King & Spalding

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1180 Peachtree Street NE
Suite 1600
Atlanta, Georgia 30309, United States
Phone: 404 572 4600
Fax: 404 572 5100
Areas Of Practice
  • Alternative Dispute Resolution (ADR)
  • Antitrust & Trade Regulation
  • Appellate Practice
  • Art, Entertainment, & Sports Law
  • Bankruptcy
  • Business Organizations
  • Business Torts
  • Class Action
  • Commercial Law & Contracts
  • Communications & Media Law
  • Constitutional Law
  • Construction Law
  • Debtor/Creditor
  • Energy & Utilities
  • Environmental Law
  • Finance & Banking
  • Government
  • Health
  • Immigration Law
  • Insurance
  • Intellectual Property
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
  • Maritime Law
  • Mergers & Acquisitions
  • Privacy
  • Products Liability
  • Professional Malpractice
  • Real Estate
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
  • Toxic Torts
  • Transportation
  • Zoning, Planning & Land Use
See more
Locations
Other U.S. Locations
  • California
  • D.C.
  • Georgia
  • Illinois
  • New York
  • North Carolina
  • Texas
Other Countries
  • Belgium
  • France
  • Germany
  • Japan
  • Russia
  • Saudi Arabia
  • Singapore
  • Switzerland
  • United Arab Emirates
  • United Kingdom
Number of Attorneys
1,000+ Attorneys

Morgan v. Sundance: Prejudice Not Required To Waive Arbitration Rights

In Morgan v. Sundance, the Supreme Court unanimously concluded this week that waiving arbitration rights does not require a showing that the party seeking to have their case heard in federal court would be prejudiced by…more

Appeals, Arbitration, Binding Arbitration, Employment Application, Federal Arbitration Act

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National Telecommunications And Information Administration Issues Report Regarding “Botnets and Other Automated, Distributed Threats”

On September 18, 2017, the National Telecommunications and Information Administration (“NTIA”), the executive branch agency that is principally responsible for advising the President on telecommunications and information policy…more

Cyber Threats, Cybersecurity, Executive Orders, NTIA, Popular

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11th Circuit Bars False Claims Act Relator From Forfeiture Case

If a whistleblower brings a False Claims Act (FCA) claim against a defendant, and the government forgoes intervening in the FCA case and instead chooses to pursue criminal prosecution and forfeiture proceedings, the Eleventh…more

False Claims Act (FCA), Forfeiture, Whistleblowers

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New Cyber Incident Reporting Law Covering Range of Critical Infrastructure Companies

On March 15, 2022, President Biden signed into law the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (the “Act”) as part of an omnibus appropriations bill. The Act compels “covered entities” — companies in a…more

Critical Infrastructure Sectors, Cyber Attacks, Cyber Incident Reporting, Cybersecurity, Cybersecurity Information Sharing Act (CISA)

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Private Over Public? An Emerging Markets Perspective

The private placement of debt securities, compared to the more common public issuances, has grown in popularity in recent years, particularly in emerging markets such as those in the Middle East. Whilst there is little publicly…more

Capital Markets, Debt Securities, Disclosure Requirements, Emerging Markets, Institutional Investors

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Is Illinois’ GIPA the Next BIPA?

Perhaps in response to recent success pursuing claims under Illinois’ Biometric Information Privacy Act (BIPA), the plaintiffs’ bar is now also pursuing class actions against employers under another unique Illinois privacy law…more

Biometric Information Privacy Act, Class Action, Compliance, Corporate Counsel, Genetic Testing

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Energy Newsletter - April 2017

Navigating Private Equity Fund Limitations for Energy Infrastructure-Focused Investments - Energy infrastructure funds have emerged as a class of funds that offer investors the potential for long-term stable returns, as well…more

Argentina, Bankruptcy Court, Energy Sector, Infrastructure, Keystone XL Pipeline

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India to Promote Mining of Lithium and Five Other Critical Minerals

On 2 August 2023, India’s Parliament passed the Mines and Minerals (Development and Regulation) Amendment Bill, 2023 (“Amendment Bill”) to amend the Mines and Minerals (Development and Regulation) Act, 1957 (“Act”). The Act…more

Atomic Energy, India, Mineral Exploration, Mineral Leases, Minerals

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Energy Newsletter - October 2018

Court Faults FERC in its Handling of ANR Storage Company’s Six Year Quest for Authorization to Charge Market-Based Rates for Natural Gas Storage Services - On September 21, 2018, the U.S. Court of Appeals for the District of…more

Energy Sector, FERC, Human Rights, Lebanon, Oil & Gas

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The 2024 UAE Financial Restructuring and Bankruptcy Law: What is New?

On 31 October 2023, Federal Law Decree No. (51) concerning Financial Restructuring and Bankruptcy (the New Law) was published in the UAE Federal Gazette. The New Law comes into force on 1 May 2024 and will repeal the 2016 Law on…more

Automatic Stay, Bankruptcy Court, Bankruptcy Trustees, Commercial Bankruptcy, Creditors

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Saudi Arabia’s Vision 2030 – Securing PPP Value for Money and the Criticality of Monitoring and Root Cause Analyses

Introduction - Much of the PPP debate in Saudi Arabia has focussed on the importance of shifting the public sector expenditure burden to the private sector. Wherever this has been the sole focus of a PPP programme, the…more

Contractors, Infrastructure, Oil & Gas, Private Sector, Public Private Partnerships (P3s)

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Judicial Guidance on the Impact of COVID-19 on KSA Construction Projects

The COVID-19 pandemic has had, and continues to have, an obvious impact on construction and other projects throughout the Middle East. As far back as March 2020, those involved with managing construction projects would have…more

Construction Project, Contractors, Coronavirus/COVID-19, Force Majeure Clause, New Guidance

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Trade & Manufacturing - August 2019

The United States And China Engage In A New Set Of Trade Talks, But President Trump Announces A Tariff Of 10 Percent On $300 Billion Worth Of Chinese Imports - On July 30, 2019, the United States and China opened a new round…more

Buy America, Canada, China, Dispute Resolution, EU

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SEC Proposes Amendments to Financial Disclosures for Acquisitions and Dispositions

On May 3, 2019, the Securities and Exchange Commission (“SEC”) proposed amendments to the financial disclosure requirements in Rules 3-05, 3-14 and Article 11 of Regulation S-X governing acquisitions and dispositions of…more

Acquisitions, Capitalization, Comment Period, Corporate Governance, Disclosure Requirements

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California Enacts Law Requiring Female Representation on Boards

On September 30, 2018, California Governor Jerry Brown signed into law Senate Bill No. 826 (SB 826). SB 826 adds Sections 301.3 and 2115.5 to the California Corporations Code to require that a publicly held company with a…more

Board of Directors, Diversity, Gender Equity, Woman Board Members

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Regulation S-X Updates and the Pro Forma EBITDA Add-back

On May 21, 2020, the Securities and Exchange Commission (the “SEC”) adopted amendments to the financial disclosure requirements in Regulation S-X (the SEC’s accounting rules for the form and content of financial statements…more

Borrowers, EBITDA, Financial Statements, Lenders, Management Adjustments

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Energy Newsletter - April 2017

Navigating Private Equity Fund Limitations for Energy Infrastructure-Focused Investments - Energy infrastructure funds have emerged as a class of funds that offer investors the potential for long-term stable returns, as well…more

Argentina, Bankruptcy Court, Energy Sector, Infrastructure, Keystone XL Pipeline

See all updates »

ZATCA Clarifies the Requirements for Granting a 30-Year Tax Relief to Multinational Corporations under the Regional Headquarters Program

The Government of the Kingdom of Saudi Arabia (“Kingdom”) in February 2021 announced its objective to limit governmental contracting with multinational companies (“MNCs”) that do not have a Regional Headquarter (“RHQ”) in the…more

Income Taxes, Multinationals, Saudi Arabia, Withholding Tax

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A Trustee’s First Duty: Maximizing the Value of an Insolvency Estate

The foremost duty of a bankruptcy trustee is to maximize the value of the debtor’s assets for the benefit of its stakeholders. Numerous provisions of Saudi Arabia’s current bankruptcy law (the “Bankruptcy Law”) underscore the…more

Debtors, Reorganizations, Rules of Professional Conduct, Saudi Arabia, Third-Party

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CMS Issues Wide-Ranging Proposed Rule on Medicare Managed Care (Part C) and Prescription Drug Plans (Part D)

On November 16, 2017, the Centers for Medicare & Medicaid Services(“CMS”) published for public inspection a proposed rule that would impact a variety of Medicare Part C and Part D program provisions. The proposed rule, Medicare…more

Centers for Medicare & Medicaid Services (CMS), Comprehensive Addiction and Recovery Act of 2016 (CARA), Medicare, Medicare Part C, Medicare Part D

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Energy Newsletter - August 2017

Practical Issues Under Joint Operating Agreements Relating to Withdrawals, Transfers and Changes in Control - In light of their long term objectives and potential future transactions, parties should consider the implications…more

Africa, Appeals, Canada, Commercial Bankruptcy, Condition Precedent

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Key Recent Developments In Environmental Justice Litigation

Louisiana remains at the forefront of environmental justice activity. In just four days from January 19 to January 23, 2024, two courts in Louisiana offered interpretations to environmental justice efforts in the State of…more

Anti-Discrimination Policies, Appeals, Civil Rights Act, Clean Air Act, Department of Environmental Quality

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Sapin II Law: The Modernization of France's Fight Against Corruption

After years of facing international criticism for purported “laxity” towards transparency and the fight against bribery and corruption, France has adopted new legislation aiming to rectify this deficiency, which imposes…more

Anti-Corruption, Bribery, Compliance, Criminal Prosecution, France

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Trade & Manufacturing - November 2019

China And The United States Reportedly Nearing A Deal On Trade Agreement United States - The United States and China are nearing the conclusion of negotiations for a limited trade agreement, which reportedly could be signed…more

Anti-Dumping Duty, China, India, Steel Industry, Tariffs

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Zeitlich befristete Änderung der Insolvenzantragspflicht wegen Überschuldung

Erneute Lockerung der Insolvenzantragspflicht durch das SanInsKG - Mit dem „Gesetz zur vorübergehenden Anpassung sanierungs- und insolvenzrechtlicher Vorschriften zur Abmilderung von Krisenfolgen“ (kurz: Sanierungs- und…more

Coronavirus/COVID-19, Insolvency, Liability, Reorganizations, Restructuring

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New York City and Los Angeles Require New Building Standards to Address Climate Change

New York City and Los Angeles have announced unprecedented plans to address climate change with an emphasis on greenhouse gas emissions from large buildings. New York City enacted a legislation package requiring certain…more

Building Codes, Carbon Emissions, Climate Change, Commercial Real Estate Market, Construction Industry

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Energy Newsletter - May 2017

Taking the Long View - How Appropriate Foresight Supports the Development and Execution of Large-Cap Construction Projects - Introduction - The arduous, start-to-finish process of developing and constructing a…more

Architects, Construction Industry, Energy Sector, Exports, Oil & Gas

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Russia Moves Closer to Nationalizing Businesses Intending to Exit Russia

Since Russia’s invasion of Ukraine, some 300 large international companies have announced intentions to scale back or shut down operations within Russia. On March 7, Russia’s ruling party reacted to the exodus by announcing that…more

Arbitration, Business Closures, Economic Sanctions, Foreign Corporations, Russia

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Emerging Themes Relating to the Use of Artificial Intelligence in the Workplace

Companies are increasingly exploring the use of artificial intelligence (AI) and automated decision-making technologies to manage human capital, including for recruitment, hiring and performance purposes. Vendors offer automated…more

Algorithms, Americans with Disabilities Act (ADA), Analytics, Anti-Discrimination Policies, Artificial Intelligence

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Energy Newsletter - April 2019

Shifting Dynamics in Latin America - On March 5, 2019, King & Spalding hosted an Energy Forum, titled “Shifting Dynamics in Latin America”, to discuss the political and regulatory changes in Latin America and their impact on…more

Climate Change, Cross-Border Transactions, Due Diligence, Energy & Climate Debates, Energy Sector

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EU Council Approves Corporate Sustainability Due Diligence Directive

On 15 March 2024, the European Council approved the Corporate Sustainability Due Diligence Directive (“CSDDD” or “Directive”). If approved by the European Parliament and entered into force, the CSDDD will require large EU and…more

Batteries, Child Labor, Corporate Counsel, Due Diligence, EU

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Mandatory human rights due diligence – what does it mean for companies in the international construction sector?

A new wave of mandatory human rights due diligence legislation is coming into force across Europe. It goes far beyond existing reporting obligations, such as under the UK or Australia’s Modern Slavery Acts, and will require…more

Australia, Construction Contracts, Due Diligence, EU, FIDIC Contracts

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President Biden's Executive Order on AI - Legal Practice Snapshots

On October 30, 2023, President Biden published a landmark Executive Order regarding the use of Artificial Intelligence (“AI”) with an accompanying Fact Sheet, touching on the opportunities these systems present along with their…more

Antitrust Division, Artificial Intelligence, Biden Administration, Cybersecurity, Data Privacy

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Options for Using SOFR in New ABS, MBS, and CMBS Products

The Alternative Reference Rates Committee (“ARRC”) convened by the Federal Reserve Board and the Federal Reserve Bank of New York, with the assistance of its Securitizations Working Group released a report (the “Report”) on…more

Alternative Reference Rates Committee (ARRC), CMBS, Secured Overnight Funding Rate (SOFR), Securitization

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CMS Releases FY 2024 Medicare Inpatient Psychiatric Facility Prospective Payment System and Quality Reporting Final Rule

On July 27, 2023, CMS issued a final rule (Final Rule) which revises Medicare policies and rates for the Inpatient Psychiatric Facility (IPF) Prospective Payment System (PPS) for the 2024 fiscal year (FY 2024). Among other…more

Centers for Medicare & Medicaid Services (CMS), Final Rules, Inpatient Prospective Payment System (IPPS), Medicare Administrative Contractors (MAC), Vaccinations

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The Establishment of the White House Gender Policy Council and Its Implications for FDA Initiatives and Priorities

On March 8, 2021, President Biden signed an Executive Order, establishing a Gender Policy Council (“the Council”) tasked with the broad policy goal of “advancing gender equity and equality” for the purpose of reducing poverty,…more

Biden Administration, Clinical Trials, Coronavirus/COVID-19, Executive Orders, Food and Drug Administration (FDA)

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FTC and DOJ Issue New Merger Guidelines

On December 18, 2023, the U.S. antitrust enforcers, the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) (collectively, the “Agencies”), issued their final Merger Guidelines…more

Acquisitions, Anti-Competitive, Antitrust Provisions, Department of Justice (DOJ), Enforcement

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REIT Advisor – August 2020 - Recent Amendment Trends for REIT Credit Facilities

The onset of the novel Coronavirus pandemic (“COVID-19”) led to an abrupt shutdown of businesses worldwide and across numerous industries. The shutdown’s impact on the commercial real estate market generally, and on REITs…more

Borrowers, Commercial Real Estate Market, Compliance, Coronavirus/COVID-19, Credit Facilities

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CMS Issues Ruling 1498-R3 Revoking 1498-R2 Regarding Disproportionate Share Medicare/SSI Fractions

On March 4, 2024, CMS issued Ruling 1498-R3 which revokes CMS Ruling 1498-R2. CMS Ruling 1498-R2 gave providers the option of using either “total” days or “covered” days in calculating their disproportionate share (DSH)…more

Becerra Secretary Of Health And Human Services v Empire Health Foundation For Valley Hospital Medical Center, Centers for Medicare & Medicaid Services (CMS), Disproportionate Share Adjustments, Healthcare, Medicaid

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FCC Net Neutrality War

On April 27, 2017, the Federal Communications Commission (“FCC”) released a draft Notice of Proposed Rulemaking (“NPRM”), proposing to reverse the FCC’s 2015 Open Internet Order (“Title II Order”), which had applied Title II of…more

Broadband, Communications Act of 1934, FCC, Federal Trade Commission (FTC), Internet Service Providers (ISPs)

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Federal District Court in Alabama Declares CTA Unconstitutional; DOJ Appeals to 11th Circuit; FinCEN Requires Continued Compliance

On March 1, 2024, a federal judge in the U.S. District Court for the Northern District of Alabama ruled that the Corporate Transparency Act (“CTA”) is unconstitutional. The CTA and its implementing regulations require that many…more

Alabama, Beneficial Owner, Civil Monetary Penalty, Corporate Transparency Act, Criminal Penalties

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Energy Newsletter - September 2020

Climate Change Litigation on the Horizon with Trump Environmental Overhaul - On July 16, 2020, President Trump’s Council on Environmental Quality (“CEQ”) published the long-awaited final rule revising the implementing…more

CEQ, CFIUS, Climate Change, Coronavirus/COVID-19, Debt Restructuring

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„Green Leases“ auf dem Weg zum Branchenstandard?

Ausgehend von der politischen Vorgabe, bis zum Jahr 2050 einen CO2-neutralen Gebäudebestand zu erreichen, spielen die Themen Nachhaltigkeit und ESG (Environment, Social, Governance) in letzter Zeit in der Immobilienwirtschaft…more

Environmental Social & Governance (ESG), Incentives, Real Estate Investments, Real Estate Market, Rental Property

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OCR Updates Ransomware Guidance

On June 9, 2021, OCR distributed an update to those on its Privacy List sharing links to alerts and resources for addressing the growing number and size of ransomware incidents. One such resource included a White House memo…more

Cyber Attacks, Cybersecurity, Data Protection, Data Security, Electronic Protected Health Information (ePHI)

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NAIC's Focus on Investment Management Agreements (IMAs) involving Private Equity-Owned Insurers

As private equity investors continue to increase their presence in the insurance industry with acquisitions of insurers and reinsurance of blocks of insurance contracts through insurer portfolio companies and segregated cells,…more

Conflicts of Interest, Insurance Industry, Investment Management, Investors, Life Insurance

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Accelerated Covid-19 Vaccine Clinical Trials

Liability exposure and shields for vaccine developers - As the number of COVID-19 cases continues to rise every day, efforts to develop vaccines across the globe have hit record speeds. In the U.S., the U.S. Food and Drug…more

Center for Biologics Evaluation and Research (CBER), Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Department of Health and Human Services (HHS), European Medicines Agency (EMA)

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CMS Issues IPPS and LTCH Proposed Rule for FY 2025

On April 10, 2024, CMS issued its annual Hospital Inpatient Prospective Payment System (IPPS) and Long-Term Care Hospital (LTCH) Prospective Payment System (PPS) Proposed Rule for Fiscal Year (FY) 2025 (the Proposed Rule). In…more

Centers for Medicare & Medicaid Services (CMS), Consolidated Appropriations Act (CAA), Food and Drug Administration (FDA), Graduate Medical Education, Inpatient Prospective Payment System (IPPS)

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Quantum Quarterly – Issue 12 – 4 Quarter 2020

Claimant is an Australian joint venture between Chile’s Antofagasta plc and Canada’s Barrick Gold Corporation. In 2006, Claimant became a party to a joint venture agreement between it and the Government of Balochistan with the…more

Arbitration, Burden of Proof, Causation, Compensation, Contributory Negligence

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Tokyo Dispute Resolution & Crisis Management Newsletter – August 2020 - Mining Arbitration in the Asia-Pacific

The Asia-Pacific region integrates the mining industry within the life cycle of the global economy more fluidly than perhaps anywhere else in the world. Metals and minerals extracted from the region are transported to the…more

Arbitration, Asia Pacific, Contractors, Global Economy, Infrastructure

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DEA Proposes New Rules for Telemedicine Prescriptions

Would Require In-Person Examination In Many Prescribing Scenarios - Almost fifteen years ago, Congress amended the Controlled Substances Act (CSA) to reduce illegitimate, Internet-based access to controlled drugs while, at…more

Compliance, Controlled Substances Act, DEA, Health Care Providers, Healthcare

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Department of Justice Reverses Course on Class Action Waivers

In the ongoing debate over whether class action waivers in employee arbitration agreements violate the National Labor Relations Act (“NLRA”), the Department of Justice (“DOJ”) has done an about-face–switching stances from…more

Arbitration Agreements, Class Action, Class Action Arbitration Waivers, Department of Justice (DOJ), NLRA

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Recent Developments in Coburn: Walking the Tightrope of Cooperating with DOJ while Maintaining an Independent Investigation

In February 2022, a District of New Jersey court in United States v. Coburn took the surprising step of compelling a private company to produce internal investigation materials to two of its former executives, who were indicted…more

Attorney-Client Privilege, Brady Violation, Corporate Misconduct, Department of Justice (DOJ), Evidentiary Hearings

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Gas Stove Ban Update: Ninth Circuit Says "No" to City of Berkeley Ban on Gas Stoves

The gas stove wars continue to heat up. On April 17, 2023, the United States Court of Appeals for the Ninth Circuit took a stand and ruled that the City of Berkeley does not have the authority to prohibit connecting natural gas…more

Appeals, Consumer Product Safety Commission (CPSC), Department of Energy (DOE), ECPA, Natural Gas

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Enforcing Releases in Bankruptcy

Bankruptcy Court Determines Standard for Enforcing Non-Consensual Third-Party Releases in a Chapter 15 Case Differs From Applicable Standard in Chapter 11 Cases - On April 9, 2018, in In re Avanti Communcs. Group Plc, Case…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Chapter 15

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Buyers Beware - Delaware Chancery Court Orders CorePower to Honor Acquisition of Franchisee Studios

On March 1, 2022, Vice Chancellor Slights of the Delaware Chancery Court ordered CorePower Yoga (“CorePower”) to close the acquisition of 34 yoga studios from its largest franchisee, Level 4 Yoga (“Level 4”). The parties entered…more

Acquisitions, Coronavirus/COVID-19, Damages, Force Majeure Clause, Material Adverse Effects

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FDA Updates Draft Guidance on Promotional Labeling and Advertising Considerations for Biological Reference Products and Biosimilars

On April 25, 2024, FDA published a revised draft guidance, Promotional Labeling and Advertising Considerations for Prescription Biological Reference Products, Biosimilar Products, and Interchangeable Biosimilar Products –…more

Advertising, Biosimilars, Draft Guidance, Food and Drug Administration (FDA), Interchangeability

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EPA Rejects Clean Water Act “Conduit Theory”

Whether a discharge to groundwater that results in pollution of jurisdictional surface waters is regulated under the Clean Water Act (the “CWA”) is the subject of much debate, conflicting decisions from the Circuit Courts of…more

Appeals, Clean Water Act, Discharge of Pollutants, Environmental Protection Agency (EPA), Groundwater

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U.S. Supreme Court Unanimously Rules On Standing Requirements For Section 11 Claims In Direct Listings

On June 1, 2023, the United States Supreme Court unanimously held that a stockholder bringing claims under Section 11 of the Securities Act of 1933 must plead and prove that they purchased shares traceable to the allegedly…more

Direct Listing, Initial Public Offering (IPO), NYSE, SCOTUS, Section 11

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California Court of Appeal Decision Highlights Importance of Technical Details in Billing Practices and Managed Care Agreements

Hospitals and other health care providers work hard to eliminate billing and coding errors, but mistakes still happen. When those mistakes occur, health plans sometimes try to capitalize on the error by using it as a basis to…more

Appeals, Billing, California, Health Care Providers, Managed Care Contracts

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Neiman Marcus Settles Data Breach Consumer Class Action For $1.6 Million

On June 21, 2017, the U.S. District Court for the Northern District of Illinois entered an order granting preliminary approval of a $1.6 million class action settlement between Neiman Marcus and a class of its customers whose…more

Class Action, Data Breach, Neiman Marcus, Personally Identifiable Information

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Surprise Year-End SEC Disgorgement Legislation Settles Some Issues but Raises Others

The legitimacy and scope of the SEC’s “disgorgement” remedy have been the focus of increasing scrutiny for the better part of the past decade. Among other things, two Supreme Court decisions in the past four years placed…more

Appropriation, Disgorgement, Investors, Kokesh v SEC, Liu v Securities and Exchange Commission

