivalry: a key late-season matchup between the Auburn University Tigers and University of Alabama Crimson Tide, both charter members of the Southeastern…more

College Athletes, Colleges, Educational Institutions, Name and Likeness, NCAA

Health Care Providers, Medicare Access and CHIP Reauthorization (MACRA), Telehealth, Telemedicine, VETS

Julie Letwat

Telemedicine on the Rise: Five Factors Driving Telehealth Growth in 2017 – and Beyond

Telehealth has been a growing point of emphasis in U.S. health care discourse, as health care providers look to leverage interconnectivity to treat patients from a distance and legislators seek new ways to improve care. In the…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Compensation, Health Care Providers, Physicians

Jamie Levin

CMS Overhauls Stark Law Regulations as Part of Regulatory Sprint to Coordinated Care

On November 20, 2020, in addition to new Stark Law regulations intended to accommodate value-based financial arrangements with physicians, the Centers for Medicare and Medicaid Services (CMS) issued final regulations that…more

Affordable Care Act, Consumer Financial Protection Bureau (CFPB), Dodd-Frank, Financial Institutions, Tax Reform

Kenneth Levinson

Trump Administration Forecast: Changes to Key Policies Expected

Donald Trump’s election as president of the United States of America was as unexpected in the polls as the United Kingdom’s vote to embrace Brexit. Now Democrats and Republicans alike are trying to assess how Mr. Trump, a…more

Eli Levy

2023 NFI Insurance Public Policy Summit Highlights “Balancing Act”

The “balancing act” of insurance regulation across jurisdictions, policymakers, and stakeholders took center stage at the 18th Annual Networks Financial Institute Insurance Public Policy Summit on May 17 in Washington D.C…more

Cybersecurity, Insurance Industry, Life Insurance, NAIC, Popular

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

Matthew Levy

New HSR Act Size-of-Transaction Increasing to $119.5 Million; Filing Fee Increases Going Into Effect Soon

On January 22, 2024, the Federal Trade Commission (FTC) published its adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The FTC revises the HSR Act thresholds…more

Daniel Lewallen

2023 NFI Insurance Public Policy Summit Highlights “Balancing Act”

The “balancing act” of insurance regulation across jurisdictions, policymakers, and stakeholders took center stage at the 18th Annual Networks Financial Institute Insurance Public Policy Summit on May 17 in Washington D.C…more

Cybersecurity, Insurance Industry, Life Insurance, NAIC, Popular

Sara Lewenstein

New Title IX Guidance: Postsecondary Institutions CAN Rely On Statements Not Subject to Cross-examination

The Office for Civil Rights (OCR) of the U.S. Department of Education (the “Department”) issued new guidance this week clarifying that it will immediately cease enforcement of the part of 34 C.F.R. § 106.45(b)(6)(i) that…more

Educational Institutions, OCR, Sexual Assault, Sexual Harassment, Students

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

Joanne Lewers

Proposed HSR Rules Upend M&A and Merger Control Review

On June 27, 2023, the Federal Trade Commission (FTC), in collaboration with the Department of Justice (DOJ) Antitrust Division, announced proposed changes to the Hart-Scott-Rodino (HSR) filing and notification form that…more

Maria Lewis

Next Stage Considerations About the Supreme Court’s Affirmative Action Decision: How to Put the Warning Letter from the State Attorneys General in Context

As higher education institutions, state and local governments, private employers and federal contractors grapple with understanding the impacts of the U.S. Supreme Court’s decision in Students for Fair Admissions v. President &…more

Affirmative Action, Civil Rights Act, College Admissions, Colleges, Diversity

China, Food Manufacturers, Imports, Registration Requirement

Marlene Li

China Imposes New Registration Requirements for Overseas Food Facilities

In order to step up efforts in supervising the overseas facilities of imported foods, China’s General Administration of Customs (GACC) promulgated the Administrative Provisions on Registration of Overseas Manufacturers of…more

Yiqiang Li

China Enacts Updated Counterespionage Law, Increasing Risks for Multinationals Operating in China

On July 1, 2023, an amendment to the Counterespionage Law of the People’s Republic of China (2014) (2023 Amendment) took effect, following adoption by the Standing Committee of the 14th National People’s Congress of the People’s…more

China, Corporate Counsel, Espionage, Multinationals, National Security

Breach of Duty, Corporate Officers, Duty of Loyalty, Fiduciary Duty, Oversight Duties

Christina Lidondici

Delaware Court of Chancery Expands Duty of Oversight to Corporate Officers

Delaware law has long recognized a director’s duty of oversight. The well-established doctrine, first articulated in 1996 in In Re: Caremark International Inc. Derivative Litigation, was recently expanded to officers in In re…more

Contract Terms, Life Insurance, Securities Act of 1933, Securities and Exchange Commission (SEC), Variable Annuities

Joshua Lindauer

SEC Adopts New Rule 498A for Variable Contracts

On March 11, 2020, the U.S. Securities and Exchange Commission adopted new Rule 498A under the Securities Act of 1933, as amended, and related form and rule amendments. The new rule and amendments are intended to modernize…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

Lauren Linderman

Total Ban: FTC Issues Final Rule Banning Employment Noncompete Agreements

On April 23, 2024, the U.S. Federal Trade Commission (FTC) voted (in a 3-2 vote along party lines) to finalize and promulgate a final rule that bans noncompete agreements for the vast majority of workers…more

Consumer Financial Protection Bureau (CFPB), Credit Reporting Agencies, Credit Reports, Fair Credit Reporting Act (FCRA)

Jesse Linebaugh

New CFPB Rules Are Coming for Data Brokers

The director of the Consumer Financial Protection Bureau (CFPB) recently announced that the agency will be developing new rules defining a data broker that sells certain types of consumer data as a “consumer reporting agency”…more

Breach of Contract, Corporate Misconduct, Counterclaims, Express Contract Terms, Federal Rules of Civil Procedure

Stacie Linguist

DNJ Enters Default Judgment on Breach of Contract Counterclaim in Manufactured TCPA Lawsuit

The United States District Court of New Jersey recently granted default judgment to Defendant Slack Technologies (“Defendant”) for its breach of contract counterclaim against Plaintiff Gino D’Ottavio (“Plaintiff”), who…more

Clinical Trials, Draft Guidance, Food and Drug Administration (FDA), Life Sciences, Medical Devices

Theodore Lis

FDA Draft Guidance: Remote Data Acquisition in Clinical Investigations

In December 2021, FDA issued draft guidance, Digital Health Technologies (DHTs) for Remote Data Acquisition in Clinical Investigations, which provides guidance for clinical trial sponsors, investigators and other interested…more

Calvin Litsey

Supreme Court Decides Star Athletica, L.L.C. v. Varsity Brands, Inc.

On March 22, 2017, the Supreme Court of the United States decided Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, holding that artistic designs on cheerleading uniforms were eligible for copyright…more

Cheerleaders, Copyright, Copyright Infringement, Fashion Design, SCOTUS

Agribusiness, Borrowers, Environmental Protection Agency (EPA), Financial Institutions, Lenders

Elizabeth Little

Key Takeaways From the 2021 Food & Agribusiness National Conference: The Agribusiness Industry

Faegre Drinker’s 2021 Food & Agribusiness National Conference assembled speakers from global, market-leading companies to discuss major issues and trends of note from across market segments and product categories. In the latest…more

Disclosure Requirements, Environmental Social & Governance (ESG), Form ADV, Investment Adviser, Investment Advisers Act of 1940

Gloria Liu

SEC Proposes ESG Disclosure Requirements for Investment Advisers

In a three-to-one vote on May 25, 2022, the U.S. Securities and Exchange Commission (SEC) issued proposed amendments to rules and reporting forms that would require registered investment advisers — including private fund…more

Stephen Llewellyn

English High Court Sets out Principles for COVID-19 Adjournments and Time Extensions

In a recent ruling of the English High Court, a judge has set out the principles which the English Courts should apply when considering applications to adjourn hearings and for extensions of time made against the background of…more

Adjournment, Coronavirus/COVID-19, Evidence, Time Extensions, UK

Artificial Intelligence, Corporate Counsel, Machine Learning, Technology Sector, United Nations

Jessica Loesing

Artificial Intelligence Briefing: UN Unanimously Adopts Landmark AI Resolution

The United Nations unanimously adopts a landmark resolution mapping a path for international cooperation on AI, and the Financial Stability Oversight Council announces a two-day conference exploring the benefits and risks of AI…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA), Public Health Emergency

Steve Lokensgard

A New Normal: Preparing Compliance Programs for Changes to Federal Telehealth Policy in a Post-Pandemic World

The rapid growth of telehealth during the COVID-19 pandemic continued and expanded access to care for millions of patients. Despite telehealth’s success in promoting continuity of care amid stay-at-home orders and social…more

Sari Long

USCIS Announces H-1B Cap Has Been Reached for Fiscal Year 2024

On December 13, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough petitions to meet the annual numerical allocation of 85,000 H-1B visas for fiscal year 2024 (FY2024), which includes…more

Foreign Workers, H-1B, Immigrants, Immigration Procedures, USCIS

Due Diligence, Failure To Disclose, Private Funds, Risk Alert, Securities and Exchange Commission (SEC)

Sandra Melissa Lopez

SEC’s Division of Examination Risk Alert Highlights Additional Risk Areas for Private Funds

On January 27, 2022, the U.S. Securities and Exchange Commission’s (SEC) Division of Examinations (SEC Exams) issued a risk alert regarding private funds to “assist private fund advisers in reviewing and enhancing their…more

Data Collection, Discovery, Document Productions, e-Discovery Professionals, Electronically Stored Information

Christine Lozier

Authenticating Social Media Evidence at Trial

Social media is ubiquitous in our cyber-connected world. For many, the first thing a person does when they wake up, and the last thing that person does when they go to bed is read, post, or otherwise interact with platforms such…more

Corporate Governance, Public Benefit Corporation, Shareholder Proposals, Shareholders

Jennifer Lucas

Shareholder Proposals Requesting Conversion to Public Benefit Corporations: A Fleeting Trend or the Future?

In the past year, at least 16 public companies1 received shareholder proposals requesting they convert to benefit corporations. Benefit corporations (known in Delaware as public benefit corporations or “PBCs”) are for-profit…more

Clean Water Act, Environmental Protection Agency (EPA), Trump Administration, US Army Corps of Engineers, Waters of the United States

Olivia Lucas

2015 Waters of the United States Rule Reinstatement Leaves Industry Operating Under Patchwork of Regulations

The controversial Obama-era Waters of the United States Rule (2015 WOTUS Rule) was reinstated after a federal judge in the U.S. District Court for the District of South Carolina vacated the Trump Administration’s suspension on…more

Investment Adviser, Investment Advisers Act of 1940, Investment Management, Qualified Client, Securities and Exchange Commission (SEC)

Patrick Lucke

SEC Raises ‘Qualified Client' Net Worth Threshold from $2 Million to $2.1 Million

Rule 205-3 under the Investment Advisers Act of 1940 permits investment advisers to charge performance- based compensation (including performance and incentive fees by private funds) only to “qualified clients.” On June 14,…more

Abortion, Department of Health and Human Services (HHS), Dobbs v. Jackson Women’s Health Organization, Health Insurance Portability and Accountability Act (HIPAA), Patient Privacy Rights

Paul Luehr

HHS Issues New Guidance on Patient Privacy Following Dobbs Decision

On June 24, 2022, the United States Supreme Court held in Dobbs v. Jackson Women’s Health Organization that the United States Constitution does not confer a right to an abortion. In Dobbs, the Court explicitly overruled Roe vs…more

First Amendment, Free Speech, Government Speech Doctrine, SCOTUS

Abigail Luhn

Supreme Court Decides Shurtleff v. Boston

On May 2, 2022, the U.S. Supreme Court decided Shurtleff v. Boston, No, 20-1800, holding that because Boston’s flag-raising program does not constitute government speech, Boston violated the Free Speech Clause of the First…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

Jillian Lukacik

Total Ban: FTC Issues Final Rule Banning Employment Noncompete Agreements

On April 23, 2024, the U.S. Federal Trade Commission (FTC) voted (in a 3-2 vote along party lines) to finalize and promulgate a final rule that bans noncompete agreements for the vast majority of workers…more

Daniel Lund

Federal Circuit May Invalidate 30,000 Patents in Immersion v. HTC

Procrastinating patent prosecution attorneys took notice when Delaware District Court Judge Richard G. Andrews threw out the longstanding accepted practice that a continuation application may be filed on the issue date of a…more

Corporate Counsel, HTC, Patent Invalidity, Patents, Popular

Broker-Dealer, Conflicts of Interest, Department of Labor (DOL), Fiduciary-Standards, Investment

James Lundy

The Convergence Continues: SEC Staff Bulletin on Standards of Conduct for B-Ds and RIAs

On March 30, 2022, the SEC issued “Staff Bulletin: Standards of Conduct for Broker-Dealers and Investment Advisers Account Recommendations for Retail Investors” (SEC Retail Standards Bulletin). This guidance builds on prior SEC…more

Jason Luter

IRS Extends Filing Deadlines for Employee Benefit Plans

In response to the COVID-19 pandemic, the IRS has issued Notice 2020-23, which automatically extends the deadlines for certain filing obligations that would otherwise be due on or after April 1, 2020, and before July 15, 2020…more

Coronavirus/COVID-19, Filing Deadlines, HSA, IRS, Tax Relief

Artificial Intelligence, Centers for Medicare & Medicaid Services (CMS), Federal Trade Commission (FTC), Food and Drug Administration (FDA), Health Insurance

Svetlana Lyapustina Ph.D.

Artificial Intelligence Briefing: House Launches Bipartisan AI Task Force

The House of Representatives aims to keep the U.S. at the leading edge of AI policy and innovation with a bipartisan task force while the FTC considers expanding a rule to crack down on AI impersonation. Meanwhile, a recent…more

Construction Industry, Contractors, Design Professionals, Independent Contractors

Brian Lynch

Fashion Trends for Design Professionals: Wearing Many Different Hats

With the rise in alternative project delivery systems, design professionals are often expected to provide services beyond those required under the “traditional mode.” As one may expect, this expansion of services can also…more

America First Trade Policy, NAFTA, Trans-Pacific Partnership, Trump Administration, US Trade Policies

David Lyons

New Policy Agenda Highlights President Trump's Approach to Global Trade

The Trump administration released a report to Congress on March 1, 2017 outlining details of the president’s “America First” trade policy. The report represents a drastic shift in the U.S. approach to global trade practices and…more

Javier Mabrey

Regulatory Actions Impacting Health Insurers and Managed Care Companies in Response to COVID-19

As health insurers and managed care companies work to serve their patient communities during the COVID-19 pandemic, they must also track and adapt to a multitude of new state and federal COVID-19-related regulatory actions…more

Coronavirus/COVID-19, Cost-Sharing, Deductibles, HDHPs, Health Insurance

Borrowers, Coronavirus/COVID-19, Loan Guaranties, Non-Recourse Loans

D. Charles Macdonald

Non-Recourse Guaranties in the Age of COVID-19

When engaging in real estate loan transactions, insurance company lenders often undertake a robust underwriting process that focuses on the value and marketability of the real property that serves as collateral for the loan. As…more

CFTC, Criminal Prosecution, Department of Justice (DOJ), Foreign Corrupt Practices Act (FCPA), Incentives

Erica MacDonald

DOJ Becomes Latest Agency to Offer Financial Incentives for Whistleblowers

On March 7, 2024, Deputy Attorney General Lisa Monaco announced that the U.S. Department of Justice (DOJ) is creating a program that will offer financial rewards to whistleblowers who bring the DOJ information concerning…more

Beverage Manufacturers, Food and Drug Administration (FDA), Food Labeling, Food Manufacturers, Nutrition Facts Labels

Zachary Maciejewski

FDA Proposes to Update the Definition of “Healthy” on Food Labels

On September 28, 2022, the Food and Drug Administration (FDA) announced its proposal to update its 1994 definition of “healthy” when used on food labels and labeling to align with the current nutrition science, the Dietary…more

Construction Industry, Construction Project, Contractors, Mechanics Lien, Subcontractors

Deb Mackay

Mechanic’s Liens: Five Things That Everyone Should Know

Anyone who works in construction and on construction projects will deal with mechanic’s liens. Sometimes referred to as construction liens or property liens, mechanic’s liens are typically statutory creations designed to protect…more

Artificial Intelligence, Data Privacy, Data Protection, Opioid, State Attorneys General

Gregg Mackuse

State AG Updates: Data Privacy & Security; Artificial Intelligence; Predatory & Deceptive Real Estate Practices; Consumer Protection; Opioid Epidemic; and Federal Regulations

Data Privacy & Security - DoorDash to Pay a $375,000 Civil Penalty Under the CCPA for Participation in Marketing Collective - Clarifying that California considers participation in a marketing cooperative to be a “sale”…more

Consolidated Appropriations Act (CAA), Department of Health and Human Services (HHS), Department of Labor (DOL), Employee Benefits, Employee Retirement Income Security Act (ERISA)

Michael MacLean

Mental Health Parity: Comparative Assessments Required for Certain Nonquantitative Treatment Limits in Group Health Plans

As noted in several recent blog posts, the year-end Consolidated Appropriations Act (CAA) included a number of employee benefits-related changes. One set of changes represents an effort to further strengthen protections under…more

Michael MacPhail

SEC Examinations 2022 Priorities: Reg BI, ESG, Private Funds, Information Security & Operational Resiliency, and Crypto

The SEC Division of Examinations recently released its 2022 Division of Examinations “Priorities.” The 2022 Priorities provide critical insight into what the Division of Examinations (the “Division”) considers the most…more

Broker-Dealer, Compliance, Cryptoassets, Data Security, Emerging Technologies

Appropriate Equitable Relief, Employee Benefits, Employee Retirement Income Security Act (ERISA), Medical Expenses, Medical Liens

Peter Magnuson

Supreme Court Decides Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan

On January 20, 2016, the U.S. Supreme Court decided Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, No. 14-723, holding that where an ERISA-plan participant has dissipated a third-party…more

Nicholas Mahan

Visa Options and Immigration Strategies for Colleges and Universities

U.S. colleges and universities have many visa options that enable them to employ diverse and talented faculty from around the world. This article will introduce the primary nonimmigrant (temporary) visa categories used by U.S…more

Colleges, Faculty, Foreign Nationals, H-1B, Immigration Procedures

Department of Justice (DOJ), Health Insurance, Insurance Industry, McCarran-Ferguson Act

Josh Mahoney

Members of Congress Continue to Press DOJ on Health and Dental Insurance Antitrust Enforcement

Congressional leaders continue to seek information from the U.S. Department of Justice (DOJ) concerning the DOJ’s efforts to enforce the Competitive Health Insurance Reform Act (CHIRA), which partially repealed the…more

Coronavirus/COVID-19, Delaware General Corporation Law, Shareholder Meetings, Virtual Meetings

Michael Maimone

Delaware Authorizes Remote Stockholder Meetings in Response to COVID-19

Responding to the needs of publicly traded corporations navigating the COVID-19 epidemic, Delaware Gov. John C. Carney issued a modified State of Emergency Order (the Order) authorizing public companies to conduct stockholder…more

Employer Liability Issues, Minimum Wage, Unpaid Wages, Wage and Hour, Wage Theft

Kevin Major

Denver Revises Municipal Code to Increase Civil Penalties Related to Wage Theft Violations and Expands “Up the Chain” Liability

On Tuesday, January 10, 2023, Denver Mayor Michael Hancock signed Bill 22-1614 after it passed the Denver City Council the previous day by unanimous vote. With the Bill’s passage comes increased penalties and new requirements…more

Benefit Plan Sponsors, Brokers, Compliance, Consolidated Appropriations Act (CAA), Consultants

Maureen Maly

Fee Disclosure Rules Will Soon Apply to Group Health Plans

Buried in the year-end Consolidated Appropriations Act (CAA) is a provision that requires group health plan brokers and consultants to make comprehensive fee disclosures similar to those that apply to retirement plans. As…more

Robert Mancuso

Insurance Industry: Mid-2023 Privacy and Data Security Updates

The first half of 2023 saw a flurry of activity in the privacy and data security spaces. We outline below some of the key developments of interest to the insurance industry…more

Cybersecurity, Data Privacy, Data Protection, Data Security, Insurance Industry

Biden Administration, Civil Rights Act, Environmental Justice, Environmental Protection Agency (EPA), Title VI

John Mandler

Title VI Civil Rights Act Complaint

The Biden administration has made Environmental Justice a key component of its overall environmental agenda. EPA highlights EJ and civil rights in its draft strategic plan noting it will place a focus on “justice, equity, and…more

Department of Health and Human Services (HHS), Drug Pricing, HRSA, Pharmaceutical Industry, Pharmacy Benefit Manager (PBM)

Nicholas Manetto

Bipartisan Reform of 340B Drug Discount Program?

On February 2, 2024, a bipartisan group of six U.S. senators released much-anticipated draft legislation to reform the Health Resources and Services Administration’s (HRSA) 340B drug discount program. Known as the SUSTAIN 340B…more

California, False Advertising, Insurance Industry, Long Term Care Insurance, Misleading Statements

Franziska Mangot

CDI Issues Bulletin Warning Insurers of False and Misleading Advertisements Related to Public Option Legislation Pending in California

Insurers and brokers selling long-term care (LTC) insurance in California should be aware of the California Department of Insurance (CDI) bulletin of August 23, 2023, expressing concern over certain complaints received by CDI…more

Data Collection, EEO-1, Employer Liability Issues, Equal Employment Opportunity Commission (EEOC), Pay Data

Renee Manson

EEOC Announces 2021 Schedules for EEO Data Collection

On January 12, 2021, the Equal Employment Opportunity Commission (EEOC) announced the upcoming opening of four EEO data collections: the 2019 and 2020 EEO-1, the 2020 EEO-3, the 2021 EEO-4 and the 2020 EEO-5. The EEOC collects…more

First Amendment, Misleading Statements, Proposition 65, Warning Labels

Rita Mansuryan

California Federal Court Bars Enforcement of Proposition 65 Warning on Glyphosate Products

In a memorandum and order on summary judgment issued Monday, June 22, 2020, Judge William B. Shubb in the Eastern District of California issued a permanent injunction blocking enforcement of California’s Proposition 65 warnings…more

Cloris Mao

Impact of China’s New Company Law on Foreign Investors

China’s legislative body, the Standing Committee of the National People’s Congress of the PRC, recently promulgated an amendment to the PRC Company Law, effective from July 1, 2024 (New Company Law). This amendment has been the…more

Board of Directors, China, Foreign Investment, Investment, Investors

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

Harmony Mappes

Total Ban: FTC Issues Final Rule Banning Employment Noncompete Agreements

On April 23, 2024, the U.S. Federal Trade Commission (FTC) voted (in a 3-2 vote along party lines) to finalize and promulgate a final rule that bans noncompete agreements for the vast majority of workers…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Financial Services Industry, Lac du Flambeau Band of Lake Superior Chippewa Indians v Coughlin

Jaclyn Marasco

Bankruptcy Implications of Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin

On June 15, 2023, the U.S. Supreme Court decided Lac du Flambeau Band of Lake Superior Chippewa Indians, et al. v. Coughlin. The case involved a tribal entity, “Lendgreen,” that lent an individual, Brian Coughlin, “$1,100 in the…more

Automatic Renewals, Consumer Contracts, ROSCA, Subscription Services

Laura Koewler Marion

Automatic Renewal Laws in All 50 States: An Updated Guide

From streaming music and television to diaper and grocery deliveries, subscription services have become part of consumers’ daily life. However, while these subscription services — which enable customers to continue receiving a…more

Credit Reports, Fair Credit Reporting Act (FCRA), Lenders, Sovereign Immunity, USDA

Jesse Marks

Supreme Court Decides Department of Agriculture Rural Development Rural Housing Service v. Kirtz

On February 8, 2024, the U.S. Supreme Court decided Department of Agriculture Rural Development Rural Housing Service v. Kirtz, No. 22-846, affirming the decision below and holding that a governmental agency is not immune from…more

Criminal Prosecution, Criminal Sanctions, Food and Drug Administration (FDA), Opioid, Prescription Drugs

Blayre Marley

FDA Touts Results of New Prosecutorial Enforcement Muscle Worldwide

The Food and Drug Administration (FDA) is increasing and strengthening its ability to enforce criminal sanctions against conduct related to illegal FDA-regulated products across the globe, according to an October release. The…more

Acquisition Agreements, CARES Act, Coronavirus/COVID-19, Material Adverse Effects, Merger Agreements

Sam Marll

How Has COVID-19 Impacted M&A Agreements?

The global outbreak of COVID-19 hit the United States in March 2020. Over a year later, it has irrevocably altered the way that M&A parties negotiate and structure agreements for the purchase and sale of private companies. …more

Collateralized Debt Obligations, Trustees, Trusts

Ed Marlow

Trio of Corporate Trust Decisions Addresses Jurisdiction, Standing and Authority to Direct the Trustee

Three recent corporate trust decisions provide insight into issues of jurisdiction, standing of indirect holders and the authority of limited direct certificateholders to direct trustees. The U.S. Supreme Court has left alone a…more

Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board, Patents, Post-Grant Review, Sovereign Immunity

Richard Marsh, Jr.

Sovereign Immunity and Inter Partes Review: Protection From Post-Grant Proceedings for Universities and Affiliated Entities?