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ZATCA Clarifies the Requirements for Granting a 30-Year Tax Relief to Multinational Corporations under the Regional Headquarters Program

The Government of the Kingdom of Saudi Arabia (“Kingdom”) in February 2021 announced its objective to limit governmental contracting with multinational companies (“MNCs”) that do not have a Regional Headquarter (“RHQ”) in the…more

Income Taxes, Multinationals, Saudi Arabia, Withholding Tax

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COVID-19 Impacts on Businesses and Their Intellectual Property Rights

Part 2 of a 2 Part Series: Avoiding and/or Eliminating Loss of IP Rights During the COVID-19 Pandemic - As a follow-on to our series, COVID-19 Impacts on Businesses and Their Intellectual Property Rights, companies need to…more

Coronavirus/COVID-19, Domain Names, Intellectual Property Protection, Patents, Proprietary Information

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Florida Enacts Transformative Tort Reform Legislation

On Friday, March 24, 2023, Governor Ron DeSantis signed into law House Bill 837, providing an overhaul to tort law in the state of Florida. The new legislation makes transformative changes, including reducing the statute of…more

Attorney-Client Privilege, Bad Faith, Disclosure Requirements, Florida, Liability

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Surprise Year-End SEC Disgorgement Legislation Settles Some Issues but Raises Others

The legitimacy and scope of the SEC’s “disgorgement” remedy have been the focus of increasing scrutiny for the better part of the past decade. Among other things, two Supreme Court decisions in the past four years placed…more

Appropriation, Disgorgement, Investors, Kokesh v SEC, Liu v Securities and Exchange Commission

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Trade & Manufacturing - February 2019 #2

The World Trade Organization Predicts “Revolutionary” Impact for Blockchain Technology On Digital Global Trade - The World Trade Organization (“WTO”) recently published its report, entitled “Can Blockchain Revolutionize…more

Blockchain, Cross-Border Transactions, Distributed Ledger Technology (DLT), E-Commerce, Imports

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Hydrogen: State of Play in the GCC

Much has been written about the role of hydrogen in the context of energy transition and the path to net zero. Putting aside for the moment the degree of investment and innovation required to get from where we are now to where…more

Carbon Capture and Sequestration, EU, Financial Institutions, Fossil Fuel, Greenhouse Gas Emissions

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Tort Immunity under PREP Act and COVID-19 Response Declaration

Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), on March 17, 2020, the Secretary of Health and Human Services (“HHS”) published the Declaration Under the Public Readiness and Emergency Preparedness…more

Coronavirus/COVID-19, Department of Health and Human Services (HHS), Emergency Use Authorization (EUA), Food and Drug Administration (FDA), Immunity

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The United States Signs the 2019 Hague Judgments Convention

On March 1, 2022, the United States became the sixth State to sign the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“Judgments Convention”). If ratified, the…more

EU, Foreign Judgments, Hague Convention, SCOTUS, The Hague

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Florida Federal Court Denies Deutsche Bank’s Request for a New Trial Over Ponzi Scheme

On September 11, 2023, the U.S. District Court for the Southern District of Florida denied Deutsche Bank’s request for a new trial and required the bank to pay pre-judgment interest following a verdict handed down in April for…more

Deutsche Bank, Duty of Care, Florida, Fraud, Liquidation

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IRS Rules that Oil and Gas Infrastructure Assets Yield Good REIT Income

On February 15, 2019, the Internal Revenue Service (the “IRS”) released PLR 201907001 (the “Ruling”), a private letter ruling addressing whether certain income related to the leasing of an oil and gas platform, selling of…more

Capital Assets, Corporate Counsel, Equipment Lease, Internal Revenue Code (IRC), IRS

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Quick Cash – FCA and Pre-emption Group Announce a Series of Temporary Recommendations to Assist Companies in Raising Capital During COVID-19 Crisis / ‘Cash Box’ Placings

Yesterday, 8 April 2020, the Financial Conduct Authority (FCA) announced a series of measures in response to the coronavirus crisis designed to help issuers raise new capital while retaining an appropriate degree of investor…more

Banking Sector, EU, European Securities and Markets Authority (ESMA), Financial Conduct Authority (FCA), Financial Services Industry

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CMS Issues Revised Staff Vaccination Guidance

On October 26, 2022, CMS issued revised guidance on COVID-19 vaccination requirements for staff working for Medicare-certified and Medicaid-certified providers and suppliers. While the revised guidance was issued in separate…more

Ambulatory Surgery Centers, Centers for Disease Control and Prevention (CDC), Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Guidance Update

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Trade & Manufacturing - November 2019

China And The United States Reportedly Nearing A Deal On Trade Agreement United States - The United States and China are nearing the conclusion of negotiations for a limited trade agreement, which reportedly could be signed…more

Anti-Dumping Duty, China, India, Steel Industry, Tariffs

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The Ethereum Merge: Key Takeaways and Potential Regulatory Impact

The Merge is complete. A massive and long-anticipated software update to the Ethereum blockchain, the Merge went into effect on Thursday, September 15. Its implications are far reaching. The Ethereum blockchain is a pillar of…more

Bitcoin, Blockchain, CFTC, Cryptocurrency, Digital Assets

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Quantum Quarterly – Issue 11 – 2 Quarter 2019

We are pleased to present the latest edition of Quantum Quarterly, a publication of King & Spalding’s International Arbitration Practice Group. This edition kicks off with an interview with Howard Rosen of Secretariat in…more

Arbitration, Arbitration Awards, Arbitrators, Damages, Energy Sector

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Energy Newsletter - May 2021

Business and Human Rights: Energy and extractives in a changing landscape of new generation trade agreements protecting and promoting both trade and human rights - As allegations of genocide, forced labour, or widespread…more

Energy Sector, Enforcement Actions, Environmental Justice, Environmental Protection Agency (EPA), Human Rights

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Senators Introduce New Bill for Transparency and Oversight in Health Care Transactions and Investment

On April 3, 2024, Senators Ed Markey (D-Mass) and Elizabeth Warren (D-Mass) released draft legislation titled the “Health Over Wealth Act” (the Proposed Bill). This Proposed Bill is another attempt to regulate private equity’s…more

Department of Health and Human Services (HHS), Financial Transactions, Healthcare, Investigations, Investment

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2023 M&A Outlook: Recapping Key Takeaways from Dealmaking in 2022 and Navigating New Challenges

Coming off record-setting levels in 2021, M&A deal activity cooled in the second half of 2022. A multitude of factors – including soaring inflation, steadily rising interest rates and the higher cost of financing, geopolitical…more

Acquisitions, Borrowers, Corporate Counsel, Department of Justice (DOJ), Domestic Dealmaking

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France - A Charter for the Promotion of Medical Devices (Including IVD)

An ordinance (« arrêté ») was published in the French Official Gazette of 8 March 2022 that sets out a quality charter overseeing the professional practices of individuals responsible for the presentation of educational…more

Actors, Beneficiaries, Certifications, Corporate Monitoring, Food and Drug Administration (FDA)

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Updates to EPA’s Risk Management Program Immediately Effective After D.C. Circuit Issues Unexpected Early Mandate

On Friday, August 31, 2018, the U.S. Court of Appeals for the District of Columbia unexpectedly granted a request to issue its mandate expeditiously following its decision regarding the U.S. Environmental Protection Agency’s…more

Environmental Protection Agency (EPA), Regulatory Mandates, Risk Management

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Anti-Satellite Tests and the Growing Demand for Space Debris Mitigation

The threat of anti-satellite (ASAT) weapons is once again front and center in the news, raising questions about norms for responsible state behavior in space. ASAT tests are used by countries to destroy or incapacitate…more

Aerospace, EU, Innovative Technology, NASA, Satellites

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Recent SEC Enforcement Actions Reinforce the Importance of Effective Supervision, Policies, and Procedures for Broker-Dealers and Investment Advisers

A summer of Securities and Exchange Commission settlements involving registered broker-dealers and investment advisers demonstrates that the SEC remains firmly committed to regulating the conduct of these firms. These…more

Broker-Dealer, Enforcement Actions, Financial Institutions, Investment Adviser, Securities and Exchange Commission (SEC)

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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Environmental Justice and Civil Rights in U.S. Construction Projects

Since taking office two years ago, the Biden Administration has emphasized efforts to incorporate environmental justice considerations into federal agency permitting, funding and financial support decision-making. Environmental…more

Civil Rights Act, Construction Project, Department of Environmental Quality, Environmental Justice, Environmental Protection Agency (EPA)

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U.S. Supreme Court Will Rule on Whether Section 1782 Discovery is Available for Use in Private Foreign Commercial Arbitrations

In a highly anticipated decision, the U.S. Supreme Court has granted certiorari in Servotronics, Inc. v. Rolls-Royce PLC, et al. and agreed to address the question of whether federal courts may authorize discovery pursuant to 28…more

Certiorari, Commercial Arbitration, Discovery, Federal Arbitration Act, International Arbitration

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Rule 192

On January 25, 2023, the Securities and Exchange Commission (“SEC”) issued a release reproposing new Rule 192 (the “Proposed Rule”) under the Securities Act of 1933 (the “Securities Act”), which is intended to prevent the sale…more

Asset-Backed Securities, Conflicts of Interest, Dodd-Frank, Liquidity, Proposed Rules

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Zeitlich befristete Änderung der Insolvenzantragspflicht wegen Überschuldung

Erneute Lockerung der Insolvenzantragspflicht durch das SanInsKG - Mit dem „Gesetz zur vorübergehenden Anpassung sanierungs- und insolvenzrechtlicher Vorschriften zur Abmilderung von Krisenfolgen“ (kurz: Sanierungs- und…more

Coronavirus/COVID-19, Insolvency, Liability, Reorganizations, Restructuring

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Lender Can Continue Policy of Eligibility Requirements for Small Business Loans

On April 13, 2020, the United States District Court for the District of Maryland (the “Court”) sided with Bank of America (“BofA”) by denying a request for a temporary restraining order (“TRO”) and preliminary injunction sought…more

Bank of America, Class Action, Discriminatory Lending Practices, Maryland, Paycheck Protection Program (PPP)

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German Art Copyright Act Applies Even With GDPR In Effect

On June 18, 2018, the Cologne Court of Appeal decided that provisions of the German Act on the Protection of Copyright in Works of Art and Photographs (“KUG”) regarding the publication of photos for journalistic reporting will…more

Cease and Desist, Copyright, General Data Protection Regulation (GDPR), Germany

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Dismissal of Securities Claims Against Utah Biotech Company Provides Guidance in Securities Cases Involving Food & Drug Administration Form 483 Inspections

A district court in Utah recently dismissed claims brought against a biotechnology company and its officers under Section 10(b) of the Securities Exchange Act and Rule 10b-5 adopted thereunder. The order in Richfield v…more

Biotechnology, Dismissals, Food and Drug Administration (FDA), Investigational New Drug Application (IND), License Applications

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US Dollar Term SOFR is Here – Why is This Different and How Does it Affect My Loan?

On July 29th, 2021, the Alternative Rates Reference Committee (the “ARRC”) formally recommended the adoption of CME Group’s forward-looking Secured Overnight Financing Rate (“SOFR”) term rates. According to the ARRC, this…more

Alternative Reference Rates Committee (ARRC), Borrowing Statutes, Financial Conduct Authority (FCA), Lending, Libor

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English High Court Rules That Compliance With Pre-Arbitration Negotiation Periods Incapable of Challenge on Jurisdictional Grounds

Republic of Sierra Leone v SL Mining - The English High Court (Sir Michael Burton GBE) has handed down a significant judgment dismissing a challenge to a Tribunal’s jurisdiction under section 67 of the Arbitration Act 1996 -…more

International Arbitration, International Chamber of Commerce (ICC), Jurisdiction, Mining, Sierra Leone

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India to Promote Mining of Lithium and Five Other Critical Minerals

On 2 August 2023, India’s Parliament passed the Mines and Minerals (Development and Regulation) Amendment Bill, 2023 (“Amendment Bill”) to amend the Mines and Minerals (Development and Regulation) Act, 1957 (“Act”). The Act…more

Atomic Energy, India, Mineral Exploration, Mineral Leases, Minerals

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FinCEN Proposes Rule to Extend Bank Secrecy Act Obligations to Certain Investment Advisers

The Proposed Rule Would Subject Certain Investment Advisers to a Broad Range of AML/CFT Obligations and Represents a Significant Development for the Sector - Regulators have long considered the lack of anti-money laundering…more

AML/CFT, Bank Secrecy Act, Broker-Dealer, BSA/AML, Compliance

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Court Holds a Market-Tested Transaction Is Not a Fraudulent Transfer

On June 14, 2023, the United States Bankruptcy Court for the District of Delaware entered judgment for the defendants, the former owners of Samson Investment Company (the “SIC”), in a fraudulent transfer action brought by…more

Bankruptcy Court, Chapter 11, Fraudulent Transfers, Liquidation, Trustees

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Dismissal of Securities Claims Against Utah Biotech Company Provides Guidance in Securities Cases Involving Food & Drug Administration Form 483 Inspections

A district court in Utah recently dismissed claims brought against a biotechnology company and its officers under Section 10(b) of the Securities Exchange Act and Rule 10b-5 adopted thereunder. The order in Richfield v…more

Biotechnology, Dismissals, Food and Drug Administration (FDA), Investigational New Drug Application (IND), License Applications

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Energy Newsletter - June 2020

The Impact of COVID-19 on Nuclear Electricity Sales Contracts in France - The electricity sector, like numerous others in France, has been heavily affected by the economic shutdown due to the COVID-19 pandemic. The first…more

Administrative Hearings, Amended Rules, CARB, Climate Change, Commercial Bankruptcy

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BGH erklärt sog. Schriftformheilungsklauseln in Gewerberaummietverträgen für unwirksam

Der für das Gewerberaummietrecht zuständige 12. Zivilsenat des Bundesgerichtshofs („BGH“) hat am 27.09.2017 mit einem Paukenschlag die hier beigefügte Entscheidung verkündet, in welchem er zu der seit einigen Jahren kontrovers…more

Commercial Leases, Germany, Tenants

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Neiman Marcus and The Fiduciary Duties of Creditors’ Committee Members

Creditors who are members of an official committee of unsecured creditors in a bankruptcy owe fiduciary duties to other unsecured creditors and to other committee members. In this article on the Neiman Marcus bankruptcy, the…more

Chapter 11, Committee Members, Creditors, Fiduciary Duty, Fraud

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COVID-19 Return to Work Q&A: Premises Liability Issues

As I open my business to customers, could I be at risk of customer and employee lawsuits based on COVID-19? Yes, you could be at risk for personal injury or other tort claims because under the law in most states, a business…more

Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Liability, OSHA, Workplace Safety

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SEC Adopts Rules Requiring Certain Trading Entities, Including Certain Investment Advisers and Private Funds, to Register as Broker-Dealers

Section 3(a)(5) of the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”) defines a “dealer” as “any person engaged in the business of buying and selling securities […] for such person’s own account…more

Anti-Avoidance, Broker-Dealer, Investment Adviser, Liquidity, New Rules

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Bye-Bye Big Boys? The SEC Turns its Enforcement Focus to Private Deals

On April 4, 2023, the U.S. Securities and Exchange Commission (“SEC”) filed suit against Charlie Javice, the 31-year-old founder of Frank, a student loan and financial aid assistance company. That same day, the U.S. Attorney’s…more

Bank Fraud, Department of Justice (DOJ), Enforcement, Financial Aid, Penalties

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False Advertising Claims in the U.S. – Even “Corny” Disputes Are No Laughing Matter

A significant percentage of a company’s total budget may be spent on advertising and promotion. Commercials, social media campaigns, contests, billboards, print ads, and point-of-sale displays all take time to design, develop,…more

Advertising, Anheuser-Busch, Beer, Defense Strategies, False Advertising

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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ELTIF 2 Chancen und Defizite

BaFin veröffentlicht einen FAQ zur überarbeiteten ELTIF-Verordnung - Am 1. Februar 2024 hat die Bundesanstalt für Finanzdienstleistungs­aufsicht (BaFin) ein FAQ zur am 10. Januar 2024 in Kraft getretenen, überarbeiteten…more

BaFin, Banking Sector, ELTIF, EU, Financial Institutions

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OIG Increases Expectations for Compliance Officers in Its New Compliance Program Guidance – What Compliance Officers at Pharmaceutical and Medical Device Companies Need to Consider

On November 6, 2023, the U.S. Department of Health and Human Services Office of Inspector General (“OIG”) issued its anticipated General Compliance Program Guidance (“GCPG”) for the health care industry. The GCPG serves as a…more

Chief Compliance Officers, Compliance, Corporate Integrity Agreement, Disclosure Requirements, Enforcement

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Second Circuit Reverses District Court’s Marblegate Decision; Narrows Protections Provided to Bondholders Under Section 316(b) of Trust Indenture Act

The Trust Indenture Act of 1939 (the “TIA”) codifies a select set of requirements and prohibitions intended to protect perceived “sacred rights” of holders of public bond instruments. When the U.S. District Court for the…more

Bonds, Creditors, Financial Institutions, Section 316(b), Secured Debt

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Searching for the Reasonable Consumer

Every state prohibits the use of false or misleading advertising on food labeling. In many food false advertising cases, the battleground is whether the “reasonable consumer” would be deceived by the challenged label statement,…more

Appeals, False Statements, Food Labeling, Motion to Dismiss, Omissions

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Russia Moves Closer to Nationalizing Businesses Intending to Exit Russia

Since Russia’s invasion of Ukraine, some 300 large international companies have announced intentions to scale back or shut down operations within Russia. On March 7, Russia’s ruling party reacted to the exodus by announcing that…more

Arbitration, Business Closures, Economic Sanctions, Foreign Corporations, Russia

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Supreme Court Rejects Government's Broad Use of the Aggravated Identity Theft Statute to Impose Two-Year Mandatory Minimum Sentences in Fraud Cases

The aggravated identity theft statute, 18 U.S.C. §1028A, imposes a mandatory two-year sentencing enhancement upon a defendant who “uses” without lawful authority another’s means of identification “during and in relation to” an…more

Appeals, Dubin v United States, En Banc Review, Felonies, Fraud

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Oversight Subcommittee on the Coronavirus Crisis Continues to Actively Investigate the Previous Administration’s Pandemic Response

When announcing the Democratic members of the Select Subcommittee on the Coronavirus Crisis for the 117th Congress, Chairman Jim Clyburn (D-SC) stated that, “In order to improve our nation’s response, the Select Subcommittee…more

CARES Act, Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Department of Veterans Affairs, Economic Injury Disaster Loans

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Focus on Data Governance in Healthcare: Part One of a Three-part Series on Data Governance, Data Analytics and Artificial Intelligence

Hospital systems, provider groups, and other healthcare organizations are uniquely situated to drive technological innovation in the provision of healthcare services in large part because of the patient and other data to which…more

Artificial Intelligence, Data Breach, Governance Standards, Health Insurance Portability and Accountability Act (HIPAA), Healthcare

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FDA Releases Guidance on Testing High-Risk Drug Components for Diethylene Glycol and Ethylene Glycol

On May 10, the U.S. Food and Drug Administration (“FDA”) released a new guidance document Guidance for Industry: Testing of Glycerin, Propylene Glycol, Maltitol Solution, Hydrogenated Starch Hydrolysate, Sorbitol Solution, and…more

Contamination, Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA), New Guidance, Pharmaceutical Industry

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Medicare Advantage Payors Have Not Redressed 340B Underpayments

CMS recently published its remedy in response to the Supreme Court’s decision that CMS’s 340B outpatient drug payment policy violated the Medicare statute. Many hospitals that are 340B covered entities will now receive tens of…more

Centers for Medicare & Medicaid Services (CMS), Covered Entities, Final Rules, Hospitals, Medicare Advantage

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Guidance on Section 45V Clean Hydrogen Production Tax Credit

The trajectory of the hydrogen sector in the United States hinges on a critical question: what criteria will be used to define the term “clean hydrogen” for tax purposes? As previously outlined in our Field Guide to Clean…more

Clean Air Act, Department of Energy (DOE), Environmental Protection Agency (EPA), EU, Greenhouse Gas Emissions

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New OSHA Silica Rule Deadline Is Rapidly Approaching – Are You Ready?

While the Summer of 2018 may seem far away, companies should be preparing now to be ready to meet the significant new requirements of the U.S. Occupational Safety and Health Administration’s (“OSHA”) new rule for respirable…more

New Regulations, OSHA, Silica, Toxic Exposure, Workplace Hazards

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Energy Newsletter - March 2020

Disrupting the Disruptor: How a Prepared and Proactive Owner Can Mitigate the Effects of Coronavirus on Construction Projects - Once a remote health issue in China, the rapidly spreading coronavirus (COVID-19) has become not…more

Construction Project, Coronavirus/COVID-19, Energy Sector, Final Rules, Force Majeure Clause

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What’s Trending Across Asia in the Data, Privacy and Security Space?

As we live and work in an increasingly globalized and computerized world, data, privacy and security (DPS) issues will converge across regions. Asia, however, has some of its own unique challenges trending as we discuss below. …more

Cross-Border, Cyber Attacks, Cybersecurity, Data Breach, Data Privacy

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Revised PhRMA Code Provides Stricter Controls on HCP Speaker Programs

The Revised PhRMA Code Takes Effect January 1, 2022 - On August 6, 2021, the Pharmaceutical Research and Manufacturers of America (PhRMA) released highly anticipated revisions to its Code on Interactions with Health Care…more

Compliance, Department of Health and Human Services (HHS), Fraud, Healthcare Workers, New Guidance

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CMS Issues Final Rule Requiring the Disclosure of Drug List Prices in Direct-to-Consumer Television Ads

The Final Rule Requires Manufacturers to Disclose List Prices of Prescription Drugs and Biological Products in Television Advertisements - On May 8, 2019, the U.S. Department of Health and Human Services (HHS or the…more

Administrative Authority, Advertising, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Direct to Consumer Sales

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Senators Issue Letter Pressing the Internal Revenue Service for More Transparency Over Nonprofit Community Hospitals

On August 7, 2023, a bipartisan group of four United States Senators issued a letter to the Internal Revenue Service (IRS), requesting information from the IRS on how it scrutinizes tax-exempt community hospitals. The letter…more

IRS, Medical Bills, Non-Profit Hospitals, Nonprofits, Tax Exemptions

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US Dollar Term SOFR is Here – Why is This Different and How Does it Affect My Loan?