Since its inception in 2012, the Patent Trial and Appeal Board (PTAB) has invalidated a slew of patents in inter partes review (IPR), leading some to characterize the nascent body as the “patent death squad.” As such, patentees’…more

Discrimination, Duty of Care, Employees, Employer Liability Issues, Employment Policies

Charlotte Marshall

Menopause in the Workplace: A Multi-Faceted Issue

Menopause is something that approximately 50 percent of the workforce will experience during their working lives, but it is still infrequently discussed or considered in the workplace and many of us are unaware of how menopause…more

Advisors Act, Cash Solicitation Rule, Disclosure Requirements, Enforcement, Financial Adviser

Christiana Martenson

Two Stones, One Bird: SEC’s Double Whammy Against Advisory Firm

In a pair of settlements announced on July 28, 2020, the SEC charged VALIC Financial Advisors (the “Firm”) with two separate sets of violations that allowed the Firm to obtain millions of dollars in fees without providing…more

28 USC 1331, Exclusive Jurisdiction, Federal Jurisdiction, Financial Institutions, Merrill Lynch

James Martignon

Supreme Court Decides Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning

On May 16, 2016, the Supreme Court of the United States decided Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, No. 14-1132, holding that that the “arising under” test for federal-question jurisdiction under 28 U.S.C. §…more

Biologics, Draft Guidance, Food and Drug Administration (FDA), PDUFA, Prescription Drugs

Allison Martin

Weighing Benefits and Risks: New Draft Guidance Offers Insights on FDA Decision-Making

In late September, the Food and Drug Administration (FDA) released a draft guidance on benefit-risk assessments for drugs and biological products. The draft guidance includes considerations the agency uses when weighing the…more

Homeowners, Homeowners Association (HOA), New Legislation, State Legislatures

Carla Martin

Coming to the Neighborhood: Colorado Passes New HOA Laws

The Colorado legislature recently enacted several new laws that will significantly impact the conduct of homeowners’ associations (HOAs) across the state. These changes range from detailed procedures governing the collection of…more

George Martin

Impact of China’s New Company Law on Foreign Investors

China’s legislative body, the Standing Committee of the National People’s Congress of the PRC, recently promulgated an amendment to the PRC Company Law, effective from July 1, 2024 (New Company Law). This amendment has been the…more

Board of Directors, China, Foreign Investment, Investment, Investors

Champerty, Contingency Fees, Litigation Fees & Costs, Litigation Funding

Jane Maschka

Minnesota Supreme Court Takes on Litigation Financing for Second Time in Single Suit

For the second time in a single litigation (Maslowski v. Prospect Funding Partners, LLC, et al. v. James Schwebel, Esq., et al.), the Minnesota Supreme Court will consider the propriety and permissible scope of private…more

Adam Masin

The Ethics of Social Media “Friendship”

Social media information that reflects a person’s physical condition, activity level, and emotional state is a particularly valuable source of discovery in product liability and personal injury cases. See, e.g., Forman v…more

Data Collection, Discovery, Ethics, Facebook, Facebook Friends

Amended Rules, Disclosure Requirements, Financial Statements, Publicly-Traded Companies, Regulation S-K

Brandon Mason

SEC’s Modernization and Simplification Efforts Continue: Changes Coming to Disclosures for Acquisitions and Dispositions by Public Companies

The efforts of the U.S. Securities and Exchange Commission (SEC) to modernize and simplify public company disclosure rules continue, with the latest round of changes including a final order adopted on May 21, 2020 addressing…more

Ex Parte, Ex Partes Reexamination, Expungement, Trademark Litigation, Trademark Modernization Act (TMA)

Diane Mason

Trademark Modernization Act: Final Rules

The USPTO recently issued its final rules to implement the Trademark Modernization Act, whose goal is to clear away unused registered marks and make the trademark registration process more efficient. Below, we highlight public…more

Biometric Information, Biometric Information Privacy Act, Data Privacy, Data Protection, Data Security

Stacy Massey

Illinois Supreme Court Finds Narrow BIPA Exception for Health Care Workers

Background - The Illinois Biometric Information Privacy Act (BIPA) prohibits companies from collecting, capturing or otherwise obtaining a person’s biometric identifier or biometric information (biometrics) without informed…more

Alaska, Alaska Native Claims Settlement Act (ANCSA), CARES Act, Indian Self-Determination and Education Assistance Act (ISDEAA), SCOTUS

Catherine Masters

Supreme Court Decides Yellen v. Confederated Tribes of the Chehalis Reservation

On June 25, 2021, the U.S. Supreme Court decided Yellen v. Confederated Tribes of the Chehalis Reservation, holding that Alaska Native Corporations (ANCs) qualify as “Indian tribes” under the Indian Self-Determination and…more

Coronavirus/COVID-19, Form 10-K, Infectious Diseases, Securities and Exchange Commission (SEC)

Clint Maynard

The Evolution of Issuers’ Disclosure Packages in the Eye of the COVID-19 Storm

After a period of volatility and dislocation in the debt capital markets, quality issuers are now finding ample access to liquidity at reasonable pricing through the investment-grade debt markets. However, investors are keenly…more

Corporate Branding, Intellectual Property Protection, Patent Portfolios, Proof of Use, Trademark Litigation

Susan Mazurek

From Concept to Commerce: The Art of Trademark Specimens of Use

In the world of trademarks, specimens of use (or proof of use) play a crucial role in obtaining and maintaining a trademark registration with the United States Patent and Trademark Office (“USPTO”). In this blog post, we’ll…more

Arbitrary and Capricious, Cannabis Products, E-Cigarettes, Governor Baker, Public Health

Katherine McBeth

Massachusetts Court Upholds Temporary Ban on the Sale of All Vaping Products

While various states and municipalities grapple with how to address the proliferation of e-cigarette or vaping product use associated lung injury (EVALI) and the related uptick in e-cigarette use among young people,…more

Competition, Drug Pricing, Federal Trade Commission (FTC), Pharmaceutical Industry, Pharmacy Benefit Manager (PBM)

Winnie McBride

FTC Issues Policy Statement Putting PBMs on Notice

On June 16, 2022, the FTC unanimously voted to issue an enforcement policy statement putting Pharmacy Benefit Managers (PBMs) on notice that the payment of rebates and fees by drug manufacturers to PBMs resulting in the…more

Kaela McCabe

Minnesota Court Denies Standing, Clarifies Definition of “Interested Person” in Trust Instruction Proceedings

To be an “interested person” under the Minnesota Trust Code, a party must have a property right in or claim against the assets of the trust arising out of the trust instrument itself, not merely a possibility of becoming a…more

Beneficiaries, NCUA, Trustees, Trusts

Consumer Financial Protection Bureau (CFPB), Employer Liability Issues, Information Sharing, NLRA, NLRB

Erin McCann

NLRB New Information Sharing Agreement Takes Aim at Employer Surveillance

On March 7, 2023, the National Labor Relations Board (NLRB) announced a new information sharing agreement with the Consumer Financial Protection Bureau (CFPB). The agencies executed a memorandum of understanding that will remain…more

Diana McCarthy

SEC Warns Industry: Remain Vigilant of Cyberattacks

Cybersecurity has been a key examination priority for the Securities and Exchange Commission’s (SEC) Office of Compliance Inspections and Examinations (OCIE) for many years. On July 10, 2020, it issued a risk alert warning of a…more

Cyber Attacks, Cybersecurity, Data Protection, OCIE, Ransomware

Cyber Insurance, Cybersecurity, Departments of Commerce, Financial Stability Board, Framework Agreement

Daniel McCarty

International Capital Standard, Holistic Framework, Cyber Insurance Highlight NAIC International Insurance Forum in D.C

On May 13-14, 2019, the National Association of Insurance Commissioners (NAIC) hosted its annual International Insurance Forum in Washington, D.C. Highlights of the event included remarks from U.S. Department of the Treasury…more

Criminal Prosecution, Foreign Sovereign Immunities Act of 1976 (FSIA), Foreign Sovereigns, SCOTUS, Sovereign Immunity

Hannah McCausland

Supreme Court Decides Turkiye Halk Bankasi A.S., aka Halkbank v. United States

On April 19, 2023, the U.S. Supreme Court decided Turkiye Halk Bankasi A.S., aka Halkbank v. United States, holding that the district court has jurisdiction under 18 U.S.C. § 3231 over the prosecution of Halkbank and that the…more

Andrew McCoy

FDA Issues Guidance for Applicants Seeking Biosimilar/Interchangeable Approval

The Food and Drug Administration (FDA) released new draft guidance, Biosimilarity and Interchangeability: Additional Draft Q&As on Biosimilar Development and the BPCI Act, intended for prospective applicants of biologics license…more

Jill McCrory RN

FDA Issues Guidance for Applicants Seeking Biosimilar/Interchangeable Approval

The Food and Drug Administration (FDA) released new draft guidance, Biosimilarity and Interchangeability: Additional Draft Q&As on Biosimilar Development and the BPCI Act, intended for prospective applicants of biologics license…more

Property Tax, Property Valuation, Tax Assessment

Matthew McCubbins

Kentucky Taxpayers Shouldn’t Ignore Property Tax Valuations During Market Unrest

Owners of various types of commercial and industrial real estate are feeling the effects of an uncertain market. During a period of declining revenue and increasing expenses, property owners should carefully consider ways to…more

Remand, Removal, Statutory Interpretation, Subject Matter Jurisdiction

Kip McDonald

This Month in Snap Removal: The District of Nevada Muddies Its Snap Removal Waters and Throws Proponents a Life Preserver

Faegre Drinker’s snap removal team continuously monitors snap removal updates across the country (for a basic explanation of snap removal and previous updates, see Faegre Drinker’s prior posts...; for a breakdown on how each…more

Jacqueline McDonnell

Michigan Repeals Pharma Immunity Provision

Michigan recently signed into law a repeal of the immunity provision under its Product Liability Act, presenting a new litigation risk in Michigan for pharmaceutical companies. The provision had granted near-complete immunity to…more

Affirmative Defenses, Damages, Immunity, Life Sciences, Pharmaceutical Industry

Antitrust Division, Antitrust Provisions, Competition, Department of Justice (DOJ), Federal Trade Commission (FTC)

Kennedy Elizabeth McGuire

Antitrust Scrutiny of Private Equity in Health Care Intensifies

In recent years, federal and state antitrust agencies have been increasingly focused on the impact of private equity involvement in the health care sector. Two recent developments in March 2024 reinforce that this heightened…more

Advertising, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Direct to Consumer Sales, Drug Pricing

Caitlin McHugh

Final Drug Pricing DTC Advertising Rule to Take Effect July 9 – But Faces Challenges from Pharmaceutical Companies

This winter we discussed new regulatory guidelines intended to increase transparency in Direct-to-Consumer (DTC) advertising including a proposed rule from the Centers for Medicare and Medicaid Services (CMS) that would require…more

America Invents Act, Appeals, Assignment of Inventions, Confidentiality Agreements, Helsinn Healthcare SA v Teva Pharmaceuticals USA Inc

John McIntire

Supreme Court Decides Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.

On January 22, 2019, the Supreme Court decided Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., No. 17-1229, holding in a unanimous decision that an invention sold to a third party under a confidentiality agreement may…more

Employer Liability Issues, Equal Employment Opportunity Commission (EEOC), Harassment, Hostile Environment, Remote Working

Ken McIntosh II

Hostile Environment Claims in a Work-From-Home World

An October 2020 Forbes.com article on harassment in the work-from-home world identified eight “red flag” signs of harassment. “Just like the working environment has changed to a home-based environment, so has workplace…more

Damages, Governor DeSantis, Insurance Claims, Insurance Industry, Joint and Several Liability

Traci McKee

Tort Reform Comes to Florida

On Friday, March 24, 2023, Gov. Ron DeSantis signed into law HB 837: Civil Remedies, bringing sweeping tort reform in the state of Florida. In a statement, the governor said, “Florida has been considered a judicial hellhole for…more

Charitable Donations, Charitable Organizations, Donors, Endowment Funds

Emanuel McMiller

Georgia and Kentucky Allow Donor Standing for Endowment Violations, While Similar Efforts Are Pending in Ohio and Vermont

Georgia and Kentucky Allow Donor Standing for Endowment Violations - On April 9, 2024, Kentucky’s governor signed Senate Bill 70, which will take effect on July 15, 2024, and will amend Kentucky’s version of the Uniform…more

Breach of Duty, Fiduciary Duty, Investment Adviser, Standing

Adrienne McNamara

Colorado Court Reaffirms UPMIFA’s Standing Requirements

On March 31, 2022, the Colorado Court of Appeals, in a 3–0 decision, held that only the Colorado attorney general or a person with a special interest may sue an institution for mismanagement of fund investments under the Uniform…more

Cyber Insurance, Cybersecurity, Cybersecurity Framework, Governance Standards, NIST

Mason Medeiros

NIST Releases Cybersecurity Framework 2.0

On February 26, 2024, the National Institute of Standards and Technology (NIST) released the NIST Cybersecurity Framework 2.0 (CSF 2.0). CSF 2.0 represents the first major update to the Cybersecurity Framework, which was first…more

Corporate Counsel, Information Commissioner's Office (ICO), International Data Transfers, Personal Data, Standard Contractual Clauses

Hans-Christian Mehrens

International Data Transfers: Clarity on Timing of U.K. Transfer Mechanisms

The U.K. Information Commissioner’s Office (UK ICO) recently confirmed the options and clarified the timing of new data transfer agreements for transfers of personal data out of the U.K. The situation has been somewhat…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Employer Liability Issues, Employer Mandates, Essential Workers

Melissa Merk

Circuits Split on CMS Vaccine Mandate, Highlighting “Great Significance” of Issue as It Heads to Supreme Court

Three circuit court decisions issued in the past two weeks have considered the CMS vaccine mandate, bringing the issue – and similar vaccine mandate lawsuits – to the Supreme Court in the final weeks of the year. The CMS mandate…more

Nickolas Merrill

Supreme Court Decides Delaware v. Pennsylvania

On February 28, 2023, the United States Supreme Court issued a decision in Delaware v. Pennsylvania, No. 145, Orig., holding that certain instruments offered by MoneyGram are similar to money orders and are therefore covered by…more

Escheat, Money Orders, Moneygram, Original Jurisdiction, SCOTUS

David Merritt

Reiterating Focus on Dark Patterns: The FTC’s .com Disclosures Guidance is Getting a Refresh

First released in 2000 and updated in 2013, the FTC’s .com Disclosures guidance has been relied on by advertisers hoping to “make effective disclosures in digital advertising” for the last two decades. The FTC’s Leslie Fair…more

Advertising, Consumers, Disclosure, Draft Guidance, Enforcement Actions

Employee Benefits, Employee Retirement Income Security Act (ERISA), Retirement, Retirement Plan

W. Glenn Merten

Waggeh v. Guardian Highlights Importance of Governing Documents in ERISA Disputes

In Waggeh v. Guardian Life Ins. Co. of Am., 2023 WL 4373897 (D. Mass. July 6, 2023), Chief Judge Saylor of the District of Massachusetts rejected the plaintiff’s contention that her state law claims “fell outside the provisions…more

Eminent Domain, Fair Market Value, Just Compensation, Land Owners, Property Owners

Sean Metherell

Eminent Domain and the Reasonable Probability of Rezoning: Why It Matters for a Property’s Highest and Best Use

Landowners are constitutionally guaranteed just compensation when their property is taken for a public project. But the precise amount of just compensation is often an area of significant disagreement between landowners and the…more

Katrina Meyer

Maryland District Court Opinion Explores Complexities of TCPA Consent and Revocation

In the recent opinion of Smith v. ExamWorks, LLC, No. 21-2746, 2024 WL 622102 (D. Md. 2024), the District of Maryland analyzed the nuances of consent and revocation under the TCPA…more

Auto-Dialed Calls, Consent, Prior Express Consent, Revocation, Robocalling

Peter Meyer

Latest “Right to Repair” Bill Could Signal Changes for Consumers and Manufacturers

On March 14, 2022, a bipartisan trio of U.S. Senators introduced a bill (S.3830) that would require manufacturers to provide the tools and documentation necessary for consumers and third parties to repair electronic equipment…more

Consumers, Electronic Devices, FTC Act, Legislative Agendas, Manufacturers

Matthew Meyers

Leveraged Acquisitions Roundtable

Drinker Biddle’s Corporate and Securities Group recently hosted its 13th annual roundtable discussion, which took place at Gulph Mills Golf Club in King of Prussia, Pennsylvania. This year’s event sported a new name—“The…more

Acquisitions, Debt Financing, International Tax Issues, Investment, Investors

Eleni Michaela

The Return of Crown Preference — Implications for Borrowers and Lenders

The first day of December witnessed an early visit from the ghost of Christmas past for the rules relating to the order of priority on insolvency. For insolvencies commenced on or after 1 December 2020, Her Majesty’s Revenue and…more

Borrowers, Creditors, Crown Preference, Debtors, HMRC

Property Owners, Property Tax, Property Valuation, Tax Assessment

Brigham Michaud

Commercial and Industrial Tax Assessments Jump Across Iowa: The Protest Window Closes May 1

Property tax assessments have sharply increased across Iowa, particularly for commercial and industrial property. One report in Polk County noted that “most commercial properties saw their valuations jump 18.9%.” That same…more

Lucas Michelen

Second Circuit Addresses Critical Issue in Data Breach Class Actions: Article III Standing Based on Allegations of Future Misuse of Personal Data

On April 26, 2021, the Second Circuit Court of Appeals decided the case of McMorris v. Carlos Lopez & Assocs., No. 19-4310, 2021 WL 1603808 (2d Cir. Apr. 26, 2021) and addressed one of the most critical issues in private data…more

Appeals, Article III, Class Action, Cybersecurity, Data Breach

Algorithms, Artificial Intelligence, Disparate Impact, Employer Liability Issues, Equal Employment Opportunity Commission (EEOC)

Kate Middleton

Artificial Intelligence: EEOC Addresses Employer Liability When Using AI in Selection Procedures

The EEOC releases a technical assistance document exploring employers’ Title VII liability when incorporating AI tools and automated systems in employment selection procedures, and a new Texas district court rule prevents…more

401k, Benefit Plan Sponsors, Department of Labor (DOL), Employee Benefits, Internal Revenue Code (IRC)

Sarah Bassler Millar

IRS Announces 2024 Retirement Plan Limits

The IRS recently announced the 2024 cost-of-living adjustments to various benefit and contribution limits applicable to retirement plans. The IRS modestly increased the applicable limits for 2024. The following limits apply to…more

Americans with Disabilities Act (ADA), Employer Liability Issues, Pregnancy, Pregnancy Discrimination, Pregnant Workers Fairness Act

Alexa Miller

Employees Gain New Protections for Pregnancy, Childbirth Recovery and Lactation

The Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022, and will become effective as of June 27, 2023, generally will require employers to accommodate pregnant applicants and employees…more

Appeals, Due Process, Foreign Corporations, Fourteenth Amendment, PA Supreme Court

Chanda Miller

Passengers on Litigation Tourism Train Get Review from Supreme Court

The United States Supreme Court will soon consider whether the due process clause of the Fourteenth Amendment prohibits a state from requiring that a corporation consent to personal jurisdiction in order to conduct business…more

Affirmative Action, College Admissions, Diversity, Educational Institutions, Equal Protection

Joseph Miller Jr.

The Impact of the Supreme Court’s Harvard/UNC Decision on the Nonprofit Sector

Earlier this summer, the U.S. Supreme Court decided Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No-20-1199, and Students for Fair Admissions Inc. v. University of North Carolina et. al, No…more

Corporate Branding, Intellectual Property Protection, Patent Portfolios, Proof of Use, Trademark Litigation

Paige Miller

From Concept to Commerce: The Art of Trademark Specimens of Use

In the world of trademarks, specimens of use (or proof of use) play a crucial role in obtaining and maintaining a trademark registration with the United States Patent and Trademark Office (“USPTO”). In this blog post, we’ll…more

Patrick Miller

What Insurers Need to Know About the Infrastructure Investment and Jobs Act

On November 5, 2021, Congress passed a $1.2 trillion bipartisan infrastructure bill known as the Infrastructure Investment and Jobs Act (the Bill). The Bill includes $550 billion in new spending on infrastructure over the next…more

Biden Administration, Bridges, Broadband, Highways, Infrastructure

Collateralized Debt Obligations, Trustees, Trusts

Ryan Milligan

Trio of Corporate Trust Decisions Addresses Jurisdiction, Standing and Authority to Direct the Trustee

Three recent corporate trust decisions provide insight into issues of jurisdiction, standing of indirect holders and the authority of limited direct certificateholders to direct trustees. The U.S. Supreme Court has left alone a…more

Batson claim, Criminal Prosecution, Death Penalty, Foster v Chatman, Jurisdiction

Cicely Miltich

Supreme Court Decides Foster v. Chatman

On May 23, 2016, the United States Supreme Court decided Foster v. Chatman, No. 14-8349, holding that it was clearly erroneous for a state habeas court to decide that a criminal defendant failed to show purposeful discrimination…more

Kendal Mitchell

Ninth Circuit Adheres to Precedent and Finds That Subverting Express Warranties Simply Does Not Compute

On May 19, 2022, in an unpublished decision, a Ninth Circuit panel reaffirmed that under California law manufacturers do not have a duty to disclose defects in their products that manifest after the expiration of the product’s…more

Appeals, Apple, California, Class Action, En Banc Review

Commercial Court, IN Supreme Court

Kevin Mitchell

Indiana Supreme Court Greenlights Commercial Courts Pilot Project

In January 2016, the Indiana Supreme Court unanimously approved the creation of a three-year commercial court pilot project in the state of Indiana, with a goal of providing faster case resolutions, more predictable outcomes and…more

Paul Moe

Changes to Title and Survey Diligence Insurers Don’t Want to Miss

As part of an effort to revamp and modernize title insurance policies and land surveys, this year, the American Land Title Association (ALTA) and the National Society of Professional Surveyors (NSPS) updated their standards,…more

ALTA, Insurance Industry, Mortgages, Policy Terms, Title Insurance

Department of Justice (DOJ), Environmental Justice, Environmental Protection Agency (EPA), Interim Final Rules (IFR), Supplemental Environmental Project (SEP) Policy

Sara Molinsky

Department of Justice Launches New Environmental Justice Initiatives

The Department of Justice (DOJ), in coordination with the U.S. Environmental Protection Agency (EPA), has launched three new initiatives in its continuing efforts to prioritize environmental justice (EJ) policies. On May 5,…more

Bureau of Industry and Security (BIS), Export Administration Regulations (EAR), Export Controls, Exports, U.S. Commerce Department

Christopher Monahan

New License Exception for Medical Devices Destined for Russia, Belarus and Certain Regions of Ukraine: BIS Announces a Final Rule Amending the Russia and Belarus Sanctions Under the Export Administration Regulations (EAR)

On April 25, 2024, the Department of Commerce’s Bureau of Industry and Security (BIS) announced the issuance of a final rule that amends the Russian and Belarus Sanctions under the Export Administration Regulations (EAR) to “add…more

California, Evidence, State and Local Government, Subcontractors, Summary Judgment

Jennifer Montan

California Court Enters Summary Judgment Against Plaintiff Who Failed To Prove Vicarious Liability

A court in the Northern District of California recently granted a defense motion for summary judgment, finding that the defendants were not vicariously liable for a subcontractor’s supposed TCPA violations because the record…more

Ban the Box, Contractors, Criminal Background Checks, Employer Liability Issues, Employment Discrimination

Bonita Moore

California Employers: Know and Comply With New Laws Affecting Your Business in 2018

Following its pattern in recent years, in 2017 the California legislature enacted many new laws affecting California employers. The new laws address several topics, including: - Broader gender-related discrimination, pay…more

Charitable Donations, Charitable Organizations, Donors, Endowment Funds

Heather Moore

Georgia and Kentucky Allow Donor Standing for Endowment Violations, While Similar Efforts Are Pending in Ohio and Vermont

Georgia and Kentucky Allow Donor Standing for Endowment Violations - On April 9, 2024, Kentucky’s governor signed Senate Bill 70, which will take effect on July 15, 2024, and will amend Kentucky’s version of the Uniform…more

Cyber Attacks, Cybersecurity, Data Breach, Federal Food Drug and Cosmetic Act (FFDCA), Federal Industry Standards

Erica Abshez Moran

The Omnibus Appropriations Act Grants FDA Formal Authority to Require Cybersecurity Action by Medical Device Manufacturers

Cyberattacks affecting internet-connected medical devices like insulin pumps, intracardiac defibrillators, mobile cardiac telemetry, pacemakers and intrathecal pain pumps have increased in recent years. And such attacks show no…more

Larissa Catherine Morgan

DEA Extends Telemedicine Flexibilities for Prescribing Controlled Medications

On May 9th, 2023, the Drug Enforcement Administration (DEA) and Substance Abuse and Mental Health Services Administration (SAMHSA) extended the telemedicine flexibilities that allowed the remote prescribing of controlled…more

Controlled Substances, DEA, Public Health Emergency, SAMHSA, Telehealth

Consent, Federal Rule 12(b)(1), Florida, Motion to Dismiss, Professional Plaintiffs

Matthew Morrissey

Middle District of Florida Analyzes Standing for Professional Plaintiffs

The U.S. District Court for the Middle District of Florida recently denied a defendant’s motion to dismiss on standing grounds even though plaintiff remained on the line to discover the identity of the caller solely for the…more

Corporate Counsel, Frivolous Lawsuits, Mass Tort Litigation, Multidistrict Litigation, Popular

Kevin Morrow

Frivolous Retaliatory Lawsuit Could Set Ominous Precedent in Mass Torts

In the world of mass torts, there is no shortage of scheme or artifice plaintiffs’ counsel will use to try to avoid the removal of lawsuits to federal court. However, it would be unreasonable and unjustified for a defendant, or…more

First Amendment, Intellectual Property Protection, Jack Daniels Properties Inc v VIP Products LLC, Lanham Act, Likelihood of Confusion

Katlyn Moseley

Not So Punny After All? Parody After the Supreme Court’s Jack Daniel’s Decision

Earlier this year, one of my colleagues posted a guide to parody under U.S. trademark law for those brands hoping to navigate trademark parody without crossing into trademark infringement or dilution. But as we all know, the…more

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

Karen Moses

Understanding and Enforcing Force Majeure Clauses in Commercial Real Estate Leases During the COVID-19 Pandemic

If I cannot operate my business, am I liable for rent? If the government closed my tenant’s business, not me, why can’t I collect rent? These questions face thousands of commercial tenants and landlords during the COVID-19…more

Kathleen Rice Mosier

Damaging, but Preventable: WannaCry Report Reveals Vital Cyberattack Prevention Practices

In May 2017, ransomware known as WannaCry affected computers in organizations around the world, encrypting data and demanding “ransoms” of between $300 and $600, payable in Bitcoin. WannaCry spread through organizations’…more

Cyber Attacks, Cyber Threats, Cybersecurity, Data Protection, Hackers

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

Erik Mosvick

Total Ban: FTC Issues Final Rule Banning Employment Noncompete Agreements

On April 23, 2024, the U.S. Federal Trade Commission (FTC) voted (in a 3-2 vote along party lines) to finalize and promulgate a final rule that bans noncompete agreements for the vast majority of workers…more

Christina Mouktari

Key Considerations for U.K. Investment in the Legal Cannabis Industry Abroad

U.K. investors in cannabis-related entities, where the activity is legal in its jurisdiction but not legal in the U.K., risk committing money laundering offences under the Proceeds of Crime Act 2002 (POCA). However: - Various…more

Controlled Substances Act, Foreign Investment, Investment, Investors, Marijuana

Adverse Employment Action, Employer Liability Issues, Enforcement Guidance, Equal Employment Opportunity Commission (EEOC), Protected Activity

Jacqueline Mrachek

EEOC Updates Guidance on Retaliation Law Enforcement

Retaliation is the claim alleged most frequently in charges filed with the U.S. Equal Employment Opportunity Commission (EEOC). Nearly 45 percent of agency charges include a retaliation claim. On August 29, 2016, the EEOC issued…more

John Mulhern

The Faegre Drinker Five: An NAIC Watchlist

Faegre Drinker’s insurance team will once again be well-represented at the National Association of Insurance Commissioners’ Spring National Meeting from April 4-8 in Kansas City. As pandemic restrictions ease, we expect broad…more

Biodiesel, Biofuel, Environmental Protection Agency (EPA), Renewable Fuel, Renewable Fuel Standard

Darrin Munoz

EPA Caps Busy Week for Biofuels With Release of Renewable Volume Obligations

On November 30, the EPA released its final rule for 2019/2020 renewable volume obligations (RVOs) for the Renewable Fuel Standard. The move establishes the marketplace for ethanol and other renewable fuels for the coming year…more

Jolien Munsterhuis

How Will a New President Impact Business Immigration?

Immigration has been a hot topic in the 2016 presidential campaign, but the focus has been on what the candidates would (or wouldn’t) do about persons in the United States without authorization. The candidates’ views on…more

E-Verify, H-1B, Hillary Clinton, Political Candidates, Trump Administration

Andrew Murphy

Federal Court Strikes Down NLRB’s New Joint Employer Rule, Leaving 2020 Rule in Place for Now

On March 8, 2024, a federal district court in Texas vacated the National Labor Relations Board’s 2023 joint employer rule. The 2023 rule, which was set to take effect on March 11, would have expanded the joint employer test to…more

Collective Bargaining, Employer Liability Issues, Joint Employers, NLRB, Unions

Biden Administration, Construction Project, Funding Opportunities, NIST, Semiconductors

Kathleen Murphy

More CHIPS: Biden Administration Seeks New Applications for U.S. Semiconductor Production

On June 23, 2023, the Department of Commerce (DOC) and the National Institute of Standards and Technology (NIST) announced an expansion to its earlier Notice of Funding Opportunity (NOFO) for Commercial Fabrication Facilities…more

E-Cigarettes, Food and Drug Administration (FDA), Public Health, Regulatory Standards, Tobacco

Kenneth Murphy

FDA Finds Certain E-Cigarette Products “Appropriate for the Protection of Public Health” but Not “FDA Approved”

On October 12, 2021, the U.S. Food and Drug Administration (“FDA”) issued orders granting R.J. Reynolds (RJR) Vapor Company approval to market three of its electronic nicotine delivery system (ENDS) products – the Vuse Solo ENDS…more

Governor Walz, Legislative Agendas, State and Local Government, State Budgets, State Legislatures

Emily Nachtigal

2021 Minnesota Legislative Update: November Forecast

On Tuesday, December 7th, Minnesota Management and Budget (MMB) released Minnesota’s November Forecast, projecting a $7.75 billion surplus for the FY 2022-23 biennium. This is a record surplus for Minnesota. The projected…more

Algorithms, Artificial Intelligence, Copyright, Medical Devices

Lee Mia Nagao Ph.D.

Artificial Intelligence Briefing: Senate Committee Hears Testimony on Algorithmic Transparency, Accountability

Our latest briefing dives into the Senate’s exploration of transparency and accountability to prevent bias in algorithmic decision systems, new guidance from the U.S. Copyright Office regarding works including content generated…more

Borrowers, Commercial Bankruptcy, Debtors, Financial Statements, Uniform Commercial Code (UCC)

Paige Naig

Do You Know Your Debtor’s Name? Minor Mistakes in UCC-1 Financing Statements Might Be Seriously Misleading

Zero tolerance continues to be the name of the game in drafting Uniform Commercial Code (UCC) financing statements. While in some states, minor mistakes in UCC financing statements may be forgiven, in at least Florida, no safe…more

Employer Liability Issues, Employment Discrimination, Employment Litigation, Hiring & Firing, Termination

Mitch Nass

Why Iowa Employers Should Now Consider Same-Decision Defense in Discrimination Cases

A recent Iowa Supreme Court decision confirms that employers are entitled to a “same-decision” jury instruction in mixed-motive cases. Considering this, employers should consider raising a “same-decision” affirmative defense at…more

Artificial Intelligence, Corporate Counsel, Machine Learning, Technology Sector, United Nations

Margaret Naylor

Artificial Intelligence Briefing: UN Unanimously Adopts Landmark AI Resolution

The United Nations unanimously adopts a landmark resolution mapping a path for international cooperation on AI, and the Financial Stability Oversight Council announces a two-day conference exploring the benefits and risks of AI…more

Department of Homeland Security (DHS), Immigrants, Jurisdiction, SCOTUS

Nicholas Nelson

Supreme Court Decides Patel v. Garland

On May 16, 2022, the U.S. Supreme Court decided Patel v. Garland, No. 20-979, holding that federal courts lack jurisdiction to review an immigration judge’s findings of fact pertaining to a removable immigrant’s petition for…more

401k, Breach of Duty, Employee Benefits, Employee Retirement Income Security Act (ERISA), Fiduciary Duty

Molly Nelson-Regan

ERISA Litigation Roundup: 401(k) Fee Suits Tossed for Pleading Deficiencies Is Positive Trend for Plan Fiduciaries

A judge in the Eastern District of Wisconsin recently issued a trio of decisions on the same day, which tossed suits alleging 401(k) plan mismanagement because all three complaints contained insufficient pleadings that did not…more

Broker-Dealer, Department of Labor (DOL), Employee Benefits, Employee Retirement Income Security Act (ERISA), Investment

Joan Neri

Proposed Changes to PTE 2020-02 that Impact Broker-Dealers

The DOL has proposed amendments to its regulation defining fiduciary advice so that, in most cases, a single recommendation to a retirement investor will be a fiduciary act. In addition, the DOL has proposed amendments to …more

Bureau of Industry and Security (BIS), Export Administration Regulations (EAR), Export Controls, Exports, U.S. Commerce Department

Qiusi Newcom

New License Exception for Medical Devices Destined for Russia, Belarus and Certain Regions of Ukraine: BIS Announces a Final Rule Amending the Russia and Belarus Sanctions Under the Export Administration Regulations (EAR)

On April 25, 2024, the Department of Commerce’s Bureau of Industry and Security (BIS) announced the issuance of a final rule that amends the Russian and Belarus Sanctions under the Export Administration Regulations (EAR) to “add…more

Disability, Employer Liability Issues, Employment Litigation, Race Discrimination, Social Media

Katie Newman

U.K. Employment Law Update: Social Media Discrimination, Impaired Vision and Occupational Health Reports

Was an Employer Liable for an Employee’s Discriminatory Acts on Social Media? In Forbes v LHR Airport Ltd UKEAT/0174/18/DA, the Employment Appeal Tribunal (EAT) considered whether an employee’s discriminatory acts on social…more

Claire Nilson

Digitalising the UK Immigration System

The UK government is in the process of fully digitalising the UK immigration system. Immigration documents in the UK are gradually being converted from hard copies to online records. These are known as eVisas, and they have been…more

Foreign Nationals, Immigrants, Immigration Procedures, UK, Visas

Coronavirus/COVID-19, Department of Labor (DOL), EFMLA, Families First Coronavirus Response Act (FFCRA), Family and Medical Leave Act (FMLA)

Sarah Noack

Families First Coronavirus Response Act FAQ (Updated)

Updated as of April 8, 2020 - The Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020, and took effect on April 1, 2020. The FFCRA provides temporary relief to eligible employees affected by…more

Condominiums, Construction Defects, Construction Industry

Bernard Nodzon

Minnesota Legislature Modifies its Condominium Construction Defect Law

Condominium construction in Minnesota has dramatically slowed since its peak from 2003 through 2006. Most developers have elected to build apartments instead of condominiums. This imbalance has been partly driven by the higher…more

CARES Act, Coronavirus/COVID-19, Lost Wages Assistance (LWA) Program, Relief Measures, Trump Administration

Kathlyn Noecker

The Lost Wage Assistance Program Provides Relief After the CARES Act $600 Weekly Benefit Expired

On August 8, 2020, President Trump authorized the creation of the Lost Wage Assistance (LWA) program to provide lost wage assistance to unemployed individuals as a result of COVID-19. The LWA is intended to provide additional…more

Court of Justice of the European Union (CJEU), Cybersecurity, Data Protection, Disclosure, EU

Mitchell Noordyke

Court of Justice of the European Union Recognizes Inferred Special Categories of Personal Data

On August 1, 2022, the Court of Justice of the European Union (CJEU) issued an opinion regarding a Lithuanian data protection case that may signal an expansion of interpretation of the definition of sensitive personal data under…more

Cafeteria Plans, Employees, Employer Liability Issues, Final Rules, Health and Welfare Plans

K. Elise Norcini

UPDATED: Changes to a Family Member’s Exchange Subsidy Eligibility

Under Internal Revenue Code (Code) Section 36B, individuals are eligible for an exchange subsidy (or premium tax credit) if their employer has not offered them affordable coverage that provides minimum value. The IRS recently…more

Coronavirus/COVID-19, Governor Pritzker, Health Care Providers, Right of Conscience, Vaccinations

Sumaya Noush

Delayed Gratification: Starting June 2022, Illinois Health Care Right of Conscience Act Does Not Apply to COVID-19 Measures or Requirements

On October 27, 2021 the Illinois legislature passed an amendment to the Illinois Health Care Right of Conscience Act (the Act). Gov. J.B. Pritzker is expected to sign the amendment, which would allow employers to more easily…more

Monica Novak

Plan Fiduciaries Continue to Defeat BlackRock Target Date Fund Class Actions

Last August, we summarized the string of cases filed against fiduciaries of401(k) plans that offer the BlackRock target date funds (TDFs) as investment options to plan participants. All of the complaints were nearly identical…more

401k, Employee Benefits, Fiduciary Duty, Retirement Plan

Philip Novak

IRS Guidance on Employer-Based Leave Donation Programs for COVID-19 Relief Organizations

In recent years, it has become the norm for the IRS to respond to a federally declared disaster by issuing guidance enabling employers to establish “Leave Donation Programs,” which allow employees to “convert” accrued vacation,…more

Coronavirus/COVID-19, Donations, Employee Benefits, IRS, New Guidance

CARES Act, Coronavirus/COVID-19, EBITDA, Federal Reserve, Main Street Lending Programs

Remy Nshimiyimana

CARES Act: Updated Main Street Lending Program Summary

On April 30, 2020, the Federal Reserve Board (the Board) announced it is expanding the scope and eligibility for the Main Street Lending Program (the Program). When the initial terms of the Program were announced, the Board…more

Board of Directors, Breach of Duty, Corporate Governance, Fiduciary Duty, Shareholder Litigation

Oderah Nwaeze

Closing the Circle: A Stockholder That Nominates a Board Member Is Not Within the Company’s Circle of Confidentiality or Entitled to the Company’s Privileged Communications

Icahn Partners, LP, et al. v. Francis deSouza, et al. and Illumina, Inc., C.A. No. 2023-1045-PAF, order (Del. Ch. Feb. 19, 2024) - Under Delaware law, corporate directors, who bear responsibility for managing the company and…more

Kathleen O'Connor Adams

SECURE 2.0 Expansion of Self-Correction Program and Plan Loan Error Corrections

The SECURE 2.0 Act of 2022 (SECURE 2.0), the follow-up legislation to the Setting Every Community Up for Retirement Enhancement Act of 2019 (now known as SECURE 1.0) (previously discussed here and here), includes many important…more

Benefit Plan Sponsors, Department of Labor (DOL), EPCRS, IRS, Retirement Plan

American Institute of Architects, Architects, Construction Industry, Contractors, Insurance Industry

Patrick O'Connor

In New Contract Documents, AIA Bolsters Insurance Requirements: An In-Depth Look

Most contract documents published by the American Institute of Architects (AIA) are on a ten-year drafting cycle. The principal owner-architect agreements, owner-contractor agreements, as well as the general conditions document,…more

Amicus Briefs, CA Supreme Court, Insurance Industry, Life Insurance

Timothy O'Driscoll

Insurers Score a Big Win in the California Supreme Court

On November 14, 2019, the California Supreme Court (CSC) issued an important decision producing a significant victory for the insurance industry. In a case litigated by The Northwestern Mutual Life Insurance Company…more

ETFs, Securities Act of 1933, Securities and Exchange Commission (SEC), Shareholders

Nancy O'Hara

SEC Proposes to Transform and Modernize Mutual Fund and ETF Disclosure Framework

On August 5, 2020, the Securities and Exchange Commission (SEC) unanimously approved the release of a proposal (the proposing release) to adopt new Rule 498B under the Securities Act of 1933, as amended, and other corresponding…more

Theodore O'Reilly

Software Liability: Why a Michigan Federal Court Decision is Relevant to Product Manufacturers Nationwide

Numerous products in our day-to-day lives incorporate or consist of software. The legal system, however, has been hesitant (at best) to bring software within traditional product liability regimes. Courts have grappled with…more

Corporate Counsel, Design Defects, Manufacturers, MI Supreme Court, Programming

Department of Revenue, Settlement, Tax Amnesty

Daniel Ogren

Indiana Tax Amnesty Program to Start in September

In a recent client alert, we explained Indiana’s new tax amnesty program. We have now just learned that the Indiana Department of Revenue (Department) may soon be announcing that the eight-week tax amnesty program will start in…more

Midori Okamoto

International Data Transfers: EU and Japan Sign Reciprocal Agreement for Free Flow of Personal Data

The advent of the European Union’s General Data Protection Regulation (GDPR) has prompted other countries and regions to work to enhance their privacy regulations to meet the GDPR standards. On July 17, Japan became the latest…more

Cybersecurity, Data Controller, Data Processors, Data Protection, EU

Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Hospitals, Rural Health Care Providers

Neil Olderman

To Convert or Not to Convert: Our Take on Rural Emergency Hospitals

In response to the wave of rural hospital closures and financial difficulties, Congress created a new Medicare provider designation, the Rural Emergency Hospital (REH). The new designation was created in the Consolidated…more

Biden Administration, Bridges, Broadband, Department of Transportation (DOT), Electric Vehicles

Lauren Olmsted

The American Jobs Act of 2021: President Biden’s Sweeping Proposal to Bring America’s Infrastructure into the 21st Century

On March 31, 2021, President Biden introduced the American Jobs Plan of 2021, a sweeping proposal intended to modernize domestic infrastructure, boost job creation and bolster U.S. competitiveness. The ambitious Plan calls for a…more

Matthew Olsen

Can Tenants Recover Damages in an Indiana Eminent Domain Case?

We get asked this question often. And, in true lawyer fashion, the answer is “maybe.” Before you roll your eyes (which you may have already done), hear me out. The answer is “maybe” because it depends on what the lease says or…more

Eminent Domain, Just Compensation, Leases, Takings Clause, Tenants

Benefit Plan Sponsors, Employee Benefits, EPCRS, Internal Revenue Code (IRC), IRS

Betsy Olson

Revised IRS Correction Procedures (EPCRS) Include Helpful Changes

On July 16, 2021, the Internal Revenue Service (“IRS”) published an updated version of its correction procedures for qualified retirement plans, Revenue Procedure 2021-30, the Employee Plans Compliance Resolution System…more

Acquisitions, Antitrust Violations, Corporate Counsel, Department of Justice (DOJ), Federal Trade Commission (FTC)

Justin Olson

Even Minority Interest in a Competitor Could Violate Antitrust Laws

Companies and shareholders contemplating mergers or acquisitions must consider all potential anticompetitive implications of a deal, including the competitive effects of minority shareholder interests. The Federal Trade…more

Cyber Incident Reporting, Cybersecurity, Department of Justice (DOJ), Disclosure Requirements, FBI

Walé Oriola

DOJ & FBI Issue New Guidelines for Delayed Reporting of Cyber Incidents to the SEC

Under the Securities and Exchange Commission’s (SEC) new Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure rule (cybersecurity rule), public companies subject to the cybersecurity rule must promptly…more

EFTA, EU, European Economic Area (EEA), European Patent Office, European Union Trade Mark (EUTM)

Petar Orlic

Brexit: What to Expect and How to Prepare for the ‘New Normal'

The U.K. has voted, in a popular referendum, to leave the EU. The referendum is not legally binding and the result was extremely narrow: 51.9 percent in favor of leaving, 48.1 percent in favor of remaining. This partly reflected…more

Arbitration, Arbitration Agreements, CA Supreme Court, Employment Litigation, Motion to Compel

Cheryl Orr

California Supreme Court: PAGA Plaintiffs Can Pursue Representative State Court Claims Even if Their Individual PAGA Claims Are Compelled to Arbitration

On July 17, 2023, the California Supreme Court unanimously held in Adolph v. Uber Technologies, Inc. that even if a plaintiff who brings a claim under California’s Private Attorneys General Act (PAGA) has their individual PAGA…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

Kathy Osborn

History in the Making: Conservatives Work Quickly to Challenge FTC’s Final Rule Banning Noncompete Agreements

Last week, the Federal Trade Commission (FTC) voted in favor of its controversial final rule banning nationwide nearly all noncompete agreements. While the potential noncompete ban has been politically controversial since it was…more

Construction Contracts, Construction Industry, Construction Project, Contractors, Coronavirus/COVID-19

Rachel Osdoba

Encountering Changed Work — Recommendations to Aid in Recovery

Changed work on construction projects is frequent and ranges from small to large changes. That is particularly true now, given COVID-19 disruptions and the new reality that exists after the pandemic. While owners may dislike…more

Collective Bargaining Agreements (CBA), Employee Benefits, Employee Retirement Income Security Act (ERISA), Employer Liability Issues, ERISA Litigation

Gregory Ossi

Strict Construction: Seventh Circuit Affirms Written Pension Obligations

On March 22, 2024, the United States Court of Appeals for the Seventh Circuit issued a ruling in Bulk Transp. Corp. v. Teamsters Union No. 142 Pension Fund, ordering the Teamsters Union No. 142 Pension Fund (the “Fund”) to repay…more

Attorney-Client Privilege, Discovery, Document Productions, Motion to Compel, Privileged Communication

Elle Ottaviani

Supreme Court to Resolve Three-Way Circuit Split Involving Attorney-Client Privilege

For the first time in 25 years, the U.S. Supreme Court is considering the scope of the attorney-client privilege in the case In re Grand Jury, No. 21-1397. The Court heard oral arguments earlier this week about when the…more

Nicole Ozeran

Ninth Circuit “Voices” Its Rejection of Plaintiff’s Attempt to Expand TCPA

The Ninth Circuit recently rejected the argument that a text message qualifies as an “artificial or prerecorded voice” under the TCPA. See Trim v. Reward Zone USA LLC, 2023 WL 5025264, 2023 U.S. App. LEXIS 20445 (9th Cir. Aug…more

Auto-Dialed Calls, Cell Phones, Prior Express Consent, Robocalling, TCPA

Commercial Property Owners, Property Owners, Property Tax, Property Valuation, Tax Assessment

Adam Pabarcus

Saving Money During Tough Times — Appealing Your Property Tax Assessment

A penny saved is a penny earned. This adage takes on new significance when a pandemic ravages the economy. One source of savings that business owners should consider is the possibility of reducing their property taxes. …more

Bankruptcy Code, CARES Act, Chapter 11, Commercial Bankruptcy, Coronavirus/COVID-19

Andrew Page

Global Pandemic: Subchapter V Debt-Eligibility Limits Extended Beyond One Year

The recently enacted COVID-19 Bankruptcy Relief Extension Act extends the $7.5 million debt-eligibility limit for small businesses seeking to utilize subchapter V of chapter 11 of title 11 of the United States Code (the…more

Artificial Intelligence, Data Privacy, Data Protection, Opioid, State Attorneys General

Michelle Paninopoulos

State AG Updates: Data Privacy & Security; Artificial Intelligence; Predatory & Deceptive Real Estate Practices; Consumer Protection; Opioid Epidemic; and Federal Regulations

Data Privacy & Security - DoorDash to Pay a $375,000 Civil Penalty Under the CCPA for Participation in Marketing Collective - Clarifying that California considers participation in a marketing cooperative to be a “sale”…more

Claims Adjusters, Coronavirus/COVID-19, Insurance Claims, Insurance Industry

Afton Paris

Claims Adjusting in the Pandemic

COVID-19 has introduced a number of complexities into everyone’s daily lives, including significantly complicating the claims process for many insurers. Under social distancing restrictions and precautions, many insurers have…more

Advertising, Cash Solicitation Rule, Investment Adviser, Investment Advisers Act of 1940, Marketing

Jessica Parsons

SEC Adopts New Marketing Rule for Investment Advisers

On December 22, 2020, the U.S. Securities and Exchange Commission (SEC or Commission) adopted amendments to the rules that govern investment adviser advertisements and compensation to solicitors under the Investment Advisers Act…more

Coronavirus/COVID-19, Corporate Counsel, Department of Health and Human Services (HHS), Federal Trade Commission (FTC), Product Defects

Bryan Pasciak

What Product Liability Claims Can We Expect to See as a Result of COVID-19?

The COVID-19 pandemic created an environment where many companies are fighting unprecedented constraints to assist their customers and keep their businesses alive. As they tackle new demands daily — on their businesses and…more

Affirmative Action, CSALs, Department of Labor (DOL), Federal Acquisition Regulations (FAR), Federal Contractors

Dana Pashkoff

Third Quarter 2023 Government Contracts Policy and Regulatory Review

The third quarter had government contractors staring down the possibility of a government shutdown while also contending with some significant regulatory developments. We review some of those developments below…more

ATDS, Auto-Dialed Calls, Corporate Counsel, Facebook Inc v Duguid, Judgment on the Pleadings

Amanda Pasquini

Eighth Circuit Finds That System That Sends Texts to Stored Numbers is Not an ATDS, Rejects Plaintiffs’ Interpretation of Footnote 7 in Facebook v. Duguid

Last week, the Eighth Circuit affirmed a finding that a dialing system does not qualify as an ATDS if it randomly selects numbers from a stored list. See Beal v. Truman Road Dev. (8th Cir. Mar. 24, 2022)..…more

Department of Veterans Affairs, Health Care Providers, Telehealth, Veterans

Beena Patel

Department of Veterans Affairs Releases Long-Awaited Proposed Rule to Allow Telehealth Services Across State Lines

On Friday, September 29, the Department of Veterans Affairs (VA) released its long-awaited proposed rule amending medical regulations to improve access to care for beneficiaries regardless of patient or provider locations…more

Breach of Contract, Class Action, Insurance Industry, Insurance Litigation, Life Insurance

Shaunda Patterson-Strachan

Early Dismissal of Complaint Challenging Universal Life Credited Rates

While challenges to insurers’ exercises of discretion in setting cost of insurance rates has been the principal focus of litigation involving universal life (UL) insurance products for quite some time, a putative class action…more

Employer Liability Issues, Retaliation, Sarbanes-Oxley, SCOTUS, Whistleblower Protection Policies

Brian Paul

Supreme Court Decides Murray v. UBS Securities, LLC

On February 8, 2024, the U.S. Supreme Court decided Murray v. UBS Securities, LLC, No. 22-660, holding that whistleblowers do not need to establish retaliatory intent on the part of their employers in order to prove a claim…more

Biden Administration, Federal Funding, GAO

Ilisa Halpern Paul

Take Two! House Democrats Announce Earmark Revival with New Guardrails

After much discussion, House Democrats have announced they will allow members to request funding for specific projects as part of the process for assembling the spending bills that must be completed by September 30 to fund the…more

Discovery, National Intelligence Agencies, National Security, SCOTUS, State Secrets

Ashlee Paxton-Turner

Supreme Court Decides United States v. Zubaydah

On March 3, 2022, the U.S. Supreme Court decided United States v. Zubaydah, No. 20-827, holding that the state secrets privilege allows the Government to prevent the disclosure of information that could confirm or deny the…more

Employee Benefits, Employee Retirement Income Security Act (ERISA), ESOP, Fiduciary Duty, Retirement Plan

Rick Pearl

Thinking ESOPs: Fourth Circuit Narrows Equitable Relief Under ERISA

In Rose v. PSA Airlines, Inc., 80 F.4th 488 (4th Cir. 2023), the U.S. Court of Appeals for the Fourth Circuit held that ERISA § 502(a)(3), which permits a claim for “other appropriate equitable relief,” does not allow claims to…more

Construction Industry, Construction Project, Contractors, Coronavirus/COVID-19, Material Suppliers

Carl Pebworth

Material Cost Escalation, Delays and COVID-19: Managing Risk in Challenging Times

Spikes in building material costs and unforeseen delays in delivery are some of the unexpected consequences of the COVID-19 pandemic. The true impact of these consequences in the construction industry are just beginning to be…more

Condemnation, Eminent Domain, Just Compensation, Property Owners

Joshua Pellant

Don't Leave Money on the Table: A Brief Look at Relocation Benefits in a Condemnation Case

Relocation benefits are an often overlooked source of additional compensation that may be available in a condemnation case. A uniform federal act and corresponding state statutes provide that when a landowner is displaced (even…more

California Consumer Privacy Act (CCPA), Consumer Privacy Rights, Cybersecurity, Data Collection, Data Privacy

Nicole Pelletier

The Most Aggressive Privacy Law in the U.S.: Tracking the California Consumer Privacy Act of 2018

Signed into law on June 28, 2018, the California Consumer Privacy Act provides the most comprehensive and aggressive privacy law in the United States — despite being pushed through the legislative process in one week…more

Jeremy Pelphrey

U.S. Department of Labor Issues Cybersecurity Guidance for ERISA-Covered Plans

There have been a rash of high-profile cyberattacks in the United States recently. Some of the more visible public attacks include SolarWinds, the Microsoft Exchange attack, Accellion, the Florida Water Treatment Plant and, more…more

Cyber Attacks, Cyber Threats, Cybersecurity, Data Protection, Data Security

Compensation & Benefits, Contribution Limits, Cost-of-Living Adjustment (COLA), Defined Contribution Plans, Employee Benefits

Stephen Pennartz

IRS Announces 2022 Cost-of-Living Adjustments for Retirement Plans

The IRS recently announced the 2022 cost-of-living adjustments to various benefit and contribution limits applicable to retirement plans. Generally, the IRS increased the applicable limits for 2022, although certain limits…more

Staci Perdue

Supreme Court Decides Goodyear Tire & Rubber Co. v. Haeger

On April 18, 2017, the United States Supreme Court decided Goodyear Tire & Rubber Co. v. Haeger, No. 15-1406, holding that when a federal court exercises its inherent authority to sanction bad-faith conduct by ordering a party…more

Bad Faith, Discovery, Fee Awards, Goodyear Tire & Rubber Co. v Haeger, SCOTUS

Advertising, Brand, Celebrity Endorsements, Disclosure Requirements, Endorsements

Renato Pérez

FTC Releases New User-Friendly Disclosure Guidelines for Influencers

The Federal Trade Commission (FTC) is not hitting “like” on your influencer engagement campaign, and is down-voting your disclosures. Earlier this month, the FTC released important new guidance targeted at social media…more

Best Practices, Coronavirus/COVID-19, Franchises, Franchisors, Infectious Diseases

Heather Carson Perkins

Franchisor Best Practices for COVID-19 (Updated #2)

A Message Regarding Racial Inequality: Faegre Drinker is deeply affected by the disturbing and terrible events surrounding the senseless deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and Rayshard Brooks. While these…more

Artificial Intelligence, Corporate Counsel, Machine Learning, Technology Sector, United Nations

Charlotte Perowne

Artificial Intelligence Briefing: UN Unanimously Adopts Landmark AI Resolution

The United Nations unanimously adopts a landmark resolution mapping a path for international cooperation on AI, and the Financial Stability Oversight Council announces a two-day conference exploring the benefits and risks of AI…more

Analytics, Automation Systems, Capital Markets, Claims Processing Systems, Health Insurance

Kristen Perry

“A Slice” of the 2019 ILTCI Conference

Drinker Biddle is pleased to present you with this recap—or “a slice” of the 2019 ILTCI Conference, Chicago, Illinois. Year after year, the ILTCI Conference is jam-packed with opportunities to reconnect with and learn from our…more

Andy Warhol Foundation for the Visual Arts Inc v Goldsmith, Copyright, Copyright Infringement, Fair Use, SCOTUS

Louis Perry

Avoiding Warhol: How Celebrity Tattoo Artist Kat Von D Turned Defeat Into Victory in the Central District of California

When celebrity tattoo artist Katherine Von Drachenberg (better known as Kat Von D) tattooed a portrait of Miles Davis on her friend Blake Farmer’s arm as a gift, she used a reference photo created by professional photographer…more

California Family Rights Act (CFRA), Criminal Background Checks, E-Verify, Employee Training, Independent Contractors

Heidi Peters

State & Local Employment Law Developments: Q3 2020

State and local governments are increasingly regulating the workplace. Although it is not possible to discuss all state and local laws, this update provides an overview of recent and upcoming legislative developments to help you…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Financial Services Industry, Lac du Flambeau Band of Lake Superior Chippewa Indians v Coughlin

Josh Peterson

Bankruptcy Implications of Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin

On June 15, 2023, the U.S. Supreme Court decided Lac du Flambeau Band of Lake Superior Chippewa Indians, et al. v. Coughlin. The case involved a tribal entity, “Lendgreen,” that lent an individual, Brian Coughlin, “$1,100 in the…more

California, False Advertising, Insurance Industry, Long Term Care Insurance, Misleading Statements

Christopher Petillo

CDI Issues Bulletin Warning Insurers of False and Misleading Advertisements Related to Public Option Legislation Pending in California

Insurers and brokers selling long-term care (LTC) insurance in California should be aware of the California Department of Insurance (CDI) bulletin of August 23, 2023, expressing concern over certain complaints received by CDI…more

Breach of Contract, Construction Contracts, Construction Disputes, Construction Industry, Construction Project

Benjamin Petre

Limitations on Contract Damages: The ‘Betterment' Argument

A fundamental purpose of contract damages is to place a non-breaching party in the same position that it would have been in had its contract not been breached. Accordingly, remediation “enhancements” that give the non-breaching…more

Department of Labor (DOL), Employee Benefits, Employee Retirement Income Security Act (ERISA), Employees, Employer Liability Issues

Kelly Petrocelli

Illinois Federal Court Temporarily Enjoins Key Amendment to the Illinois Day and Temporary Labor Services Act

In August 2023, Illinois Governor Pritzker signed sweeping amendments to the Illinois Day and Temporary Labor Services Act (DTLSA) that imposed new obligations on both the day and temporary labor service agencies employing…more

Department of Labor (DOL), Exempt-Employees, Fair Labor Standards Act (FLSA), Final Rules, Minimum Salary

Joseph Pettygrove

Court Order Invalidates DOL Rule: Employers Don't Have to Raise Minimum Salary for Exempt Employees

The Department of Labor’s (DOL) “Final Rule,” which has caused uncertainty and confusion for many employers since its May 2016 publication, has been invalidated by a federal judge. Originally slated to take effect December 1,…more

Administrative Agencies, America Invents Act, Covered Business Method Proceedings, Ex Partes Reexamination, Government Entities

Ashley Pezzner

Return Mail v. Postal Service: The Supreme Court Rules the Federal Government May Not Petition for Institution of Post-Issuance Patent Reviews

In a 6-3 opinion authored by Justice Sotomayor, the Supreme Court held that the Federal Government is not a “person” capable of petitioning the Patent Trial and Appeal Board (“PTAB”) to institute patent review proceedings under…more

Agricultural Sector, Farms, Liens, Uniform Commercial Code (UCC)

James Pfau

FSA Compliance, Lien Management Critical for Protecting Interests in Farm Products

Uncertainty in the agricultural industry resulting from the global trade war and falling agricultural prices has increased risk to participants in the agricultural economy. Farm bankruptcies continue to increase, and farm debt…more

Waldemar Pflepsen Jr.