On July 29th, 2021, the Alternative Rates Reference Committee (the “ARRC”) formally recommended the adoption of CME Group’s forward-looking Secured Overnight Financing Rate (“SOFR”) term rates. According to the ARRC, this…more

Alternative Reference Rates Committee (ARRC), Borrowing Statutes, Financial Conduct Authority (FCA), Lending, Libor

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Recent Court Ruling Illustrates The Perils Insurers Face When Sending Boilerplate Coverage Letters To Georgia Policyholders

Federal Court in Georgia Applies Hoover Rule Finding that Insurers Who Sent Denial Letters Waived Right to Assert Other Coverage Defenses Later. Eight years ago in Hoover v. Maxum Indemnity Co., 730 S.E.2d 413 (Ga. 2012),…more

Boilerplate Language, Denial of Insurance Coverage, False Claims Act (FCA), GA Supreme Court, Georgia

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The Age of Competition - The Supreme Court Decides the First BPCIA Case

In a landmark ruling for the biotech and pharmaceutical industries, a unanimous Supreme Court decided Sandoz Inc. v. Amgen Inc., 582 U.S. ____, Nos. 15-1039, 15-1195 (June 12, 2017), its first biosimilar case governed by the…more

aBLA, Biotechnology, BPCIA, Confidential Information, Opt-Outs

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Congressmembers Send Letter to Departments Raising Provider Concerns with No Surprises Act Implementation

On March 18, 2024, thirty-nine (39) members of the United States House of Representatives sent a letter urging federal agencies to finalizing rulemaking regarding the implementation of the No Surprises Act. The letter, addressed…more

Department of Health and Human Services (HHS), Department of Labor (DOL), Dispute Resolution, Enforcement, Final Rules

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Potential Remedies for Russia’s Suspension of Foreign Investors’ Intellectual Property Rights

Potential Remedies for Russia’s Suspension of Foreign Investors’ Intellectual Property Rights: International Investment Arbitration - Foreign investors in Russia may have remedies pursuant to international investment treaties…more

Bilateral Investment Treaties, Economic Sanctions, Foreign Investment, Intellectual Property Protection, International Arbitration

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Indonesia Introduces CCS/CCUS Regulation

Indonesia has set an ambitious target to reach net zero emissions by 2060. The deployment of clean energy technologies, such as carbon capture and storage (“CCS”) and carbon capture, utilization and storage (“CCUS”), will play…more

Carbon Capture and Sequestration, Carbon Emissions, Contractors, Energy Sector, Indonesia

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Mallory Opinion: Constitutionality Of Jurisdiction By Registration May Be A Mirage

The Supreme Court’s recent opinion in Mallory v. Norfolk Southern Railway Co.. concerned the constitutionality of a Pennsylvania statute providing that registering to do business in the state constitutes a sufficient basis for…more

Commerce Clause, Constitutional Challenges, Due Process, Foreign Corporations, Fourteenth Amendment

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Supreme Court Stays OSHA Vaccine-or-Test Mandate for Large Businesses

On January 13, 2022, the Supreme Court issued its first rulings related to the Biden Administration’s COVID-19 vaccine mandates. In the case of NFIB v. OSHA, by a vote of 6-3, the Court held that the COVID-19 vaccination and…more

Centers for Medicare & Medicaid Services (CMS), Constitutional Challenges, Coronavirus/COVID-19, Employer Mandates, OSHA

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And So It Begins: The First DFS Transition Period Comes to an End August 28

In September 2016, the New York Department of Financial Services (“DFS”) introduced the first draft of its cybersecurity regulation, which is now in a position to lead a new trend in industry-specific cybersecurity regulation…more

Cybersecurity, Department of Financial Services, Incident Response Plans, Risk Assessment

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FDA Warns Drug & Device Firms Against Delaying & Limiting Facility Inspections in New Draft Guidance

On December 16, 2022, the U.S. Food & Drug Administration (“FDA” or “Agency”) published an important and noteworthy draft guidance document entitled “Circumstances that Constitute Delaying, Denying, Limiting, or Refusing a Drug…more

Citations, Draft Guidance, FDARA, FDASIA, Federal Food Drug and Cosmetic Act (FFDCA)

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FTC Announces First Enforcement of the Health Breach Notification Rule

On February 1, the Federal Trade Commission (“FTC”) announced its first enforcement action under the Health Breach Notification Rule (“HBNR” or “Rule”) against GoodRx, a direct-to-consumer digital healthcare and prescription…more

Application Programming Interface (APIs), Breach Notification Rule, Data Privacy, Enforcement, Federal Trade Commission (FTC)

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U.S. DOE Releases Report on Clean Hydrogen Strategy and Roadmap

The United States recently took another important step in implementing a comprehensive strategy to advance the production, processing, delivery, storage, and use of clean hydrogen. On June 5, 2023, the Biden-Harris…more

Carbon Capture and Sequestration, Carbon Emissions, Clean Energy, Department of Energy (DOE), Energy Projects

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Mallory Opinion: Constitutionality Of Jurisdiction By Registration May Be A Mirage

The Supreme Court’s recent opinion in Mallory v. Norfolk Southern Railway Co.. concerned the constitutionality of a Pennsylvania statute providing that registering to do business in the state constitutes a sufficient basis for…more

Commerce Clause, Constitutional Challenges, Due Process, Foreign Corporations, Fourteenth Amendment

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Industry-Focused American Rescue Plan Act Summary – Aviation

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARP Act) into law, which provides approximately $1.9 trillion in financial assistance to individuals and industries impacted by COVID-19. The ARP…more

American Rescue Plan Act of 2021, Aviation Industry, CARES Act, Consolidated Appropriations Act (CAA), Coronavirus/COVID-19

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Trump Administration Continues to Promote Drug Importation as a Way to Lower the Cost of Prescription Drugs

On July 24, 2020, President Trump issued a series of Executive Orders to address prescription drug costs, one of which specifically focuses on facilitating drug importation, a longstanding goal of the Trump Administration. That…more

Department of Health and Human Services (HHS), Executive Orders, Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA), Medicare Prescription Drug Improvement and Modernization Act (MMA)

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Managing Securities Litigation Risks in a Time of Coronavirus Insecurities

Spiraling fears over the coronavirus and the multiplication of virus outbreaks across the globe have impacted the worldwide economy, threatened supply chains, and caused severe stock market declines and disruptions in the U.S…more

Coronavirus/COVID-19, Disclosure Requirements, Infectious Diseases, MD&A Statements, PSLRA

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Recent SEC Settlements Reveal a Roadmap for Resolving Investigations of Unregistered Initial Coin Offerings

Since at least July 2017, when the Securities and Exchange Commission (SEC) announced it expected initial coin offerings (ICOs) to either register under U.S. securities laws or qualify for an exemption, crypto-market…more

Corporate Counsel, Cryptocurrency, Financial Services Industry, Initial Coin Offering (ICOs), Popular

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Saudi PPPs - Assessing the Impact of the Saudi Privatisation Law

Twelve months have passed since the Private Sector Participation Law (the Privatisation Law) was published in Umm Al-Qura, the Official Gazette of the Kingdom of Saudi Arabia (the Kingdom), with the objectives of increasing…more

Dispute Resolution, Foreign Direct Investment, Investment, Lenders, Payment Systems

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Viewpoints - Issue 32 - Engaging with Institutional Investors

The dramatic shifts in the investment landscape—from individual to institutional shareholders and from actively managed funds to indices—have put pressure on boards to strengthen governance and oversight practices. On July 19,…more

Institutional Investors, Investors, Proxy Voting Guidelines

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The Age of Competition - The Supreme Court Decides the First BPCIA Case

In a landmark ruling for the biotech and pharmaceutical industries, a unanimous Supreme Court decided Sandoz Inc. v. Amgen Inc., 582 U.S. ____, Nos. 15-1039, 15-1195 (June 12, 2017), its first biosimilar case governed by the…more

aBLA, Biotechnology, BPCIA, Confidential Information, Opt-Outs

See all updates »

HHS Issues Proposed Rule to Update Anti-Kickback Statute Safe Harbors – What Does it Mean for Life Sciences Companies?

HHS’ Proposals are Designed to Promote Patient Care Coordination, Management, and Efficiencies, and Include Several Points of Interest for Pharmaceutical and Medical Device Manufacturers - In today’s Federal Register, the…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Comment Period, Cybersecurity, Department of Health and Human Services (HHS)

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Energy Newsletter - December 2019

Rekindling the Flame: Oil & Gas Securitizations - A number of recent structurings of investment-grade rated securitizations of oil and gas wells are sparking conversations in the U.S. upstream oil and gas industry about this…more

Arbitration, Climate Change, Energy Sector, Green Buildings, International Chamber of Commerce (ICC)

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Spotlight: PFAS Remediation and the Infrastructure Act

Signed into law on November 15, 2021, the landmark Infrastructure Investment and Jobs Act allocates $10 billion for the remediation of PFAS in drinking water. In turn, the bill divides the $10 billion into three categories: (1)…more

Clean Water Act, Environmental Protection Agency (EPA), Infrastructure Investment and Jobs Act (IIJA), PFAS, Safe Drinking Water Act

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Mexico Enacts New Legal Regime for Mining Concessions

On May 8, 2023, Mexico enacted an amendment in matters pertaining to mining and water to its mining law; national waters law; general law for ecologic equilibrium and environmental protection (LGEEPA); and general law for the…more

Compensation, Environmental Social & Governance (ESG), Mexico, New Amendments

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President Biden's Executive Order on AI - Legal Practice Snapshots

On October 30, 2023, President Biden published a landmark Executive Order regarding the use of Artificial Intelligence (“AI”) with an accompanying Fact Sheet, touching on the opportunities these systems present along with their…more

Antitrust Division, Artificial Intelligence, Biden Administration, Cybersecurity, Data Privacy

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DOJ Announces Civil CyberFraud Initiative to Use False Claims Act to Enforce Cybersecurity Standards in Government Contracts

On October 6, the Deputy Attorney General (“DAG”) announced a new Department of Justice (“DOJ”) Civil Cyber-Fraud Initiative – an effort that pulls together attorneys and experts across DOJ focused on fraud enforcement,…more

Compliance, Critical Infrastructure Sectors, Cyber Attacks, Cybersecurity, Department of Justice (DOJ)

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Mallory Opinion: Constitutionality Of Jurisdiction By Registration May Be A Mirage

The Supreme Court’s recent opinion in Mallory v. Norfolk Southern Railway Co.. concerned the constitutionality of a Pennsylvania statute providing that registering to do business in the state constitutes a sufficient basis for…more

Commerce Clause, Constitutional Challenges, Due Process, Foreign Corporations, Fourteenth Amendment

See all updates »

Infrastructure Bill Paves the Way for New Energy Investments and Technology

In November 2021, “[t]he United States House of Representatives passed the Infrastructure Investment and Jobs Act, a once-in-generation bipartisan infrastructure bill that will create millions of jobs, turn the climate crisis…more

Carbon Capture and Sequestration, Climate Action Plan, Climate Change, Department of Energy (DOE), Electric Vehicles

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Inflation Reduction Act of 2022 Doubles Down on Environmental Justice

Today, August 16, 2022, President Biden signed into law the fiercely negotiated and long anticipated Inflation Reduction Act of 2022 (“IRA”). Among other things, the IRA provides a significant boost, including approximately $60…more

Clean Air Act, Climate Change, Department of Environmental Quality, Department of Health and Human Services (HHS), Department of Justice (DOJ)

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USTR Announces Fourth Group of Chinese Products to Be Subject to Additional Tariffs as A Result of Section 301 Investigation; Schedule of Comments and Public Hearing Set

USTR on May 13, 2019 announced that it proposed to impose additional tariffs on products of China with an annual trade of approximately $300 billion pursuant to a Section 301 investigation commenced in August 2017 regarding…more

China, Comment Period, Imports, Public Hearing, Tariffs

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False Claims Act Considerations Related to the CARES Act's Small Business Administration Loan Program

On March 27, 2020, Congress passed the Coronavirus Aid, Relief and Economic Security (CARES) Act, which authorized $2.2 trillion to, among other things, help companies and individuals mitigate the financial repercussions caused…more

Banks, Business Closures, Business Interruption, CARES Act, Centers for Medicare & Medicaid Services (CMS)

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UK launches review of the Arbitration Act 1996 to ensure a ‘state of the art’ system

Last week, the Law Commission published a consultation paper regarding the Arbitration Act 1996 (the “Act”), which is the key piece of legislation that regulates arbitration in England and Wales. The consultation paper starts by…more

Appeals, Arbitration, Discrimination, Duty of Confidentiality, International Arbitration

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New York Appellate Court Keeps Power Plant Lawsuit Against Lenders Alive

On July 13, 2023, a New York intermediate appellate court held that Iberdrola could continue pursuing all but one of its claims against a bevy of lenders in connection with a construction contract for a power plant in…more

Appellate Courts, Arbitration Awards, Construction Contracts, Lenders, Letter of Credit

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NY Department of Financial Services Statement on Climate Change: Implications for the Financial Sector

State regulatory statements and guidelines for climate change readiness are emerging independent of federal government action. As climate change is not just about future impacts, financial institutions are compelled to…more

Business Strategies, Climate Change, Financial Institutions, Fossil Fuel, New Guidance

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SEC Returns Spotlight to Cybersecurity Disclosure Enforcement

On June 15, the Securities and Exchange Commission announced a settlement with First American Financial Corporation for what the SEC found were inadequate disclosure controls and procedural violations, revealed in connection…more

Broker-Dealer, Cybersecurity, Disclosure Requirements, Enforcement Actions, Investment Adviser

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H2 2021: Latin America Enforcement Review

To close out 2021, enforcement authorities throughout the Americas continued to investigate fraud, corruption, and other misconduct across the region. For 2022, we expect an uptick of anticorruption investigations as a result…more

Anti-Corruption, Anti-Money Laundering, Biden Administration, Corporate Counsel, Corruption

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OIG Study Finds States Are Not Using Medicaid Payment Suspensions

A recent HHS OIG review of 2014 data on fraud allegations found that significant challenges were limiting the States’ use of payment suspensions, even in the face of what CMS determined were credible allegations of provider…more

Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Medicaid, OIG

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Gas Stove Ban Update: Ninth Circuit Says "No" to City of Berkeley Ban on Gas Stoves

The gas stove wars continue to heat up. On April 17, 2023, the United States Court of Appeals for the Ninth Circuit took a stand and ruled that the City of Berkeley does not have the authority to prohibit connecting natural gas…more

Appeals, Consumer Product Safety Commission (CPSC), Department of Energy (DOE), ECPA, Natural Gas

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EU Council Approves Corporate Sustainability Due Diligence Directive

On 15 March 2024, the European Council approved the Corporate Sustainability Due Diligence Directive (“CSDDD” or “Directive”). If approved by the European Parliament and entered into force, the CSDDD will require large EU and…more

Batteries, Child Labor, Corporate Counsel, Due Diligence, EU

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SRS vs. Gilead Sciences: Delaware Chancery Court finding that "indication" means "disease" allows Gilead not to make $50M Milestone Payment

In Shareholder Representative Services (SRS) vs. Gilead Sciences et al., an opinion issued on March 15, 2017, the Chancery Court of the State of Delaware found that the term “indication” means “disease” for purposes of a $50M…more

Gilead Sciences, Merger Agreements, Mergers, Pharmaceutical Industry

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Price Negotiation, Medicare Rebates, and Benefit Reform

Key Drug Pricing Implications of the Inflation Reduction Act of 2022 - I. Introduction - On Sunday, August 7, 2022, the United States Senate passed the most consequential drug and biologics pricing legislation in almost…more

Department of Health and Human Services (HHS), Drug Pricing, Healthcare Reform, Medicaid Drug Rebate Program, Medicare

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SEC Adopts Rules Requiring Certain Trading Entities, Including Certain Investment Advisers and Private Funds, to Register as Broker-Dealers

Section 3(a)(5) of the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”) defines a “dealer” as “any person engaged in the business of buying and selling securities […] for such person’s own account…more

Anti-Avoidance, Broker-Dealer, Investment Adviser, Liquidity, New Rules

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Energy Newsletter - June 2018

Lessons for Sellers in Contracting with Emerging Market Buyers: The “Three R’s” to Structuring Payment Security Provisions - The recent rebound in the international energy industry is being driven, at least in part, by a…more

BSEE, Cloud Computing, Energy Policy, Energy Sector, Exports

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Congress Restores Application of Federal Antitrust Laws to Health Insurers

On December 23, 2020, the U.S. Senate unanimously passed the Competitive Health Insurance Reform Act of 2020, which includes a provision that would repeal the limited federal antitrust immunity currently granted to certain…more

Appeals, Department of Justice (DOJ), Health Insurance, Healthcare Reform, Insurance Industry

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Mexico Enacts New Legal Regime for Mining Concessions

On May 8, 2023, Mexico enacted an amendment in matters pertaining to mining and water to its mining law; national waters law; general law for ecologic equilibrium and environmental protection (LGEEPA); and general law for the…more

Compensation, Environmental Social & Governance (ESG), Mexico, New Amendments

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Key Recent Developments In Environmental Justice Litigation

Louisiana remains at the forefront of environmental justice activity. In just four days from January 19 to January 23, 2024, two courts in Louisiana offered interpretations to environmental justice efforts in the State of…more

Anti-Discrimination Policies, Appeals, Civil Rights Act, Clean Air Act, Department of Environmental Quality

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Congress Restores Application of Federal Antitrust Laws to Health Insurers

On December 23, 2020, the U.S. Senate unanimously passed the Competitive Health Insurance Reform Act of 2020, which includes a provision that would repeal the limited federal antitrust immunity currently granted to certain…more

Appeals, Department of Justice (DOJ), Health Insurance, Healthcare Reform, Insurance Industry

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EU Council Approves Corporate Sustainability Due Diligence Directive

On 15 March 2024, the European Council approved the Corporate Sustainability Due Diligence Directive (“CSDDD” or “Directive”). If approved by the European Parliament and entered into force, the CSDDD will require large EU and…more

Batteries, Child Labor, Corporate Counsel, Due Diligence, EU

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LDT Final Rule: Shifting the LDT Battlefield

On April 29, 2024, the Food and Drug Administration (“FDA” or “the Agency”) released a pre-publication version of the highly anticipated laboratory developed test final rule (“LDT Final Rule”). The LDT Final Rule is scheduled…more

Compliance, Enforcement, False Statements, Federal Food Drug and Cosmetic Act (FFDCA), Final Rules

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Are Pharma Speaker Programs Facing an Existential Crisis?

Exploring the Implications of HHS-OIG’s Special Fraud Alert and Groundbreaking Novartis CIA Requirements on Compliance Program Policies and Controls that Govern Speaker Programs - A Special Fraud Alert issued by the U.S…more

Anti-Kickback Statute, Corporate Integrity Agreement, Department of Health and Human Services (HHS), Department of Justice (DOJ), Fraud

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Anti-Satellite Tests and the Growing Demand for Space Debris Mitigation

The threat of anti-satellite (ASAT) weapons is once again front and center in the news, raising questions about norms for responsible state behavior in space. ASAT tests are used by countries to destroy or incapacitate…more

Aerospace, EU, Innovative Technology, NASA, Satellites

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A New Game In Town: Concepts and Opportunities in Direct-to-Provider Contracts

As employers look for new ways to control healthcare costs and provide innovative healthcare offerings to their employees, employers are starting to consider the “direct-to-provider” contracting model as a way to achieve these…more

Employee Benefits, Employee Retirement Income Security Act (ERISA), Employer Group Health Plans, Health Insurance, Preemption

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Constitutional Limitations On Emergency Authority

Lessons For The COVID-19 Pandemic Landscape - INTRODUCTION - Over the last two months, there has been a flurry of federal, state, and local government action to stem the spread of COVID-19. These efforts have included a…more

Coronavirus/COVID-19, Due Process, Emergency Powers, Executive Orders, Fifth Amendment

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Checklist for Non-U.S. Fund Managers Making a Private Fund Offering in the U.S.

The United States represents a large source of potential capitalthat non-U.S. fund managers often find impossible to ignore. To assist non-U.S. fund managers, we have prepared a checklist that sets out key considerations for…more

Accredited Investors, Advertising, Blue Sky Laws, CFTC, Due Diligence

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The SEC Is Sending Signals Regarding Advisory Fees and Expenses — Are Investment Advisers Listening?

In recent years, the U.S. Securities and Exchange Commission’s Office of Inspections and Examinations (“OCIE”) has prioritized, in its examinations, the review of the fee billing and expense practices of investment advisers. The…more

Enforcement Actions, Investment Adviser, OCIE, Securities and Exchange Commission (SEC)

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Energy Newsletter - October 2016

Negotiating an In-Project Construction Dispute - Many thorny and competing interests are implicated when an ongoing major construction project experiences an unanticipated event that impacts the project schedule or costs,…more

Construction Contracts, Construction Industry, Construction Project, De Novo Standard of Review, Due Process

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Term SOFR is Open for Business

On July 29th, 2021, the Alternative Reference Rate Committee (“ARRC”) formally recommended the adoption of CME Group’s forward-looking Secured Overnight Financing Rate term rates (“Term SOFR”). This announcement completes the…more

Alternative Reference Rates Committee (ARRC), Banking Sector, Libor, Secured Overnight Funding Rate (SOFR), Securities and Exchange Commission (SEC)

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Supreme Court Poised To Decide What Allegations Make The Grade In University Fee Case, With Broader Implications For ERISA Retirement Plan Fiduciaries

Last month, the U.S. Supreme Court heard argument in an ERISA case that could have sweeping ramifications for retirement plan fiduciaries. The case—Hughes v. Northwestern University—tees up a threshold question that has vexed…more

401k, Class Action, Employee Benefits, Employee Retirement Income Security Act (ERISA), Fiduciary Duty

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France – New Offense of Providing Instruments to Facilitate Tax Fraud

The fight against tax fraud occupies a central place in the French Finance Act for 2024. Among the various proposals is the new Article 1744 of the French tax code, which creates the offense of making instruments available…more

France, Money Laundering, Penalties, Tax Code, Tax Fraud

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Paris Court of Appeal Addresses Constitution of Tribunal in OIC Investment Arbitration

On March 23, 2021, the Paris Court of Appeal issued a decision with important ramifications for investors pursuing arbitration under the Agreement for the Promotion, Protection and Guarantee of Investments Among Member States of…more

Appeals, Arbitration, Arbitrators, Foreign Tribunals, International Arbitration

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Assessing the Value of Intellectual Property Rights in M&A Deals Involving Government Contractors

Intellectual property (“IP”) rights can be one of the most valuable assets of a government contractor. There are several factors potential buyers can use to properly evaluate a government contractor’s IP in mergers and…more

Acquisitions, Bayh-Dole Act, Data Rights, Department of Defense (DOD), Federal Contractors

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NHTSA to Require Reporting of Crashes Involving SAE Automation Levels 2+

On June 29, 2021, the National Highway Traffic Safety Administration (NHTSA) issued a Standing General Order (SGO) to manufacturers and operators of Automated Driving Systems (ADS) and Level 2 Advanced Driver Assistance Systems…more

Automotive Industry, Confidential Business Information (CBI), Driverless Cars, Good Faith, Hardware

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Why Complete an Enterprise Risk Assessment

Your Organization’s best defense in an environment of aggressive regulators and litigious plaintiffs’ counsel is the completion of an enterprise risk assessment. Regulators and attorneys general are fining–sometimes hundreds of…more

Cybersecurity, Data Breach, Data Protection, Electronic Protected Health Information (ePHI), Enterprise Risks

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COVID as a Force Majeure Event - An Interesting and Unexpected Development in Singapore

The Appellate Division of the Singapore High Court recently provided the construction industry with interesting, and somewhat unexpected, guidance regarding COVID as a force majeure event in the context of construction…more

Appeals, Construction Contracts, Construction Industry, Coronavirus/COVID-19, Corporate Counsel

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Contracting for AI Technologies - Top Five Best Practices

Artificial intelligence (“AI”), including generative AI (“GAI”), has gained significant momentum in recent months due to its potential to transform how organizations create content, automate tasks, and provide personalized…more

Artificial Intelligence, Data Security, Disclosure Requirements, Due Diligence, Intellectual Property Protection

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Overview of REMIT for LNG Sellers to EU

With a robust demand for gas and a desire to reduce its reliance on Russian gas supplies, Europe is a market hotly pursued by liquefied natural gas (“LNG”) sellers and export project developers alike. Those seeking to sell to…more

Energy Sector, EU, Liquid Natural Gas, Oil & Gas, REMIT

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Rural Hospitals and Doctors Get HHS Assistance with New Payment Model

On August 11, 2020, the CMS Innovation Center, the office within HHS with authority to create and test healthcare payment systems, announced a new payment model – the Community Health Access and Rural Transformation (CHART)…more

ACOs, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Medicaid, Medicare

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Indonesia Introduces CCS/CCUS Regulation

Indonesia has set an ambitious target to reach net zero emissions by 2060. The deployment of clean energy technologies, such as carbon capture and storage (“CCS”) and carbon capture, utilization and storage (“CCUS”), will play…more

Carbon Capture and Sequestration, Carbon Emissions, Contractors, Energy Sector, Indonesia

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NHTSA to Require Reporting of Crashes Involving SAE Automation Levels 2+

On June 29, 2021, the National Highway Traffic Safety Administration (NHTSA) issued a Standing General Order (SGO) to manufacturers and operators of Automated Driving Systems (ADS) and Level 2 Advanced Driver Assistance Systems…more