What We Can Learn from the Anthem Settlement

The recent settlement of the Anthem class action lawsuit (Bell v. ATH Holding Company, LLC) reflects some trends in 401(k) litigation: the focus on share classes, arguments to support inclusion of non-mutual fund investments in…more

401k, Class Action, Defined Contribution Plans, Fiduciary Duty, Mutual Funds

Sarah Pheasant

ED Adopts New Financial Value Transparency and Gainful Employment Requirements

On October 10, 2023, the U.S. Department of Education (ED) published a Final Rule in the Federal Register (88 FR 70004) adopting new “Financial Value Transparency” (FVT) reporting and disclosure requirements for nearly all…more

Colleges, Department of Education, Gainful Employment, Student Loans, Students

Broadband, FCC, Infrastructure, Infrastructure Investment and Jobs Act (IIJA), Telecommunications

Laura Phillips

State Broadband Funding Awards Announced; Another Step Toward Universal Broadband in the U.S.

In late June, the Biden administration took the widely anticipated step of announcing initial financial award amounts made under the auspices of the Infrastructure, Investment and Jobs Act (IIJA) Broadband Equity, Access and…more

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

Mark Phillips

HHS Extends Attestation Deadline, Releases Additional General Distribution FAQs and Issues Payment Allocation Methodology Guidance for High Impact Rural Hospital and Provider Payments

HHS has recently issued a great number of clarifications to multiple aspects of its Provider Relief Fund programs authorized by the Coronavirus Aid, Relief, and Economic Security (CARES) Act…more

Beneficial Owner, Corporate Transparency Act, Financial Crimes, FinCEN, Reporting Requirements

Rachel Phillips

The CTA’s Impact on Nonprofit Organizations

Background on CTA - Under the Corporate Transparency Act (CTA), which went into effect on January 1, 2024, domestic entities formed under U.S. law and foreign entities qualified to do business in the U.S. must file with the…more

Champerty, Contingency Fees, Litigation Fees & Costs, Litigation Funding

Machen Picard Bihrle

Minnesota Supreme Court Takes on Litigation Financing for Second Time in Single Suit

For the second time in a single litigation (Maslowski v. Prospect Funding Partners, LLC, et al. v. James Schwebel, Esq., et al.), the Minnesota Supreme Court will consider the propriety and permissible scope of private…more

Final Guidance, Food and Drug Administration (FDA), Medical Devices, Pharmaceutical Industry, Prescription Drugs

Christian Piccolo

FDA Finalizes Voluntary Recall Guidance Imploring Companies to Be 'Recall Ready'

The U.S. Food and Drug Administration (FDA) recently issued final guidance regarding the initiation of voluntary product recalls “to help companies prepare to quickly and effectively remove violative products from the market.”…more

Animal Cruelty, Commerce Clause, Dormant Commerce Clause, Interstate Commerce

Brian Pickard

Supreme Court Decides National Pork Producers, et al. v. Ross et al.

On May 11, 2023, the Supreme Court of the United States issued a decision in National Pork Producers, et al. v. Ross, et al., No. 21-468, holding that a California law forbidding in-state sale of pork produced from animals…more

Walter Pickhardt

Supreme Court Decides North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust

On June 21, 2019, the U.S. Supreme Court decided North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, holding that The Due Process Clause does not allow a state to tax a trust’s income where the…more

Beneficiaries, Due Process, Estate Tax, Exclusive Control, Forum State

Kristin Jones Pierre

Supply and Service Federal Contractors and Subcontractors Should Immediately Review the OFCCP’s Second 2023 Pre-Audit Corporate Scheduling Announcement List

On September 8, 2023, the Office of Federal Contract Compliance Programs (OFCCP) released its second 2023 Corporate Scheduling Announcement List (CSAL) of the year. The CSAL notifies 1,000 supply and service establishments…more

Affirmative Action, Audits, CSALs, Federal Contractors, OFCCP

Beneficial Owner, Corporate Transparency Act, Financial Crimes, FinCEN, Reporting Requirements

Jacqueline Pimentel-Gannon

The CTA’s Impact on Nonprofit Organizations

Background on CTA - Under the Corporate Transparency Act (CTA), which went into effect on January 1, 2024, domestic entities formed under U.S. law and foreign entities qualified to do business in the U.S. must file with the…more

Appellate Courts, California, Failure To Warn, Federal Food Drug and Cosmetic Act (FFDCA), Medical Devices

Mary-Kate Planchet

California Appellate Court Upholds Federal Preemption of Negligent Undertaking Claim Under the Medical Device Amendments of 1976

Federal preemption can be a very powerful defense. For example, claims concerning Class III medical devices requiring pre-market approval are generally preempted by the Medical Device Amendments of 1976, 21 U.S.C. § 360c, et…more

Grace Polisano

CTFC Subcommittee Discusses Climate Regulations

The Commodity Futures Trading Commission’s (CTFC) subcommittee meeting for carbon markets met on March 15, 2024. The subcommittee specifically discussed the CTFC’s recently proposed guidance for trading of voluntary carbon…more

Carbon Emissions, CFTC, Climate Change, Offsets

Michael Pompeo

FDIC Finds Buyer for Silicon Valley Bank

Silicon Valley Bank (SVB) - SVB failed on Friday, March 10; and on Monday, March 13, the Federal Deposit Insurance Corporation (FDIC) transferred all deposits — both insured and uninsured — and substantially all of SVB’s…more

Banking Sector, Banks, FDIC, Receivership, Silicon Valley

Article III, Class Action, Data Breach, Data Security, Fair Credit Reporting Act (FCRA)

Michael Ponto

Key Legal Issues in Privacy and Data Security on Display in Sixth Circuit Data Breach Class Action Decision

A September 12, 2016 decision out of the U.S. Court of Appeals for the Sixth Circuit adds new fuel to an ongoing legal debate: when a data breach places a business’s sensitive customer information into the hands of hackers, what…more

Controlled Substances, Convictions, Deportation, Drug Paraphernalia, Illegal Drugs

D. Lucetta Pope

Supreme Court Decides Mellouli v. Lynch

On June 1, 2015, the U.S. Supreme Court decided Mellouli v. Lynch, holding that a legal permanent resident may not be deported for a state-law drug conviction unless that conviction necessarily involves a drug covered by the…more

David Porteous

SEC Examinations 2022 Priorities: Reg BI, ESG, Private Funds, Information Security & Operational Resiliency, and Crypto

The SEC Division of Examinations recently released its 2022 Division of Examinations “Priorities.” The 2022 Priorities provide critical insight into what the Division of Examinations (the “Division”) considers the most…more

Broker-Dealer, Compliance, Cryptoassets, Data Security, Emerging Technologies

Artificial Intelligence, Corporate Counsel, Machine Learning, Technology Sector, United Nations

Jeremiah Posedel

Artificial Intelligence Briefing: UN Unanimously Adopts Landmark AI Resolution

The United Nations unanimously adopts a landmark resolution mapping a path for international cooperation on AI, and the Financial Stability Oversight Council announces a two-day conference exploring the benefits and risks of AI…more

Employer Liability Issues, Franchises, Joint Employers, McDonalds

Thomas Posey

Franchise Industry Victory: McDonald's Defeats Joint Employment Claim Based on Ostensible Agency Theory

On March 10, 2017, a federal court in California granted summary judgment in favor of McDonald’s and dismissed joint employment claims that had been brought against it by employees of one of its franchisees. In Salazar v…more

Property Tax, Property Valuation, Real Estate Market, Tax Appeals, Tax Assessment

Steven Potsic CMI

Did Colorado Raise Your Property Tax Value? Here's How to Challenge the Valuation

Every odd year, Colorado reassesses real property for a two-year period. This year, we are seeing huge increases in property tax values across the state and especially in the Denver/Boulder areas. The value increases are ranging…more

Sara Manske Powell

2023 NFI Insurance Public Policy Summit Highlights “Balancing Act”

The “balancing act” of insurance regulation across jurisdictions, policymakers, and stakeholders took center stage at the 18th Annual Networks Financial Institute Insurance Public Policy Summit on May 17 in Washington D.C…more

Cybersecurity, Insurance Industry, Life Insurance, NAIC, Popular

Algorithms, Artificial Intelligence, Consumer Financial Protection Bureau (CFPB), ECOA, Financial Services Industry

Sean Powell

Artificial Intelligence Briefing: CFPB Weighs in on Algorithmic Transparency

The federal government continues to take significant interest in organizations using artificial intelligence and algorithmic decision-making systems, as evidenced by three recent developments out of Washington, D.C. Government…more

Attorney's Fees, Corporate Counsel, Pharmaceutical Industry, Prison Litigation Reform Act, Prisoners

John Powers

The Prison Litigation Reform Act – A Product Liability Statute in Disguise

United States prisoners file an inordinate number of often frivolous lawsuits. In federal district courts alone, prisoners filed more than 28,000 last year. With time on their hands, and influenced by plaintiff attorneys’…more

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

Antonio Pozos

CARES Act Relief Fund Payments to Health Care Providers: Key Requirements and Compliance Risks

On April 10, 2020, the federal government began distributing $30 billion of the $100 billion in funds that the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) makes available to health care providers through the…more

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

Judith Praitis

Five Things to Know About California’s New Climate Disclosure Bills

Governor Gavin Newsom has signed the Climate Corporate Data Accountability Act (SB 253) and the Climate-Related Financial Risk Act (SB 261) into law, which means the California Air Resources Board (CARB) is now tasked with…more

Alexander Preller

The New Critical Importance of a Union Request for Recognition

What does it mean if a union makes a “demand for recognition,” or “request for voluntary recognition” to an employer? What does a union mean when it says it has a “showing of interest” or “proof of majority support” or “majority…more

Employee Benefits, Individual Retirement Account (IRA), IRS, Required Minimum Distributions, Retirement Plan

Lisa Presser

Stretching Expectations: Planning with the New Life Expectancy Tables for Retirement Plans’ Required Minimum Distributions

For the first time in nearly twenty years, on January 1, 2022, the Internal Revenue Service (IRS) updated its actuarial tables for determining required minimum distributions (RMDs) from retirement plans. These new tables affect…more

Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Hospitals, Rural Health Care Providers

Aliyah Price

To Convert or Not to Convert: Our Take on Rural Emergency Hospitals

In response to the wave of rural hospital closures and financial difficulties, Congress created a new Medicare provider designation, the Rural Emergency Hospital (REH). The new designation was created in the Consolidated…more

Coronavirus/COVID-19, Corporate Counsel, Department of Health and Human Services (HHS), Federal Trade Commission (FTC), Product Defects

Joseph Price

What Product Liability Claims Can We Expect to See as a Result of COVID-19?

The COVID-19 pandemic created an environment where many companies are fighting unprecedented constraints to assist their customers and keep their businesses alive. As they tackle new demands daily — on their businesses and…more

Controlled Substances, Health Care Providers, Pharmaceutical Industry, Prescription Drugs, Substance Abuse

Charlie Pritchard

Remote Prescribing of Controlled Substances via Telehealth: Stakeholders Urge DEA to Address Geographic Red Flag for Pharmacists

Due to convenience and effectiveness, patients are increasingly seeking care via telehealth, including for conditions that require treatment with medication. During the pandemic, patients gained access to telehealth for…more

IL Supreme Court, Personal Jurisdiction, Principal Place of Business

Douglas Prochnow

Illinois Supreme Court Limits Personal Jurisdiction in Three Counties Named "Judicial Hellholes"

On September 21, 2017, the Illinois Supreme Court issued an opinion aggressively limiting general personal jurisdiction over corporations. Cook, Madison, McLean and St. Clair counties in Illinois are all affected. Corporations…more

Employer Liability Issues, Employment Policies, Governor Newsom, Minimum Wage, Popular

Daniel Prokott

New California Laws for 2024 and Beyond: What Employers Should Know

California Gov. Gavin Newsom signed several laws impacting California employers in 2023. Some of the new laws became effective immediately and others, including some that were signed into law just weeks ago, take effect January…more

Department of Justice (DOJ), Environmental Litigation, Environmental Protection Agency (EPA), Supplemental Environmental Project (SEP) Policy

Ann Prouty

Department of Justice Eliminates Use of Supplemental Environmental Projects in Civil Settlements

Most enforcement actions for violations of environmental law are resolved through settlement agreements or consent decrees. A March 12, 2020, memo issued by U.S. Department of Justice (DOJ) Environment and Natural Resources…more

Jim Provenzale

The CARES Act and HUD Program Participants: Takeaways and Questions Raised

In response to the (hopefully) once-in-a-lifetime havoc wreaked by the COVID-19 pandemic, President Trump signed the CARES Act into law on March 27, 2020, offering sweeping relief to Americans in many facets of daily life. While…more

CARES Act, Coronavirus/COVID-19, Forbearance Agreements, HUD, Lenders

College Admissions, Colleges, Department of Education, Diversity, Educational Institutions

John Przypyszny

U.S. Department of Education Publishes Guidance on Permissible Strategies to Increase Diversity and Opportunity in Higher Education

In the wake of the U.S. Supreme Court’s decision in Students for Fair Admissions, many postsecondary institutions have engaged in a review of their recruiting, admissions, and other policies and procedures. To guide…more

Coronavirus/COVID-19, Corporate Counsel, Health and Essential Rights (HERO) Act, Infectious Diseases, New York

Andres Puerta

New York Issues NY HERO Act Standard and Model Plan — A Playbook for the Next Pandemic

On July 7, 2021, the New York State Department of Labor (NY DOL) issued the long-awaited new Airborne Infectious Disease Exposure Prevention Standard (the Standard) and model template plan under the NY HERO Act. However, with no…more

Form 8-K, Incentive Stock Options, Institutional Shareholder Services (ISS), Proxy Statements, Securities and Exchange Commission (SEC)

Lisa Pugh

Can These Options be Saved? An Issue from 2009 (and 2001) Is Timely Again

Economic uncertainty and shifts brought on by COVID-19 have us back to a familiar question from 2009 and even 2001: can you reprice options to take into account falling share prices? The answer remains yes, though tax,…more

Compliance, Corporate Misconduct, Department of Justice (DOJ), Self-Disclosure Requirements, Voluntary Disclosure

Daniel Pulliam

DOJ Announces Corporate Compliance Policy Changes and Provides New Guidance on Compensation Clawbacks and Personal Device Messaging

In recent weeks, the U.S. Department of Justice (DOJ) has implemented significant changes to its corporate enforcement policies in an attempt to encourage companies to root out and voluntarily disclose corporate misconduct. The…more

Sally Qin

China Issues Rule on Security Assessment of New Technologies for Online News Services

China has promulgated a series of implementation rules and guidelines after the Cybersecurity Law of China took effect in June 2017. The most recent one requires that online news information service providers conduct security…more

China, Cybersecurity, Popular, Telecommunications

Controlled Substances, Health Care Providers, Pharmaceutical Industry, Prescription Drugs, Substance Abuse

Nisha Quasba

Remote Prescribing of Controlled Substances via Telehealth: Stakeholders Urge DEA to Address Geographic Red Flag for Pharmacists

Due to convenience and effectiveness, patients are increasingly seeking care via telehealth, including for conditions that require treatment with medication. During the pandemic, patients gained access to telehealth for…more

Coronavirus/COVID-19, Estate Planning, Marital Assets, Marriage, Prenuptial Agreements

Jaime Quick

Silver Lining: COVID-19 Engagements Allow More Time for Premarital Financial Planning

The effects of COVID-19 have been felt across the globe in almost all aspects of life. From the transition to remote work and virtual learning for students, to the shuttering of businesses and recreational activities, to…more

Construction Industry, Contractors, Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), Federal Contractors

Graciela Quintana

OFCCP Launches Notification of Construction Contract Award Portal

On August 26, 2022, the Office of Federal Contract Compliance Programs (OFCCP) launched its Notification of Construction Contract Award Portal (NCAP). The NCAP is a new online platform for contracting officers, applicants,…more

Coronavirus/COVID-19, Disclosure Requirements, Form ADV, Investment Adviser, Paycheck Protection Program (PPP)

Andrew Raby

SEC Provides Guidance on Investment Adviser Disclosures Related to Participation in the Paycheck Protection Program

The Securities and Exchange Commission (SEC) provided guidance on April 27, 2020 on the disclosure obligations of a registered investment adviser (RIA) participating in the Paycheck Protection Program (PPP) implemented by the…more

Biden Administration, Department of Justice (DOJ), Federal Trade Commission (FTC), FTC Act, Section 5

Kaylee Racs

Biden Administration Announces New Initiative to Challenge Unfair and Illegal Pricing Practices

On March 5, 2024, the Biden administration announced the launch of a “strike force” aimed at cracking down on unfair and illegal pricing practices. The strike force is one in a series of three new actions announced by President…more

Change of Ownership, Property Tax, Reassessments, State Taxes

Christopher Raftery

Change of Ownership: The Long-Term Lease Exception to California Property Tax Reassessments

As many commercial and retail operators know, a transfer in California property interests may lead to a sizable increase in a taxpayer’s property tax liability. Specifically, while property values are capped under Proposition 13…more

Thatcher Rahmeier

The Restoration of (Bad) Faith: The Proper Standard for a Factual Finding of Willful Infringement

Enhanced Damages Under the Patent Act - The Patent Act provides that once infringement has been established, a district court may “increase the damages up to three times the amount found or assessed.” 35 U.S.C. § 284. The…more

35 U.S.C. § 284, Attorney's Fees, Cisco, Damages, Enhanced Damages

Business Interruption, Commercial Insurance Policies, Coronavirus/COVID-19, Infectious Diseases, Insurance Industry

W. Neil Rambin

Business Interruption: The Convergence of Coverage and Science

The United States is now reported to have the most COVID-19 cases in the world, with more than 140,000 cases confirmed. This number is projected to increase significantly over the coming weeks and months. The COVID-19 pandemic…more

Americans with Disabilities Act (ADA), Coronavirus/COVID-19, Employer Liability Issues, Employment Policies, Equal Employment Opportunity Commission (EEOC)

Rebekah Ramirez

COVID-19 Vaccination Planning for Employers: Questions to Consider for Policy and Practice

As COVID-19 vaccines become more widely accessible, and certain localities relax COVID-19 restrictions, employers hoping to ramp up on-site operations or reduce absenteeism face a new challenge: navigating employee vaccination…more

Foreign Nationals, Green Cards, H-1B, Immigration Procedures, Non-Immigrant Visas

Pamela Ramirez Graves

Food and Ag Industry: Know Your Visa Options and Immigration Strategies

The food and agriculture industry includes farms, restaurants and food manufacturing, processing and storage facilities. Companies within the food and ag industry seek to employ talented professionals, such as scientists,…more

Artificial Intelligence, Consumer Financial Protection Bureau (CFPB), Data Security, Department of Health and Human Services (HHS), Federal Trade Commission (FTC)

Amy Ramsey Marcos

Artificial Intelligence Briefing: FTC to Address Commercial Surveillance and Data Security

Our latest briefing explores the FTC’s push to address “commercial surveillance” and data security, proposed rulemaking from HHS prohibiting the use of discriminatory clinical algorithms, a move by the CFPB to hold digital…more

Charitable Donations, Charitable Organizations, Donors, Endowment Funds

Jason Rauch

Georgia and Kentucky Allow Donor Standing for Endowment Violations, While Similar Efforts Are Pending in Ohio and Vermont

Georgia and Kentucky Allow Donor Standing for Endowment Violations - On April 9, 2024, Kentucky’s governor signed Senate Bill 70, which will take effect on July 15, 2024, and will amend Kentucky’s version of the Uniform…more

Breach of Duty, Corporate Officers, Duty of Loyalty, Fiduciary Duty, Oversight Duties

F. Douglas Raymond

Delaware Court of Chancery Expands Duty of Oversight to Corporate Officers

Delaware law has long recognized a director’s duty of oversight. The well-established doctrine, first articulated in 1996 in In Re: Caremark International Inc. Derivative Litigation, was recently expanded to officers in In re…more

Clinical Trials, Draft Guidance, Food and Drug Administration (FDA), Life Sciences, Medical Devices

Genevieve Razick

FDA Draft Guidance: Remote Data Acquisition in Clinical Investigations

In December 2021, FDA issued draft guidance, Digital Health Technologies (DHTs) for Remote Data Acquisition in Clinical Investigations, which provides guidance for clinical trial sponsors, investigators and other interested…more

Collective Agreements, Employee Benefits, Employer Liability Issues, Employment Discrimination, Employment Policies

Brooke Razor

Overview of U.S. Employment Law for International Employers

This guide is a non-comprehensive overview of employment laws in the United States for international employers. We hope that it will assist employers that already employ individuals in the U.S. and employers that are…more

Food and Drug Administration (FDA), Food Safety, FSMA, Regulatory Requirements

Alyssa Rebensdorf

FDA Announces Upcoming Webinar Series on ‘Food Safety Culture’

The U.S. Food and Drug Administration (FDA) announced this week that it is partnering with Stop Foodborne Illness to co-host a webinar series entitled “Collaborating on Culture in the New Era of Smarter Food Safety.” The first…more

Amended Rules, Canada, Canadian Intellectual Property Office (CIPO), Coronavirus/COVID-19, Corporate Counsel

Patricia Reding

U.S. Parties Seeking to Register Their Marks in Canada Currently Face Increased Delays and Added Potential Bars to Registration

O Canada. Ohhh, Canada! – Delays and Restrictions on Trademark Registrations - With the assistance of local Canadian counsel, we frequently assist U.S. parties that use their marks in Canada to pursue registrations for their…more

Andrew Reeve

State AG Updates: Florida, New York, Arkansas, Multistate Settlements and the FTC

In this edition of Faegre Drinker’s State Attorneys General Update, we discuss: A joint FTC and Florida AG action against a chargeback servicing company for allegedly submitting false information to banks..…more

Federal Trade Commission (FTC), Fees, Marketing, Medicaid, Restaurant Industry

Judith Reich

Leveraged Acquisitions Roundtable

Drinker Biddle’s Corporate and Securities Group recently hosted its 13th annual roundtable discussion, which took place at Gulph Mills Golf Club in King of Prussia, Pennsylvania. This year’s event sported a new name—“The…more

Acquisitions, Debt Financing, International Tax Issues, Investment, Investors

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

Hannah Reichenbach

CMS Updates Medicare Advantage RADV Program

The Centers for Medicare & Medicaid Services (CMS) updated the Medicare Advantage (MA) Risk Adjustment Data Validation (RADV) program when it issued a final rule in January of this year. The rule outlined updated audit…more

Patrick Reilly

EU Reaches Legislative Deal on Proposed ‘Digital Age’ Updates to Product Liability Directive

This week, the European Union made a significant breakthrough towards its goal of overhauling the 40-year-old Product Liability Directive for the demands of the “digital” age and modern economy. To amend the directive, the…more

EU, EU Directive, Manufacturers, Software

Broker-Dealer, Department of Labor (DOL), Fiduciary Rule, Financial Institutions, Investment Adviser

Fred Reish

The New Fiduciary Rule (30): The One-Time Recommendation Definition

The DOL’s fiduciary regulation and the amended Prohibited Transaction Exemptions (PTEs) 2020-02 and 84-24 will be effective on September 23 of this year. However, some of the requirements (called “conditions”) of PTEs 2020-02…more

CFTC, Commodity Exchange Act (CEA), Cryptocurrency, Digital Assets

Deanna Reitman

Digital Asset Enforcement: Between Proposed Legislation and CFTC Enforcement

While most people would agree that bitcoin and cryptocurrency would be classified as digital assets, no one has quite defined what exactly is a digital asset. The Commodities Futures Trading Commission (CFTC) released a primer…more

Clean Energy, Department of Energy (DOE), Department of Transportation (DOT), Energy Efficiency, Energy Sector

Juan Reyes III

Fiscal Year 2023 Omnibus Package – Summary of Transportation, Energy and Environmental Provisions

On Friday, December 23, 2022, Congress passed a $1.7 trillion year-end omnibus spending package which will fund the federal government through FY2023. The bill will be sent to the President’s desk to be signed into law in the…more

Administrative Law Judge (ALJ), Administrative Proceedings, Office of Administrative Law

Ryann Ricchio

Indiana Launches new Office of Administrative Law Proceedings

During its 2019 legislative session, the Indiana General Assembly authorized the creation of a new Office of Administrative Law Proceedings (OALP). See H.E.A. 1223 (2019) (codified primarily at Ind. Code ch. 4-15-10.5)…more

Breach Notification Rule, Cybersecurity, Data Breach, Data Security, Insurance Industry

Kathleen Rice

‘Tis the Season . . . for Insurance Model Laws

They seem to come earlier every year, don’t they? Grab your seasonally spiced latte and huddle around the bonfire to read the final version of the Insurance Data Security Model Law (Data Security Model) adopted by the National…more

Consumer Financial Protection Bureau (CFPB), Data Breach, Data Security, Flood Insurance, FSOC

Charles Richardson

Highlights from the 12th Annual Insurance Public Policy Summit

For the 12th consecutive year, Faegre Baker Daniels and FaegreBD Consulting partnered with Networks Financial Institute (NFI) and the Scott College of Business at Indiana State University to present the Insurance Public Policy…more

Employer Liability Issues, Equal Pay, Equal Pay Act, Pay Equity Laws, Salary/Wage History

Keriann Riehle

Ninth Circuit: Under Equal Pay Act, Prior Salary History Cannot Justify Pay Disparity

In its April 9 ruling in Rizo v. Yovino, the Ninth Circuit issued a significant decision holding that employers cannot rely on workers’ past salaries to justify disparities between male and female employee wages under the Equal…more

Tiffany Heavlin Riffer

Maryland Adopts Daubert Standard For Admissibility Of Expert Testimony

The Maryland Court of Appeals has retired the inflexible Frye-Reed standard and adopted the framework of Daubert for evaluating the admissibility of expert testimony. In Rochkind v. Stevenson (August 28, 2020), Maryland…more

Appellate Courts, Daubert Standards, Evidence, Maryland, Scientific Evidence

Bank Secrecy Act, Cryptocurrency, Department of Justice (DOJ), FinCEN, Internal Revenue Code (IRC)

Joseph Rillotta

IRS Is Cleared to Serve John Doe Summons on Cryptocurrency Exchange

On April 1, 2020, the U.S. District Court for the District of Massachusetts granted the IRS leave to serve a “John Doe summons” on Boston-based Circle Internet Financial Inc. and its affiliates, the administrators of a prominent…more

Department of Justice (DOJ), Health Insurance, Insurance Industry, McCarran-Ferguson Act

Lee Roach

Members of Congress Continue to Press DOJ on Health and Dental Insurance Antitrust Enforcement

Congressional leaders continue to seek information from the U.S. Department of Justice (DOJ) concerning the DOJ’s efforts to enforce the Competitive Health Insurance Reform Act (CHIRA), which partially repealed the…more

Benefit Plan Sponsors, Employee Benefits, Employees, Fiduciary, Health and Welfare Plans

Kendra Roberson

Five Habits of the Healthy Health Plan Fiduciary

As it is often said, “the only constant in the world is constant change,” so it is important for health plan fiduciaries to periodically review the fundamentals for consistency and compliance to avoid risk and costly mistakes. …more

Antitrust Violations, Criminal Prosecution, Department of Justice (DOJ), No-Poaching, Sherman Act

Jeffrey Roberts

DOJ Remains Committed to Aggressive Antitrust Enforcement Against Employers and Their Employees Even in the Wake of Recent Trial Defeats

The Department of Justice Antitrust Division (DOJ) recently suffered significant losses in two criminal trials involving alleged criminal wage-fixing and related “no-poach” agreements by and between competitors. These were the…more

Biden Administration, Civil Rights Act, Environmental Justice, Environmental Protection Agency (EPA), Title VI

John Roberts

Title VI Civil Rights Act Complaint

The Biden administration has made Environmental Justice a key component of its overall environmental agenda. EPA highlights EJ and civil rights in its draft strategic plan noting it will place a focus on “justice, equity, and…more

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

Justina Roberts

FTC Increases Hart-Scott-Rodino Transaction Thresholds for 2019

On February 15, 2019, the Federal Trade Commission (FTC) published adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). Companies contemplating a merger should…more

Affordable Care Act, Biden Administration, Constitutional Challenges, Health Insurance, Healthcare Reform

William Roberts

The Affordable Care Act at Risk: American Health Policy at a Crossroads

We are at a major crossroads in U.S. health policy. The direction for American health care in 2021 and beyond will depend in large part on events that are unfolding now, and that will come to fruition in the first half of 2021…more

Andrea Roberts Pierson

Summary of HB1125: Deceptive Lead Generation

Lawsuit advertisements—specifically ones that target prescription drugs and medical devices—can be dangerous. Nationwide, dramatized and exaggerated legal ads have flooded both televisions and the internet, often masquerading as…more

Attorney Advertising, Disclosure Requirements, Ethics, Fraud, Manufacturers

Coronavirus/COVID-19, Food and Drug Administration (FDA), Trump Administration, Virus Testing

Ian Rockwell

U.S. Congress Steps Up Oversight of COVID-19 Response

Through a series of recent hearings, the United States Congress delved into the federal government’s response to the COVID-19 pandemic. This series of congressional hearings examined the current outbreak across several committee…more

CAFA, Dart Cherokee Basin Operating Co. v. Owens, Evidence, Putative Class Actions, Removal

Regina Rodriguez

Supreme Court to Answer Question of Whether Evidence Is Required for Removal to Federal Court

Is "a short and plain statement" of the grounds for removal sufficient to remove a case to federal court? Or must a defendant supply admissible evidence in its notice of removal to prove amount in controversy? The Supreme Court…more

Capital Gains, Community Development, Economic Development, Investment Funds, IRS

Emma Rodriguez-Ayala

Is Your Investment Eligible for Opportunity Zone Funding?