Automotive Industry, Confidential Business Information (CBI), Driverless Cars, Good Faith, Hardware

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No Actual Harm, No Foul: No Standing In Federal Illinois BIPA Case

An Illinois federal court recently remanded a case back to Illinois state court after concluding, sua sponte, that it lacked subject matter jurisdiction over a privacy suit initiated by a class of employees asserting violations…more

Biometric Information Privacy Act, Data Collection, Fingerprints, Sua Sponte, Subject Matter Jurisdiction

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Saudi PPPs - Assessing the Impact of the Saudi Privatisation Law

Twelve months have passed since the Private Sector Participation Law (the Privatisation Law) was published in Umm Al-Qura, the Official Gazette of the Kingdom of Saudi Arabia (the Kingdom), with the objectives of increasing…more

Dispute Resolution, Foreign Direct Investment, Investment, Lenders, Payment Systems

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U.S. House of Representatives Establishes Select Committee on Strategic Competition with China

On January 10, 2023, the House of Representatives passed H.Res. 11 establishing the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party (the “Select Committee”). The resolution…more

China, Competition, Foreign Investment, Investigations, Popular

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Court of Appeal decision in SFO v ENRC: l itigation privilege wins the day (for now)

In an eagerly awaited judgment, the English Court of Appeal has today overturned an earlier decision narrowing the scope of litigation privilege in criminal investigations in the UK. The Court of Appeal ruled that interview…more

Appeals, Criminal Investigations, Internal Investigations, Litigation Privilege, Serious Fraud Office (SFO)

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Anti-Inversion Regulations Held to Violate Administrative Procedure Act

On September 29, 2017, the United States District Court for the Western District of Texas struck down a 2016 temporary regulation designed to limit corporate inversions(the “Rule”). Rule was simultaneously issued as a temporary…more

Administrative Procedure Act, Anti-Inversion Regulations, Arbitrary and Capricious, Corporate Taxes, Foreign Corporations

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SEC Amends Beneficial Ownership Reporting Requirements

On October 10, 2023, the Securities and Exchange Commission (the “Commission”) adopted final rules amending the beneficial ownership reporting requirements established by the Commission under Sections 13(d) and 13(g) of the…more

Beneficial Owner, Deadlines, Equity Securities, Final Rules, Investors

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FTC Issues Near-Total Ban on Non-Competes in Final Rule, with a Narrow Exception for Existing Agreements with “Senior Executives”

On April 23, 2024, the Federal Trade Commission (FTC), in a party-line vote, approved its final rule banning most non-compete agreements. The final rule bans all non-competes nationwide, including de facto non-competes,…more

Corporate Executives, Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC)

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DOL Expresses Extreme Skepticism About Allowing 401(k) Plan Participants to Invest in Cryptocurrency

On March 10, 2022, the U.S. Department of Labor (the “DOL”) issued Compliance Assistance Release No. 2022-01 (the “Release”) regarding 401(k) plan participant-directed investments in cryptocurrencies. The Release “cautions plan…more

401k, Cryptocurrency, Department of Labor (DOL), Digital Assets, Employee Retirement Income Security Act (ERISA)

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DIFC Courts Grant First Ever Anti-Suit Injunction

A clear message to parties that arbitration agreements providing for a DIFC seat must be respected In a landmark decision handed down by His Excellency Justice Shamlan Al Sawalehi in Multiplex Constructions LLC v Elemec…more

Abu Dhabi Global Markets (ADGM), ADGM Arbitration Guidelines, Anti-Suit Injunctions, Arbitration Agreements, DIFC

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Considering a Move to Texas? Here’s What You Need to Know About Patent Litigation

California-based tech companies have increasingly been moving their operations to Texas over the last two years, a trend that has only accelerated as remote and hybrid work have become a fact of life. Whether your company has…more

Inter Partes Review (IPR) Proceeding, Judges, Patent Litigation, Patents, Texas

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U.S. Supreme Court Will Rule on Whether Section 1782 Discovery is Available for Use in Private Foreign Commercial Arbitrations

In a highly anticipated decision, the U.S. Supreme Court has granted certiorari in Servotronics, Inc. v. Rolls-Royce PLC, et al. and agreed to address the question of whether federal courts may authorize discovery pursuant to 28…more

Certiorari, Commercial Arbitration, Discovery, Federal Arbitration Act, International Arbitration

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CMS Issues New Guidance Regarding Hospital Requirements for Informed Consent from Patients Undergoing Sensitive Examinations

On April 1, 2024, CMS released new guidance to reiterate and clarify hospital requirements for informed consent from patients with respect to medical professionals performing sensitive examinations, especially for patients under…more

Centers for Medicare & Medicaid Services (CMS), Health Insurance Portability and Accountability Act (HIPAA), Hospitals, Informed Consent, New Guidance

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CMS Seeks Recommendations On How To Regulate Individual and Small Group Health Insurance Markets

On June 8, 2017, CMS issued a statement announcing a request for information (RFI) seeking recommendations and input from the public “on how to create a more flexible, streamlined approach to the regulatory structure of the…more

Affordable Care Act, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Health Insurance, Request For Information

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Trade & Manufacturing - February 2019

Over the Horizon: The rise and fall of nuclear new build in the United Kingdom - September 2016 was supposed to herald the dawn of a new era for the nuclear power industry in the United Kingdom. The UK Government had…more

Chapter 11, Cross-Border Transactions, Energy Projects, Energy Sector, Make-Whole Premium

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A Guide to UK Tax on Commercial Real Estate: Non-Residents

1. Introduction - This client alert provides a summary of key UK tax considerations when a nonresident invests into UK commercial real estate. There are a number of holding structures for investment into UK real estate by…more

Commercial Real Estate Market, Diverted Profits Tax, Foreign Tax, Limited Liability Company (LLC), Limited Partnerships

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The Brand Memorandum: DOJ Restricts Reliance on Agency Guidance in Civil Enforcement Actions

On January 25, 2018, Associate Attorney General Rachel Brand issued a memorandum significantly restricting Department of Justice (“DOJ” or “the Department”) civil litigating units’ use of executive agency guidance documents in…more

Department of Health and Human Services (HHS), Department of Justice (DOJ), False Claims Act (FCA), OIG

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FTC Issues Near-Total Ban on Non-Competes in Final Rule, with a Narrow Exception for Existing Agreements with “Senior Executives”

On April 23, 2024, the Federal Trade Commission (FTC), in a party-line vote, approved its final rule banning most non-compete agreements. The final rule bans all non-competes nationwide, including de facto non-competes,…more

Corporate Executives, Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC)

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Supreme Court Rejects Government's Broad Use of the Aggravated Identity Theft Statute to Impose Two-Year Mandatory Minimum Sentences in Fraud Cases

The aggravated identity theft statute, 18 U.S.C. §1028A, imposes a mandatory two-year sentencing enhancement upon a defendant who “uses” without lawful authority another’s means of identification “during and in relation to” an…more

Appeals, Dubin v United States, En Banc Review, Felonies, Fraud

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Wong v. Restoration Robotics: California Appellate Court Upholds Federal Forum Selection Provision for Securities Act Claims

On April 28, 2022, the Court of Appeals of California, First District, upheld a corporate charter provision requiring shareholders to file Securities Act of 1933 (“Securities Act”) lawsuits in federal court. This is the second…more

Anti-Waiver Provisions, Appellate Courts, California, Commerce Clause, Forum Selection

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Energy Newsletter - March 2020

Disrupting the Disruptor: How a Prepared and Proactive Owner Can Mitigate the Effects of Coronavirus on Construction Projects - Once a remote health issue in China, the rapidly spreading coronavirus (COVID-19) has become not…more

Construction Project, Coronavirus/COVID-19, Energy Sector, Final Rules, Force Majeure Clause

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ESG and Securities Litigation

Recent Trends Show Increased Focus on Allegations of "Greenwashing" Over the past few years, regulators, businesses, and the market in general have become increasingly focused on environmental, social, and governance (“ESG”)…more

Climate Change, Disclosure Requirements, Diversity, Enforcement Actions, Environmental Social & Governance (ESG)

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California's New Climate Disclosure Requirements: A Work in Progress

In groundbreaking legislation, California continues to lead the nation in climate change regulation by enacting the bulk of the California Climate Accountability Package – an unprecedented climate disclosure mandate for public…more

California, Climate Action Plan, Climate Change, Disclosure Requirements, Greenhouse Gas Emissions

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Mexico Enacts New Legal Regime for Mining Concessions

On May 8, 2023, Mexico enacted an amendment in matters pertaining to mining and water to its mining law; national waters law; general law for ecologic equilibrium and environmental protection (LGEEPA); and general law for the…more

Compensation, Environmental Social & Governance (ESG), Mexico, New Amendments

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Waste to Energy Project

A few years ago, we reported that a wave of waste to energy (“WTE”) projects were expected in the Middle East. It now appears that the wave is about to break. From Saudi Arabia, to the UAE and to Oman, these planned projects…more

Coronavirus/COVID-19, Energy Sector, Foreign Direct Investment, Foreign Investment, Gulf Cooperation Council (GCC)

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Compensation and Benefits Insights – September 2016 #2

Hardly Water Under the Bridge: NLRB, SEC, OSHA Mount Offensive Against Confidentiality Agreements - A recent New York Times story shed light on complaints by an employee of Bridgewater Associates, a $154 billion hedge fund…more

Confidential Information, Deadlines, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Health and Welfare Plans

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M&A Purchase Price Considerations in the Context of COVID-19

Much like everything else in the world, M&A transactions must adjust in order to account for the impact of COVID-19. Arguably the most important feature in any M&A transaction is the purchase price. Set forth below are several…more

Acquisition Agreements, Buyers, CARES Act, Coronavirus/COVID-19, EBITDA

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April Employment Law Round-Up: Platform Workers, Non-Competes and Beyond

Although many employment changes in the UK are largely on ice until after the election later this year, April has seen a number of employment law developments – largely from the courts. We highlight some recent decisions, on…more

EU, New Guidance, Non-Compete Agreements, Strike, Trade Unions

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Federal Court Stands By Earlier Decision Holding Financial Institutions To Higher Standard Than Customers When Pursuing Data Breach Claims

On May 1, 2017, an Illinois federal district judge dismissed data breach-related claims brought by financial institutions against a grocer. The court distinguished the case from similar lawsuits aimed at Home Depot and Target…more

Corporate Counsel, Data Breach, Data Security, Financial Institutions, RICO

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Gas Stove Ban Update: Ninth Circuit Says "No" to City of Berkeley Ban on Gas Stoves

The gas stove wars continue to heat up. On April 17, 2023, the United States Court of Appeals for the Ninth Circuit took a stand and ruled that the City of Berkeley does not have the authority to prohibit connecting natural gas…more

Appeals, Consumer Product Safety Commission (CPSC), Department of Energy (DOE), ECPA, Natural Gas

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43 Attorneys General Urge Creation Of Database To Combat Synthetic Identity Theft

In a December 10 letter from the National Association of Attorneys General (“NAAG”) to Social Security Administration (“SSA”) Acting Commissioner Nancy Berryhill, the Attorneys General of 43 states urged the SSA to “evaluate and…more

Attorney General, Cybersecurity, Data Breach, Identity Theft, Social Security Administration (SSA)

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A Brief Overview of the Federal Rulemaking Process in the United States

Since the enactment of the Inflation Reduction Act of 2022 (the “IRA”) in the United States, the Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) have issued notices of proposed regulations…more

Administrative Procedure Act, Congressional Review Act, Department of Energy (DOE), Department of Labor (DOL), GAO

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Q1 2021: Latin American Enforcement Review

Enforcement authorities throughout the Americas continued investigations of fraud, corruption, and other misconduct across the region. Below are some of the highlights of the last quarter…more

Brazil, Bribery, Corruption, Deferred Prosecution Agreements, Department of Justice (DOJ)

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U.S. International Trade Commission to Investigate Potential Waiver of International Intellectual Property Rights for COVID-19 Diagnostics and Therapeutics

On February 1, 2023, the U.S. International Trade Commission (the “ITC”) initiated an investigation into the impact of intellectual property (“IP”) rights on the production, supply, and availability of diagnostics and…more

Coronavirus/COVID-19, Intellectual Property Protection, International Trade Commission (ITC), Supply Chain, TRIPS Agreement

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2020 Filing and Notice Deadlines for Qualified Retirement and Health and Welfare Plans

Employers and plan sponsors must comply with numerous filing and notice deadlines for their retirement and health and welfare plans. Failure to comply with these deadlines can result in costly penalties. To avoid such…more

Benefit Plan Sponsors, EBSA, Filing Deadlines, Health and Welfare Plans, Retirement Plan

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Energy Newsletter - March 2018

Good news at last for the development of offshore wind projects in France - While France had launched in 2011 a very ambitious offshore wind farm development program, aiming to reach 6 GMW of wind turbine installations at…more

Arbitration, Canada, Clean Water Act, Construction Industry, Duty of Care

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Considering a Move to Texas? Here’s What You Need to Know About Patent Litigation

California-based tech companies have increasingly been moving their operations to Texas over the last two years, a trend that has only accelerated as remote and hybrid work have become a fact of life. Whether your company has…more

Inter Partes Review (IPR) Proceeding, Judges, Patent Litigation, Patents, Texas

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COVID-19: Safeguarding the workforce in the UK

The unprecedented spread of the COVID-19, or coronavirus, outbreak around the world has resulted in many organisations in the UK facing continued challenges, raising several key business and legal considerations. One of the most…more

Coronavirus/COVID-19, Duty of Care, General Data Protection Regulation (GDPR), Workplace Safety

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Anti-Satellite Tests and the Growing Demand for Space Debris Mitigation

The threat of anti-satellite (ASAT) weapons is once again front and center in the news, raising questions about norms for responsible state behavior in space. ASAT tests are used by countries to destroy or incapacitate…more

Aerospace, EU, Innovative Technology, NASA, Satellites

See all updates »

Wong v. Restoration Robotics: California Appellate Court Upholds Federal Forum Selection Provision for Securities Act Claims

On April 28, 2022, the Court of Appeals of California, First District, upheld a corporate charter provision requiring shareholders to file Securities Act of 1933 (“Securities Act”) lawsuits in federal court. This is the second…more

Anti-Waiver Provisions, Appellate Courts, California, Commerce Clause, Forum Selection

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Congress's Crypto Crash Course

With Increased Congressional Scrutiny, Continued Interest From Committees in Both the House and Senate, and a Turf War Between Congress and Key Regulatory Agencies, Digital Assets Continue to Be Under the Regulatory Microscope…more

Blockchain, CFTC, Cryptocurrency, Digital Assets, FinTech

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Hydrogen-Related Provisions of the Inflation Reduction Act of 2022

The Inflation Reduction Act of 2022, passed by the Senate on August 7, 2022, includes a number of provisions projected to result in significant investments in domestic energy production and manufacturing, and reduce carbon…more

Biden Administration, Carbon Capture and Sequestration, Carbon Emissions, Department of Energy (DOE), Department of Labor (DOL)

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FSOC and the Systemic Risk of Nonbank Companies

In a response to the difficulties it experienced in identifying nonbank systemically important entities, the Financial Stability Oversight Council (FSOC) has proposed a new procedure for detecting and dealing with potential…more

Dodd-Frank, Federal Reserve, FSOC, Nonbank Firms, Risk Assessment

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IRS and Treasury Issue Guidance on Section 40B Sustainable Aviation Fuel Credit

Section 40B of the Internal Revenue Code of 1986 (the “Code”) enacted by the Inflation Reduction Act of 2022 (the “IRA”) provides credits for each gallon of sustainable aviation fuel (“SAF”) sold or used by a taxpayer before…more

Aviation Industry, Carbon Offset and Reduction Scheme for International Aviation (CORSIA), Clean Air Act, Department of Energy (DOE), Environmental Protection Agency (EPA)

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Recent Proliferation of Pay Disclosure Laws in the United States Presents Opportunities and New Considerations for Employers

Within the past five years, a growing number of states and localities have enacted pay disclosure laws requiring employers to disclose pay rates or salary ranges during the hiring process. To date, California, Colorado,…more

Disclosure Requirements, Employee Benefits, Enforcement, Environmental Social & Governance (ESG), Pay Transparency

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SEC Staff Addresses Net Performance Presentation Requirements for Single Investments Under Marketing Rule

On January 11, 2023, the SEC Staff published a question-and-answer in its Marketing Compliance FAQs that addresses whether an advertisement that includes gross performance information for a single investment (or group of…more

Compliance, Investment, Private Funds, Securities and Exchange Commission (SEC)

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Texas Supreme Court Removes Procedural Gotcha in Lawsuits Against Engineers, Architects, and Other Licensed Professionals

On April 28, 2017, the Texas Supreme Court held that trial courts have discretion whether to dismiss a lawsuit against a licensed professional with or without prejudice when a plaintiff fails to file an expert affidavit…more

Affidavits, Architects, Engineering, Good Cause, TX Supreme Court

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Department of Homeland Security Proposes Rule for Reporting of Cyber Incidents

On April 4, 2024, the Cybersecurity and Infrastructure Security Agency (“CISA”) published for public comment a long-awaited proposed rule to implement the Cyber Incident Reporting for Critical Infrastructure Act of 2022…more

Comment Period, Critical Infrastructure Sectors, Cyber Attacks, Cyber Incident Reporting, Cybersecurity

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Federal District Court in Alabama Declares CTA Unconstitutional; DOJ Appeals to 11th Circuit; FinCEN Requires Continued Compliance

On March 1, 2024, a federal judge in the U.S. District Court for the Northern District of Alabama ruled that the Corporate Transparency Act (“CTA”) is unconstitutional. The CTA and its implementing regulations require that many…more

Alabama, Beneficial Owner, Civil Monetary Penalty, Corporate Transparency Act, Criminal Penalties

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Department of Homeland Security Proposes Rule for Reporting of Cyber Incidents

On April 4, 2024, the Cybersecurity and Infrastructure Security Agency (“CISA”) published for public comment a long-awaited proposed rule to implement the Cyber Incident Reporting for Critical Infrastructure Act of 2022…more

Comment Period, Critical Infrastructure Sectors, Cyber Attacks, Cyber Incident Reporting, Cybersecurity

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Fifth Circuit Affirms Approval of Bid Protections for Debtor’s Prior Lender Over Unsecured Creditors’ Objection

On July 25, 2023, the U.S. Court of Appeals for the Fifth Circuit affirmed a bankruptcy court’s approval of a break-up fee and expense reimbursement owed to a debtor’s prior lender, after the lender was not the winning bidder at…more

Appeals, Bankruptcy Code, Bankruptcy Court, Break-Up Fee, Debtors

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Checklist for Non-U.S. Fund Managers Making a Private Fund Offering in the U.S.

The United States represents a large source of potential capitalthat non-U.S. fund managers often find impossible to ignore. To assist non-U.S. fund managers, we have prepared a checklist that sets out key considerations for…more

Accredited Investors, Advertising, Blue Sky Laws, CFTC, Due Diligence

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FTC Proposes Stricter Children’s Privacy Rules in First COPPA Update since 2013

On December 20, 2023, the Federal Trade Commission (FTC) announced proposed revisions to its rules administering the Children’s Online Privacy Protection Act (COPPA). The updates both expand the universe of businesses subject to…more

Biometric Information, COPPA, Cybersecurity, Data Collection, Data Privacy

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New Share Repurchase Rules on Ice Following Fifth Circuit Decision

As a result of a recent decision by the Fifth Circuit Court of Appeals, the SEC’s previously adopted Share Repurchase Disclosure Modernization Rule has been put on hold. While the SEC may appeal the final decision (if and when…more

Administrative Procedure Act, Appeals, Disclosure Requirements, Repurchases, Securities and Exchange Commission (SEC)

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BGH erklärt sog. Schriftformheilungsklauseln in Gewerberaummietverträgen für unwirksam

Der für das Gewerberaummietrecht zuständige 12. Zivilsenat des Bundesgerichtshofs („BGH“) hat am 27.09.2017 mit einem Paukenschlag die hier beigefügte Entscheidung verkündet, in welchem er zu der seit einigen Jahren kontrovers…more

Commercial Leases, Germany, Tenants

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Enforcing Releases in Bankruptcy

Bankruptcy Court Determines Standard for Enforcing Non-Consensual Third-Party Releases in a Chapter 15 Case Differs From Applicable Standard in Chapter 11 Cases - On April 9, 2018, in In re Avanti Communcs. Group Plc, Case…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Chapter 15

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Broker-Dealer Research: MiFID-Related "Hard Dollar" SEC Investment Adviser Status Relief to End in July 2023

The EU Markets in Financial Instruments Directive II (“MiFID II”), which came into effect on January 3, 2018, raised concerns that U.S. broker-dealers that would receive “hard dollars” for research from firms subject to MiFID II…more

Broker-Dealer, Compensation, EU, Exclusions, Investment Adviser

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The New, #MeToo World: How to Protect Your Company, and Your Officers and Directors, Against Losses Arising From Claims of Sexual Misconduct and Other Workplace Harassment

With the viral #MeToo movement spreading across the country in the last several months, new, high-profile claims of sexual harassment and other workplace sexual misconduct seem to be reported on almost a daily basis. Stories…more

#MeToo, Commercial General Liability Policies, Corporate Counsel, D&O Insurance, Employer Liability Issues

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OCC Requests Advice on the Nature of the Digital

The Office of the Comptroller of the Currency (OCC) released an Advance Notice of Proposed Rulemaking (ANPR) on June 4, 2020, announcing a review of 12 CFR part 7, subpart E related to national bank electronic activities and…more

Banking Sector, Financial Services Industry, OCC, Software, Third-Party

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Freedom of Expression in the Workplace in Europe – The Example of France

Among the many fundamental rights protected by the European Convention on Human Rights – the European analog to the United States’ Bill of Rights – lies the freedom of speech. Article 10 of the European Convention states that…more

Compensation, Dismissals, EU, European Convention on Human Rights, France

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Regulation Best Interest: Updates and Developments

It’s been nearly five months since the Securities and Exchange Commission (“SEC”) approved Regulation Best Interest: The Broker-Dealer Standard of Conduct (“Reg BI”). As discussed in our June 27, 2019 Client Alert, Reg BI…more

Broker-Dealer, Fiduciary Duty, Financial Industry Regulatory Authority (FINRA), Form CRS, Investment Adviser

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HHS Continues Focus on Women's Health: AHRQ Calls for Data on Telehealth for Women

The Department of Health and Human Services (“HHS”) is continuing its focus on women’s health, this time through its research arm, the Agency for Healthcare Research and Quality (“AHRQ”). If the COVID-19 pandemic has shown us…more

AHRQ, Coronavirus/COVID-19, Department of Health and Human Services (HHS), Department of Labor (DOL), Exclusionary Clauses

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Energy Newsletter - June 2018

Lessons for Sellers in Contracting with Emerging Market Buyers: The “Three R’s” to Structuring Payment Security Provisions - The recent rebound in the international energy industry is being driven, at least in part, by a…more

BSEE, Cloud Computing, Energy Policy, Energy Sector, Exports

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Gas Stove Ban Update: Ninth Circuit Says "No" to City of Berkeley Ban on Gas Stoves

The gas stove wars continue to heat up. On April 17, 2023, the United States Court of Appeals for the Ninth Circuit took a stand and ruled that the City of Berkeley does not have the authority to prohibit connecting natural gas…more

Appeals, Consumer Product Safety Commission (CPSC), Department of Energy (DOE), ECPA, Natural Gas

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OIG Increases Expectations for Compliance Officers in Its New Compliance Program Guidance – What Compliance Officers at Pharmaceutical and Medical Device Companies Need to Consider

On November 6, 2023, the U.S. Department of Health and Human Services Office of Inspector General (“OIG”) issued its anticipated General Compliance Program Guidance (“GCPG”) for the health care industry. The GCPG serves as a…more

Chief Compliance Officers, Compliance, Corporate Integrity Agreement, Disclosure Requirements, Enforcement

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Local Activists File Sweeping Environmental Justice Lawsuit against St. James Parish, Louisiana

On March 21, 2023, activists in St. James Parish, Louisiana filed an environmental justice lawsuit against their local government, claiming that the Parish’s land use system directed industry into primarily Black communities and…more

Activist, Environmental Justice, Fourteenth Amendment, Injunctive Relief, Shareholders

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Update on the Proposed TRIPS Waiver at the WTO: Where is it Headed, and What to Expect?