The 2017 Tax Cuts and Jobs Act provides tax incentives for investments in “Opportunity Zones,” in an effort to promote economic development in selected communities. Investors can reduce by up to 15 percent taxes on existing…more

Food and Drug Administration (FDA), Food Labeling, Food Manufacturers, Food Marketing

Jeni Lamb Rogers

Got…Milk? FDA Requests Information on Using Dairy Names for Plant-Based Foods

On September 27, 2018, Food and Drug Administration (FDA) Commissioner Scott Gottlieb issued his third public statement since June addressing the use of dairy statements of identity for plant-based foods. Examples of products of…more

Department of Labor (DOL), Employer Liability Issues, Exempt-Employees, Fair Labor Standards Act (FLSA), Final Rules

Samantha Rollins

Hurry Up (But Also Wait): The DOL’s Final Rule for Overtime Exemptions and Likely Legal Challenges

On April 23, 2024, the U.S. Department of Labor (DOL) issued its much-anticipated final rule raising the salary threshold for certain workers exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). As…more

Advisory Opinions, Anti-Kickback Statute, Civil Monetary Penalty, Food and Drug Administration (FDA), OIG

Gary Rom

OIG Issues Advisory Opinion Allowing Pharmaceutical Company’s Payment of Travel, Food and Lodging Expenses for Indigent and Rural Patients

In its final Advisory Opinion of 2020, the U.S. Department of Health and Human Services Office of Inspector General (OIG) approved a pharmaceutical company’s request to provide financial assistance to patients who were…more

501(c)(3), Federal Grants, Minority-Owned Businesses, Tax Exempt Entities

Taylor Romigh Harrison

Federal Grant-making Program for Nonprofits Supporting Minority Businesses

A grant-making program providing federal grants to support nonprofits providing services to minority business enterprises was included in the Infrastructure Investment and Jobs Act that President Biden signed into law on…more

Coronavirus/COVID-19, Customs and Border Protection, Foreign Nationals, Immigrants, Immigration Procedures

Rob Rooney

Immigration Updates: Visa Processing, Travel Bans and the New USCIS Fee Schedule

Read on for an overview of updates on immigration and global mobility issues, including those involving visa processing at U.S. embassies and consulates, restrictions on travel and the new U.S. Citizenship and Immigration…more

Contract Termination, Contract Terms, Contractors, Subcontractors

Diego Rosado

Thinking About a Contract Termination? Consider This…

Contract termination can be expensive, particularly in today’s environment. When delays and cost impacts occur, contractors might consider contract termination in hopes of achieving a better outcome on the project. However, in…more

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

Samuel Rosenbaum

FTC Increases Hart-Scott-Rodino Transaction Thresholds for 2019

On February 15, 2019, the Federal Trade Commission (FTC) published adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). Companies contemplating a merger should…more

Artificial Intelligence, Automation Systems, Bots, Employee Benefits, Employee Retirement Income Security Act (ERISA)

Mark Rosenfeld

Can ChatGPT be Your ERISA Counsel?

Is ChatGPT sufficiently reliable to provide advice on employee benefits matters? Not yet, but ChatGPT and generative Artificial Intelligence may likely be useful tools for employee benefits attorneys in the future…more

Best Practices, Coronavirus/COVID-19, Franchises, Franchisors, Infectious Diseases

Nick Rotchadl

Franchisor Best Practices for COVID-19 (Updated #2)

A Message Regarding Racial Inequality: Faegre Drinker is deeply affected by the disturbing and terrible events surrounding the senseless deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and Rayshard Brooks. While these…more

Grace Period, Insurance Industry, Life Insurance, Notification Requirements, State and Local Government

Daniel Rotko

Retroactive Application of California’s Life Insurance Notification Statutes

The battle over the retroactive application of the 2013 amendments to the California Insurance Code (§§ 10113.71 and 10113.72) continues in California state and federal courts, even after the Court of Appeals’ October 2019…more

Appeals, Copyright, Copyright Exhaustion, Copyright Infringement, Copyright Registration

Peter Routhier

Supreme Court Decides Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC

On March 4, 2019, the Supreme Court of the United States decided Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, holding that under section 411(a) of the Copyright Act, a party may sue for copyright…more

Daniel Roy

Indiana Department of Revenue Provides Guidance for Use Tax Waiver for Donations to Fight COVID-19

As a follow up to Governor Holcomb’s March 19, 2020, Executive Order 20-05, the Indiana Department of Revenue has provided additional guidance regarding the types of items that may be eligible for a use tax waiver if they are…more

Coronavirus/COVID-19, Governor Holcomb, Relief Measures, State Taxes, Waivers

CARES Act, Coronavirus/COVID-19, EBITDA, Federal Reserve, Main Street Lending Programs

David Rubenstein

CARES Act: Updated Main Street Lending Program Summary

On April 30, 2020, the Federal Reserve Board (the Board) announced it is expanding the scope and eligibility for the Main Street Lending Program (the Program). When the initial terms of the Program were announced, the Board…more

Communications Decency Act, Free Speech, Liability, Online Platforms, Section 230

Matthew Rubin

Online Communications and Content: How Section 230 Reform Has Catapulted into Relevancy

Throughout much of 2020, Members of Congress, the Trump Administration, and even Associate Justice Clarence Thomas have highlighted the reasonableness in reevaluating Section 230 of the Communications Decency Act (47 USC §230)…more

Customs and Border Protection, Department of Homeland Security (DHS), Forced Labor, Importers, Imports

Randy Rucker

CBP and DHS Issue Guidance on Implementation of the Uyghur Forced Labor Prevention Act

The week of June 12, 2022, the Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) released two important guidance documents to prepare the public for the implementation of the Uyghur Forced Labor…more

Failure To Warn, Generic Drugs, Innovator Liability, Manufacturers, Pharmaceutical Industry

Raymond Rushing

Brand-Name Manufacturers Could Be Liable for Generic Drug Injuries, Says Massachusetts Supreme Court

On March 16, 2018, Massachusetts joined a growing minority of states — California, Vermont and Illinois — recognizing innovator liability of name-brand drug manufacturers. Rafferty v. Merck & Co., Inc., SJC-12347, 2018 WL…more

Article 50 Treaty of the EU, EU, EU Single Market, European Economic Area (EEA), Free Trade Agreements

Costanza Russo

Countdown to Brexit: How Businesses Can Prepare

In the coming days, the U.K. government is expected to formally notify the European Council of its intention to withdraw from the European Union under Article 50 of the Treaty on European Union. Formal notification will start…more

Food and Drug Administration (FDA), Labeling, Manufacturers, Medical Devices

Anna Rutigliano

Picture of Health: FDA Rule Allows Symbols to Replace Text on Device Labels

In June 2016, the U.S. Food and Drug Administration (FDA) issued its final rule explicitly allowing the use of approved symbols, without accompanying text, on medical device and certain biological product labeling. The FDA…more

Disclosure Requirements, Human Rights, Human Trafficking, Modern Slavery Act, Supply Chain

Dennis Ryan

U.K. Modern Slavery Act Update

A minimum of 21 million people are estimated to be in forced labor across the globe today, a figure far greater than the number of slaves transported across the Atlantic in the slave trade of the 15th to 19th centuries. The…more

Munjot Sahu

What's in a Name? A Four-Letter Suffix to Be FDA Compliant

The BPCIA and the Debate Over Naming Biosimilars - Most drugs on the market today are small-molecule compounds with active pharmaceutical ingredients that can be duplicated to create “generic” drugs. It is impossible,…more

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

Paul Saint-Antoine

New HSR Act Size-of-Transaction Increasing to $119.5 Million; Filing Fee Increases Going Into Effect Soon

On January 22, 2024, the Federal Trade Commission (FTC) published its adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The FTC revises the HSR Act thresholds…more

False Statements, Intellectual Property Litigation, Intellectual Property Protection, Misappropriation, Misrepresentation

Anna Sallstrom

Court Allows Investors’ Claims to Proceed Based on Defendant’s Statement That Trade Secret Claim Was “Without Merit”

The Trade Secret Litigation: Appian v. Pegasystem - The trade secret case Appian v. Pegasystem made headlines in 2022 when a jury awarded software company Appian more than $2 billion in damages for its competitor Pega’s…more

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

Robin Sampson

New HSR Act Size-of-Transaction Increasing to $119.5 Million; Filing Fee Increases Going Into Effect Soon

On January 22, 2024, the Federal Trade Commission (FTC) published its adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The FTC revises the HSR Act thresholds…more

Department of Homeland Security (DHS), E-Verify, Employer Liability Issues, Employment Eligibility Verification, Foreign Workers

Kiratpreet Sandhu

What Employers Need to Know About the New Form I-9 as of August 1, 2023: Big Changes on the Horizon

U.S. Citizenship and Immigration Services (USCIS) is set to publish a new version of Form I-9, Employment Eligibility Verification on August 1, 2023. With the new Form I-9, the Department of Homeland Security (DHS) has also…more

Algorithms, Artificial Intelligence, Insurance Industry, NAIC

Victor Sandoval

Artificial Intelligence Briefing: NAIC Lays Out Regulatory Guidance in 10-Page Bulletin

The NAIC issues a 10-page bulletin laying out regulatory guidance regarding the use of algorithms, AI and predictive models; Connecticut lawmakers address the state’s use of AI; and leading AI companies meet at the White House…more

Coronavirus/COVID-19, Opioid, Prescription Drugs, Public Health Emergency, Telehealth

Sanjyot Sangodkar

Government Study Suggests Telehealth Access Makes a Difference in the Fight Against the Opioid Epidemic

A study by the Centers for Disease Control and Prevention, the Centers for Medicare & Medicaid Services and the National Institute on Drug Abuse suggests that telehealth expansions instated during the COVID-19 public health…more

Environmental Protection Agency (EPA), FOIA, National Marine Fisheries Service, Privileged Communication, Privileged Documents

Matt Sapp

Supreme Court Decides United States Fish and Wildlife Service et al. v. Sierra Club, Inc.

On March 4, 2021, the U.S. Supreme Court decided United States Fish and Wildlife Service et al. v. Sierra Club, Inc., holding that the deliberative process privilege exemption in the Freedom of Information Act (FOIA) protects…more

Consumer Protection Laws, Domain Names, Email, FBI, Federal Trade Commission (FTC)

James Saul

Make your Company a Hard Target for Job Scams

Your company’s talent is its lifeblood. Job postings for qualified individuals and other recruitment activities are vital to its operations. What happens, then, when scammers disrupt your business by conducting phishing schemes…more

Cease and Desist Orders, Compliance, Department of Justice (DOJ), Deutsche Bank, Enforcement Actions

Michael Sawers

$125 Million Deutsche Bank Settlement with SEC/DOJ Newest in Line of Several Costly Resolutions

On January 8, 2021, the SEC issued a cease-and-desist order, Release No., 90875 (available here), formally resolving proceedings against Deutsche Bank AG. Deutsche Bank agreed to pay over $125 million as part of a global…more

Customs and Border Protection, Department of Homeland Security (DHS), Forced Labor, Importers, Imports

James Sawyer

CBP and DHS Issue Guidance on Implementation of the Uyghur Forced Labor Prevention Act

The week of June 12, 2022, the Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) released two important guidance documents to prepare the public for the implementation of the Uyghur Forced Labor…more

Geoffrey Sawyer III

DMF Audits are in the Rearview Mirror … Now What?

After almost a decade of frustration, the dust has finally settled on the era of life insurance/annuity unclaimed property regulation by audit. Not without pain, though, as many endured multi-state, multi-year audit processes to…more

Annuities, Audits, Death Master Files, Life Insurance, Unclaimed Property

America Invents Act, Appeals, Broadest Reasonable Interpretation Standard, Claim Construction, Cuozzo Speed Technologies

Joel Sayres

Recent IPR Guidance From a Trio of Forums

As inter partes review (IPR) practice continues to develop and practitioners feel their way around the edges, the last month brought helpful guidance from a trio of forums: the Federal Circuit, the Central District of…more

Andrew Scarafile

Attention to Detail — and the Defense — Prevails in Two Recent Cases

Two recent decisions emphasize the necessity of precisely examining a plaintiff’s complaint for potential defenses while keeping each element of the TCPA in mind. First, in Hulce v. Zipongo, Inc., No. 23-C-0159, 2024 WL…more

Advertising, Auto-Dialed Calls, Class Action, Goods or Services, Rule 8

Certiorari, Foreign Investment, Foreign Sovereign Immunities Act of 1976 (FSIA), SCOTUS, Venezuela

Lawrence Scarborough

Supreme Court Ends Saga Over Which Venezuelan Government Could Be Sued in International Investment Dispute

Background - In 2018, several foreign investors obtained international arbitration awards against the Venezuelan government, which nationalized various industries under then-President Hugo Chávez. After confirming their…more

Analytics, Artificial Intelligence, Broker-Dealer, Cybersecurity, Investment Companies

Edward Scarillo Jr.

You Made the List: SEC’s Spring Agenda Would Impact Broker-Dealers

The SEC’s Office of Information and Regulatory Affairs recently released the Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions (the Agenda). The word salad of a title hints at the fact the SEC is considering a…more

Affordable Care Act, Cost-Sharing, Health Insurance, Trump Administration

Elizabeth Scheibel

Health Insurers Win Important Ruling on Payment of ACA Cost-Sharing Reductions (CSR)

A federal judge has ruled that health insurers under the Affordable Care Act are entitled to unpaid cost-sharing reduction (CSR) payments from the government. Insurers sued following the Trump administration’s October 2017…more

Coronavirus/COVID-19, Due Diligence, Real Estate Market, Real Estate Transactions

Pat Scheiderer

Can We Close? Real Estate Transactions In The Age Of COVID-19

The COVID-19 pandemic is wreaking havoc in real estate markets throughout the nation and promises to create additional disruption until the economic shockwaves of the pandemic have settled. As we advise clients who have…more

Corporate Counsel, Employer Liability Issues, Employment Contract, Non-Compete Agreements, Restrictive Covenants

Todd Schiltz

Delaware Is Increasingly No Longer a Safe Bet for Restrictive Covenants and Default Choice of Law Provisions

It’s no secret that employee non-compete — and, to a related extent, non-solicitation — restrictions are increasing disfavored and targeted across the U.S., both on a federal and state level. We’ve recently written about the…more

Emilee Schipske

Pressure is Rising: Continued Moves to Ban or Limit Natural Gas Appliances

We continue to track litigation and legislations involving proposed or enacted bans or limitations on natural gas appliances. As anticipated, this area continues to evolve, and we are finding increased litigation regarding the…more

California, Electricity, Energy Sector, Legislative Agendas, Natural Gas

Corporate Counsel, Forum Shopping, Personal Jurisdiction

John Schlafer

Missouri Supreme Court Significantly Limits Personal Jurisdiction in Nation's "Number One Judicial Hellhole"

On February 28, 2017, the Missouri Supreme Court issued an opinion significantly limiting the state’s personal jurisdiction over corporations. This limitation on statewide jurisdiction includes the courts of the City of St…more

Breach Notification Rule, Corrective Actions, Cybersecurity, Data Breach, Data Protection

Jason Schnabel

Breach of Privacy Prompts Breach of Etiquette: DHHS Sets New Precedent in Privacy Breach Enforcement

On January 9, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) took action against a health system for non-timely reporting of a breach of protected health information. It was the first time…more

Brian Schnell

Federal Court Strikes Down NLRB’s New Joint Employer Rule, Leaving 2020 Rule in Place for Now

On March 8, 2024, a federal district court in Texas vacated the National Labor Relations Board’s 2023 joint employer rule. The 2023 rule, which was set to take effect on March 11, would have expanded the joint employer test to…more

Collective Bargaining, Employer Liability Issues, Joint Employers, NLRB, Unions

Coronavirus/COVID-19, Delaware General Corporation Law, Shareholder Meetings, Virtual Meetings

Joseph Schoell

Delaware Authorizes Remote Stockholder Meetings in Response to COVID-19

Responding to the needs of publicly traded corporations navigating the COVID-19 epidemic, Delaware Gov. John C. Carney issued a modified State of Emergency Order (the Order) authorizing public companies to conduct stockholder…more

Contamination, Drinking Water, US Army Corps of Engineers, Water, Water Resources Development Act

Nikolaus Schoenherr

Open the Floodgates? WRDA Shows Congress Ready to Act on Water Policy, Infrastructure Projects

In the bipartisan Water Resources Development Act (WRDA), which the Senate approved on December 9, Congress addressed major issues in the nation’s water infrastructure, including direct efforts aimed at problems related to…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Compensation, Health Care Providers, Physicians

Thomas Schroeder

CMS Overhauls Stark Law Regulations as Part of Regulatory Sprint to Coordinated Care

On November 20, 2020, in addition to new Stark Law regulations intended to accommodate value-based financial arrangements with physicians, the Centers for Medicare and Medicaid Services (CMS) issued final regulations that…more

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

Allison Schten

New HSR Act Size-of-Transaction Increasing to $119.5 Million; Filing Fee Increases Going Into Effect Soon

On January 22, 2024, the Federal Trade Commission (FTC) published its adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The FTC revises the HSR Act thresholds…more

Novartis, Patent Term Adjustment, Patent Terms, Patents, Request for Continued Examination

Daniel Schwartz

Some Patents Could Be Entitled to Later Expiration Dates Than Previously Thought

Your patent may be entitled to a later expiration date if the U.S. Patent and Trademark Office (USPTO) characterized time periods during which you could not engage in reasonable efforts to conclude prosecution as “applicant…more

CFTC, Cryptocurrency, Federal Trade Commission (FTC), Initial Coin Offering (ICOs), NASAA

Nora Tauke Schweighart

Operation Cryptosweep: International Regulators Take Aim at Cryptocurrency Activities

Though they have become a hot topic in the past year, cryptocurrencies still occupy something of an untamed frontier in the financial trading and investment ecosystem — but a coordinated, international effort by regulators to…more

Collateralized Debt Obligations, Trustees, Trusts

Mary Scott

Trio of Corporate Trust Decisions Addresses Jurisdiction, Standing and Authority to Direct the Trustee

Three recent corporate trust decisions provide insight into issues of jurisdiction, standing of indirect holders and the authority of limited direct certificateholders to direct trustees. The U.S. Supreme Court has left alone a…more

Coronavirus/COVID-19, Infectious Diseases, Intellectual Property Protection, Patents

Timothy Scull

Alternative Patent-Related Approaches to Promote Innovation to Combat COVID-19

Several initiatives and efforts have recently been introduced to spur production of needed products and encourage innovation to combat COVID-19 by either requesting or requiring a patent holder to refrain from asserting its…more

Board Meetings, Business Development Companies, Coronavirus/COVID-19, Investment Companies, Registered Investment Companies (RICs)

Andrew Seaberg

SEC Extends COVID-19 In-Person Meeting Relief for Registered Investment Companies

On June 19, 2020, the Securities and Exchange Commission (SEC) extended temporary exemptive relief from in-person voting requirements granted to registered management investment companies and business development companies…more

Analytics, Automation Systems, Capital Markets, Claims Processing Systems, Health Insurance

Ben Seessel

“A Slice” of the 2019 ILTCI Conference

Drinker Biddle is pleased to present you with this recap—or “a slice” of the 2019 ILTCI Conference, Chicago, Illinois. Year after year, the ILTCI Conference is jam-packed with opportunities to reconnect with and learn from our…more

Climate Change, Disclosure Requirements, Greenhouse Gas Emissions, Proposed Rules, Regulation S-K

Amy Seidel

Proposed Climate Disclosure Rules for Public Companies

On March 21, 2022, the Securities and Exchange Commission (SEC) issued highly anticipated proposed rules that would require public companies to include climate-related disclosures in their annual reports and registration…more

Brett Seifried

Next Stage Considerations About the Supreme Court’s Affirmative Action Decision: How to Put the Warning Letter from the State Attorneys General in Context

As higher education institutions, state and local governments, private employers and federal contractors grapple with understanding the impacts of the U.S. Supreme Court’s decision in Students for Fair Admissions v. President &…more

Affirmative Action, Civil Rights Act, College Admissions, Colleges, Diversity

401k, Benefit Plan Sponsors, Department of Labor (DOL), Employee Benefits, Internal Revenue Code (IRC)

Dawn Sellstrom

IRS Announces 2024 Retirement Plan Limits

The IRS recently announced the 2024 cost-of-living adjustments to various benefit and contribution limits applicable to retirement plans. The IRS modestly increased the applicable limits for 2024. The following limits apply to…more

Employer Liability Issues, Employment Policies, Governor Newsom, Minimum Wage, Popular

Amanda Semaan

New California Laws for 2024 and Beyond: What Employers Should Know

California Gov. Gavin Newsom signed several laws impacting California employers in 2023. Some of the new laws became effective immediately and others, including some that were signed into law just weeks ago, take effect January…more

Stephen Serfass

The Faegre Drinker Five: An NAIC Watchlist

Faegre Drinker’s insurance team will once again be well-represented at the National Association of Insurance Commissioners’ Spring National Meeting from April 4-8 in Kansas City. As pandemic restrictions ease, we expect broad…more

Anti-Retaliation Provisions, Double Damages, Employer Liability Issues, Equal Pay, Gender-Based Pay Discrimination

Gregg Settembrino

Alabama Enacts New Equal Pay Law to Prevent Wage Disparity on Basis of Sex or Race

On June 11, 2019, Alabama’s governor, Kay Ivey, signed equal pay legislation (the “Act”), which goes into effect on September 1, 2019. Alabama now joins a growing number of states, including California, Colorado, Maryland,…more

Employee Benefits, Employee Retirement Income Security Act (ERISA), Fiduciary Duty, FIfth Third Bancorp v Dudenhoeffer, SCOTUS

Steven Severson

Supreme Court Decides ESOP Fiduciary Duty Case: Fifth Third Bancorp et al. v. Dudenhoeffer et al.

On June 25, 2014, the U.S. Supreme Court decided Fifth Third Bancorp et al. v. Dudenhoeffer et al., No. 12-751, holding that a fiduciary of an employee stock ownership plan (ESOP) is subject to the same duty of prudence that…more

Accounting, Bad Actors, Broker-Dealer, Cannabis-Related Businesses (CRBs), Capital Raising

Emily Seymore

SEC Enforcement Victory in its Efforts to Police Cannabis Industry Investments

As the cannabis industry continues to evolve and generate capital raising and investment opportunities, the SEC Division of Enforcement will continue to closely keep watch and target the bad actors that new market opportunities…more

Abe Jentry Shanehsaz

Name, Image and Likeness Scouting Report, Week 5: Conference and Member School NIL Policies Proliferate, But Enforcement Remains ‘Blurry’

The academic calendar has turned to October as athletic conferences and their member institutions attempt to deal with athletes’ growing expectations about name, image and likeness (NIL) opportunities. The tsunami created by the…more

College Athletes, Colleges, Educational Institutions, Name and Likeness, NCAA

Family Businesses, IRC Section 2704, IRS, Proposed Regulation, Transfer of Assets

David Shannon

Discounts for Transfers of Interests in Family-Controlled Entities May Be Limited Severely Under IRS Proposal

The Internal Revenue Service has issued long-anticipated proposed regulations under Section 2704 of the Internal Revenue Code. These proposed regulations are broad and far-reaching. If the proposed regulations are finalized in…more

Artificial Intelligence, Department of Health and Human Services (HHS), Draft Guidance, Life Sciences, NIST

Joy Sharp

Race Against the Clock: Federal Agencies Issue Their Six-Month Updates on AI Activities in Accordance With President Biden’s Executive Order on AI

Since President Biden issued his sweeping Executive Order on the Safe, Secure and Trustworthy Development of AI on October 30 of last year (EO), federal agencies have been operating in high gear to meet the deadlines and…more

Regina Sharrow

Threats and Solutions for Indiana Water and Wastewater Operations: Takeaways From the 2018 One Water Summit

Municipal water, wastewater and stormwater operations continue to face challenges including deterioration, cost increases for items like chemicals, energy and skilled labor, federally mandated Combined Sewer Overflow (CSO)…more

Infrastructure, Wastewater, Water, Water Supplies

Ryan Shay

New House Appropriations Committee Chair Makes Important Changes to FY 2025 Earmark Process

Following the long-delayed passage of Fiscal Year (FY) 2024 appropriations funding legislation, the House is moving forward by setting deadlines for FY 2025 programmatic, language and Community Project Funding (CPF) requests…more

Appropriation, Colleges, LGBTQ, Universities

Form 8-K, Incentive Stock Options, Institutional Shareholder Services (ISS), Proxy Statements, Securities and Exchange Commission (SEC)

Carolyn Shea

Can These Options be Saved? An Issue from 2009 (and 2001) Is Timely Again

Economic uncertainty and shifts brought on by COVID-19 have us back to a familiar question from 2009 and even 2001: can you reprice options to take into account falling share prices? The answer remains yes, though tax,…more

Amanda Shelby

Artificial Intelligence Briefing: Feds Take Aim at Algorithmic Bias

Our latest briefing examines the latest signal that the Federal Trade Commission is considering rulemaking, a groundbreaking settlement between the Justice Department and Meta over allegedly discriminatory algorithms, proposed…more

Algorithms, Artificial Intelligence, Auto Insurance, Bias, Discrimination

Kristin Ann Shepard

Considerations for Colleges and Universities Facing Class Action Refund Lawsuits From Students

COVID-19 has forced colleges and universities to move from traditional in-person classroom instruction to online learning. Just as students, faculty and administrators adjust to their new reality, a spate of lawsuits has been…more

Class Action, Colleges, Educational Institutions, Students, Universities

Initial Public Offering (IPO), PSLRA, Securities and Exchange Commission (SEC), Special Purpose Acquisition Companies (SPACs)

Kate Sherburne

SPAC Attack! SPAC IPOs Are Booming

We have all seen the daily stories about SPACs (special purpose acquisition companies) and their attack on the IPO and M&A markets over the last 15 months. For context, the number of SPAC initial public offerings (IPOs) has…more

Alternative Reference Rates Committee (ARRC), Credit Facilities, ICE Benchmark Administration (IBA), Lenders, Libor

Mark Sherman, Jr.