On June 8-9, 2021, the World Trade Organization’s (WTO) TRIPS Council will hold their first meeting in the wake of the U.S. Trade Representative (USTR) announcing “the Biden-Harris Administration’s support for waiving…more

Bilateral Investment Treaties, Copyright, Coronavirus/COVID-19, Industrial Design, Intellectual Property Protection

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The EU Regulation on Foreign Subsidies is published – What does it target and what does it involve for companies?

On 23 December 2022, the new EU Foreign Subsidies Regulation (“FSR”)1 was published in the Official Journal of the EU. The FSR aims at tackling the distortions to the EU internal market caused by subsidies granted by non-EU…more

Disclosure Requirements, EU, European Commission, Foreign Subsidies, New Regulations

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Tax Court Holds that IRS Cancellation of Advance Pricing Agreement was Abuse of Discretion

On July 26, 2017, the Tax Court issued its opinion in Eaton Corp. v. Commissioner, holding that the IRS’s cancellation of two advance pricing agreements (“APAs”) reached with Eaton Corporation (“Eaton”) was “arbitrary and…more

Abuse of Discretion, Advance Pricing Agreements, IRS, Tax Court

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Algeria Launches A Call For Tenders For The Long-Awaited “Solar 1,000 MW” Project

After several postponements since it was first announced back in 2020, Algeria finally launched a call for tenders for a 1GW solar project, the so-called “Solar 1,000 MW” Project, on December 23, 2021. SCOPE - The Solar…more

Algeria, Financing, Solar Energy, Special Purpose Vehicles

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Impact of COVID-19 on M&A and Private Equity Transactions and Other Considerations

COVID-19 has spread rapidly across the world since it first emerged in late 2019 and has impacted everything from the way we work, to certain aspects of M&A and Private Equity transactions and the way in which they are carried…more

Contract Terms, Coronavirus/COVID-19, Global Dealmaking, Material Adverse Change Clauses (MACs), Material Adverse Effects

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Revised PhRMA Code Provides Stricter Controls on HCP Speaker Programs

The Revised PhRMA Code Takes Effect January 1, 2022 - On August 6, 2021, the Pharmaceutical Research and Manufacturers of America (PhRMA) released highly anticipated revisions to its Code on Interactions with Health Care…more

Compliance, Department of Health and Human Services (HHS), Fraud, Healthcare Workers, New Guidance

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Trade & Manufacturing - News of Note - March 2017

President Trump’s Trade-Related Nominees Confirmed - Several nominees selected by President Trump for key positions that will participate in the development of U.S. trade policy during his administration have been confirmed…more

Congressional Nominations, International Trade Commission (ITC), Manufacturers, Trump Administration, US Trade Policies

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STOLI Policy? Don't Count on the Return of Premiums

Two Recent Decisions Throw Cold Water on Investors’ Ability to Get Their Premiums Back on Policies Deemed Void Ab Initio - In the latter half of 2022, the Seventh Circuit Court of Appeals and the Delaware Supreme Court—two…more

DE Supreme Court, Insurance Rates, Investors, Life Insurance, STOLI

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Gas Stove Ban Update: Ninth Circuit Says "No" to City of Berkeley Ban on Gas Stoves

The gas stove wars continue to heat up. On April 17, 2023, the United States Court of Appeals for the Ninth Circuit took a stand and ruled that the City of Berkeley does not have the authority to prohibit connecting natural gas…more

Appeals, Consumer Product Safety Commission (CPSC), Department of Energy (DOE), ECPA, Natural Gas

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Term SOFR is Open for Business

On July 29th, 2021, the Alternative Reference Rate Committee (“ARRC”) formally recommended the adoption of CME Group’s forward-looking Secured Overnight Financing Rate term rates (“Term SOFR”). This announcement completes the…more

Alternative Reference Rates Committee (ARRC), Banking Sector, Libor, Secured Overnight Funding Rate (SOFR), Securities and Exchange Commission (SEC)

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AIFMD II Credit Funds

Loan Origination Funds Have a Lot of Wood to Chop Before Aifmd II Kicks In - Following a review of the AIFMD, the Commission, in a draft amending directive published in 2021, noted that common rules should be laid down to…more

Alternative Investment Fund Managers Directive (AIFMD), Close-Ended Funds, Credit Funds, Disclosure Requirements, Documentation

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New Expansive Rules for Clawback of Incentive-Based Compensation

Several recent developments with the U.S. Securities and Exchange Commission (“SEC”) come into effect this year, including the new pay-versus-performance proxy disclosure as well as new Rule 10b5-1 rules and related disclosure…more

Clawbacks, Disclosure Requirements, Form 10-K, Incentive Compensation, Indemnification

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NHTSA to Require Reporting of Crashes Involving SAE Automation Levels 2+

On June 29, 2021, the National Highway Traffic Safety Administration (NHTSA) issued a Standing General Order (SGO) to manufacturers and operators of Automated Driving Systems (ADS) and Level 2 Advanced Driver Assistance Systems…more

Automotive Industry, Confidential Business Information (CBI), Driverless Cars, Good Faith, Hardware

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Lender Can Continue Policy of Eligibility Requirements for Small Business Loans

On April 13, 2020, the United States District Court for the District of Maryland (the “Court”) sided with Bank of America (“BofA”) by denying a request for a temporary restraining order (“TRO”) and preliminary injunction sought…more

Bank of America, Class Action, Discriminatory Lending Practices, Maryland, Paycheck Protection Program (PPP)

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Africa Bulletin - September 2019

INTRODUCTION - It has been a busy few months for private equity activity in Africa. Statistics and transactions have illustrated a growing appetite for investment in the continent and, crucially, growing confidence and…more

Africa, Anti-Corruption, Economic Development, Financial Markets, Foreign Investment

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Energy Newsletter - September 2020

Climate Change Litigation on the Horizon with Trump Environmental Overhaul - On July 16, 2020, President Trump’s Council on Environmental Quality (“CEQ”) published the long-awaited final rule revising the implementing…more

CEQ, CFIUS, Climate Change, Coronavirus/COVID-19, Debt Restructuring

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FTC Announces 2024 Jurisdictional Threshold Updates for Interlocking Directorates and HSR Filing Thresholds

On January 22, 2024, the Federal Trade Commission (FTC) announced revised jurisdictional thresholds for determining whether a proposed transaction must be reported to federal authorities under the Hart-Scott-Rodino (HSR)…more

Consolidated Appropriations Act (CAA), Federal Trade Commission (FTC), Filing Requirements, Hart-Scott-Rodino Act, Interlocking Directorate

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M&A, Real Estate and Other Transactions

While sophisticated transaction parties have been aware for some time of the need to evaluate potential liabilities associated with PFAS compounds, EPA’s proposal to designate PFOS and PFOA as hazardous substances under CERCLA…more

Acquisitions, CERCLA, Environmental Protection Agency (EPA), Environmental Site Assessment, Liability

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Searching for the Reasonable Consumer

Every state prohibits the use of false or misleading advertising on food labeling. In many food false advertising cases, the battleground is whether the “reasonable consumer” would be deceived by the challenged label statement,…more

Appeals, False Statements, Food Labeling, Motion to Dismiss, Omissions

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The Seventh Circuit Upholds District Court’s Decision That Safe Harbor Provision of Section 546(e) Applies to Privately Held Securities

A recent ruling from the United States Court of Appeals for the Seventh Circuit provides additional comfort for lenders receiving full repayment in connection with leveraged acquisitions. The U.S. Bankruptcy Code gives…more

Appeals, Bankruptcy Code, Bankruptcy Trustees, Chapter 7, Commercial Bankruptcy

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Switzerland’s pro arbitration and pro investors approach: An arbitration agreement binds the new State in case of secession

In a world where country borders can be unstable and we increasingly witness aspirations to split or annex territory, foreign direct investment faces a growing risk. In a recent dispute, the Swiss Supreme Court (“SSC”) affirmed…more

Arbitration, Arbitration Agreements, Enforcement, Foreign Direct Investment, International Chamber of Commerce (ICC)

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LDT Final Rule: Shifting the LDT Battlefield

On April 29, 2024, the Food and Drug Administration (“FDA” or “the Agency”) released a pre-publication version of the highly anticipated laboratory developed test final rule (“LDT Final Rule”). The LDT Final Rule is scheduled…more

Compliance, Enforcement, False Statements, Federal Food Drug and Cosmetic Act (FFDCA), Final Rules

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CFPB's New Small Business Data Collection Rule

A recent rule (12 CFR Part 1002, the “Rule”) issued in final form by the Consumer Financial Protection Bureau (the “CFPB”) earlier this year imposes a host of data collection and reporting obligations on lenders to small…more

Compliance, Consumer Financial Protection Bureau (CFPB), Consumer Protection Act, Data Collection, Dodd-Frank

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8 Key Business Takeaways From Russia’s War

Economic ripples of Russia’s invasion of Ukraine will permeate the financial, energy, retail, and agricultural sectors, among others. (A link to a related King & Spalding webinar is located here.) While the full effects of the…more

Bilateral Investment Treaties, China, Economic Sanctions, Foreign Assets, Imports

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Bipartisan Senators Seek Stakeholder Input to Draft Legislation to Address Health Care Workforce Shortage

On February 16, 2023, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing concerning the current health care workforce shortage. On March 2, 2023, Chairman Sanders and Ranking Member Cassidy of the…more

Comment Period, Healthcare, HELP, Labor Shortage, Legislative Agendas

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Executive Order Establishes New Outbound Investment Screening Program

Prohibitions targeted to prevent China’s exploitation of dual-use technology - On August 9, 2023, President Biden signed a historic Executive Order on Addressing United States Investments in Certain National Security…more

Advanced Notice of Proposed Rulemaking (ANPRM), CFIUS, China, Compliance, Covered Transactions

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AseraCare Saga Illustrates the Importance of Internal Compliance

On September 9, 2019, the Eleventh Circuit issued a highly anticipated opinion addressing the critical question of when Medicare claims for reimbursement (in this case, claims for hospice care) can be considered “false” under…more

Enforcement Actions, Expert Witness, False Billing, False Claims Act (FCA), Hospice

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Mandatory human rights due diligence – what does it mean for companies in the international construction sector?

A new wave of mandatory human rights due diligence legislation is coming into force across Europe. It goes far beyond existing reporting obligations, such as under the UK or Australia’s Modern Slavery Acts, and will require…more

Australia, Construction Contracts, Due Diligence, EU, FIDIC Contracts

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Florida Adopts Apex Doctrine

State High Court Provides New Avenue for Opposing Depositions of High-Level Corporate Officials - The Florida Supreme Court adopted new Rule of Civil Procedure 1.280(h) adopting the “apex” doctrine in the corporate context. …more

Apex Doctrine, Depositions, FL Supreme Court, Florida

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Hertz Seeks Claw-Backs from Former Executives

Earlier this year, Hertz Corporation filed suit against several former executives, including its former CEO, CFO and general counsel, seeking to recover under its claw-back policies approximately $70 million in incentive…more

Advancement, Articles of Incorporation, Breach of Contract, Bylaws, CEOs

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Return to Attender: Getting Back to the Office

Since companies began their return to the office post-pandemic, there has been an increasing polarization between those which feel the future is to ‘work anywhere’, versus those which see remote working as a COVID aberration and…more

Employment Tribunals, Flexible Work Arrangements, Hybrid Plan, Remote Working, Return-to-Work Agreements

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President Signs Bipartisan Law Revising Dodd-Frank and Providing Regulatory Relief to U.S. Financial Institutions

On May 24, 2018, President Donald Trump signed into law the Economic Growth, Regulatory Relief, and Consumer Protection Act(the “Act”). This new law rolls back certain provisions of the Dodd-Frank Act of 2010 (“Dodd-Frank”),…more

Dodd-Frank, Economic Growth Regulatory Relief and Consumer Protection Act, Financial Institutions

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Pre-Marketing: Risks and Considerations Relating to Bespoke Securitization Transactions

The current volatility in financial markets has caused an increase in interest in pre-marketing certain bespoke securitization transactions, including esoteric, real estate-based, whole business, music royalty and digital…more

Appraisal, Due Diligence, Financial Markets, Indemnification, Investors

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Energy Newsletter - May 2020

Energy Explosion: 10 Trends to Watch in Energy Restructuring - On April 20, 2020, U.S. benchmark crude traded negative for the first time. This drastic drop in price was caused by the perfect storm of the Saudi Arabia-Russia…more

Carbon Off-Set Credits, Coronavirus/COVID-19, Energy Sector, Foreign Investment, Mexico

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Key Recent Developments In Environmental Justice Litigation

Louisiana remains at the forefront of environmental justice activity. In just four days from January 19 to January 23, 2024, two courts in Louisiana offered interpretations to environmental justice efforts in the State of…more

Anti-Discrimination Policies, Appeals, Civil Rights Act, Clean Air Act, Department of Environmental Quality

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The Seventh Circuit Upholds District Court’s Decision That Safe Harbor Provision of Section 546(e) Applies to Privately Held Securities

A recent ruling from the United States Court of Appeals for the Seventh Circuit provides additional comfort for lenders receiving full repayment in connection with leveraged acquisitions. The U.S. Bankruptcy Code gives…more

Appeals, Bankruptcy Code, Bankruptcy Trustees, Chapter 7, Commercial Bankruptcy

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SEC Adopts Private Fund Reform Rules

On August 23, 2023, in a 3-2 vote, the SEC adopted a rule package (the “Adopted Rules”) that establishes significant new obligations for private fund advisers under the Investment Advisers Act of 1940. While the Adopted Rules…more

Audits, Books & Records, Clawbacks, Compliance, Disclosure Requirements

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DoD Releases Version 1.0 of the Cybersecurity Maturity Model Certification Framework

On January 31, 2020, the Department of Defense (DoD) released the latest version (Version 1.0) of its Cybersecurity Maturity Model Certification (CMMC) framework, setting forth future cybersecurity requirements for thousands of…more

Certification Requirements, Controlled Unclassified Information (CUI), Cybersecurity, Cybersecurity Maturity Model Certification (CMMC), Defense Contracts

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Mandatory human rights due diligence – what does it mean for companies in the international construction sector?

A new wave of mandatory human rights due diligence legislation is coming into force across Europe. It goes far beyond existing reporting obligations, such as under the UK or Australia’s Modern Slavery Acts, and will require…more

Australia, Construction Contracts, Due Diligence, EU, FIDIC Contracts

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Energy Newsletter - April 2017

Navigating Private Equity Fund Limitations for Energy Infrastructure-Focused Investments - Energy infrastructure funds have emerged as a class of funds that offer investors the potential for long-term stable returns, as well…more

Argentina, Bankruptcy Court, Energy Sector, Infrastructure, Keystone XL Pipeline

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Energy Newsletter - September 2018

A Texas Federal Judge Turns Up the Heat on Oil Companies Facing Climate Change-Related Securities Class Actions - On August 14, 2018, the United States District Court for the Northern District of Texas issued a surprisingly…more

Abu Dhabi Global Markets (ADGM), Climate Change, Environmental Protection Agency (EPA), EU, Exxon Mobil

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Managing Securities Litigation Risks in a Time of Coronavirus Insecurities

Spiraling fears over the coronavirus and the multiplication of virus outbreaks across the globe have impacted the worldwide economy, threatened supply chains, and caused severe stock market declines and disruptions in the U.S…more

Coronavirus/COVID-19, Disclosure Requirements, Infectious Diseases, MD&A Statements, PSLRA

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U.S. DOE Releases Report on Clean Hydrogen Strategy and Roadmap

The United States recently took another important step in implementing a comprehensive strategy to advance the production, processing, delivery, storage, and use of clean hydrogen. On June 5, 2023, the Biden-Harris…more

Carbon Capture and Sequestration, Carbon Emissions, Clean Energy, Department of Energy (DOE), Energy Projects

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Florida Enacts Transformative Tort Reform Legislation

On Friday, March 24, 2023, Governor Ron DeSantis signed into law House Bill 837, providing an overhaul to tort law in the state of Florida. The new legislation makes transformative changes, including reducing the statute of…more

Attorney-Client Privilege, Bad Faith, Disclosure Requirements, Florida, Liability

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Litigation

From a litigation perspective, designating PFOA and PFOS as CERCLA hazardous substances will have a substantial impact on future litigation. Currently, EPA’s Chemical Data Reporting (CDR) rule under the Toxic Substance Control…more

CERCLA, Chemical Data Reporting, Environmental Protection Agency (EPA), Hazardous Substances, PFAS

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Energy Newsletter - June 2017

Mineral and Royalty Interest MLPs: An Alternative Exit For PE-Backed Mineral and Royalty Interest Cos. - Oil and gas exploration companies no longer have to go door-to-door, or ranch-to-ranch, to negotiate oil and gas…more

Construction Disputes, Dispute Resolution, Energy Sector, Minerals, Patent Infringement

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Biden Administration Streamlines CHIP and Medicaid Enrollment, Expands Protections for Covered Population

Last week, the Biden-Harris administration (the Administration) announced a new rule simplifying the process for enrolling in Medicaid, the Children’s Health Insurance Program (CHIP), and the Basic Health Program (BHP)…more

Affordable Care Act, Biden Administration, Children's Health Insurance Program (CHIP), Coronavirus/COVID-19, Department of Health and Human Services (HHS)

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FDA's Latest Salvo in the LDT Wars

On September 29, 2023, the Food & Drug Administration (“FDA” or the “Agency”) published the long-awaited proposed rule on laboratory developed tests (“LDT Proposed Rule”). The proposed rule is open for public comment through…more

CLIA, Draft Guidance, Emergency Use Authorization (EUA), Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA)

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False Claims Act Considerations Related to the CARES Act's Small Business Administration Loan Program

On March 27, 2020, Congress passed the Coronavirus Aid, Relief and Economic Security (CARES) Act, which authorized $2.2 trillion to, among other things, help companies and individuals mitigate the financial repercussions caused…more

Banks, Business Closures, Business Interruption, CARES Act, Centers for Medicare & Medicaid Services (CMS)

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Measure - Spring 2018

Welcome to the Spring 2018 issue of measure, King & Spalding’s Middle East periodic newsletter. Following a host of legal developments in the region over recent months, we look at the following in this issue: ..Noting that…more

Capital Markets, Confidential Information, Data Protection, Health Care Providers, Initial Coin Offering (ICOs)

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The Senior Managers Regime – should GCs be worried?

In March this year the PRA and the FCA introduced the Senior Managers Regime (‘SMR’) for individuals associated with banks and PRA regulated investment firms (from 2018 the SMR will apply to all UK authorised firms). The regime…more

Banks, Corporate Counsel, Financial Conduct Authority (FCA), Individual Accountability, Investment Firms

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EU Regulations Restricting Imports of Renewable Natural Gas and Green Hydrogen Derivative Products

The European Commission (EC) is in the process of implementing its “Union database” (UDB) to track all renewable gases and liquid fuels. Gases and fuels, whether produced in the EU or imported, will need to be registered in the…more

Derivatives, EU, European Commission, European Economic Area (EEA), Green Energy

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SEC Returns Spotlight to Cybersecurity Disclosure Enforcement

On June 15, the Securities and Exchange Commission announced a settlement with First American Financial Corporation for what the SEC found were inadequate disclosure controls and procedural violations, revealed in connection…more

Broker-Dealer, Cybersecurity, Disclosure Requirements, Enforcement Actions, Investment Adviser

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FERC Proposes to Amend its PURPA Regulations to Recognize Hydrogen Production in Certain Fuel Cell Systems as Useful Thermal Energy in Qualifying Cogeneration Facilities

Hydrogen as a fuel for industrial applications, transportation, distribution and power generation, and for energy storage, is gaining worldwide momentum as a key component in the pursuit of decarbonization. The Federal Energy…more

Federal Register, FERC, Hydrogen Power, Natural Gas, New Regulations

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Russia’s Payment of Principal and Interest in Rubles of U.S. Dollar-Denominated Debt May Give Rise to Claims under International Investment Treaties

On April 11, 2022, the EMEA Credit Derivatives Determinations Committee (CDDC) determined that the state-owned Russian Railways is in default on a missed bond payment. Russian Railways tried to make the interest payment due…more

Bilateral Investment Treaties, Bondholders, Bonds, Compliance, EMEA

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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Reconsider That Term Sheet: DOJ "Safe Harbor Policy" Announcement Incentivizes Merger-Related Disclosures

On October 4, 2023, the Department of Justice’s (“DOJ”) Deputy Attorney General Lisa Monaco announced a new “Mergers & Acquisitions Safe Harbor Policy” (“M&A Safe Harbor Policy” or “Policy”) for companies that voluntarily…more

Acquisitions, Corporate Misconduct, Department of Justice (DOJ), Disclosure, Disgorgement

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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Federal District Court Rebukes CMS for Seeking to Remand Case in Which Providers Did Not Protest Unallowable Items on Their Cost Reports

Last week, the United States District Court for the District of Columbia denied CMS’s request to remand to the Provider Reimbursement Review Board (PRRB) the claims of several hospitals who sought expedited judicial review (EJR)…more

Appeals, Centers for Medicare & Medicaid Services (CMS), Hospitals, Judicial Review, Jurisdiction

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Reconsider That Term Sheet: DOJ "Safe Harbor Policy" Announcement Incentivizes Merger-Related Disclosures

On October 4, 2023, the Department of Justice’s (“DOJ”) Deputy Attorney General Lisa Monaco announced a new “Mergers & Acquisitions Safe Harbor Policy” (“M&A Safe Harbor Policy” or “Policy”) for companies that voluntarily…more

Acquisitions, Corporate Misconduct, Department of Justice (DOJ), Disclosure, Disgorgement

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GSK v. Teva and Induced Infringement by AB-Rated Generics: Where Are We Now?