Have a LIBOR-Based Credit Facility? You May Soon Get a Notice From Your Lender

If you have a credit facility based on the London Interbank Offered Rate (LIBOR), you may soon get a notice from your lender or the administrative agent on your credit facility saying that a “Benchmark Transition Event” has…more

Customs and Border Protection, Food and Drug Administration (FDA), Imports

Mark Shope

Food and Drug Administration Attempts to Streamline Review of Imports

The Food and Drug Administration (FDA) issued a final rule on November 29, 2016, establishing requirements for the electronic filing of import entries of FDA-regulated products. Once the rule takes effect, the entries must be…more

Commercial Leases, Commercial Real Estate Market, Commercial Tenants, Coronavirus/COVID-19, Popular

Rajan Shori

What’s Next for U.K. Commercial Real Estate?

2021 is already off to a surreal start, but it has nonetheless been coined a “completely new beginning” for the real estate sector as businesses look to turn the page on 2020 and confront the realities of a market that has been…more

Broker-Dealer, Exemptions, Finders, Securities and Exchange Commission (SEC), Securities Exchange Act

Matthew Silver

SEC Proposes Exemptive Relief for Finders

After numerous calls for the U.S. Securities and Exchange Commission (SEC) to provide clarity on the role of “finders” in the capital markets ecosystem, the SEC sought to provide that clarity at a meeting held on October 7,…more

§ 315(b), America Invents Act, Appeals, Corporate Counsel, Cuozzo Speed Technologies v Lee

Brianna Forbes Silverstein

Following Up after Oral Argument in Thryv, Inc. fka Dex Media Inc. v. Click-to-Call Technologies, LP

On June 24, 2019, the Supreme Court granted the petition for certiorari in Thryv, Inc. fka Dex Media Inc. v. Click-to-Call Technologies, LP on the question of whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and…more

Accessibility Rules, Americans with Disabilities Act (ADA), Public Accommodation

Jonathan Simpson

New Law Requires Notice and Cure Period Before Commencement of MHRA Public Accommodation Litigation

In response to a growing number of “drive-by” accessibility lawsuits filed in Minnesota in recent years, and after an unsuccessful attempt to remedy the problem last year, the Minnesota legislature recently passed amendments to…more

Bureau of Industry and Security (BIS), Export Administration Regulations (EAR), Export Controls, Exports, U.S. Commerce Department

Mollie Sitkowski

New License Exception for Medical Devices Destined for Russia, Belarus and Certain Regions of Ukraine: BIS Announces a Final Rule Amending the Russia and Belarus Sanctions Under the Export Administration Regulations (EAR)

On April 25, 2024, the Department of Commerce’s Bureau of Industry and Security (BIS) announced the issuance of a final rule that amends the Russian and Belarus Sanctions under the Export Administration Regulations (EAR) to “add…more

CARES Act, Coronavirus/COVID-19, Federal Reserve, Main Street Lending Programs, Tribal Corporations

Leah Sixkiller

Treasury Waives Main Street Lending Program Restriction on Capital Distributions for Tribal Business Concerns

On July 15, 2020, the U.S. Department of the Treasury waived the Main Street Lending Program (MSLP) restriction on capital distributions for tribal business concerns, thus opening the doors for many tribal business concerns to…more

Enforcement Actions, Investment Adviser, Investment Advisers Act of 1940, Investment Funds, Securities and Exchange Commission (SEC)

Dee Anne Sjögren

Key Takeaways: 2023 Annual Rocky Mountain Fund Advisers Summit

On October 5, 2023, Faegre Drinker, PINE Advisor Solutions and RSM (US) LLP (RSM) co-hosted the annual Rocky Mountain Fund Advisers Summit (the Summit) in Denver. Interactive panels of industry specialists discussed recent…more

Carry-Over Basis, Consolidated Appropriations Act (CAA), Employee Benefits, Employer Liability Issues, FSA

Gayle Skolnik

IRS Clarifies Relief for Health FSA Benefits under the Consolidated Appropriations Act of 2021

As noted in our prior blog posts here and here, Section 214 of the Consolidated Appropriations Act of 2021 (“Act”) permits employers to amend their flexible spending account (FSA) plans to help participants avoid forfeiting…more

Appeals, Due Process, Foreign Corporations, Fourteenth Amendment, PA Supreme Court

Elizabeth Slama

Passengers on Litigation Tourism Train Get Review from Supreme Court

The United States Supreme Court will soon consider whether the due process clause of the Fourteenth Amendment prohibits a state from requiring that a corporation consent to personal jurisdiction in order to conduct business…more

Adverse Employment Action, Civil Rights Act, Employer Liability Issues, Employment Discrimination, Employment Litigation

Stacey Smiricky

Is a Lateral Job Transfer With No Change in Pay or Benefits an Adverse Employment Action Under Title VII? The Supreme Court has Decided to Weigh In

The United States Supreme Court will determine whether a forced lateral job transfer violates Title VII of the Civil Rights Act of 1964 without also requiring the plaintiff to show that the transfer caused a materially…more

Adam Smith

Ransomware Payments May Violate Sanctions Laws, U.S. Treasury Department Warns

On October 1, 2020, the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued an advisory to companies that pay a ransom in the wake of a cyberattack. Specifically, the advisory warned that…more

Cyber Attacks, Cybersecurity, Data Protection, FinCEN, Hackers

Employer Liability Issues, Employment Discrimination, Employment Policies, Hairstyle Discrimination, Hiring & Firing

Ebony Smith

New York Joins California in Banning Race-Based Hair Discrimination in Employment

New York has become the second state, following California, to explicitly ban race-based hair discrimination in employment. On July 12, 2019, New York Gov. Andrew Cuomo signed S.6209A/A.7797A amending the Human Rights Law to…more

Administrative Orders, Anti-Fraud Provisions, Bonds, Enforcement Actions, Failure To Disclose

Isaac Smith

SEC Charges Texas School District and Former CFO with Fraud Related to Bond

On March 16, 2022, the Securities and Exchange Commission charged Crosby (Texas) Independent School District (Crosby) and its former Chief Financial Officer, Carla Merka, with misleading investors in a $20 million municipal bond…more

Local Elections, Political Candidates, Primary Elections, State and Local Government, State Elections

Joseph Smith, Jr.

2018 Indiana Primary Election Preview

After a busy 2018 legislative session, the Indiana State Senate and House of Representatives are gearing up for the 2018 Indiana Primary Election. Half of the Senate and all of the House seats are up for election. The upcoming…more

Best Practices, Coronavirus/COVID-19, Franchises, Franchisors, Infectious Diseases

Kelley Smith

Franchisor Best Practices for COVID-19 (Updated #2)

A Message Regarding Racial Inequality: Faegre Drinker is deeply affected by the disturbing and terrible events surrounding the senseless deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and Rayshard Brooks. While these…more

Rebecca Smith

What Colorado Landlords Need to Know in 2022

In late 2021, the Colorado General Assembly passed significant landlord-tenant law reform via HB 21-1121 and SB 21-173. These changes affect the responsibilities that landlords owe to tenants and the steps required for…more

Commercial Leases, Eviction, Landlords, Rent Increases, Residential Leases

Homeowners, Homeowners Association (HOA), New Legislation, State Legislatures

Sharena Smith

Coming to the Neighborhood: Colorado Passes New HOA Laws

The Colorado legislature recently enacted several new laws that will significantly impact the conduct of homeowners’ associations (HOAs) across the state. These changes range from detailed procedures governing the collection of…more

Agribusiness, Borrowers, Environmental Protection Agency (EPA), Financial Institutions, Lenders

Antoinette Snodgrass

Key Takeaways From the 2021 Food & Agribusiness National Conference: The Agribusiness Industry

Faegre Drinker’s 2021 Food & Agribusiness National Conference assembled speakers from global, market-leading companies to discuss major issues and trends of note from across market segments and product categories. In the latest…more

ATDS, Auto-Dialed Calls, Facebook, Facebook Inc v Duguid, Random or Sequential Number Generator

Shannon Sole

Supreme Court Decides Facebook, Inc. v. Duguid

On April 1, 2021, the U.S. Supreme Court decided Facebook, Inc. v. Duguid, holding that to qualify as an “automatic telephone dialing system” (commonly referred to as an “autodialier”) under Section 227(a)(1)(A) of the Telephone…more

Coronavirus/COVID-19, Employer Liability Issues, Employment Policies, Infectious Diseases, Reasonable Accommodation

Sean Somermeyer

Preview of Things to Come? Lawsuit Challenges Employer COVID-19 Vaccine Mandate

Access to COVID-19 vaccines continues to expand in the United States and employers are navigating many questions surrounding employee vaccination and return to work. Current polling shows a substantial number of American workers…more

Baby Products, Children's Products, Enforcement Actions, Food and Drug Administration (FDA), Food Safety

Ge Song

FDA Announces Increased Inspections and Enforcement Actions, Additional Guidance to Reduce Toxic Elements in Food for Babies and Young Children

On March 5, 2021, FDA issued a public statement announcing regulatory actions to reduce toxic elements — with a particular focus on arsenic, lead, cadmium and mercury — in food for babies and young children. FDA cited the risk…more

Collective Bargaining Agreements (CBA), Employee Benefits, Employee Retirement Income Security Act (ERISA), Employer Liability Issues, ERISA Litigation

Inés Sosa

Strict Construction: Seventh Circuit Affirms Written Pension Obligations

On March 22, 2024, the United States Court of Appeals for the Seventh Circuit issued a ruling in Bulk Transp. Corp. v. Teamsters Union No. 142 Pension Fund, ordering the Teamsters Union No. 142 Pension Fund (the “Fund”) to repay…more

Andrew Soshnick

Indiana Supreme Court Recognizes Wide Range of Methods to Secure Property Settlement Judgments, Plus the Need for Definitive Evidence of Divorce Tax Consequences

On March 20, 2024, a unanimous Indiana Supreme Court decided Cooley v. Cooley, which reiterates the wide range of security methods available to Indiana trial courts to ensure payment of property settlement judgments, as well as…more

Divorce, Marital Assets, Spouses, Tax Planning

Business E-Mail Compromise (BEC), Cyber Attacks, Cybersecurity, Data Protection, Phishing Scams

Mark Sosnowsky

Business Email Compromise Scams: What You Should Know and What You Can Do To Be Prepared

Business Email Compromise (BEC) scams have become increasingly commonplace and financially destructive. According to the Federal Bureau of Investigation (FBI), 2019 was the worst year on record for BEC scams — both in terms of…more

Biden Administration, Corporate Counsel, Department of Justice (DOJ), Environmental Justice, Environmental Protection Agency (EPA)

James Spaanstra

Prepare Now for the Inevitable EJ Questions: A Practitioner’s Guide to Regulatory Impacts of Environmental Justice

The incorporation of environmental justice (EJ) and civil rights into the environmental agenda of the Biden administration has not been confined to grant making and enhanced visibility. Through a series of executive orders,…more

Carbon Capture and Sequestration, Greenhouse Gas Emissions, Inflation Reduction Act (IRA), Internal Revenue Code (IRC), IRS

Virginia Speck

IRS Releases Proposed Regulation to Section 45V of Internal Revenue Code

In connection with the Inflation Reduction Act (IRA), on December 22, 2023, the Internal Revenue Service (IRS) released a Proposed Regulation related to Section 45V of the Internal Revenue Code. The Proposed Regulation,…more

Jack Sperber

Property Rights Primer, Part 3: Issues to Consider When Negotiating a Condemnation Clause in a Lease

Of the many things that landlords and tenants are thinking about when entering into a new lease, the possibility that the property might be subjected to eminent domain proceedings is usually very low on the list. But…more

Condemnation, Eminent Domain, Just Compensation, Landlords, Property Owners

Agribusiness, Food and Drug Administration (FDA), Food Labeling, USDA

Rachael Dettmann Spiegel

Key Takeaways From the 2021 Food & Agribusiness National Conference: Food Manufacturing, Processing and Distribution

Faegre Drinker’s 2021 Food & Agribusiness National Conference assembled speakers from global, market-leading companies from across the industry to discuss major issues and trends of note from across market segments and product…more

Nikolas Spilson

EU Reaches Legislative Deal on Proposed ‘Digital Age’ Updates to Product Liability Directive

This week, the European Union made a significant breakthrough towards its goal of overhauling the 40-year-old Product Liability Directive for the demands of the “digital” age and modern economy. To amend the directive, the…more

EU, EU Directive, Manufacturers, Software

Banking Sector, Banks, Consumer Financial Protection Bureau (CFPB), Dodd-Frank, Financial Institutions

Jackson Spivey

A ‘Goldilocks' Dodd-Frank Change

The U.S. House and Senate have now passed a bill (S. 2155) that would make changes in the Dodd-Frank Act. Although the bill already has prompted both high praise and intense criticism, the actual changes reflect a moderate…more

Employer Liability Issues, Hiring & Firing, Right to Work, Union Membership, Unions

Cynthia Springer

Indiana Supreme Court Upholds Right to Work Law

The Indiana Supreme Court has reversed a July 2014 ruling by Lake Superior Court Judge John M. Sedia that two provisions of the Indiana Right to Work (RTW) law are unconstitutional. In a 5-0 decision, written by Justice Dickson,…more

CARES Act, Coronavirus/COVID-19, Families First Coronavirus Response Act (FFCRA), Family and Medical Leave Act (FMLA), Relief Measures

Marilee Springer

The Impact of the CARES Act Upon Nonprofit Organizations

The global COVID-19 pandemic has impacted our communities and the nonprofit organizations that provide critical services in significant ways. Below, we highlight recent congressional action, identify the unique opportunities for…more

Child Labor, Corporate Counsel, Department of Labor (DOL), Employer Liability Issues, Fair Labor Standards Act (FLSA)

Sylvia Bokyung St. Clair

Child Labor Law Violations: U.S. Department of Labor Issues New Assessment Procedures for Calculating Civil Monetary Penalties

The U.S. Department of Labor’s Wage and Hour Division (the Department) has enhanced its response to child labor violations following a 69% increase in findings of child labor violations between 2018 and 2022. Earlier this year,…more

Construction Contracts, Construction Industry, Construction Project, Contractors, Coronavirus/COVID-19

Rachael Stack

Construction Contracting and COVID-19: Negotiating in Uncertain Times

Determining what is foreseeable when embarking on a new construction project can be difficult, especially during a worldwide pandemic. Events that once seemed unfathomable may actually now be considered foreseeable. Since early…more

Coronavirus/COVID-19, Governor Walz, Securities and Exchange Commission (SEC), Shareholder Meetings, Virtual Meetings

Michael Stanchfield

Minnesota Governor Issues Emergency Order to Facilitate Virtual Shareholder Meetings for Public Companies During the COVID-19 Pandemic

Minnesota Gov. Tim Walz issued Emergency Executive Order 20-43 on April 24, 2020 to facilitate virtual shareholder meetings while promoting the health and safety of participants amid the COVID-19 pandemic. The Order applies to…more

Clinical Trials, Coronavirus/COVID-19, Food and Drug Administration (FDA), Infectious Diseases, Pharmaceutical Industry

Ann Marie Stanley, Ph.D.

FDA Issues Final Guidance on Conduct of Clinical Trials of Medical Products During COVID-19 Pandemic

On March 18, the U.S. Food and Drug Administration (FDA) issued a final guidance titled FDA Guidance on Conduct of Clinical Trials of Medical Products During COVID-19 Pandemic, providing important guidance for industry,…more

Emily Steeb

Pathologist Stopped Short of Offering Could-Have, Should-Have Opinions

In personal injury and wrongful death cases, the plaintiff bears the burden of proving medical causation, which almost universally requires testimony from a competent expert. Some plaintiffs offer testimony from forensic…more

Admissibility, Causation, Daubert Standards, Evidence, Expert Testimony

James Steffen

Supreme Court Decides Romag Fasteners, Inc. v. Fossil Group, Inc.

On April 23, 2020, the U.S. Supreme Court decided Romag Fasteners, Inc. v. Fossil Group, Inc., holding that a plaintiff alleging trademark infringement under § 1125(a) of the Lanham Act is not required to prove willful…more

§ 1125(a), § 1125(c), Appeals, Burden of Proof, Charge-Filing Preconditions

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

Devin Stein

Keeping Pace With IP Law as it Evolves on Generative AI

Generative artificial intelligence (AI) is an innovative new technology that is being rapidly developed for integration into a wide variety of products…more

Biometric Information, Biometric Information Privacy Act, Class Action, Data Collection, Data Privacy

Lauren Steinhaeuser

Facebook Gets Tagged: Ninth Circuit Greenlights Class Action Trial Under BIPA

Class action lawsuits alleging violations of the Illinois Biometric Information Privacy Act (BIPA) continue to flood courts’ dockets. In a case against Facebook related to use of an alleged facial recognition technology in its…more

Lawrence Stern

The Faegre Drinker Five: An NAIC Watchlist

Faegre Drinker’s insurance team will once again be well-represented at the National Association of Insurance Commissioners’ Spring National Meeting from April 4-8 in Kansas City. As pandemic restrictions ease, we expect broad…more

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

Melanie Stevenson

CMS Updates Medicare Advantage RADV Program

The Centers for Medicare & Medicaid Services (CMS) updated the Medicare Advantage (MA) Risk Adjustment Data Validation (RADV) program when it issued a final rule in January of this year. The rule outlined updated audit…more

Coronavirus/COVID-19, Emergency Use Authorization (EUA), Infectious Diseases, Vaccinations

Sarah-Lloyd Stevenson

COVID-19 Weekly Newsletter: Cases Rise for First Time in Two Months, Global Vaccine Tracker Unveiled

A global vaccine tracker is unveiled as cases are on the rise for the first time in two months. With herd immunity unlikely at this point, researchers are developing the next generation of COVID-19 vaccines. COVID Cases on…more

Michael Stewart

FDIC Finds Buyer for Silicon Valley Bank

Silicon Valley Bank (SVB) - SVB failed on Friday, March 10; and on Monday, March 13, the Federal Deposit Insurance Corporation (FDIC) transferred all deposits — both insured and uninsured — and substantially all of SVB’s…more

Banking Sector, Banks, FDIC, Receivership, Silicon Valley

Construction Industry, Construction Project, Joint Venture

Paul Stibbe

Three Considerations for Joint Venture Construction Projects

Construction industry participants seeking to diversify their projects or secure greater insulation from uncertain market conditions frequently search out risk mitigation opportunities. One common way to achieve these goals is…more

Coronavirus/COVID-19, Infrastructure, State and Local Government

Skip Stitt

Creative Thinking Amid COVID-19: Distilling Value From Community Infrastructure Assets

Despite a decade of economic growth, many communities had modest general fund balances and high levels of debt even before the COVID-19 pandemic arrived. Now, their situation is significantly worse. While additional federal aid…more

Class Action, Disability Insurance, Insurance Industry, Insurance Litigation

Christine Stoddard

Second Time’s the Charm: Court Dismisses (Again) Putative Disability Insurance Class Action

For a second time, the United States District Court for the Southern District of New York dismissed a putative class action alleging insurance companies sold them disability policies that were void under New York law. The…more

CARES Act, Coronavirus/COVID-19, EBITDA, Federal Reserve, Main Street Lending Programs

John Stoddard III

CARES Act: Updated Main Street Lending Program Summary

On April 30, 2020, the Federal Reserve Board (the Board) announced it is expanding the scope and eligibility for the Main Street Lending Program (the Program). When the initial terms of the Program were announced, the Board…more

Kaitlyn Stone

District of New Jersey Finds Amazon to be “Seller” of Hoverboard under NJ Product Liability Act

The District of New Jersey has held that Amazon may be sued under New Jersey law for defective products sold by third-party sellers through its online marketplace. The dispute in New Jersey Manufacturers Insurance Group v…more

Amazon, California, New Jersey, Strict Product Liability, Third-Party

Artificial Intelligence, Corporate Counsel, Machine Learning, Technology Sector, United Nations

Kacey Stotler

Artificial Intelligence Briefing: UN Unanimously Adopts Landmark AI Resolution

The United Nations unanimously adopts a landmark resolution mapping a path for international cooperation on AI, and the Financial Stability Oversight Council announces a two-day conference exploring the benefits and risks of AI…more

Affordable Care Act, Cost-Sharing, Department of Health and Human Services (HHS), Health Insurance, Insurance Industry

Amy Strati

Considerations for Entry or Reentry Into the Individual Health Insurance Market

Many health insurers and HMOs may be considering entering or reentering the individual health insurance market, either on or off a federal or state-based health insurance marketplace. Over the last two years, the individual…more

Article III, Class Action, Diversity, Diversity and Inclusion Standards (D&I), Race Discrimination

James Strickland

Key U.S. District Court Ruling: Plaintiff’s Challenge to DEI Program Under Section 1981 Fails When She Lacked Standing Because She Did Not Apply

In our October 2023 alert on Defending Litigation Attacks on DEI Programs: A Status Update, we advised to “stay tuned” regarding a pending motion to dismiss filed by Amazon in response to a class action complaint challenging its…more

Affordable Care Act, Health Savings Accounts

Samantha Strong

The Replacements: Understanding the GOP's Leading Health Care Plans

With the repeal of the Affordable Care Act (ACA) looking imminent, Faegre Baker Daniels and Faegre Baker Daniels Consulting have created a one-page resource identifying and assessing the six leading replacement plans making the…more

Civil Monetary Penalty, Department of Justice (DOJ), Disclosure Requirements, Enforcement Actions, Failure To Disclose

Stephen Stroup

SEC: Here Is When Loss Contingencies Must Be Disclosed and Reserved

When confronted with government inquiries, public companies commonly grapple with the issue of when events have escalated to the point that they are subject to disclosure obligations—or, further yet, require recognition as a…more

Coronavirus/COVID-19, Employer Liability Issues, Remote Working, Return-to-Work Agreements

Natalie Stubbs

A Primer on Return-to-Work for Insurers

Over the past two years, the real estate sector has been disrupted by a host of frontpage events, including the COVID-19 pandemic, natural disasters and civil unrest, just to name a few. These events have forced many commercial…more

Coronavirus/COVID-19, Life Sciences, Medical Devices, Pharmaceutical Industry, Prescription Drugs

David Sudzus

Top Five Drug and Device Developments of 2020

In a year where the use of “unprecedented” became routine, COVID-19 dominated just about every aspect of life, and its impact on drug and device law was no less encompassing. As we bid adieu and good riddance to 2020, we pause,…more

Biden Administration, Competition, Executive Orders, Federal Trade Commission (FTC), Non-Compete Agreements

Janice Sued Agresti

President Biden Targets Non-Compete Agreements in New Executive Order on Promoting Competition

As part of “a whole-of-government effort to promote competition in the American economy,” President Biden’s July 9, 2021 Executive Order on Promoting Competition in the American Economy (E.O.) encourages the Federal Trade…more

David Suess

Marion County, Indiana, Set to Increase Many 2022 Property Tax Assessments 10% or More

Taxpayers in Indianapolis and Marion County, Indiana, may be in for an unpleasant surprise when property tax bills are mailed out in the coming days. Based on assessment data available on the Marion County Assessor’s website,…more

Appraisal, County Assessors, Property Owners, Property Tax, Property Valuation

T.J. Sullivan

IRS Denies 501(c)(3) Exemption to Insurance Provider

On April 10, the Internal Revenue Service (IRS) released LTR 202015035, a final adverse determination letter for an applicant seeking recognition of exemption under Internal Revenue Code Section 501(c)(3). The IRS denied…more

501(c)(3), IRS, Popular, Tax Exemptions

Foreign Nationals, Immigration Procedures, Refugees, Temporary Protected Status, Ukraine

Emily Summers

Immigration Update: April 2022 — Uniting for Ukraine

Since our previous article on March 28, 2022, approximately 5.1 million Ukrainians have left the country and another 6.5 million have been displaced from their homes, but are still in Ukraine. The United States has taken some…more

Stephanie Sun

China Issues Rule on Security Assessment of New Technologies for Online News Services

China has promulgated a series of implementation rules and guidelines after the Cybersecurity Law of China took effect in June 2017. The most recent one requires that online news information service providers conduct security…more

China, Cybersecurity, Popular, Telecommunications

FDA Reauthorization Act, Food and Drug Administration (FDA), Medical Devices, User Fees

Linda Svitak

FDA House Legislation Would Relax Reporting of Medical Device Malfunctions

On July 12, 2017, the U.S. House of Representatives passed a bill to reauthorize four of the U.S. Food and Drug Administration’s user fees and to change various drug and device testing rules. H.R. 2430 – the FDA Reauthorization…more

Coronavirus/COVID-19, Department of Health and Human Services (HHS), FCC, Federal Contractors, NDAA

Frank Swain

February Regulatory and Legislative Update

This edition of the “Government Contracts Regulatory and Legislative Update” offers a summary of and insight into the relevant industry developments that occurred during the month of February…more

Charles Switzer

A Snapshot of New SEC Crowdfunding Rules

At the end of October 2015, the Securities and Exchange Commission finally passed new federal crowdfunding rules. Crowdfunders will have to wait until April 2016, when the new rules "go live," to raise funds. Here are four key…more

Crowdfunding, Funding Portal, Investors, Kickstarter, Popular

D&O Insurance, Insurance Claims, Insurance Industry

Sondra Sylva

D&O Coverage Alternatives: Self-Funded Side A Directors and Officers Coverage

The costs of directors and officers (D&O) insurance continue to climb, in large part due to higher legal costs, increasing complexity and the severity of securities class action litigation and derivative suits. In 2020 alone,…more

Drinking Water, Environmental Protection Agency (EPA), Hazardous Substances, PFAS, Toxic Chemicals

Aaron Szabo

April 2024 is EPA’s Month of PFAS: National Drinking Water Requirements and So Much More

Background The U.S. Environmental Protection Agency (EPA) has been extremely busy over the past few weeks with additional PFAS actions — and the designation of PFOA and PFOS as hazardous substances under CERCLA is expected…more

Norman Tabler, Jr.

If a Tree Falls in the Forest . . .

It was Bishop Berkeley who asked rhetorically, “If a tree falls in the forest and no one hears it, does it make a sound?” The judge in Pediatric Nephrology Assocs. v. Variety Children’s Hospital didn’t mention either the…more

Advertising, False Advertising, Health Care Providers, Hospitals, Lanham Act

Anti-Money Laundering, Beneficial Owner, Corporate Transparency Act, Financial Crimes, FinCEN

Vanessa Tabler

Federal Court Declared the Corporate Transparency Act Unconstitutional: Now What?