The Federal Circuit’s October 2020 split decision in GSK v. Teva made waves throughout the pharmaceutical industry and among Hatch-Waxman litigators.  In the broadest reading, some see the majority opinion as rendering any…more

Food and Drug Administration (FDA), Generic Drugs, Labeling, Manufacturers, Patent Infringement

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Energy Newsletter - June 2020

The Impact of COVID-19 on Nuclear Electricity Sales Contracts in France - The electricity sector, like numerous others in France, has been heavily affected by the economic shutdown due to the COVID-19 pandemic. The first…more

Administrative Hearings, Amended Rules, CARB, Climate Change, Commercial Bankruptcy

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Tokyo Dispute Resolution & Crisis Management Newsletter – January 2021 - Construction Projects: Disrupting the Disruptor

Once a remote health issue in China, coronavirus (“COVID-19”) remains today - as we enter the new year of 2021 - not only a global health concern but also a global economic disruptor that will impact nearly every industry. The…more

Business Interruption, China, Construction Contracts, Construction Industry, Construction Project

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Federal Court Vacates Key Clean Water Act Nationwide Permit

U.S. Army Corps of Engineers Enjoined from Using NWP 12 to Authorize “Utility Line Activities” in Jurisdictional Waters - On April 15, 2020, a federal district court in Montana invalidated the United States Army Corps of…more

Clean Water Act, Endangered Species Act (ESA), NEPA, US Army Corps of Engineers

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Spotlight on PFAS and Other Substances in Cosmetics Likely to Grow in 2022

This year – 2022 – may finally be the year that the effort to modernize safety standards in the U.S. for cosmetics and other personal care products, which has been ongoing since 2013, comes to fruition. If so, the new cosmetics…more

Best Practices, Cosmetics, EU, European Commission, Food and Drug Administration (FDA)

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SEC Views Proxy Advice as Solicitation under Federal Proxy Rules

The nation’s largest shareholder advisory firm, Institutional Shareholder Services Inc. (“ISS”), recently filed suit against the SEC over new guidelines meant to give investors more transparency into how proxy advisory firms…more

Corporate Governance, Glass Lewis, Guidance Update, Institutional Shareholder Services (ISS), Investment Adviser

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Delaware Chancery Court Holds Corporate Officers Owe Duty of Oversight

Vice Chancellor Laster Extends This Fiduciary Duty, Previously Recognized only as to Corporate Directors - On January 25, 2023, the Delaware Court of Chancery answered an important question of officer liability, holding for…more

Class Action, Compliance, Corporate Misconduct, Corporate Officers, DE Supreme Court

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One Step Closer: the Canada - EU Investment Court System

On January 29, 2021, Canada and the European Union (the “EU”) took additional steps to establish the EU-Canada Comprehensive Economic and Trade Agreement (the “CETA”)[i] by adopting four decisions required to implement its new…more

Canada, CETA, Code of Conduct, Court of Justice of the European Union (CJEU), EU

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AMLO Proposes New Legislation to Regulate the Oil & Gas Industry

On March 26, 2021, the President of Mexico, Andrés Manuel López Obrador (“AMLO”), sent a new bill to Congress intended to amend the Federal Hydrocarbons Law (the “Hydrocarbons Bill”). This is AMLO’s latest attempt to upend the…more

Energy Sector, Exports, Foreign Investment, Hydrocarbons, Imports

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FDA Releases Guidance on Testing High-Risk Drug Components for Diethylene Glycol and Ethylene Glycol

On May 10, the U.S. Food and Drug Administration (“FDA”) released a new guidance document Guidance for Industry: Testing of Glycerin, Propylene Glycol, Maltitol Solution, Hydrogenated Starch Hydrolysate, Sorbitol Solution, and…more

Contamination, Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA), New Guidance, Pharmaceutical Industry

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Employees Working Abroad

What are the legal issues for employers to consider? During the pandemic, many employers have been dealing with requests from employees to work abroad. With the move to remote working, employees have asked to work from…more

Coronavirus/COVID-19, Data Protection, Employment Contract, Foreign Workers, Income Taxes

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Africa Bulletin - September 2019

INTRODUCTION - It has been a busy few months for private equity activity in Africa. Statistics and transactions have illustrated a growing appetite for investment in the continent and, crucially, growing confidence and…more

Africa, Anti-Corruption, Economic Development, Financial Markets, Foreign Investment

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ESG Regulation Watch: UK Developments

In November 2020, the UK government published a road map (the Roadmap) towards mandatory climate-related disclosures across all sectors of the UK economy aligned with the recommendations of the Taskforce on Climate-related…more

Climate Change, Disclosure Requirements, Environmental Social & Governance (ESG), New Guidance, Pension Schemes

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UAE Civil Procedure Sees Change

The Civil Procedure Law (Federal Law No. 42 of 2022) came into force on 2 January 2023 (“New CP Law”) and ushered in several fundamental changes to the UAE Civil Procedure, including (without limitation) in relation to: (i)…more

Appeals, Court of Cassation, United Arab Emirates (UAE)

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Jurisdictions Are Vying for the Most Restrictive Non-Compete Laws and Your State Could Be Next

Series 3, 10 in 10: Issue 1 - Non-compete agreements are coming under increased scrutiny across the United States with several states and municipalities implementing new restrictions on these agreements in the employment…more

Compensation, Employment Contract, Enforcement, Jurisdiction, Non-Compete Agreements

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OCR Settles with LA Care Health Plan Over Potential HIPAA Security Rule Violations

On September 11, 2023, the HHS Office of Civil Rights (OCR) announced a settlement with LA Care Health Plan (LA Care) regarding LA Care’s potential HIPAA Security Rule violations. HHS and LA Care have executed a Resolution…more

Corrective Action Plans (CAPs), Electronic Protected Health Information (ePHI), HIPAA Security Rule, HIPAA Violations, OCR

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Sponsor Debt Purchases as Affiliated Lenders

In response to changes in the marketplace, it’s possible that borrowers will employ debt buybacks as a way to ease their overall net leverage levels (either as a means to cure financial covenant defaults resulting from the…more

Credit Agreements, Financial Institutions, Financial Services Industry, Financial Sponsors, Lenders

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SEC Adopts Private Fund Reform Rules

On August 23, 2023, in a 3-2 vote, the SEC adopted a rule package (the “Adopted Rules”) that establishes significant new obligations for private fund advisers under the Investment Advisers Act of 1940. While the Adopted Rules…more

Audits, Books & Records, Clawbacks, Compliance, Disclosure Requirements

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Energy Newsletter - September 2017

Managing Decommissioning Risks in Asian M&A Transactions - By the end of 2026, approximately 134 producing Concessions and Production Sharing Contracts (each, a “PSC”) will have expired in South Asia. It is expected that 900…more

Acquisitions, Asia, Cross-Border, Electricity, Force Majeure Clause

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Badgerow v. Walters: Supreme Court Narrows Federal Court Jurisdiction Over Arbitration Awards

On March 31, the Supreme Court issued its opinion in Badgerow v. Walters, significantly narrowing federal courts’ jurisdiction to confirm or vacate an arbitration award under the Federal Arbitration Act…more

Arbitration Agreements, Arbitration Awards, Enforcement, Federal Arbitration Act, Motion to Vacate

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Zeitlich befristete Änderung der Insolvenzantragspflicht wegen Überschuldung

Erneute Lockerung der Insolvenzantragspflicht durch das SanInsKG - Mit dem „Gesetz zur vorübergehenden Anpassung sanierungs- und insolvenzrechtlicher Vorschriften zur Abmilderung von Krisenfolgen“ (kurz: Sanierungs- und…more

Coronavirus/COVID-19, Insolvency, Liability, Reorganizations, Restructuring

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Term SOFR is Open for Business

On July 29th, 2021, the Alternative Reference Rate Committee (“ARRC”) formally recommended the adoption of CME Group’s forward-looking Secured Overnight Financing Rate term rates (“Term SOFR”). This announcement completes the…more

Alternative Reference Rates Committee (ARRC), Banking Sector, Libor, Secured Overnight Funding Rate (SOFR), Securities and Exchange Commission (SEC)

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Employers of Record – A Simple but Not Straightforward Solution to Employing Individuals Overseas

It’s no secret that the COVID-19 pandemic has caused a boom in remote work. But remote employees are not staying where their employer is; they’re moving to where they want to live. And employers are realizing that if their…more

Compensation, Compliance, Confidentiality Policies, Coronavirus/COVID-19, Employment Records

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Energy Newsletter - March 2019

Texas Supreme Court Finds Anadarko is Entitled to Over $100 Million in Deepwater Horizon Defense Costs Based on Undefined Term in Insurance Policy - Insurance coverage litigation arising out of the 2010 Deepwater Horizon…more

Arbitration, Clean Water Act, Construction Disputes, Construction Industry, Deepwater Horizon

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Major Changes Finalized to Stark Rules, Anti-Kickback Statute Safe Harbors and the Beneficiary Inducements CMP

CMS and OIG released highly anticipated final changes to the rules implementing the Stark Law, the safe harbors issued under the Anti-Kickback Statute (AKS) and the beneficiary inducements provision in the civil monetary…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Civil Monetary Penalty, Cybersecurity, Digital Health

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SEC Approves Polarizing 14a-8 Reforms

On September 23, 2020, the SEC adopted long-awaited amendments to Rule 14a-8 modifying the criteria for eligibility and resubmission of shareholder proposals. Prior to these amendments, the submission threshold had not been…more

Federal Register, Rule 14a-8, Securities and Exchange Commission (SEC), Shareholders

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FSOC and the Systemic Risk of Nonbank Companies

In a response to the difficulties it experienced in identifying nonbank systemically important entities, the Financial Stability Oversight Council (FSOC) has proposed a new procedure for detecting and dealing with potential…more

Dodd-Frank, Federal Reserve, FSOC, Nonbank Firms, Risk Assessment

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OIG Releases Compliance Program Guidance Applicable to All Providers and Suppliers

On November 6, 2023, OIG released new General Compliance Program Guidance (General CPG). The General CPG applies to all individuals and entities involved in the healthcare industry. The release of the General CPG was not…more

Clinical Laboratories, Compliance, Corporate Integrity Agreement, Health Insurance Portability and Accountability Act (HIPAA), Healthcare Fraud

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IRS and Treasury Issue Long-Awaited Proposed Guidance on Qualified Opportunity Fund Rules

On October 19, 2018, the Department of the Treasury and the Internal Revenue Service (the “IRS”) issued proposed regulations (the “Proposed Regulations”) under new section 1400Z-2 of the Internal Revenue Code (the “Code”),…more

Internal Revenue Code (IRC), IRS, Proposed Regulation, Tax Reform, U.S. Treasury

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Zeitlich befristete Änderung der Insolvenzantragspflicht wegen Überschuldung

Erneute Lockerung der Insolvenzantragspflicht durch das SanInsKG - Mit dem „Gesetz zur vorübergehenden Anpassung sanierungs- und insolvenzrechtlicher Vorschriften zur Abmilderung von Krisenfolgen“ (kurz: Sanierungs- und…more

Coronavirus/COVID-19, Insolvency, Liability, Reorganizations, Restructuring

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Cancellations, Quarantines and Closings - Coronavirus Considerations for Hospitality Lenders

Due to the novel coronavirus outbreak, the hospitality industry is potentially facing its worst crisis since the September 11, 2001 terrorist attacks. In response to the continuing outbreak, major companies have announced plans…more

Borrowers, Coronavirus/COVID-19, Financial Services Industry, Hospitality Industry, Hotel Management Agreements

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Searching for the Reasonable Consumer

Every state prohibits the use of false or misleading advertising on food labeling. In many food false advertising cases, the battleground is whether the “reasonable consumer” would be deceived by the challenged label statement,…more

Appeals, False Statements, Food Labeling, Motion to Dismiss, Omissions

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"Gig" Economy - Emerging Themes and Global Perspectives

On-demand workers (“gig workers”) represent a growing portion of the global workforce. While the continued growth of this category presents opportunities for employers to recalibrate their workforce strategy, it also creates…more

Employee Definition, Gig Economy, Independent Contractors, Misclassification, Unions

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IRS Rules that Oil and Gas Infrastructure Assets Yield Good REIT Income

On February 15, 2019, the Internal Revenue Service (the “IRS”) released PLR 201907001 (the “Ruling”), a private letter ruling addressing whether certain income related to the leasing of an oil and gas platform, selling of…more

Capital Assets, Corporate Counsel, Equipment Lease, Internal Revenue Code (IRC), IRS

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White House’s FY 2023 Budget Request Includes Healthcare Provisions

President Biden submitted his Fiscal Year (FY) 2023 budget request to Congress on March 28, 2022. The budget request is not binding on Congress. Rather, it may serve as a guide for both Congress and the administration as they…more

Budgets, Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS), Diversity, Food and Drug Administration (FDA)

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Trade & Manufacturing - July 2018

The Trump Administration Announces Final List Of Articles Subject To Section 301 Tariffs - On June 15, the Office of the United States Trade Representative (“USTR”) released the final list of 818 Chinese products that will…more

Aluminum Sales, Canada, China, Imports, Mexico

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EPA and NHTSA Take Regulatory Action to Revoke California Authority to Regulate Greenhouse Gas Emissions

Action May Have Far-Reaching Impacts - Today, the Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA”) announced a joint rule intended to substantially affect California’s…more

Automotive Industry, Carbon Emissions, Clean Air Act, Deregulation, Environmental Policies

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Tax Planning Aspects of Investing in U.S. Infrastructure Projects

On February 12, 2018, the Trump administration released an extensive infrastructure proposal that would increase U.S. federal infrastructure funding and incentives, provide state and local authorities greater discretion over…more

Infrastructure, Public Private Partnerships (P3s), Tax Planning, Trump Administration

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Spokeo II : On Remand from Supreme Court, Ninth Circuit Finds Statutory Violation of Fair Credit Reporting Act Sufficient to Confer Article III Standing

On August 15, 2017, in a much-anticipated opinion in a case that has drawn national attention in the past three years, the United States Court of Appeals for the Ninth Circuit held that an alleged violation of the Fair Credit…more

Article III, Class Action, Fair Credit Reporting Act (FCRA), Injury-in-Fact, Remand

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The USPTO Shutdown: Causes and Implications

How a USPTO Shutdown Will Affect PTAB Litigation and Prosecution Matters & Strategies - The government shutdown began December 22, 2018, but the United States Patent and Trademark Office (USPTO) and district and appeals…more

Discovery Disputes, Filing Requirements, Government Shutdown, Patent Prosecution, Patent Trial and Appeal Board

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The Airline Industry and the CARES Act: What Secured Lenders Need to Know

Since its enactment, aviation related companies have received well over $50 billion in grants and loans under the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) that was passed in March 2020. But how do…more

Aviation Industry, Bankruptcy Code, CARES Act, Coronavirus/COVID-19, Loan Forgiveness

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OCR Updates Guidance on Use of Online Tracking Technologies by HIPAA-Regulated Entities

On March 18, 2024, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a Bulletin revising its December 1, 2022 Guidance concerning the HIPAA obligations of covered entities and business…more

Department of Health and Human Services (HHS), Enforcement, Health Insurance Portability and Accountability Act (HIPAA), OCR, PHI

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Compensation and Benefits Insights - March 2018

Farewell to the Fiduciary Rule? The Fifth Circuit Vacates the Fiduciary Rule - On March 15, 2018, the Fifth Circuit Court of Appeals, in Chamber of Commerce v. U.S. Department of Labor, vacated the Department of Labor’s (the…more

Deadlines, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Fiduciary Rule, Health and Welfare Plans

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Messages for Public Companies from the SEC’s Spate of September Enforcement Actions

The United States Securities and Exchange Commission wrapped up its fiscal year on September 30, 2019 with a flurry of enforcement actions filed in the final weeks of the month. These cases will provide fodder for analysis for…more

Accounting Controls, CEOs, Corporate Structures, Disclosure Requirements, Enforcement Actions

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OIG Issues Warning About Speaker Programs Sponsored by Drug and Device Companies

On November 16, 2020, OIG issued a significant Special Fraud Alert that warns about certain “inherent” fraud and abuse risks raised by speaker programs sponsored by pharmaceutical and medical device companies. OIG expressed deep…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Department of Justice (DOJ), Fraud

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CMS Releases Section 1135 Waiver in Response to the Novel Coronavirus Pandemic

On March 13, 2020, President Trump declared the coronavirus pandemic a national emergency, invoking powers under the National Emergency Act and the Stafford Act. The President’s declaration, coupled with Secretary Azar’s earlier…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, EMTALA, Health Care Providers

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Treasury Issues Final Regulations Addressing “Domestically Controlled” REIT Status

On April 25, 2024, the IRS and Treasury issued final regulations (the “Final Regulations”) addressing whether a real estate investment trust (a “REIT”) or a regulated investment company (a “RIC”) will constitute a “domestically…more

C-Corporation, Fair Market Value, Final Rules, FIRPTA, Income Taxes

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Energy Newsletter - October 2018

Court Faults FERC in its Handling of ANR Storage Company’s Six Year Quest for Authorization to Charge Market-Based Rates for Natural Gas Storage Services - On September 21, 2018, the U.S. Court of Appeals for the District of…more

Energy Sector, FERC, Human Rights, Lebanon, Oil & Gas

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Protecting Americans’ Data from Foreign Surveillance Act

A bipartisan group of U.S. senators introduced legislation on June 23, 2022, to provide the federal government authority to limit or prevent the sale of Americans’ personal data to “high-risk” countries and malign foreign…more

Cybersecurity, Data Protection, Data Security, DFSA, Export Control Reform Act (ECRA)

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The Administration Takes Aim At Drug Prices Again – This Time Through A Controversial Framework for Exercising March-In Rights

The Biden Administration recently announced a plan to leverage an old tool in a new way to try to reduce drug costs: exercising “march-in rights” under the Bayh-Dole Act for drugs that were supported by government funding. …more

Bayh-Dole Act, Biden Administration, Department of Health and Human Services (HHS), Drug Pricing, Federal Contractors

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OCR Provides Guidance Regarding Patient Visitation Rights

On January 25, 2024, HHS Office for Civil Rights (OCR) issued guidance and responses to frequently asked questions regarding nondiscrimination regulations related to patient visitation. Hospitals, long term care facilities, and…more

Centers for Medicare & Medicaid Services (CMS), Code of Federal Regulations (CFR), Department of Health and Human Services (HHS), Federal Funding, Medicaid

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Biden Administration Initiates Inquiry Targeting "Connected Vehicles," with Chinese Electric Vehicles and Supply Chain As Clear Target For Regulation

The Biden Administration announced on February 29, 2024, that it is commencing an inquiry into whether the involvement of “foreign adversaries” in the information and communications technology and services (“ICTS”) supply chain…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, Bureau of Industry and Security (BIS), China, Cybersecurity

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Guidance on Section 45V Clean Hydrogen Production Tax Credit

The trajectory of the hydrogen sector in the United States hinges on a critical question: what criteria will be used to define the term “clean hydrogen” for tax purposes? As previously outlined in our Field Guide to Clean…more

Clean Air Act, Department of Energy (DOE), Environmental Protection Agency (EPA), EU, Greenhouse Gas Emissions

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COVID as a Force Majeure Event - An Interesting and Unexpected Development in Singapore

The Appellate Division of the Singapore High Court recently provided the construction industry with interesting, and somewhat unexpected, guidance regarding COVID as a force majeure event in the context of construction…more

Appeals, Construction Contracts, Construction Industry, Coronavirus/COVID-19, Corporate Counsel

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DOJ Releases Updated Export Control and Sanctions Voluntary Disclosure Policy

On December 13, 2019, the Department of Justice (“DOJ”) released an updated Export Control and Sanctions Enforcement Policy for Business Organizations (“Policy”), revising the prior policy governing voluntary self-disclosures of…more

Department of Justice (DOJ), Export Control Reform Act (ECRA), Export Controls, Exports, FCPA Corporate Enforcement Policy (CEP)

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Senate Holds Hearing To Discuss Federal Data Privacy Legislation

On October 10, 2018, the Senate Committee on Commerce, Science, and Transportation conducted a hearing to discuss the European Union’s recently implemented General Data Protection Regulation (“GDPR”) and California’s Consumer…more

California Consumer Privacy Act (CCPA), Data Privacy, EU, General Data Protection Regulation (GDPR)

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BlackRock Announces Major Shift Making Climate Change Central to Investment Decisions

On January 14th, BlackRock’s CEO Larry Fink issued his annual letter to portfolio company CEOs, this year titled “A Fundamental Reshaping of Finance.” The letter focuses on the potential effect that climate change will have on…more

Climate Change, Corporate Governance, Economic Growth, Environmental Social & Governance (ESG), Green Finance

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DOJ “Strike Force” Targets Antitrust Violations in Government Contracting

On November 5, 2019, the Justice Department announced the creation of a nationwide "strike force" to address criminal antitrust violations impacting government contracting, such as price fixing and bid rigging. The strike force…more

Antitrust Violations, Bid Rigging, Collusion, Criminal Antitrust Litigation, Criminal Conspiracy

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Executive Order Restrains Use of No-Poach & Non-Compete Clauses

As summarized in the July 9, 2021 King & Spalding Client Alert, President Biden issued an executive order on July 9, 2021 designed to enhance competition across multiple sectors of the U.S. economy. One of the order’s key areas…more

Biden Administration, Collusion, Competition, Department of Justice (DOJ), Enforcement Actions

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Potential Remedies for Russia’s Suspension of Foreign Investors’ Intellectual Property Rights

Potential Remedies for Russia’s Suspension of Foreign Investors’ Intellectual Property Rights: International Investment Arbitration - Foreign investors in Russia may have remedies pursuant to international investment treaties…more

Bilateral Investment Treaties, Economic Sanctions, Foreign Investment, Intellectual Property Protection, International Arbitration

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A Cautionary Tale on Non-GAAP Metrics

Increasingly used by REITs, non-GAAP metrics can provide insights into a company’s operating results that official GAAP metrics cannot. Such measures can demonstrate a company’s ability to deliver sustainable growth in earnings…more

False Statements, Financial Reporting, Financial Statements, Form 8-K, GAAP

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EU Aims for Ban of PFAS. Now is the Time to Act.

Earlier this year, the European Chemicals Agency (ECHA) published a proposal for a ban on the production, use and placing on the market (including import) of at least 10,000 per- and polyfluoroalkyl substances (PFAS). Companies…more

Drug Approvals, ECHA, EU, European Commission, Federal Bans

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UK Privacy Regulator Addresses Data Protection Under The GDPR

On Monday, March 6, 2017, the UK’s Information Commissioner’s Office (“ICO”) held its annual Data Protection Practitioners’ Conference. During the conference, Information Commissioner Elizabeth Denham, who was appointed to the…more

Data Protection, EU, General Data Protection Regulation (GDPR), Information Commissioner's Office (ICO), Personal Data

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House Republicans Establish New Select Subcommittees Focused on Pandemic and “Weaponization of the Federal Government”

On January 9, 2023, the U.S. House of Representatives adopted its rules package for the 118th Congress (“House Rules”) by a vote of 220 to 213. While much attention has been given to the provisions that would significantly…more

Biden Administration, Coronavirus/COVID-19, Fraud Abuse and Waste, Investigations, Regulatory Oversight

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Energy Newsletter - August 2019

Significant Changes to FERC’s Rules for Market-Based Rate Sellers - On July 18, 2019, the Federal Energy Regulatory Commission (“FERC”) issued two orders modifying its rules for sellers to obtain or retain authorization to…more

Energy Sector, FERC, Intercreditor Agreements, ISO/RTO, Latin America

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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HHS Announces Proposed Changes to the HIPAA Privacy Rule

On December 10, 2020, the HHS Office of Civil Rights (OCR) announced proposed modifications to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule. Among other changes, the proposed rule would shorten…more

Department of Health and Human Services (HHS), Health Insurance Portability and Accountability Act (HIPAA), Privacy Laws, Proposed Amendments, Proposed Rules

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OIG Issues Four Advisory Opinions

From December 23, 2020 through December 31, 2020, the OIG issued several advisory opinions. The advisory opinions analyzed (1) a program for a pharmaceutical manufacturer to provide financial assistance to certain patients, (2)…more

Advisory Opinions, Anti-Kickback Statute, Financial Assistance Policies, Food and Drug Administration (FDA), Home Health Agencies

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Supreme Court Asked to Resolve Circuit Split On Whether Licensee Trademark Rights Survive Rejection in Bankruptcy

On June 11, 2018, Mission Product Holdings, Inc. (“MPHI”), a developer of chemical free cooling fabrics, petitioned the U.S. Supreme Court for a writ of certiorari to resolve a circuit split on whether a licensee’s right to use…more

Bankruptcy Court, Debtors, Intellectual Property Protection, Licensees, Petition for Writ of Certiorari

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Hydrogen-Related Provisions of the Inflation Reduction Act of 2022

The Inflation Reduction Act of 2022, passed by the Senate on August 7, 2022, includes a number of provisions projected to result in significant investments in domestic energy production and manufacturing, and reduce carbon…more

Biden Administration, Carbon Capture and Sequestration, Carbon Emissions, Department of Energy (DOE), Department of Labor (DOL)

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FinCEN Requests Comments on Beneficial Ownership Reporting Requirement; FinCEN’s Request For Information Moves U.S. Towards Modernization Of BSA/AML Regime

The United States Department of the Treasury (“Treasury”) is taking further action to combat corruption, money laundering, terrorist financing, tax fraud, and other illicit activities. Following its Advance Notice of…more

Bank Secrecy Act, Beneficial Owner, BSA/AML, Corporate Transparency Act, Corruption

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U.S. Supreme Court Holds Plaintiffs May Use RICO to Enforce Foreign Arbitral Awards

In a January 17, 2023 Client Alert, we addressed the U.S. Supreme Court’s decision to grant certiorari in CMB Monaco v. Smagin and Yegiazaryan v. Smagin, two cases which concern the use of the Racketeer Influenced and Corrupt…more