On Friday, March 1, 2024, the U.S. District Court for the Northern District of Alabama declared the Corporate Transparency Act (CTA) “unconstitutional because it cannot be justified as an exercise of Congress’ enumerated…more

Capital Raising, Coronavirus/COVID-19, EU, False Claims Act (FCA), Insider Trading

Richard Tall

FCA: Working from Home Heightens Insider Trading Risks

In an October 12 speech, the Director of Market Oversight for the Financial Conduct Authority (FCA) emphasized the need to adapt insider trading controls to account for changes in working conditions due to COVID-19…more

John Joseph Tanner

The Culpable Co-Defendant Problem: How to Preserve Your Client’s Defenses After a Culpable Co-Defendant Files a Motion for Summary Judgment in California State Court

Defense attorneys involved in California multi-defendant product liability lawsuits are familiar with the challenge of properly balancing the need to preserve their clients’ defenses with the strategic importance of maintaining…more

Apportionment, California, Indemnity, Pleadings, Summary Judgment

Coronavirus/COVID-19, Insurance Claims, Insurance Industry, Premiums

Mia Tarbhai

Despite Increase in Cost of Materials and Labor, P&C Insurance Remains Affordable

When the cost of materials and labor skyrocketed during the pandemic, some people may have speculated that the cost of paying out insurance claims would climb substantially as well, resulting in losses to the insurance industry…more

Charitable Organizations, Donors, Educational Institutions, Endowment Funds

Jonathan Tarnow

Missouri Court Allows University to Reclassify Restricted Endowment Funds Under UPMIFA

Earlier this month, a Missouri state court allowed Webster University to reclassify various donor-restricted endowment funds as unrestricted endowment funds so the funds could be held as collateral to help Webster meet a 75%…more

Building Permits, George Sheetz v County of El Dorado, Housing Developers, Impact Fees, Land-Use Permits

Mark Taticchi

Supreme Court Decides Sheetz v. El Dorado County

On April 12, 2024, the United States Supreme Court decided Sheetz v. El Dorado County, No. 22-1074, holding that the Takings Clause “does not distinguish between legislative and administrative permit conditions,” but instead…more

Coronavirus/COVID-19, Governor Walz, Securities and Exchange Commission (SEC), Shareholder Meetings, Virtual Meetings

Kareem Tawfic

Minnesota Governor Issues Emergency Order to Facilitate Virtual Shareholder Meetings for Public Companies During the COVID-19 Pandemic

Minnesota Gov. Tim Walz issued Emergency Executive Order 20-43 on April 24, 2020 to facilitate virtual shareholder meetings while promoting the health and safety of participants amid the COVID-19 pandemic. The Order applies to…more

Coronavirus/COVID-19, Corporate Governance, Corporate Insolvency and Governance (CIG) Act 2020, Insolvency, Moratorium

Abigail Taylor

Key Takeaways From the Corporate Insolvency and Governance Act 2020: The Standalone Moratorium

On 26 June 2020 the Corporate Insolvency and Governance Act 2020 (the Act) came into force, introducing a number of permanent reforms to English insolvency and restructuring law. Among these reforms is a standalone moratorium…more

Cyber Insurance, Cybersecurity, Cybersecurity Framework, Governance Standards, NIST

Andy Taylor

NIST Releases Cybersecurity Framework 2.0

On February 26, 2024, the National Institute of Standards and Technology (NIST) released the NIST Cybersecurity Framework 2.0 (CSF 2.0). CSF 2.0 represents the first major update to the Cybersecurity Framework, which was first…more

Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA), Notice of Appeal, Pharmaceutical Industry, Preemption

Nicholas Teichen

First Circuit Decision Strengthens Preemption Defense in Name-Brand Pharmaceutical Litigation

On February 20, 2015, the U.S. Court of Appeals for the First Circuit affirmed the dismissal of plaintiffs’ state-law consumer protection claims against a name-brand pharmaceutical manufacturer, concluding they were impliedly…more

Eirik Tellefsen

Leveraged Acquisitions Roundtable

Drinker Biddle’s Corporate and Securities Group recently hosted its 13th annual roundtable discussion, which took place at Gulph Mills Golf Club in King of Prussia, Pennsylvania. This year’s event sported a new name—“The…more

Acquisitions, Debt Financing, International Tax Issues, Investment, Investors

CA Supreme Court, California, Employees, Employer Liability Issues, Employment Contract

Mark Terman

Are You Ready? Notice to Employees of Void CA Non-Competes Required by February 14, 2024

California law has for many years treated agreements that restrain one from engaging in a lawful profession, trade, or business as void and unenforceable, unless an exception applies. This applies to most non-compete and…more

Consumer Product Safety Commission (CPSC), Greenhouse Gas Emissions, Legislative Agendas, Natural Gas, State and Local Government

Dasha Ternavska

It’s All Up in the Air: Recent Moves to Ban or Limit Natural Gas Appliances

Citing the effects of carbon emissions on climate change and the potential for health risks, efforts to electrify America’s natural gas infrastructure are underway in various markets. Natural gas comprises primarily methane…more

Appeals, Consumer Fraud, Food and Drug Administration (FDA), Homeopathic Remedies, Manufacturers

Michelle Tessier

New FDA Policy on Homeopathic Drugs Survives Preliminary Injunction Appeal

The FDA’s recent policy shift regarding homeopathic drugs was recently supported by the D.C. Circuit Court of Appeals in MediNatura v. FDA, No. 20-5341 (D.C. Cir. 2021), when it upheld the denial of a preliminary injunction to…more

Analytics, Artificial Intelligence, Broker-Dealer, Conflicts of Interest, Investment Adviser

Reeya Thakrar

Artificial Intelligence Briefing: SEC Cracks Down on Broker-Dealers and Investment Advisors Using Predictive Data Analytics

The SEC cracks down on potential conflicts of interest for broker-dealers and investment advisors using predictive data analytics, the “No Robot Bosses Act of 2023” is introduced in the Senate to regulate employers’ use of AI,…more

Climate Change, Disclosure Requirements, Greenhouse Gas Emissions, Proposed Rules, Regulation S-K

Katharine Thayer

Proposed Climate Disclosure Rules for Public Companies

On March 21, 2022, the Securities and Exchange Commission (SEC) issued highly anticipated proposed rules that would require public companies to include climate-related disclosures in their annual reports and registration…more

CARES Act, Coronavirus/COVID-19, Federal Funding, Infrastructure, Paycheck Protection Program (PPP)

Alison Thompson

Congressional Investigations Forecast: Coronavirus Relief and Infrastructure Spending Likely to Be Future Areas of Interest, With Focus on Fraud

The 116th and 117th Congresses passed a series of landmark spending bills focused on the COVID-19 pandemic and infrastructure. More than $5 trillion has been devoted to pandemic relief, and an additional $1.2 trillion was…more

Coronavirus/COVID-19, Investment Company Act of 1940, No-Action Relief, Relief Measures, Securities and Exchange Commission (SEC)

Matthew Thompson

March 31, 2020 SEC Grants Emergency Liquidity Relief To Mutual Funds In Light Of COVID-19

On March 26, 2020, the Securities and Exchange Commission (SEC) issued No-Action Relief that allows an affiliated person of an open-ended investment company other than a money market fund or an exchange-traded fund to purchase…more

Patrick Thornberry

FAA Approves 1,000th Authorization for Commercial Use of Drones

In June, the Federal Aviation Administration (FAA) announced that it expects to finalize its small unmanned aircraft systems (UAS) rule, as required under the FAA Modernization and Reform Act of 2012 (FMRA), by June 2016. Until…more

Commercial Use, Drones, Federal Aviation Act, FMRA, NTIA

Climate Change, Corporate Governance, Environmental Social & Governance (ESG), Insurance Industry, Popular

Crystal Thorpe

Insurance Companies: ESG Investing in Real Estate

Historically, insurance companies have filled a vital role in the U.S. economy by investing heavily in various real estate assets. Such investments have spurred municipal infrastructure improvements and financed the development…more

Construction Contracts, Construction Industry, Construction Project, Contract Terms, Coronavirus/COVID-19

Caleb Tobin

Addressing COVID-19 Related Delays in Construction Contracts

You signed a construction contract in February. Then, in March, the world as we know it changed due to the COVID-19 pandemic. Whether you’re the project owner or the contractor, you may now face delays to your project due to…more

Climate Change, Corporate Governance, Environmental Social & Governance (ESG), Insurance Industry, Popular

Anthony Todaro

Insurance Companies: ESG Investing in Real Estate

Historically, insurance companies have filled a vital role in the U.S. economy by investing heavily in various real estate assets. Such investments have spurred municipal infrastructure improvements and financed the development…more

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

Jonathan Todt

New HSR Act Size-of-Transaction Increasing to $119.5 Million; Filing Fee Increases Going Into Effect Soon

On January 22, 2024, the Federal Trade Commission (FTC) published its adjusted reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The FTC revises the HSR Act thresholds…more

Luke Tomanelli

Congress Passes Major Public Lands Package

For the first time in nearly six years, Congress passed a major package of public lands and natural resource bills, which was signed into law by President Obama on December 19, 2014. The package combined dozens of bills…more

Conservation, Mining, National Parks, New Legislation, Public Land

Corporate Counsel, Covered Business Method Patents, Covered Business Method Proceedings, Patent Infringement, Patent Litigation

Lucas Tomsich

Avoiding CBM Proceedings Through Statutory Disclaimers: A Case-Study and a Look to the Future

Like a lizard shedding its tail to avoid capture, patent owners continue to escape Covered Business Method (CBM) proceedings by disclaiming claims clearly directed to financial products or services. Despite growing tension and…more

Due Process, Fourteenth Amendment, Personal Jurisdiction, Registration Requirement

Rebecca Trela

Pennsylvania Rejects Corporate Registration as Basis for Personal Jurisdiction

A recent Pennsylvania Supreme Court opinion provides out-of-state corporations more protection from litigation tourists, bringing the state’s general personal jurisdiction rules in line with U.S. Supreme Court precedent. In…more

Acquisitions, Antitrust Division, Corporate Counsel, Department of Justice (DOJ), Mergers

Carol Trevey

Groundbreaking Fourth Circuit Decision Upholds Private Plaintiff’s Successful Effort to Unwind a Consummated Merger

Federal antitrust enforcers have long succeeded at unwinding consummated mergers. By contrast, private antitrust plaintiffs have not successfully forced companies to break up a completed acquisition. Until now. On February…more

Drug Testing, Employer Liability Issues, Employment Policies, Hiring & Firing, Job Applicants

Nicole Truso

New York City Ban on Pre-Employment Drug Testing Takes Effect May 10, 2020

Starting May 10, 2020, New York City employers may not require prospective employees to submit to testing for the presence of marijuana or tetrahydrocannabinols (or THC, the main psychoactive component of marijuana) in an…more

Child Custody, Constitutional Challenges, Equal Protection, Haaland v Brackeen, Indian Child Welfare Act of 1978 (ICWA)

Anderson Tuggle

Supreme Court Decides Haaland v. Brackeen

On June 15, 2023, the U.S. Supreme Court decided Haaland v. Brackeen, No. 21-376, holding that the Indian Child Welfare Act does not violate either Article I of the Constitution or the Tenth Amendment’s anti-commandeering…more

Compliance, Financial Adviser, Insurance Industry, Long Term Disability Insurance, Long-Term Care

Nolan Tully

Highlights from the LTCi EX Task Force Meeting at NAIC

We want to bring you some highlights from the in-person LTCi EX Task Force meeting we attended August 12 during NAIC’s Summer National Meeting in Portland. The Commissioners principally discussed the next steps in the rollout…more

Biotechnology, Food and Drug Administration (FDA), Labeling, Pharmaceutical Industry

Lee Tumminello

PhRMA and BIO Take Off-Label Communication Into Their Own Hands with New Guidelines

Industry for years has sought clarity on off-label communications. Numerous meetings on the topic have taken place between the U.S. Food and Drug Administration (FDA) and industry, citizen petitions have been filed, legislation…more

D&O Insurance, Insurance Claims, Insurance Industry

Erin Turner

D&O Coverage Alternatives: Self-Funded Side A Directors and Officers Coverage

The costs of directors and officers (D&O) insurance continue to climb, in large part due to higher legal costs, increasing complexity and the severity of securities class action litigation and derivative suits. In 2020 alone,…more

Appellate Jurisdiction, Appellate Review, BP PLC v Mayor and City Council of Baltimore, British Petroleum (BP), Energy Sector

Joshua Turner

Supreme Court Decides BP P.L.C., et al. v. Mayor and City Council of Baltimore

On May 17, 2021, the Supreme Court held in BP P.L.C., et al. v. Mayor and City Council of Baltimore that when a remand order is appealable under 28 U.S.C. § 1447(d), the court of appeals may review the entire remand order, not…more

Employer Liability Issues, Employment Discrimination, Employment Policies, Hairstyle Discrimination, Proposed Rules

Helen Tuttle

As Hair Discrimination Bans Grow, New York City Seeks Public Comment on Proposed Rule

Background - July 3, 2020, marked the one-year anniversary of California becoming the first jurisdiction in the country to pass the Create a Respectful and Open Workplace for Natural Hair (CROWN) Act, prohibiting…more

Zoey Twyford

Supply and Service Federal Contractors and Subcontractors Should Immediately Review the OFCCP’s Second 2023 Pre-Audit Corporate Scheduling Announcement List

On September 8, 2023, the Office of Federal Contract Compliance Programs (OFCCP) released its second 2023 Corporate Scheduling Announcement List (CSAL) of the year. The CSAL notifies 1,000 supply and service establishments…more

Affirmative Action, Audits, CSALs, Federal Contractors, OFCCP

Gregory Utken

Your Electronic Communications Policy Probably Is Unlawful: NLRB Now Says Employees Can Use Employer Email for Union Organizing

On December 11, 2014, the National Labor Relations Board (NLRB) reversed existing law and ruled an employer that allows employees access to its email system for business purposes must also allow employees to use that email…more

Email, NLRB, Protected Concerted Activity, Purple Communications, Unions

403(b) Plans, Corporate Counsel, Employee Benefits, Employee Retirement Income Security Act (ERISA), Retirement

Michael Valerio

Participant Data: Whose Asset is it Anyway?

2020 has seen a record number of class action lawsuits alleging excessive fees and imprudent investment offerings in defined contribution plans governed by the Employee Retirement Income Security Act of 1974 (ERISA). But the…more

Affirmative Action, Civil Rights Act, College Admissions, Diversity and Inclusion Standards (D&I), Educational Institutions

Aaron Van Oort

Supreme Court Decides Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al.

On June 29, 2023, the U.S. Supreme Court decided Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, and Students for Fair Admissions, Inc. v. University of North Carolina et al., No…more

Coronavirus/COVID-19, Delaware General Corporation Law, Shareholder Meetings, Virtual Meetings

Donald Van Buren Jr.

Delaware Authorizes Remote Stockholder Meetings in Response to COVID-19

Responding to the needs of publicly traded corporations navigating the COVID-19 epidemic, Delaware Gov. John C. Carney issued a modified State of Emergency Order (the Order) authorizing public companies to conduct stockholder…more

Airspace, Commercial Use, Drones, Federal Aviation Administration (FAA), Licensing Rules

Jessica Van Dalen

Ready for Takeoff? How to Launch Your Commercial Drone

As recently highlighted in the Wall Street Journal, drones are playing a role in relief efforts for disasters like Hurricane Harvey. They have been used to assess property damage in hard-to-reach locations, search for missing…more

CFTC, Criminal Prosecution, Department of Justice (DOJ), Foreign Corrupt Practices Act (FCPA), Incentives

Henry Van Dyck

DOJ Becomes Latest Agency to Offer Financial Incentives for Whistleblowers

On March 7, 2024, Deputy Attorney General Lisa Monaco announced that the U.S. Department of Justice (DOJ) is creating a program that will offer financial rewards to whistleblowers who bring the DOJ information concerning…more

Attorney General, Cole Memorandum, Controlled Substances Act, Decriminalization of Marijuana, Marijuana

Jenie Van Hampton

Navigating the Shifting Winds of Marijuana Enforcement: A Hazy Issue for Employers

The legal state of marijuana continues to be in flux, potentially creating thorny issues for employers related to drug testing and policy drafting and execution. Though marijuana is illegal under federal law, as of January 2018,…more

Cryptoassets, Cryptocurrency, Enforcement Actions, Financial Industry Regulatory Authority (FINRA), Proposed Rules

Andrew Van Houter

SIFMA C&L March 2023 Annual Conference – A Focus on Crypto

The 2023 Securities Industry and Financial Markets Association’s (SIFMA) Compliance & Legal Annual Seminar, as usual, was well attended by compliance and legal professionals, including FINRA executives and SEC directors. The…more

Leila Vaughan

Certain Insights on Important 2023 Tax Cases for Private Funds

The year just past, 2023, brought three significant U.S. Tax Court decisions that raise important ongoing tax considerations for private funds. These cases addressed: whether a non-U.S. credit fund had income effectively…more

Investment Management, Investors, Private Funds, Self-Employment Tax, Tax Court

Corporate Counsel, Employer Liability Issues, Hiring & Firing, International Labor Laws, Non-Compete Agreements

Emma Vennesson

UK Employment Law Update: Family Acts, UK Government Legislative Proposals and Recent Case Developments

At a Glance - The UK government has passed three family-related Acts that employers should be aware of: the Neonatal Care Act; the Protection from Redundancy Act; and the Carer’s Leave Act…more

Artificial Intelligence, Centers for Medicare & Medicaid Services (CMS), Federal Trade Commission (FTC), Food and Drug Administration (FDA), Health Insurance

James Vergis, Ph.D.

Artificial Intelligence Briefing: House Launches Bipartisan AI Task Force

The House of Representatives aims to keep the U.S. at the leading edge of AI policy and innovation with a bipartisan task force while the FTC considers expanding a rule to crack down on AI impersonation. Meanwhile, a recent…more

Controlled Substances, Health Care Providers, Pharmaceutical Industry, Prescription Drugs, Substance Abuse

Elliot Vice

Remote Prescribing of Controlled Substances via Telehealth: Stakeholders Urge DEA to Address Geographic Red Flag for Pharmacists

Due to convenience and effectiveness, patients are increasingly seeking care via telehealth, including for conditions that require treatment with medication. During the pandemic, patients gained access to telehealth for…more

Alan Vickery

Southern District of Texas Holds Learned Intermediary Doctrine Applies to Clinical Trials

Does the learned intermediary doctrine apply in the context of a clinical trial? According to the Southern District of Texas, it does. The case in question is Butler et al. v. Juno Therapeutics, Inc., a tragic case involving…more

Cancer, Causation, Clinical Trials, Failure To Warn, Life Sciences

Disclosure Requirements, Investment Adviser, Investment Advisers Act of 1940, Investors, Policies and Procedures

Jairo Villalobos

SEC Proposes New Rules and Amendments for Private Fund Advisers

The proposal would prohibit all private fund advisers from engaging in certain activities, place certain obligations on registered private fund advisers, and require all registered advisers to document the annual review of their…more

Insurance Industry, Insurance Litigation, Life Insurance, Policy Terms

Kate Villanueva

Age Adjustment Not a “Contest”

In Nicolaou v. United of Omaha Life Insurance Co., No. 3:22-CV-202 (JAM), 2023 WL 130540 (D. Conn. Jan. 9, 2023), the District of Connecticut confirmed that a life insurance policy’s contestable provision and the age adjustment…more

Tyler Vivian

Cashing In: Getting Ready for Your Series A Round

With the Summer 2022 Y Combinator Demo Day being held September 7 and 8, a new group of startup companies will have investors approaching them with term sheets for preferred stock financings. For many companies, the key points…more

Early Stage Companies, Investment, Investors, Startups, Venture Capital

401k, 403(b) Plans, Benefit Plan Sponsors, De Minimus Quantity Exemption, Defined Contribution Plans

Erik Vogt

De Minimis Financial Incentives to Participate in a 401(k) or 403(b) Plan

On December 20, 2023, the IRS issued Notice 2024-2, which provides question-and-answer guidance on various aspects of the SECURE 2.0 Act. This post focuses on the “de minimis financial incentives” under SECURE 2.0 Act Section…more

Compliance, Corporate Counsel, Criminal Penalties, Department of Justice (DOJ), Foreign Corrupt Practices Act (FCPA)

James Volling

3 FCPA Compliance Lessons From Microsoft's Settlement

Microsoft’s recent settlement with the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) over violations of the Foreign Corrupt Practices Act (FCPA) sheds light on the DOJ’s new Corporate Enforcement…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

Kenneth Vorrasi

Total Ban: FTC Issues Final Rule Banning Employment Noncompete Agreements

On April 23, 2024, the U.S. Federal Trade Commission (FTC) voted (in a 3-2 vote along party lines) to finalize and promulgate a final rule that bans noncompete agreements for the vast majority of workers…more

Corporate Crimes, Corporate Entities, Corporate Governance, Corporate Transparency Act, Criminal Liability

Melanie Wadsworth

New UK ‘Failure to Prevent Fraud’ Offence in Outline

The Economic Crime and Corporate Transparency Act (ECCTA) received Royal Assent and became law on 26 October 2023. It contains a new ‘failure to prevent fraud’ offence whereby large organisations will be held criminally liable…more

Arbitration, Arbitration Awards, CIETAC, Hong Kong International Arbitration Centre (HKIAC), ICSID

James Wagner

Arbitration Institution Digest (Part 1): China, World Bank and the Netherlands

International arbitration statistics are back in season. In the first couple of months of 2024, the China International Economic and Trade Arbitration Commission (CIETAC), the World Bank’s International Centre for Settlement of…more

Confidential Information, Defend Trade Secrets Act (DTSA), Intellectual Property Protection, Misappropriation, Trade Secrets

Kevin Wagner

First Circuit Holds Compilation of Public Record Data Is a Protectable Trade Secret

Summary - Allstate filed suit against two former insurance agents and another insurance agency for trade secret misappropriation under the federal Defend Trade Secrets Act (DTSA) and Massachusetts law. Allstate claimed that…more

Broadest Reasonable Interpretation Standard, Cuozzo Speed Technologies v Lee, Inter Partes Review (IPR) Proceeding, Patent Litigation, SCOTUS

Julie Wahlstrand

Supreme Court Decides Cuozzo Speed Technologies, Inc. v. Lee

On June 20, 2016, the U.S. Supreme Court decided Cuozzo Speed Technologies, Inc. v. Lee, holding that, in an inter partes review, the Patent and Trademark Office (PTO) may give a patent claim its broadest reasonable…more

Drinking Water, Environmental Protection Agency (EPA), Hazardous Substances, PFAS, Toxic Chemicals

Amy Waite

April 2024 is EPA’s Month of PFAS: National Drinking Water Requirements and So Much More

Background The U.S. Environmental Protection Agency (EPA) has been extremely busy over the past few weeks with additional PFAS actions — and the designation of PFOA and PFOS as hazardous substances under CERCLA is expected…more

ABC Test, Agricultural Workers, Cal-OSHA, California Family Rights Act (CFRA), Coronavirus/COVID-19

Katrina Walasik Forsyth

New California Laws for 2022: What Employers Should Know

In 2021, California Gov. Gavin Newsom signed several laws impacting California employers. The new laws — some of which recently became effective and others were signed into law just weeks ago and take effect January 1, 2022 —…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Compensation, Health Care Providers, Physicians

Daniel Loren Walbright

CMS Overhauls Stark Law Regulations as Part of Regulatory Sprint to Coordinated Care

On November 20, 2020, in addition to new Stark Law regulations intended to accommodate value-based financial arrangements with physicians, the Centers for Medicare and Medicaid Services (CMS) issued final regulations that…more

Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Employer Liability Issues, Investment Management, Investors

Joshua Waldbeser

DOL Finalizes Changes to the Qualified Professional Asset Manager (QPAM) Exemption: What Investment Managers Need to Know

On April 3, 2024, the U.S. Department of Labor (DOL) published an updated final version of prohibited transaction class exemption 84-14, also known as the qualified professional asset manager exemption (PTCE 84-14 or the QPAM…more

Coronavirus/COVID-19, Donald Trump, Food and Drug Administration (FDA), Infectious Diseases, Pharmaceutical Industry

Caroline Waldo

COVID-19 Weekly Newsletter: POTUS Tests Positive, Pharma Pushes Back on Vaccine Politics

President Trump announced Friday morning that he and First Lady Melania Trump tested positive for COVID-19, ending an eventful and politically charged week in the pandemic response. Earlier in the week, pharmaceutical companies…more

Automatic Renewals, Consumer Contracts, ROSCA, Subscription Services

Leita Walker

Automatic Renewal Laws in All 50 States: An Updated Guide

From streaming music and television to diaper and grocery deliveries, subscription services have become part of consumers’ daily life. However, while these subscription services — which enable customers to continue receiving a…more

Laura Wall

The Impact of Florida’s Tort Reform Bill on Insurance Litigation

On March 24, 2023, a sweeping tort reform bill was signed into law by Florida Governor Ron DeSantis. House Bill 837 was touted by DeSantis as being designed to reduce frivolous lawsuits and prevent predatory practices of trial…more

Attorney's Fees, Damages, Insurance Industry, Insurance Litigation, Negligence

Article III, Attorney's Fees, IP License, Judgment on the Pleadings, Patent Infringement

Keith Walter, Jr.

Lack of Co-ownership for Terminally Disclaimed Patents May Doom a Lawsuit and Result in an Award of Attorneys’ Fees

Can lack of co-ownership for a terminally disclaimed patent render your otherwise well-founded infringement lawsuit baseless, requiring you to pay your adversary’s attorneys’ fees? At present, the answer may depend on the…more

CARES Act, Coronavirus/COVID-19, EBITDA, Federal Reserve, Main Street Lending Programs

Mary Walter

CARES Act: Updated Main Street Lending Program Summary

On April 30, 2020, the Federal Reserve Board (the Board) announced it is expanding the scope and eligibility for the Main Street Lending Program (the Program). When the initial terms of the Program were announced, the Board…more

Force Majeure Clause, Infectious Diseases, Suppliers, Supply Contracts

Bing Wang

How the Coronavirus May Impact Your Commercial Health and Contracts

The recent coronavirus outbreak not only poses potential human health concerns but also raises new risks for companies engaged in trade with China. The outbreak has prompted all levels of the Chinese government to take…more

Clawbacks, Corporate Officers, Executive Compensation, Financial Statements, Incentive Compensation

Lina Wang

SEC Adopts Rule to Require Listed Companies to Adopt Clawback Policies

In October, the Securities and Exchange Commission (SEC) adopted Exchange Act Rule 10D-1, directing securities exchanges to adopt listing standards requiring listed companies to adopt and implement policies to recover…more

Brand, Counterfeit Goods Regulation, Goods or Services, Intellectual Property Protection, Media

QQ Wang

Connecting with Digital Natives through Brand Protection

With the constant rise of counterfeiting, protecting one’s brand is now more important than ever. Many brand owners already take protective steps to protect their brands such as registering brands through trademark and copyright…more

Disclosure Requirements, Investment Companies, Investment Company Act of 1940, Recordkeeping Requirements, Securities and Exchange Commission (SEC)

Ya Wang

SEC Adopts Amendments to the Investment Company Names Rule

On September 20, 2023, during its first in-person open meeting since the COVID-19 pandemic, the U.S. Securities and Exchange Commission (SEC) adopted amendments (the Amendments) to the Names Rule under Section 35(d) of the…more

Broker-Dealer, Disclosure Requirements, Financial Industry Regulatory Authority (FINRA), Influencers, Investment Adviser

Scott Wardell

Hiring Social Media Influencers? How You Influence Matters

FINRA, as part of its targeted exam of member firms’ social media practices for gaining new customers, recently announced an $850,000 fine against M1 Finance LLC (“M1 Finance”) stemming from promotional social media posts made…more

Competition, Drug Pricing, Federal Trade Commission (FTC), Pharmaceutical Industry, Pharmacy Benefit Manager (PBM)

Jay Warmuth

FTC Issues Policy Statement Putting PBMs on Notice

On June 16, 2022, the FTC unanimously voted to issue an enforcement policy statement putting Pharmacy Benefit Managers (PBMs) on notice that the payment of rebates and fees by drug manufacturers to PBMs resulting in the…more

Certiorari, Foreign Investment, Foreign Sovereign Immunities Act of 1976 (FSIA), SCOTUS, Venezuela

Bryan Washburn

Supreme Court Ends Saga Over Which Venezuelan Government Could Be Sued in International Investment Dispute

Background - In 2018, several foreign investors obtained international arbitration awards against the Venezuelan government, which nationalized various industries under then-President Hugo Chávez. After confirming their…more

Katheryn Wasylik

Visa Options and Immigration Strategies for Colleges and Universities

U.S. colleges and universities have many visa options that enable them to employ diverse and talented faculty from around the world. This article will introduce the primary nonimmigrant (temporary) visa categories used by U.S…more

Colleges, Faculty, Foreign Nationals, H-1B, Immigration Procedures

Governors, Insurance Commissioners, Insurance Industry, Political Candidates, State and Local Government

Alison Watson

Fall 2019 State Elections: An Insurance View of the ‘Mid-Mid-Terms’

As the run-up to the 2020 presidential election gathers steam, it’s easy to gloss over the major gubernatorial and insurance commissioner races slated for Fall 2019. These oddly scheduled elections (we’ve nicknamed them the…more

Enforcement Actions, Investment Adviser, Investment Advisers Act of 1940, Investment Funds, Securities and Exchange Commission (SEC)

Mark Weakley

Key Takeaways: 2023 Annual Rocky Mountain Fund Advisers Summit

On October 5, 2023, Faegre Drinker, PINE Advisor Solutions and RSM (US) LLP (RSM) co-hosted the annual Rocky Mountain Fund Advisers Summit (the Summit) in Denver. Interactive panels of industry specialists discussed recent…more

Insurance Industry, Life Insurance, Risk Management

Lionel Weaver

Colorado Division of Insurance Releases New and Improved ECDIS Governance Regulation

On May 26, 2023, the Colorado Division of Insurance released a revised draft regulation setting forth governance and risk management framework requirements for life insurers using external consumer data and information sources…more

Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Immigrants, Niz-Chavez v Garland, Notice to Appear, Resident Alien

Chuck Webber

Supreme Court Decides Niz-Chavez v. Garland

On April 29, 2021, the U.S. Supreme Court decided Niz-Chavez v. Garland, holding that, to constitute a notice to appear sufficient to stop a nonpermanent resident alien’s continuous presence in the country under 8 U.S.C. §…more

Department of Energy (DOE), Energy Sector, Energy Storage, Investment Tax Credits, IRS

Nick Weber

Section 48 Investment Tax Credit for Offshore Wind and Energy Storage

The Department of the Treasury (DOT), through the Internal Revenue Service (IRS) and in consultation with the Department of Energy (DOE), released new draft guidance on Section 48 tax credits, as well as updated guidance in…more

Richard Wegener

Name, Image and Likeness Scouting Report, Week 6: Midseason Update — Five NIL Trends We’re Watching

The Iron Bowl is the name given to the annual Alabama–Auburn football rivalry: a key late-season matchup between the Auburn University Tigers and University of Alabama Crimson Tide, both charter members of the Southeastern…more

College Athletes, Colleges, Educational Institutions, Name and Likeness, NCAA

Artificial Intelligence, Corporate Counsel, Patent Trial and Appeal Board, Patent-Eligible Subject Matter, Patents

Sean Wei Ph.D.

Artificial Intelligence at the Patent Trial and Appeal Board

Since the United States Patent and Trademark Office (USPTO) released its 2019 Revised Patent Subject Matter Eligibility Guidance, the Patent Trial and Appeal Board (PTAB) has published over 50 decisions that apply the Guidance…more

William Weimer

Threats and Solutions for Indiana Water and Wastewater Operations: Takeaways From the 2018 One Water Summit

Municipal water, wastewater and stormwater operations continue to face challenges including deterioration, cost increases for items like chemicals, energy and skilled labor, federally mandated Combined Sewer Overflow (CSO)…more

Infrastructure, Wastewater, Water, Water Supplies

Biometric Information, Biometric Information Privacy Act, Dress Codes, Employer Liability Issues, Minimum Wage

David Weinstein

Ringing in the New Year -- Recap of Changes to Illinois Employment Laws in 2017

From workplace dress policies to collecting an employee’s fingerprints, as we wind down 2017, here’s a recap of new workplace laws—and helpful reminders—that affected Illinois employers this year: Updates to the Illinois…more

Impression Products v Lexmark International, Patent Exhaustion, Patents, SCOTUS, Single-Use/No Resale Restriction

Gary Weinstein

Supreme Court Decides Impression Products, Inc. v. Lexmark Int'l, Inc.

On May 30, 2017, the U.S. Supreme Court decided Impression Products, Inc. v. Lexmark Int’l, Inc., No. 15-1189, holding that a patentee’s sale of a product, whether domestically or abroad, exhausts all of its patent rights in…more

Annual Reports, Corporate Governance, Disclosure Requirements, Emerging Growth Companies, Fixing America’s Surface Transportation Act (FAST Act)

Adam Weinstock

Making a List and Checking it Twice: Preparing for the Most Wonderful Time of the Year – Annual Report and Proxy Season

With proxy and reporting season preparations in full swing, demands on time are high and resources might be limited, so we focus our reminders on new and changed disclosure items that might otherwise be easy to overlook. 10-K…more

Jason Weiss

NIST Releases New Draft of Artificial Intelligence Risk Management Framework for Comment

The National Institute of Standards and Technology (NIST) has released the second draft of its Artificial Intelligence (AI) Risk Management Framework (RMF) for comment. Comments are due by September 29, 2022. NIST, part of…more

Artificial Intelligence, Cybersecurity, Data Protection, NIST, NYDFS

Condemnation, Fifth Amendment, Just Compensation, Property Owners, Takings Clause

Julie Weller

Constitutional Rights and Condemnation Proceedings

The United States Constitution and your state’s constitution play an important role in protecting your rights when the government wants to take your property. The Fifth Amendment of the U.S. Constitution prevents the federal…more

Nicholas Wendland

A Proposal to the CFTC for a New Way for “Bets” to Be Hedged

Perhaps it is in the spirit of March Madness and bracketology, but the Commodity Futures Trading Commission (CFTC or Commission) recently acknowledged consideration of a proposal by a sports gambling company to allow…more

CFTC, Derivatives, Futures, Hedge Funds, Investors

Christine Ann Werner

Pet Insurance Industry Breeds Record Growth; NAIC Grooms Model Act Discussion

For the sixth consecutive year, the pet insurance industry experienced double-digit growth, according to a new report from the North American Pet Health Insurance Association (NAPHIA). NAPHIA’s “2021 State of the Industry…more

Insurance Industry, NAIC, Pets

Artificial Intelligence, Automation Systems, Insurance Industry, NAIC

Charles Westerhaus

Artificial Intelligence Briefing: NAIC Adopts AI Model Bulletin

The NAIC adopts a landmark framework outlining regulatory expectations for the use of AI by insurers. Meanwhile, a California agency proposes regulations for the use of automated decisionmaking technology by businesses, and the…more

Chemical Data Reporting, Chemicals, Confidential Business Information (CBI), Environmental Protection Agency (EPA), Manufacturers

Luke Westerman

Looming November 30, 2020 EPA Submission Deadline for Chemical Data Reporting Requires Attention Now

Companies required to report under the Toxic Substances Control Act’s (TSCA) Chemical Data Reporting (CDR) regulations need to consider and address new Environmental Protection Agency (EPA) provisions governing reporting of…more

Mindy Westrick

Next Stage Considerations About the Supreme Court’s Affirmative Action Decision: How to Put the Warning Letter from the State Attorneys General in Context

As higher education institutions, state and local governments, private employers and federal contractors grapple with understanding the impacts of the U.S. Supreme Court’s decision in Students for Fair Admissions v. President &…more

Affirmative Action, Civil Rights Act, College Admissions, Colleges, Diversity

Department of Energy (DOE), Environmental Protection Agency (EPA), NEPA, Regulatory Reform, Trump Administration

Andrew Wheeler

In Regulatory Reviews, DOE and EPA Outline Agency Objectives Under Trump Administration

This week, the U.S. Department of Energy (DOE) and Environmental Protection Agency (EPA) released their respective reports on potential areas of regulatory reform. The reports were spurred by President Trump’s March 28 executive…more

Best Practices, Coronavirus/COVID-19, Franchises, Franchisors, Infectious Diseases

Conor White

Franchisor Best Practices for COVID-19 (Updated #2)

A Message Regarding Racial Inequality: Faegre Drinker is deeply affected by the disturbing and terrible events surrounding the senseless deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and Rayshard Brooks. While these…more

Air and Liquid Systems Corp et al v Devries et al, Appeals, Asbestos, Asbestos Litigation, Duty to Warn

Jeffrey Whitt

A Component Part Supplier’s Duty to Warn Following the U.S. Supreme Court’s Maritime Asbestos Decision

Under the Restatement (Third) of Torts: Products Liability § 5, Comment b (1998), the supplier of a product generally must warn about only those risks associated with the product itself, not those associated with the “products…more

Best Interest Contract Exemptions, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Fiduciary Duty, Fiduciary Rule

Graham Widmer

DOL Delays Fiduciary Rule for 60 Days

The Department of Labor (DOL) has announced a final regulation to delay implementation of the Fiduciary Rule from April 10, 2017, until June 9, 2017. In addition to the 60-day delay, the final regulation eases certain compliance…more

Robert Wieder

Key Considerations for U.K. Investment in the Legal Cannabis Industry Abroad

U.K. investors in cannabis-related entities, where the activity is legal in its jurisdiction but not legal in the U.K., risk committing money laundering offences under the Proceeds of Crime Act 2002 (POCA). However: - Various…more

Controlled Substances Act, Foreign Investment, Investment, Investors, Marijuana

Amended Rules, Disclosure Requirements, Financial Statements, Publicly-Traded Companies, Regulation S-K

Sujata Wiese

SEC’s Modernization and Simplification Efforts Continue: Changes Coming to Disclosures for Acquisitions and Dispositions by Public Companies

The efforts of the U.S. Securities and Exchange Commission (SEC) to modernize and simplify public company disclosure rules continue, with the latest round of changes including a final order adopted on May 21, 2020 addressing…more

Daniel Wilczek

United States Supreme Court Hears Argument in Tyson Foods' FLSA Collective Action

On November 10, 2015, the United States Supreme Court heard argument in Tyson Foods v. Bouphakeo, a case that has the potential to reshape the contours of when employees may bring class claims against their employer. Tyson is a…more

Collective Actions, Doffing, Donning, Fair Labor Standards Act (FLSA), SCOTUS

Board of Directors, Breach of Duty, Derivative Suit, Fiduciary Duty, Shareholder Litigation

Wendy Wildung

Minnesota Supreme Court Articulates Test for Direct Versus Derivative Claims in In re Medtronic, Inc. Shareholder Litigation

On August 16, 2017, the Minnesota Supreme Court decided In re Medtronic, Inc. Shareholder Litigation, holding that a shareholder’s claim is properly characterized as a direct claim, not a derivative claim, if the shareholder…more

Zoë Wilhelm

Texas District Court Joins the Third, Sixth, and Eleventh Circuit Courts of Appeal, Permitting a Private Right of Action for Violation of Section 64.1200(d)

The Northern District of Texas, in Powers v. One Technologies, LLC, joined its sister courts and the Third, Sixth, and Eleventh Circuit Courts of Appeal to hold that 47 C.F.R. § 64.1200(d), which prohibits certain telemarketing…more

Dismissals, Do Not Call List, FCC, Private Right of Action, TCPA

Employer Liability Issues, Equal Pay, Pay Transparency, State Labor Laws, Wage and Hour

Mary Will

New Year, New Rules for Colorado Employers

This year brought many changes to Colorado’s employment laws, as we discussed in our previous Insight. On January 1, 2024, implementing rules for the Colorado Family and Medical Leave Insurance (FAMLI) Act and the Colorado Equal…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Critical Access Hospitals, Health Care Providers, Hospitals

Isaac Willett

Centers for Medicare & Medicaid Services Waive Critical Access Hospital Bed and Inpatient Hours Limits

The Centers for Medicare & Medicaid Services (CMS) allotted a blanket waiver to critical access hospitals (CAHs) of certain Medicare certification requirements to aid their response to 2019 novel coronavirus disease (COVID-19)…more

Dodd-Frank, Executive Compensation, Form 13F, Investment Company Act of 1940, Investment Management

Cheri Williams

SEC Proposes Rules for Enhanced Reporting of Proxy Voting by Registered Investment Companies and Reporting on Executive Compensation Votes by Institutional Investment Managers

On September 29, 2021, the U.S. Securities and Exchange Commission (SEC) proposed amendments to Form N-PX to provide greater transparency to the information registered management investment companies (Funds) report about their…more

403(b) Plans, Duty of Prudence, Employee Benefits, Employee Retirement Income Security Act (ERISA), Hughes v. Northwestern University

Christopher Williams

ERISA Litigation Roundup: SCOTUS Vacates and Remands Seventh Circuit’s 403(b) Decision in Northwestern

Last week, the Supreme Court issued its anticipated ruling in the ERISA fiduciary-breach class action Hughes v. Northwestern. In its unanimous decision, the Court vacated the Seventh Circuit’s dismissal of the case and sent the…more

Asset Management, Environmental Social & Governance (ESG), Investment Adviser, Mutual Funds

David Williams

Republican State Attorneys General Target Mutual Fund Directors Concerning Mutual Fund Adviser ESG Activities

In recent times, the focus on environmental, social and governance (ESG) investments has grown significantly. As investment decisions are increasingly aligned with ethical principles and sustainable values, the scrutiny of…more

Dawn Williams

The Impact of Florida’s Tort Reform Bill on Insurance Litigation

On March 24, 2023, a sweeping tort reform bill was signed into law by Florida Governor Ron DeSantis. House Bill 837 was touted by DeSantis as being designed to reduce frivolous lawsuits and prevent predatory practices of trial…more

Attorney's Fees, Damages, Insurance Industry, Insurance Litigation, Negligence

CARES Act, Coronavirus/COVID-19, Families First Coronavirus Response Act (FFCRA), Family and Medical Leave Act (FMLA), Relief Measures

Brendan Wilson

The Impact of the CARES Act Upon Nonprofit Organizations

The global COVID-19 pandemic has impacted our communities and the nonprofit organizations that provide critical services in significant ways. Below, we highlight recent congressional action, identify the unique opportunities for…more

Coronavirus/COVID-19, Online Education, Students, Universities

Jane Dall Wilson

Eleventh Circuit Affirms University’s COVID-19 Transition to Online Education

The Eleventh Circuit recently upheld summary judgment in favor of the University of Miami on claims related to the university’s transition to remote, online learning during the onslaught of the COVID-19 pandemic. See Dixon v…more

Bodily Injury, Damages, Pain and Suffering, State and Local Government, Wrongful Death

M. Joseph Winebrenner

Amendments to Minnesota Wrongful Death and Survival Statutes Open the Door to Pain and Suffering Claim

On May 20, 2023, the amendments to the Minnesota wrongful death and survival statutes, Minn. Stat. §§ 573.01, 573.02, became effective. This means that duly appointed administrators can now bring claims for “all damages suffered…more

Biologics, Food and Drug Administration (FDA), Labeling, OPDP, Pharmaceutical Industry

Carolina Wirth

2021 Year in Review: OPDP Enforcement Actions Involving Prescription and Biological Products

The Food and Drug Administration’s Office of Prescription Drug Promotion (OPDP) issued a total of six letters in 2021 — four Untitled Letters and two Warning Letters — to pharmaceutical or biologics companies for promotional…more

Peter Withoff

IRS Issues Proposed Regulations Addressing Fee Waivers

On July 22, 2015, the U.S. Department of the Treasury issued proposed regulations addressing the tax treatment of certain private equity management fee waivers. These new rules could result in many common management fee waivers…more

Carried Interest, Fee Waivers, Fund Managers, Management Fees, Private Equity

Advisory Opinions, Anti-Kickback Statute, Civil Monetary Penalty, Genetic Testing, OIG

Jesse Witten

OIG Issues Favorable Advisory Opinion for Free Genetic Testing and Counseling Program Offered by a Pharmaceutical Company

On April 11, 2022, the Office of Inspector General of the U.S. Department of Health and Human Services (OIG) issued Advisory Opinion No. 22-06 (AO 22-06), which approved a biopharmaceutical company’s proposed arrangement to…more

S. Vance Wittie

Supreme Court Decides DeVillier v. Texas

On April 16, 2024, the U.S. Supreme Court decided DeVillier v. Texas, No. 22-913, holding that owners of property north of U.S. Interstate Highway 10 adversely affected by the flood evacuation barrier constructed by Texas should…more

Fifth Amendment, Just Compensation, Property Owners, SCOTUS, Takings Clause

Kate Wittlake

New Jury Selection Procedure in California: Is This the End of Peremptory Challenges? Is This the End of Batson?

Jury selection in California is undergoing significant change. In August 2020, the California legislature passed AB 3070, which was signed by Governor Gavin Newsome on September 30. Beginning in 2022, objections to peremptory…more

Bias, Defense Strategies, Governor Newsom, Judges, Jury Selection

Coronavirus/COVID-19, Infectious Diseases, Public Health, Travel Restrictions, Vaccinations

Michael Wiwchar

COVID-19 Weekly Newsletter: Vaccine Update, New Tests and Tracing Efforts

New initiatives and some promising developments in vaccine trials, contact tracing efforts, and the production of more efficient COVID-19 detection testing highlighted an active week in the scientific community’s response to the…more

Arbitration, Arbitration Agreements, Federal Arbitration Act, International Arbitration, Preemption

Nicole Wixted

First Circuit Holds That New York Convention Preempts Contrary State Laws Barring International Arbitration of Insurance Disputes

Background On May 19, 2023, the First Circuit Court of Appeals ruled in Green Enterprises, LLC v. Hiscox Syndicates Ltd. at Lloyd’s of London that the New York Convention on the Recognition and Enforcement of Foreign Arbitral…more

Ryan Woessner

Strict IRS Regulatory Requirements Could Derail Your Plans: IRS Memo Denies Taxpayer’s Deduction of Investment Banking Fees

The IRS recently published an Office of Chief Counsel Memorandum, ILM 201830011, in which a taxpayer’s entire success fee paid to an investment bank had to be capitalized instead of deducted. The memo concluded that…more

Fees, Investment Banks, IRS, Recordkeeping Requirements, Safe Harbors

Buy America, Buy American Act, Domestic Hiring Policy, Executive Orders, Federal Contractors

Paul Wolfla

Government Contractors: Buy In to "Buy American" or Risk Enforcement

President Trump’s recent “Buy American and Hire American” executive order signals greater enforcement of Buy American Laws. The order requires all federal agencies to assess and revamp internal policies for implementing and…more

Disclosure Requirements, Employer Liability Issues, Employment Contract, Hiring & Firing, Low-Wage Workers

Kelsey Wong

Maine and New Hampshire Join National Trend, Enacting Laws Prohibiting Non-Competes for Lower-Wage Workers

As we have previously discussed, there is an ongoing trend of states prohibiting the use of non-compete agreements in certain situations, including with lower-wage workers. Maine and New Hampshire are the most recent examples…more

Michael Woodruff

New Jersey Gov. Murphy Signs Law to Require Certain Disclosures of Flood History and Flood Risk

Earlier this month, New Jersey Gov. Phil Murphy signed bill S3110/A4783 into law which requires landlords and sellers of real property to make certain disclosures regarding the property’s flood risk and flood history. The new…more

FEMA, Flooding, Governor Murphy, Landlords, Rental Insurance

Comment Period, Employee Mobility, Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC)

David Woolf

The FTC Non-Compete Rule – It’s Finally Here (Almost)!

On April 16, 2024, the Federal Trade Commission (FTC) announced that, next Tuesday, April 23, it will be releasing the final version of its proposed rule largely prohibiting employee non-competition restrictions. See FTC…more

Life Technologies Corp v Promega Corp, Patent Infringement, Patent Litigation, Patents

Elizabeth Cowan Wright

Supreme Court Decides Life Technologies Corp. v. Promega Corp.

On February 22, 2017, the Supreme Court of the United States decided Life Technologies Corp. v. Promega Corp., No. 14-1538, holding that the supplying of a single component of a multicomponent invention does not qualify as an…more

Scott Wright

Florida Extends E-Verify Requirement to Private Employers

The Department of Homeland Security’s E-Verify program is a free web-based verification tool for employers to confirm newly hired employees’ work authorization in the United States. Although participation in E-Verify is…more

E-Verify, Foreign Workers, Form I-9, Immigrants, Immigration Procedures

William Wright

Maryland District Court Opinion Explores Complexities of TCPA Consent and Revocation

In the recent opinion of Smith v. ExamWorks, LLC, No. 21-2746, 2024 WL 622102 (D. Md. 2024), the District of Maryland analyzed the nuances of consent and revocation under the TCPA…more

Auto-Dialed Calls, Consent, Prior Express Consent, Revocation, Robocalling

Abstract Ideas, Guidance Update, Intellectual Property Protection, Manual of Patent Examining Procedure (MPEP), New Guidance

Richard Wulff

October 2019 Patent Eligibility Guidance Update

Earlier this year, the United States Patent and Trademark Office (USPTO or “the Office”) published the 2019 Revised Subject Matter Eligibility Guidance (2019 PEG), which set forth newly revised procedures to be used by USPTO…more

Force Majeure Clause, Infectious Diseases, Suppliers, Supply Contracts

Li Yan

How the Coronavirus May Impact Your Commercial Health and Contracts

The recent coronavirus outbreak not only poses potential human health concerns but also raises new risks for companies engaged in trade with China. The outbreak has prompted all levels of the Chinese government to take…more

Department of Energy (DOE), Energy Projects, Energy Sector, Inflation Reduction Act (IRA), Tax Credits

Wendy Yan

48C Qualified Advanced Energy Project Tax Credit: One Year Into the Inflation Reduction Act

The Inflation Reduction Act (IRA) recently celebrated its first anniversary with some programs becoming increasingly oversubscribed even before the funding is released. One of those programs is the qualifying advanced energy…more

Anna Yeung

9th Circuit Restores and Clarifies Standards for Certification of Settlement Classes

The Ninth Circuit’s recent en banc decision in In re Hyundai and Kia Fuel Economy Litigation, — F.3d —, 2019 WL 2376831 (9th Cir. Jun. 6, 2019), restored some much-needed balance to the class action universe. The court reversed…more

Appeals, Choice-of-Law, Class Action, Class Certification, En Banc Review

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Final Rules, Non-Compete Agreements

John Yi

Total Ban: FTC Issues Final Rule Banning Employment Noncompete Agreements

On April 23, 2024, the U.S. Federal Trade Commission (FTC) voted (in a 3-2 vote along party lines) to finalize and promulgate a final rule that bans noncompete agreements for the vast majority of workers…more

Beverage Manufacturers, Food and Drug Administration (FDA), Food Labeling, Food Manufacturers, Nutrition Facts Labels

Nury Helena Yoo

FDA Proposes to Update the Definition of “Healthy” on Food Labels

On September 28, 2022, the Food and Drug Administration (FDA) announced its proposal to update its 1994 definition of “healthy” when used on food labels and labeling to align with the current nutrition science, the Dietary…more

Certiorari, Foreign Investment, Foreign Sovereign Immunities Act of 1976 (FSIA), SCOTUS, Venezuela

David Yoshimura

Supreme Court Ends Saga Over Which Venezuelan Government Could Be Sued in International Investment Dispute

Background - In 2018, several foreign investors obtained international arbitration awards against the Venezuelan government, which nationalized various industries under then-President Hugo Chávez. After confirming their…more

Biden Administration, Customs and Border Protection, Department of Homeland Security (DHS), Executive Orders, Immigration and Customs Enforcement (ICE)

Peter Yost

“Immigration Day” Includes New Executive Orders, Confirmation of Alejandro Mayorkas as Secretary of Homeland Security

On February 2, 2021, Alejandro Mayorkas was confirmed as the Secretary of the Department of Homeland Security (DHS), and the Biden administration then issued three immigration-related executive orders. This is the start of…more

Abitron Austria GmbH v Hetronic International Inc, Extraterritoriality Rules, Intellectual Property Protection, Lanham Act, SCOTUS

Josiah Young

Supreme Court Decides Abitron Austria GMBH v. Hetronic International, Inc.

On June 29, 2023, the U.S. Supreme Court decided Abitron Austria GMBH v. Hetronic International, Inc., No. 21-1043, holding that two provisions of the Lanham Act that prohibit trademark infringement — sections 1114(1)(a) and…more

Kelly Young

Protecting Your Certification Marks with Certainty

A certification mark is an important business tool. Displaying a certification mark on a product or on marketing materials indicates that a company’s offerings meet certain standards. Consumers often look for items that have…more

Applications, Certification Marks, Product Labels, Proof of Use, USPTO

Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Corporate Counsel, Infectious Diseases, OSHA

Tyler Young

Frequently Asked Questions on COVID-19 Personal Injury Litigation

Plaintiffs’ attorneys are advertising for plaintiffs infected by COVID-19, and new COVID-19 personal injury lawsuits are being filed at a steady clip. In recent lawsuits, for example, employees and customers have sought to…more

Employer Liability Issues, Employment Policies, Minimum Wage, Paid Leave, Sick Leave

Tareen Zafrullah

State & Local Employment Law Developments: Q1 2024

California - COVID-19 Definitions and Procedures: On January 9, 2024, the California Department of Health (CDPH) revised several COVID-19 definitions and testing requirements. The state has revised testing rules for close…more

Agribusiness, Food and Drug Administration (FDA), Food Labeling, USDA

Emily Bodtke Zambrana

Key Takeaways From the 2021 Food & Agribusiness National Conference: Food Manufacturing, Processing and Distribution

Faegre Drinker’s 2021 Food & Agribusiness National Conference assembled speakers from global, market-leading companies from across the industry to discuss major issues and trends of note from across market segments and product…more

Austria, Canada, Coronavirus/COVID-19, Employer Liability Issues, Employer Mandates

Kerry Zaroogian

Employers Adjust as COVID-19 Restrictions and Regulations Are Rolled Back Globally

On February 21, Britain’s Prime Minister, Boris Johnson, announced that all of England’s COVID-19 regulations and restrictions would be revoked in coming weeks. Shortly thereafter, countries across the globe began to follow…more

Reporting Requirements, State Labor Laws, Transparency, Wage and Hour

Jill Zender

California Legislature Passes Pay Transparency Law

On August 30, 2022, the California legislature passed SB 1162, that would amend Section 12999 of the Government Code and Section 432.3 of the Labor Code, which expands pay data reporting obligations, requires certain-sized…more

Claire Zhao

China Releases New Regulation on Cross-Border Data Transfers

Six months after the release of the draft Provisions on Regulating and Facilitating Cross-Border Data Flow, the Cyberspace Administration of China (CAC) officially released the long-awaited finalized Provisions on Facilitating…more

China, Corporate Counsel, Cross-Border, Cybersecurity, Data Privacy

Sarah Zhao

China Issues Rule on Security Assessment of New Technologies for Online News Services

China has promulgated a series of implementation rules and guidelines after the Cybersecurity Law of China took effect in June 2017. The most recent one requires that online news information service providers conduct security…more

China, Cybersecurity, Popular, Telecommunications

Jonathan Zimmerman

Cashing In: Getting Ready for Your Series A Round

With the Summer 2022 Y Combinator Demo Day being held September 7 and 8, a new group of startup companies will have investors approaching them with term sheets for preferred stock financings. For many companies, the key points…more

Early Stage Companies, Investment, Investors, Startups, Venture Capital

Michael Zogby

District of New Jersey Finds Amazon to be “Seller” of Hoverboard under NJ Product Liability Act

The District of New Jersey has held that Amazon may be sued under New Jersey law for defective products sold by third-party sellers through its online marketplace. The dispute in New Jersey Manufacturers Insurance Group v…more

Amazon, California, New Jersey, Strict Product Liability, Third-Party

Medicare, Pharmaceutical Industry, Pharmacy Benefit Manager (PBM), Prescription Drugs

David Zook

An Updated Look at the Federal Health Care Policy Legislative Landscape: Opportunity for Action or ‘Groundhog Day’?

With Congress again delaying full resolution of fiscal year 2024 (FY24) federal spending legislation, now until at least early March, health care stakeholders are once again left waiting to resolve several priority issues. …more

Confidential Information, Intellectual Property Protection, Non-Compete Agreements, Restrictive Covenants, Trade Secrets

Nathaniel Zylstra

Fifth Circuit Reverses Trade Secrets Denial of Preliminary Injunction, Highlighting Importance of Actual Evidence of Irreparable Harm

The U.S. Court of Appeals for the Fifth Circuit recently emphasized the importance of marshaling specific evidence of the potential harms a plaintiff may suffer when considering a preliminary injunction for potential disclosure…more