Bribery, Domestic Injury, Embezzlement, Foreign Arbitral Awards, Fraud

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Executive Order Restricts Foreign Access to U.S. Data, Citing National Security Risks

On February 28, 2024, President Biden signed Executive Order (EO) 14117 titled “Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern.” On March 5, 2024,…more

Advanced Notice of Proposed Rulemaking (ANPRM), Artificial Intelligence, Biden Administration, Biometric Information, Cyber Espionage

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Russia’s Recent Actions Against Foreign Investors Will Give Rise to Claims Under International Investment Treaties

Since the Russian Federation’s invasion of Ukraine, more than 400 international companies have announced their intentions to scale back or shut down their business operations in Russia. Russia has responded to the exodus of…more

Bilateral Investment Treaties, Economic Sanctions, Energy Charter Treaty, Foreign Investment, Military Conflict

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Algeria Launches A Call For Tenders For The Long-Awaited “Solar 1,000 MW” Project

After several postponements since it was first announced back in 2020, Algeria finally launched a call for tenders for a 1GW solar project, the so-called “Solar 1,000 MW” Project, on December 23, 2021. SCOPE - The Solar…more

Algeria, Financing, Solar Energy, Special Purpose Vehicles

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FinCEN Proposes Rule to Extend Bank Secrecy Act Obligations to Certain Investment Advisers

The Proposed Rule Would Subject Certain Investment Advisers to a Broad Range of AML/CFT Obligations and Represents a Significant Development for the Sector - Regulators have long considered the lack of anti-money laundering…more

AML/CFT, Bank Secrecy Act, Broker-Dealer, BSA/AML, Compliance

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Recent Proliferation of Pay Disclosure Laws in the United States Presents Opportunities and New Considerations for Employers

Within the past five years, a growing number of states and localities have enacted pay disclosure laws requiring employers to disclose pay rates or salary ranges during the hiring process. To date, California, Colorado,…more

Disclosure Requirements, Employee Benefits, Enforcement, Environmental Social & Governance (ESG), Pay Transparency

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SEC Adopts Private Fund Reform Rules

On August 23, 2023, in a 3-2 vote, the SEC adopted a rule package (the “Adopted Rules”) that establishes significant new obligations for private fund advisers under the Investment Advisers Act of 1940. While the Adopted Rules…more

Audits, Books & Records, Clawbacks, Compliance, Disclosure Requirements

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World Bank Integrity Vice Presidency Continues Robust Enforcement in 2020

On October 8, 2020, the World Bank Group (“WBG”) issued its Sanctions System Annual Report for the fiscal year 2020 (the “Report”), detailing the WBG’s efforts to investigate and adjudicate allegations of sanctionable practices…more

Coronavirus/COVID-19, World Bank

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Constitutional Limitations On Emergency Authority

Lessons For The COVID-19 Pandemic Landscape - INTRODUCTION - Over the last two months, there has been a flurry of federal, state, and local government action to stem the spread of COVID-19. These efforts have included a…more

Coronavirus/COVID-19, Due Process, Emergency Powers, Executive Orders, Fifth Amendment

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Can’t We All Just Get Along? Four Key Areas of Dispute in the Evolving Landscape of LIBOR Cessation Litigation

On November 30, 2020, parties to legacy LIBOR contracts breathed a collective sigh of relief as LIBOR’s administrator Intercontinental Exchange, Inc. (“ICE”) announced that US Dollar LIBOR would continue to be published until…more

Adjustable-Rate Mortgage, Alternative Reference Rates Committee (ARRC), Class Action, Enforcement Actions, EU

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FDA Warns That Most Hair Smoothing or Straightening Products Release Formaldehyde Gas During the Hair Straightening or Smoothing Process

On March 2, 2021, the U.S. Food & Drug Administration (“FDA”) issued a consumer update in the form of a “what you should know” regarding formaldehyde in hair smoothing or straightening products, such as keratin treatments. FDA…more

Environmental Protection Agency (EPA), Food and Drug Administration (FDA), OSHA, Toxic Chemicals, Warning Labels

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Supreme Court Accepts Narrow Definition of Autodialer, Limiting Reach of TCPA

On April 1, in a highly anticipated decision that likely will have a significant effect on litigation under the Telephone Consumer Protection Act (TCPA), the Supreme Court ruled on what qualifies as an “automatic telephone…more

ATDS, Auto-Dialed Calls, Facebook, Facebook Inc v Duguid, Random or Sequential Number Generator

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Study Shows Hospital M&A Deals Linked to Improved Quality of Care

A research study published September 20, 2021 in JAMA Network Open found that mergers and acquisitions of rural hospitals are associated with better mortality outcomes for certain conditions as compared to rural hospitals that…more

Hospital Mergers, Hospitals, JAMA, Quality of Care Standards

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Energy Newsletter - June 2017

Mineral and Royalty Interest MLPs: An Alternative Exit For PE-Backed Mineral and Royalty Interest Cos. - Oil and gas exploration companies no longer have to go door-to-door, or ranch-to-ranch, to negotiate oil and gas…more

Construction Disputes, Dispute Resolution, Energy Sector, Minerals, Patent Infringement

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What happens in Vegas...

Non-financial misconduct and the UK Senior Managers and Certification Regimen - The old adage goes that, “What happens in Vegas, stays in Vegas.” But, does this really hold true in the UK financial services sector?…more

#MeToo, Duty to Disclose, Employment Tribunals, Financial Conduct Authority (FCA), Financial Services Industry

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EPA’s Proposed Methane Rule to Increase Regulatory Burden on “Super Pollutant”

On November 2, 2021, the Environmental Protection Agency (“EPA”) issued a Notice of Proposed Rulemaking (“NPRM”) proposing sweeping regulations on emissions from methane, what the Biden administration considers a “super…more

Climate Change, Environmental Justice, Environmental Protection Agency (EPA), Federal Register, Methane

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ITC Section 337 Update – August 2016

DeLorme Seeks Certiorari Review Of Consent Order Penalty Based On Expired Patent — On July 13, 2016, DBN Holding, Inc. and BDN LLC (“DeLorme”) filed a petition for writ of certiorari to review a judgment of the United States…more

Anti-Dumping Duty, Appeals, Component Parts Doctrine, Consent Order, Countervailing Duties

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Zeitlich befristete Änderung der Insolvenzantragspflicht wegen Überschuldung

Erneute Lockerung der Insolvenzantragspflicht durch das SanInsKG - Mit dem „Gesetz zur vorübergehenden Anpassung sanierungs- und insolvenzrechtlicher Vorschriften zur Abmilderung von Krisenfolgen“ (kurz: Sanierungs- und…more

Coronavirus/COVID-19, Insolvency, Liability, Reorganizations, Restructuring

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A Guide to UK Tax on Commercial Real Estate: Non-Residents

1. Introduction - This client alert provides a summary of key UK tax considerations when a nonresident invests into UK commercial real estate. There are a number of holding structures for investment into UK real estate by…more

Commercial Real Estate Market, Diverted Profits Tax, Foreign Tax, Limited Liability Company (LLC), Limited Partnerships

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EPA's New Actions in the Battery Industry May Promote Uniformity

The United States Environmental Protection Agency (“EPA”) issued a voluntary Request for Information (“RFI”) on June 9, 2022, regarding best practices for battery recycling and labeling guidelines. 87 Fed. Reg. 35,202. The RFI…more

Battery, Department of Labor (DOL), Infrastructure Investment and Jobs Act (IIJA), Labeling, Lithium Batteries

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California’s New Law To Prevent Greenwashing In Environmental Marketing For Voluntary Carbon Offsets

As part of a package of new climate change legislation, on October 7, 2023, California Governor Gavin Newsom signed into law the Voluntary Carbon Market Disclosures Act (“VCMDA” or “AB 1305”). Intended as an effort to reduce…more

California, Civil Monetary Penalty, Climate Change, Corporate Governance, Environmental Violations

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Key Recent Developments In Environmental Justice Litigation

Louisiana remains at the forefront of environmental justice activity. In just four days from January 19 to January 23, 2024, two courts in Louisiana offered interpretations to environmental justice efforts in the State of…more

Anti-Discrimination Policies, Appeals, Civil Rights Act, Clean Air Act, Department of Environmental Quality

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EPA Releases a Cumulative Impacts Addendum to its Environmental Justice Tool Kit

On January 11, 2023, EPA’s Office of the General Counsel released a Cumulative Impacts Addendum (“Addendum”) to its May 2022 publication Legal Tools To Advance Environmental Justice, continuing to signal its focus on cumulative…more

Civil Rights Act, Clean Air Act, Clean Water Act, Environmental Justice, Environmental Protection Agency (EPA)

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Energy Newsletter - September 2020

Climate Change Litigation on the Horizon with Trump Environmental Overhaul - On July 16, 2020, President Trump’s Council on Environmental Quality (“CEQ”) published the long-awaited final rule revising the implementing…more

CEQ, CFIUS, Climate Change, Coronavirus/COVID-19, Debt Restructuring

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LDT Final Rule: Shifting the LDT Battlefield

On April 29, 2024, the Food and Drug Administration (“FDA” or “the Agency”) released a pre-publication version of the highly anticipated laboratory developed test final rule (“LDT Final Rule”). The LDT Final Rule is scheduled…more

Compliance, Enforcement, False Statements, Federal Food Drug and Cosmetic Act (FFDCA), Final Rules

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Cooperation Credit and Attorney-Client Privilege: The Implications of Coburn

Cognizant Technology’s Privilege Waiver - On February 1, 2022, the District of New Jersey ordered a company to produce internal investigation materials to two former executives indicted in connection with an alleged foreign…more

Attorney-Client Privilege, Bribery, Corporate Counsel, Department of Justice (DOJ), Federal Rules of Evidence

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New European Batteries Regulation Has Been Adopted

The European Union (EU) published its new Batteries Regulation on July 28, 2023. The long-awaited text, presented for the first time by the EU Commission in late 2020 and subject to negotiations since then, contains a…more

Batteries, Electric Vehicles, EU, European Commission, Hazardous Substances

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Russia’s Recent Actions Against Foreign Investors Will Give Rise to Claims Under International Investment Treaties

Since the Russian Federation’s invasion of Ukraine, more than 400 international companies have announced their intentions to scale back or shut down their business operations in Russia. Russia has responded to the exodus of…more

Bilateral Investment Treaties, Economic Sanctions, Energy Charter Treaty, Foreign Investment, Military Conflict

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SCCA Publishes New Arbitration Rules

The Saudi Center for Commercial Arbitration (“SCCA”) announced on 1 May 2023 the publication of its revised SCCA Arbitration Rules (the “2023 Rules”). This follows the SCCA’s announcement in November 2022 of i) the formation of…more

Arbitration, Arbitration Agreements, DIFC, Mediation, New Rules

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Oversight Subcommittee on the Coronavirus Crisis Continues to Actively Investigate the Previous Administration’s Pandemic Response

When announcing the Democratic members of the Select Subcommittee on the Coronavirus Crisis for the 117th Congress, Chairman Jim Clyburn (D-SC) stated that, “In order to improve our nation’s response, the Select Subcommittee…more

CARES Act, Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Department of Veterans Affairs, Economic Injury Disaster Loans

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CMS Issues Retroactive Final Rule Keeping Part C Days in the Medicare Fraction of the DSH Calculation

On June 7, 2023, CMS issued a final rule retroactively re-adopting its policy requiring patient days attributable to Medicare Part C beneficiaries (Part C days) to be counted in the Medicare fraction of the disproportionate…more

Azar v Allina Health Services, Centers for Medicare & Medicaid Services (CMS), DSH, Final Rules, Medicare

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Infrastructure Bill Paves the Way for New Energy Investments and Technology

In November 2021, “[t]he United States House of Representatives passed the Infrastructure Investment and Jobs Act, a once-in-generation bipartisan infrastructure bill that will create millions of jobs, turn the climate crisis…more

Carbon Capture and Sequestration, Climate Action Plan, Climate Change, Department of Energy (DOE), Electric Vehicles

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SEC Adopts Amendments to Form PF; Establishes Certain “Event Reporting” Requirements for Private Equity Advisers and Large Hedge Fund Advisers, Among Other Obligations

On May 3, 2023, the SEC adopted amendments to Form PF that will establish new event-reporting requirements for “private equity fund advisers” and “large hedge fund advisers”, and will require certain additional annual…more

Compliance, Hedge Funds, Investment, Investment Adviser, Private Equity Funds

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U.S. House of Representatives Establishes Select Committee on Strategic Competition with China

On January 10, 2023, the House of Representatives passed H.Res. 11 establishing the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party (the “Select Committee”). The resolution…more

China, Competition, Foreign Investment, Investigations, Popular

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Institutional Investors Petition the SEC to Require ESG Disclosures

On October 1, 2018, two law school professors—Cynthia Williams of York University and Jill Fisch of the University of Pennsylvania—together with numerous institutional investors that collectively manage more than $5 trillion in…more

Corporate Governance, Financial Institutions, Institutional Investors, Securities and Exchange Commission (SEC)

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U.S. International Trade Commission to Investigate Potential Waiver of International Intellectual Property Rights for COVID-19 Diagnostics and Therapeutics

On February 1, 2023, the U.S. International Trade Commission (the “ITC”) initiated an investigation into the impact of intellectual property (“IP”) rights on the production, supply, and availability of diagnostics and…more

Coronavirus/COVID-19, Intellectual Property Protection, International Trade Commission (ITC), Supply Chain, TRIPS Agreement

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U.S. Blocks Alibaba Affiliate Ant Financial’s Acquisition of MoneyGram

De-facto blocking evidences continuing scrutiny of Chinese investments in U.S. companies in the strategic technology and financial industries. On January 2, 2018, MoneyGram International, Inc. (NYSE:MGI (“MoneyGram”) and…more

Acquisitions, Alibaba, CFIUS, China, De Facto Injury

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Federal Court in Maryland Holds Property Insurer Must Provide Coverage for Ransomware Attack

Cyber insurance policies are typically a company’s first line of defense following a cybersecurity event, but a recent decision from a federal court in Maryland illustrates why businesses should always look for cyber coverage…more

Cyber Insurance, Cybersecurity, Insurance Claims, Insurance Industry, Insurance Litigation

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Avoiding the Cliff Edge - Immediate Steps for Firms and Groups with Financial Services Businesses in Europe Involving the UK

The UK is due to leave the European Union on March 29, 2019 (“Brexit”). Within the EEA, “passport rights” permit financial services institutions and funds authorised in any EEA Member State to conduct business cross border…more

EU, EU Passport, European Economic Area (EEA), Financial Services and Markets Act, Financial Services Industry

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NAIC's Focus on Investment Management Agreements (IMAs) involving Private Equity-Owned Insurers

As private equity investors continue to increase their presence in the insurance industry with acquisitions of insurers and reinsurance of blocks of insurance contracts through insurer portfolio companies and segregated cells,…more

Conflicts of Interest, Insurance Industry, Investment Management, Investors, Life Insurance

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FDA Issued Draft Objective Performance Criteria For Five Device Types

Implications for 510(k) Submissions - On September 20, 2019, FDA issued four separate draft guidance documents for industry and FDA administration staff that provide extensive objective performance criteria (OPC) for five…more

510(k) RTA, Draft Guidance, Food and Drug Administration (FDA), Life Sciences, Medical Devices

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2023 SEC Exam Priorities

On February 7, the Division of Examinations of the Securities and Exchange Commission (the “Division”) published its 2023 Examination Priorities (the “Exam Priorities”).1 The Exam Priorities indicate a particular Staff…more

Business Development Companies, Business Expenses, CFTC, Compliance, Conflicts of Interest

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Employers of Record – A Simple but Not Straightforward Solution to Employing Individuals Overseas

It’s no secret that the COVID-19 pandemic has caused a boom in remote work. But remote employees are not staying where their employer is; they’re moving to where they want to live. And employers are realizing that if their…more

Compensation, Compliance, Confidentiality Policies, Coronavirus/COVID-19, Employment Records

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Utilizing Structured Finance Techniques in Distressed Situations

Securitization, and structured finance generally, is a critical capital-raising tool for many companies. Utilizing one or more bankruptcy-remote special purpose entities to legally isolate the credit risk of quality,…more

Bankruptcy Code, Bankruptcy Court, Capital Raising, Contingency Plans, Credit Enhancements

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The Coming Wave of Remote Depositions

The competing interests of social distancing and litigation needs are forcing the legal profession to re-think the most fundamental functions. The Supreme Court of the United States is now hearing arguments by phone. Appellate…more

Coronavirus/COVID-19, Social Distancing, Telecommunications

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First Circuit Finds Chapter 9 Special Revenue Provisions Permit Voluntary Payment, But Do Not Require Them

On March 26, 2019, the First Circuit Court of Appeals, affirming a decision by the District Court emanating out of the Puerto Rico Title III bankruptcy cases, found that Sections 928(a) and 922(d) of the Bankruptcy Code “permit,…more

Appeals, Article III, Bankruptcy Code, Chapter 9, Liens

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EPA's New Actions in the Battery Industry May Promote Uniformity

The United States Environmental Protection Agency (“EPA”) issued a voluntary Request for Information (“RFI”) on June 9, 2022, regarding best practices for battery recycling and labeling guidelines. 87 Fed. Reg. 35,202. The RFI…more

Battery, Department of Labor (DOL), Infrastructure Investment and Jobs Act (IIJA), Labeling, Lithium Batteries

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DOT Releases Autonomous Vehicles Guidelines - New AV Policy Sets a Course for Safety and Oversight

The highly anticipated Federal Automated Vehicles Policy (AV Policy), released yesterday, provides manufacturers direction on developing safer autonomous cars. In addition, NHTSA has presented a model guide for states on their…more

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

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Broad Consumer Privacy Bill Introduced In New York State Senate

New York’s State Senate is considering a bill that would impose sweeping new requirements upon companies that collect and process consumer data, including a fiduciary-like duty to protect such data. On May 9, 2019, New York…more

California Consumer Privacy Act (CCPA), Consumer Privacy Rights, Data Collection, Data Privacy, Data Processors

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FSOC and the Systemic Risk of Nonbank Companies

In a response to the difficulties it experienced in identifying nonbank systemically important entities, the Financial Stability Oversight Council (FSOC) has proposed a new procedure for detecting and dealing with potential…more

Dodd-Frank, Federal Reserve, FSOC, Nonbank Firms, Risk Assessment

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Tokyo Dispute Resolution & Crisis Management Newsletter – June 2020: Coronavirus & Construction Contracts - Causation, Force Majeure and Notice Provisions

Large construction projects, by their very nature, carry significant commercial and financial risk for the parties involved. Contributing to this overall risk is the reality that an act of nature or other circumstance beyond the…more

Australia, Causation, Construction Contracts, Construction Industry, Construction Project

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D.C. Non-Compete Ban

D.C. Bans Non-Compete Provisions in Employment Agreements and Employment Policies - The District of Columbia has enacted a law that will prohibit nearly all non-compete agreements between D.C. employers and D.C. employees. …more

Conflicts of Interest, Employment Policies, Non-Compete Agreements, Pre-Employment Agreements, Trade Secrets

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Third Circuit Rules Make-Whole Provisions Enforceable in the Energy Future Bankruptcy

On November 17, the U.S. Court of Appeals for the Third Circuit (the “Court”) made clear its stance on the question of enforceability of make-whole provisions in bankruptcy. Bucking the recent trend seen in cases such as In re…more

Appeals, Bankruptcy Court, Borrowers, Commercial Bankruptcy, Debt

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EU Council Approves Corporate Sustainability Due Diligence Directive

On 15 March 2024, the European Council approved the Corporate Sustainability Due Diligence Directive (“CSDDD” or “Directive”). If approved by the European Parliament and entered into force, the CSDDD will require large EU and…more

Batteries, Child Labor, Corporate Counsel, Due Diligence, EU

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April Employment Law Round-Up: Platform Workers, Non-Competes and Beyond

Although many employment changes in the UK are largely on ice until after the election later this year, April has seen a number of employment law developments – largely from the courts. We highlight some recent decisions, on…more

EU, New Guidance, Non-Compete Agreements, Strike, Trade Unions

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AI Driven "Deepfakes" Expose Holes in Corporate Compliance Programs: The Road to Recovery

Artificial intelligence (“AI”) has made astounding advancements in recent years. Driven by incredible computing power, AI has the potential to change nearly every industry. AI is touted as having the potential to reduce…more

Artificial Intelligence, Audio Recording, Biometric Information, Corporate Counsel, Cyber Attacks

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Preventing Organizational Conflicts of Interest in Federal Acquisition Act

On December 27, 2022, Congress passed the Preventing Organizational Conflicts of Interest in Federal Acquisition Act (“the Act”), aiming to help identify and mitigate potential conflicts of interest between taxpayer-funder…more

Conflicts of Interest, Disclosure Requirements, Federal Acquisition Regulations (FAR), Federal Contractors

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Aufsichtsrechtliche und zivilrechtliche Rechtsfolgen bei Verstößen gegen Transparenzpflichten nach der OffenlegungsVO und TaxonomieVO?

Seit dem 10. März dieses Jahres gilt die Verordnung (EU) 2019/2088 des Europäischen Parlaments und des Rates vom 27. November 2019 über nachhaltigkeitsbezogene Offenlegungspflichten im Finanzdienstleistungssektor…more

Compensation, Disclosure Requirements, Environmental Social & Governance (ESG), EU, European Parliament

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South Carolina Receives Approval from CMS to Implement Medicaid Work Requirements

On December 12, 2019, CMS approved South Carolina’s proposal for a demonstration project that would add work, or community engagement, requirements as part of the eligibility determinations for the state’s Medicaid plan. South…more

1115 Waivers, Affordable Care Act, Centers for Medicare & Medicaid Services (CMS), Medicaid, Medicaid Work Requirements

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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OSHA Pushes Ahead With Final Vax Or Test Rule Despite Court Challenges

On November 5, 2021, the U.S. Occupational Safety and Health Administration (“OSHA”) published an Emergency Temporary Standard (“ETS”) mandating employers implement “vax or test” policies for COVID-19. The ETS went into…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Employer Mandates, OSHA, Vaccinations

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Changes to REMIT

REMIT is Regulation (EU) No 1227/2011 on wholesale energy market integrity and transparency which has been in force since 28 December 2011. Its purpose is to support open and fair competition in the European wholesale…more

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Major Changes Finalized to Stark Rules, Anti-Kickback Statute Safe Harbors and the Beneficiary Inducements CMP

CMS and OIG released highly anticipated final changes to the rules implementing the Stark Law, the safe harbors issued under the Anti-Kickback Statute (AKS) and the beneficiary inducements provision in the civil monetary…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Civil Monetary Penalty, Cybersecurity, Digital Health

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Reconsider That Term Sheet: DOJ "Safe Harbor Policy" Announcement Incentivizes Merger-Related Disclosures

On October 4, 2023, the Department of Justice’s (“DOJ”) Deputy Attorney General Lisa Monaco announced a new “Mergers & Acquisitions Safe Harbor Policy” (“M&A Safe Harbor Policy” or “Policy”) for companies that voluntarily…more

Acquisitions, Corporate Misconduct, Department of Justice (DOJ), Disclosure, Disgorgement

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Cannabis Banking Bill Clears U.S. House of Representatives

On September 25, 2019, the U.S. House of Representatives approved historic legislation to provide legalized marijuana businesses access to banking services. H.R. 1595, the Secure and Fair Enforcement Banking Act of 2019 or the…more

Banking Sector, Decriminalization of Marijuana, Dispensaries, Marijuana, Marijuana Related Businesses

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California’s New Law To Prevent Greenwashing In Environmental Marketing For Voluntary Carbon Offsets

As part of a package of new climate change legislation, on October 7, 2023, California Governor Gavin Newsom signed into law the Voluntary Carbon Market Disclosures Act (“VCMDA” or “AB 1305”). Intended as an effort to reduce…more

California, Civil Monetary Penalty, Climate Change, Corporate Governance, Environmental Violations

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HHS Office for Civil Rights Issues Guidance Regarding HIPAA Requirements for Online Tracking Technologies

On December 1, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services provided guidance on the intersection of the Health Insurance Portability and Accountability Act (HIPAA) and the use of online…more

Business Associates Agreement (BAA), Data Protection, Department of Health and Human Services (HHS), Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA)

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Cancellations, Quarantines and Closings - Coronavirus Considerations for Hospitality Lenders

Due to the novel coronavirus outbreak, the hospitality industry is potentially facing its worst crisis since the September 11, 2001 terrorist attacks. In response to the continuing outbreak, major companies have announced plans…more

Borrowers, Coronavirus/COVID-19, Financial Services Industry, Hospitality Industry, Hotel Management Agreements

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The Airline Industry and the CARES Act: What Secured Lenders Need to Know

Since its enactment, aviation related companies have received well over $50 billion in grants and loans under the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) that was passed in March 2020. But how do…more

Aviation Industry, Bankruptcy Code, CARES Act, Coronavirus/COVID-19, Loan Forgiveness

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Accelerated Covid-19 Vaccine Clinical Trials

Liability exposure and shields for vaccine developers - As the number of COVID-19 cases continues to rise every day, efforts to develop vaccines across the globe have hit record speeds. In the U.S., the U.S. Food and Drug…more

Center for Biologics Evaluation and Research (CBER), Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Department of Health and Human Services (HHS), European Medicines Agency (EMA)

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Hydrogen-Related Provisions of the Inflation Reduction Act of 2022

The Inflation Reduction Act of 2022, passed by the Senate on August 7, 2022, includes a number of provisions projected to result in significant investments in domestic energy production and manufacturing, and reduce carbon…more

Biden Administration, Carbon Capture and Sequestration, Carbon Emissions, Department of Energy (DOE), Department of Labor (DOL)

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Hydrogen: State of Play in the GCC

Much has been written about the role of hydrogen in the context of energy transition and the path to net zero. Putting aside for the moment the degree of investment and innovation required to get from where we are now to where…more

Carbon Capture and Sequestration, EU, Financial Institutions, Fossil Fuel, Greenhouse Gas Emissions

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FTC and DOJ Increase Scrutiny of Private Equity’s Role in Healthcare

On March 5, 2024, the Federal Trade Commission (FTC) hosted a virtual workshop titled “Private Capital, Public Impact: an FTC Workshop on Private Equity in Healthcare” (the Workshop). The agenda, together with a recording of the…more

Biden Administration, Department of Health and Human Services (HHS), Department of Justice (DOJ), Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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Tokyo Dispute Resolution & Crisis Management Newsletter – December 2016

Major FCPA Enforcement Action - Including charges against the CEO and CFO for failing to prevent misconduct - In one of the largest FCPA settlements in history, hedge fund Och-Ziff Capital Management Group LLC…more

CEOs, Democratic Republic of Congo, Enforcement Actions, Foreign Corrupt Practices Act (FCPA), Hedge Funds

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Energy Newsletter - August 2020

Environmental Tort Class Actions - In what has become a near legal certainty following plant explosions, train wrecks with chemical spills, and other large-scale accidents, plaintiffs often file suit and seek to certify…more

Board of Directors, Class Action, Coronavirus/COVID-19, Damages, Disclosure

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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New U.S. Customs Anti-Forced Labor Tool Will Require Submission Of Chinese Supplier Postal Codes

On January 26, 2023, U.S. Customs and Border Protection (“CBP”) provided more detail on its imminent implementation of another tool to detect potential forced labor imports into the United States. CBP confirmed that it will…more

China, Customs and Border Protection, Enforcement, Forced Labor, Imports

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Litigation

From a litigation perspective, designating PFOA and PFOS as CERCLA hazardous substances will have a substantial impact on future litigation. Currently, EPA’s Chemical Data Reporting (CDR) rule under the Toxic Substance Control…more

CERCLA, Chemical Data Reporting, Environmental Protection Agency (EPA), Hazardous Substances, PFAS

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NHTSA to Require Reporting of Crashes Involving SAE Automation Levels 2+

On June 29, 2021, the National Highway Traffic Safety Administration (NHTSA) issued a Standing General Order (SGO) to manufacturers and operators of Automated Driving Systems (ADS) and Level 2 Advanced Driver Assistance Systems…more

Automotive Industry, Confidential Business Information (CBI), Driverless Cars, Good Faith, Hardware

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Court of Appeal decision in SFO v ENRC: l itigation privilege wins the day (for now)

In an eagerly awaited judgment, the English Court of Appeal has today overturned an earlier decision narrowing the scope of litigation privilege in criminal investigations in the UK. The Court of Appeal ruled that interview…more

Appeals, Criminal Investigations, Internal Investigations, Litigation Privilege, Serious Fraud Office (SFO)

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Healthcare Management Services Organizations Get The Green Light In California

Healthcare management services organizations (MSO), also known as a medical management company, have become critical to managing healthcare operations. The structure of the MSO and the MSO ownership, however, carry risk and case…more

Anti-Kickback Statute, Appeals, California, Dismissals, Health Care Providers

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M&A in the Food and Beverage Industry, Part I: What You Need to Know About Due Diligence and Its Impact on Acquisition Agreement Provisions

The food and beverage industry is booming and presents numerous attractive opportunities for acquisitions, investments and other strategic transactions. Whether a transaction involves the acquisition of a more mature brand…more

Acquisition Agreements, Acquisitions, Beverage Manufacturers, Contract Negotiations, Contract Terms

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SEC Adopts Rules Requiring Certain Trading Entities, Including Certain Investment Advisers and Private Funds, to Register as Broker-Dealers

Section 3(a)(5) of the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”) defines a “dealer” as “any person engaged in the business of buying and selling securities […] for such person’s own account…more

Anti-Avoidance, Broker-Dealer, Investment Adviser, Liquidity, New Rules

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ZATCA Clarifies the Requirements for Granting a 30-Year Tax Relief to Multinational Corporations under the Regional Headquarters Program

The Government of the Kingdom of Saudi Arabia (“Kingdom”) in February 2021 announced its objective to limit governmental contracting with multinational companies (“MNCs”) that do not have a Regional Headquarter (“RHQ”) in the…more

Income Taxes, Multinationals, Saudi Arabia, Withholding Tax

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HRSA Implements Administrative Dispute Resolution Process for 340B Program

On December 10, 2020, HRSA issued a final rule (the Final Rule) implementing the 340B Drug Pricing Program administrative dispute resolution (ADR) process–an overdue mandate from the Affordable Care Act. Under the Final Rule,…more

Affordable Care Act, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Dispute Resolution, Federal Rules of Civil Procedure

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Prosecutors Using FIRREA to Investigate Pandemic Conduct

The Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”) is a powerful tool in the prosecutorial arsenal. Due to its long statute of limitations, expansive penalty provision, and low civil burden of…more

CARES Act, Civil Monetary Penalty, CMBS, Coronavirus/COVID-19, Department of Justice (DOJ)

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Strategic Alternatives for Real Estate Portfolios Part II - Repositioning of the Portfolio

The review of strategic alternatives can be a daunting task even for the most seasoned executives and directors of real estate companies and real estate investment trusts. This is particularly true in today’s real estate…more

Real Estate Market, REIT, Tax Structuring

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How Smart Contracts Can Streamline Capital Projects

When the discussions are finished, the negotiations are concluded, and the contract is signed, the real work begins on a capital project. Thousands of cubic yards of concrete, miles of wiring and pipe, and tons of steel—all of…more

Blockchain, Capital Investments, Construction Contracts, Construction Project, Contract Formation

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Initial Coin Offerings in the United Arab Emirates

Background - Against the backdrop of the increasing prominence of cryptocurrencies globally, initial coin offerings or ICOs are becoming commensurately popular as a capital raising method. ICOs, essentially a method of…more

Blockchain, Capital Raising, Crowdfunding, Cryptocurrency, Initial Coin Offering (ICOs)

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Paris Court of Appeal Addresses Constitution of Tribunal in OIC Investment Arbitration

On March 23, 2021, the Paris Court of Appeal issued a decision with important ramifications for investors pursuing arbitration under the Agreement for the Promotion, Protection and Guarantee of Investments Among Member States of…more

Appeals, Arbitration, Arbitrators, Foreign Tribunals, International Arbitration

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And So it Begins: What Recent Announcements Mean for the Future of LIBOR

On March 5, 2021, the ICE Benchmark Administration (the “IBA”) issued feedback that it had completed the consultation with LIBOR panel banks that it began in December 2020, and stated that it will be unable to publish certain…more

Alternative Reference Rates Committee (ARRC), Financial Conduct Authority (FCA), ICE Benchmark Administration (IBA), ISDA, Libor

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The Rise of Crypto SPACs

Digital assets and special purpose acquisition companies (“SPACs”) have been two of the hottest topics in the financial world over the past few years, and, unsurprisingly, the topics overlap with increasing frequency. We have…more

Acquisition Agreements, Cryptocurrency, Digital Assets, Disclosure Requirements, Initial Public Offering (IPO)

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Reconsider That Term Sheet: DOJ "Safe Harbor Policy" Announcement Incentivizes Merger-Related Disclosures

On October 4, 2023, the Department of Justice’s (“DOJ”) Deputy Attorney General Lisa Monaco announced a new “Mergers & Acquisitions Safe Harbor Policy” (“M&A Safe Harbor Policy” or “Policy”) for companies that voluntarily…more

Acquisitions, Corporate Misconduct, Department of Justice (DOJ), Disclosure, Disgorgement

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FTC Finalizes Amendments to Health Breach Notification Rule Aimed at Clarifying its Application to Health Applications and Similar Technologies

On April 26, 2024, the Federal Trade Commission (FTC) released a pre-publication version of its final changes to the Health Breach Notification Rule (HBNR) designed to clarify the scope of the HBNR, including its coverage of…more

Breach Notification Rule, Data Breach, Federal Trade Commission (FTC), Final Rules, Health Insurance Portability and Accountability Act (HIPAA)

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The Airline Industry and the CARES Act: What Secured Lenders Need to Know

Since its enactment, aviation related companies have received well over $50 billion in grants and loans under the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) that was passed in March 2020. But how do…more

Aviation Industry, Bankruptcy Code, CARES Act, Coronavirus/COVID-19, Loan Forgiveness

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California Hospitals Sue Insurance Company Over Delayed Patient Discharges

Last week, the California Hospital Association (CHA), which represents more than 400 hospitals, filed a lawsuit against Anthem Blue Cross (Anthem) alleging that Anthem’s untimely arrangement for, and authorization of, medically…more

California, Health Insurance, Hospitals, Injunctive Relief, Patient Discharge Planning

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Field Guide to Clean Hydrogen

Hydrogen is a key ingredient in any country’s future energy plans. In the United States, the hydrogen sector is on the launch pad, ready for lift-off. However, its trajectory hinges on a critical question: what criteria will…more

Biden Administration, Carbon Emissions, Clean Energy, Department of Energy (DOE), Energy Projects

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FINRA Proposes Expansion of Safe Harbor in Cases of Suspected Financial Exploitation

Thwarting the financial exploitation of seniors and other vulnerable investors has been an increasing focus of several financial regulators in recent years, including the Financial Industry Regulatory Authority (“FINRA”). In…more

Exploitation, Financial Industry Regulatory Authority (FINRA), Proposed Amendments, Retail Investors, Safe Harbors

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A Guide to UK Tax on Commercial Real Estate: Non-Residents

1. Introduction - This client alert provides a summary of key UK tax considerations when a nonresident invests into UK commercial real estate. There are a number of holding structures for investment into UK real estate by…more

Commercial Real Estate Market, Diverted Profits Tax, Foreign Tax, Limited Liability Company (LLC), Limited Partnerships

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Searching for the Reasonable Consumer

Every state prohibits the use of false or misleading advertising on food labeling. In many food false advertising cases, the battleground is whether the “reasonable consumer” would be deceived by the challenged label statement,…more

Appeals, False Statements, Food Labeling, Motion to Dismiss, Omissions

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Supreme Court Denies “Safe Harbor” Protection for Transfers Where Financial Institutions Are Mere Conduits

On February 27, 2018, the Supreme Court issued a unanimous decision in Merit Management Group, LP v. FTI Consulting, Inc., holding that the “safe harbor” encompassed in Section 546(e) of the Bankruptcy Code does not protect…more

Bankruptcy Code, Financial Institutions, Safe Harbors, SCOTUS, Section 546(e)

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The SEC's New Clawback Rules Will Change Internal Investigations

Public companies are swiftly adopting policies regarding “erroneously awarded compensation” by December 1, 2023, to comply with listing standards required by the new SEC Rule 10D-1. These policies will require companies to…more

Accounting, Auditors, Clawbacks, Compensation, Incentive Compensation

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REIT Advisor – March 2020

On March 2, 2020, the Securities and Exchange Commission (the “SEC”) released its final rule amending the financial disclosure requirements applicable to registered debt offerings that include credit enhancements, including…more

Amended Regulation, Disclosure Requirements, Final Rules, Financial Statements, New Rules

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SEC Adopts Final Cybersecurity Disclosure Rules

On July 26, 2023, the U.S. Securities and Exchange Commission (the “Commission”) adopted final rules on cybersecurity risk management, strategy, governance, and incident disclosure by a split vote of 3-2. While the Commission…more

Cyber Incident Reporting, Cybersecurity, Disclosure Requirements, Final Rules, Publicly-Traded Companies

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SEC Staff Addresses Net Performance Presentation Requirements for Single Investments Under Marketing Rule

On January 11, 2023, the SEC Staff published a question-and-answer in its Marketing Compliance FAQs that addresses whether an advertisement that includes gross performance information for a single investment (or group of…more

Compliance, Investment, Private Funds, Securities and Exchange Commission (SEC)

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Biden Administration Unveils New COVID-19 Vaccination and Testing Requirements for Large Businesses and Healthcare Workers

On November 4, 2021, the Biden administration published two new rules governing employers with 100 or more employees and healthcare workers at hospitals, nursing homes and other facilities that participate in Medicare and…more

Biden Administration, Coronavirus/COVID-19, Employer Mandates, Executive Orders, Healthcare Workers

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Mid-Year Report: FINRA Enforcement Builds Momentum After Historic Penalties

After collecting near-record amounts in fines, restitution, and disgorgement in 2021 – which included a $70 million monetary penalty against a financial institution in a single action – FINRA continues to raise the bar on…more

Conflicts of Interest, Customer Protection Rule, Disgorgement, Enforcement Actions, Financial Industry Regulatory Authority (FINRA)

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Big Data and Bigger Disputes? How New Data Technologies Impact Construction Disputes

The last decade has seen the emergence of Big Data platforms allowing parties to major construction projects to digitize and integrate more and more of the engineering, design and build phase of their projects. Such…more

Audits, Big Data, Construction Disputes, Contractors, Engineering

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Quantum Quarterly – Issue 12 – 4 Quarter 2020

Claimant is an Australian joint venture between Chile’s Antofagasta plc and Canada’s Barrick Gold Corporation. In 2006, Claimant became a party to a joint venture agreement between it and the Government of Balochistan with the…more

Arbitration, Burden of Proof, Causation, Compensation, Contributory Negligence

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DOJ Issues Guidance for Evaluating a Business Organization's Inability to Pay a Criminal Fine or Penalty

On October 8, 2019, Assistant Attorney General Brian A. Benczkowski issued a memorandum to the Criminal Division of the U.S. Department of Justice (“DOJ” or “the Department”) that established a framework for assessing assertions…more

Civil Monetary Penalty, Corporate Criminal Fines, Corporate Fines, Department of Justice (DOJ), Federal Sentencing Guidelines

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Federal Court Vacates Key Clean Water Act Nationwide Permit

U.S. Army Corps of Engineers Enjoined from Using NWP 12 to Authorize “Utility Line Activities” in Jurisdictional Waters - On April 15, 2020, a federal district court in Montana invalidated the United States Army Corps of…more

Clean Water Act, Endangered Species Act (ESA), NEPA, US Army Corps of Engineers

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President Biden's Executive Order on AI - Legal Practice Snapshots

On October 30, 2023, President Biden published a landmark Executive Order regarding the use of Artificial Intelligence (“AI”) with an accompanying Fact Sheet, touching on the opportunities these systems present along with their…more

Antitrust Division, Artificial Intelligence, Biden Administration, Cybersecurity, Data Privacy

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USTR Announces Next Steps On Proposed 10 Percent Tariff On Imports From China

Tariffs To Be Effective On September 1, 2019 For Some Products And December 15, 2019 For Others; Certain Products Will Not Be Subject To Additional Tariffs; Product Exclusion Process To Be Implemented. …more

China, Imports, Tariffs, Trump Administration, US Trade Policies

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FTC’s Amended Safeguards Rule Creates Unique Dilemma for Certain Organizations Who Have Experienced a Data Breach

On May 13, 2024, the FTC’s new rule (the “Rule”) requiring certain financial institutions to report cyber incidents to the Commission will go into effect. The Rule, which is an amendment to the Gramm-Leach-Bliley Act (GLBA)…more

Data Breach, Federal Trade Commission (FTC), Financial Institutions, Gramm-Leach-Blilely Act, Mortgage Brokers

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The 2024 UAE Financial Restructuring and Bankruptcy Law: What is New?

On 31 October 2023, Federal Law Decree No. (51) concerning Financial Restructuring and Bankruptcy (the New Law) was published in the UAE Federal Gazette. The New Law comes into force on 1 May 2024 and will repeal the 2016 Law on…more

Automatic Stay, Bankruptcy Court, Bankruptcy Trustees, Commercial Bankruptcy, Creditors

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Energy Newsletter - August 2019

Significant Changes to FERC’s Rules for Market-Based Rate Sellers - On July 18, 2019, the Federal Energy Regulatory Commission (“FERC”) issued two orders modifying its rules for sellers to obtain or retain authorization to…more

Energy Sector, FERC, Intercreditor Agreements, ISO/RTO, Latin America

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The EU Regulation on Foreign Subsidies is published – What does it target and what does it involve for companies?

On 23 December 2022, the new EU Foreign Subsidies Regulation (“FSR”)1 was published in the Official Journal of the EU. The FSR aims at tackling the distortions to the EU internal market caused by subsidies granted by non-EU…more

Disclosure Requirements, EU, European Commission, Foreign Subsidies, New Regulations

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Sponsor Debt Purchases as Affiliated Lenders

In response to changes in the marketplace, it’s possible that borrowers will employ debt buybacks as a way to ease their overall net leverage levels (either as a means to cure financial covenant defaults resulting from the…more

Credit Agreements, Financial Institutions, Financial Services Industry, Financial Sponsors, Lenders

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Brexit Trade Audit: A Five-Step Guide to Help Determine the Way Forward

Companies doing business in the UK or from the UK should be looking to “future-proof” their operations following the UK’s recent vote to leave the European Union. A Brexit audit is one way of determining the possible impact of…more

Audits, EU, Goods or Services, Imports, Member State

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Neiman Marcus and The Fiduciary Duties of Creditors’ Committee Members

Creditors who are members of an official committee of unsecured creditors in a bankruptcy owe fiduciary duties to other unsecured creditors and to other committee members. In this article on the Neiman Marcus bankruptcy, the…more

Chapter 11, Committee Members, Creditors, Fiduciary Duty, Fraud

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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FDA Warns That Most Hair Smoothing or Straightening Products Release Formaldehyde Gas During the Hair Straightening or Smoothing Process

On March 2, 2021, the U.S. Food & Drug Administration (“FDA”) issued a consumer update in the form of a “what you should know” regarding formaldehyde in hair smoothing or straightening products, such as keratin treatments. FDA…more

Environmental Protection Agency (EPA), Food and Drug Administration (FDA), OSHA, Toxic Chemicals, Warning Labels

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8 Key Business Takeaways From Russia’s War

Economic ripples of Russia’s invasion of Ukraine will permeate the financial, energy, retail, and agricultural sectors, among others. (A link to a related King & Spalding webinar is located here.) While the full effects of the…more

Bilateral Investment Treaties, China, Economic Sanctions, Foreign Assets, Imports

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Energy Newsletter - May 2018

Courts Hold Clean Water Act Regulates Discharges through Groundwater, as Congress and Regulators Consider Responses - The Ninth Circuit and Fourth Circuit have joined a growing number of lower courts finding that the Clean…more

Clean Water Act, Energy Sector, Greenhouse Gas Emissions, Groundwater, Infrastructure

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Private Over Public? An Emerging Markets Perspective

The private placement of debt securities, compared to the more common public issuances, has grown in popularity in recent years, particularly in emerging markets such as those in the Middle East. Whilst there is little publicly…more

Capital Markets, Debt Securities, Disclosure Requirements, Emerging Markets, Institutional Investors

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ITC Section 337 Update – August 2016

DeLorme Seeks Certiorari Review Of Consent Order Penalty Based On Expired Patent — On July 13, 2016, DBN Holding, Inc. and BDN LLC (“DeLorme”) filed a petition for writ of certiorari to review a judgment of the United States…more

Anti-Dumping Duty, Appeals, Component Parts Doctrine, Consent Order, Countervailing Duties

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Impact of the Coronavirus Disease 2019 (COVID-19) on Public and Private Securities Offerings

The rapidly developing news on the spread of the Coronavirus Disease 2019 (“COVID-19”) in the United States and other nations across the world has resulted in significant turmoil in global financial markets, bringing renewed…more

Business Continuity Plans, Coronavirus/COVID-19, Corporate Issuers, Due Diligence, Economic Downturn

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Energy Newsletter - February 2020

U.S. Government’s Continued Focus on Large Ship Air Emissions - The U.S. Environmental Protection Agency (“EPA”) and the U.S. Coast Guard (“USCG”) continue to signal interest in addressing air pollution from large ships and…more

Air Pollution, Air Quality Standards, Carbon Emissions, Energy Sector, Environmental Policies

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CMS Issues Hospice Proposed Payment Rule

Last week, CMS issued a proposed rule (Proposed Rule) for fiscal year (FY) 2025 aiming to update Medicare hospice payments and aggregate cap amount in accordance with existing statutory and regulatory requirements. The Proposed…more

Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Healthcare, Hospice, Medicare

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Washington Insight - September 2016

House Financial Services Committee Votes To Repeal And Replace Dodd-Frank - On September 13th, the House Financial Services Committee approved the Financial CHOICE Act of 2016 to repeal and replace key parts of the 2010…more

Broker-Dealer, Class Action, Commercial Real Estate Market, Consumer Financial Protection Bureau (CFPB), Cyber Threats

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A Brief Overview of the Federal Rulemaking Process in the United States

Since the enactment of the Inflation Reduction Act of 2022 (the “IRA”) in the United States, the Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) have issued notices of proposed regulations…more

Administrative Procedure Act, Congressional Review Act, Department of Energy (DOE), Department of Labor (DOL), GAO

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2023 M&A Outlook: Recapping Key Takeaways from Dealmaking in 2022 and Navigating New Challenges

Coming off record-setting levels in 2021, M&A deal activity cooled in the second half of 2022. A multitude of factors – including soaring inflation, steadily rising interest rates and the higher cost of financing, geopolitical…more

Acquisitions, Borrowers, Corporate Counsel, Department of Justice (DOJ), Domestic Dealmaking

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COVID-19 – Take Action Now to Protect Intellectual Property Rights During Bankruptcy

It is no secret that the outbreak of the coronavirus has caused untold damage, distress, and dislocation to the worldwide economy, leading many companies to consider their respective restructuring options. Given the current…more

Appeals, Chapter 11, Coronavirus/COVID-19, Filing Deadlines, Filing Requirements

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Nachhaltige Finanzierungen (Sustainable Finance) in der Kreditwirtschaft

Das Thema nachhaltige Finanzierung (Sustainable Finance) nimmt weiter an Fahrt auf und steht Anfang 2021 erneut im Fokus: diesseits des Atlantiks ist zum 10. März 2021 die EU-Offenlegungsverordnung in Kraft getreten, nach der…more

Banking Sector, Capital Requirements Directive IV (CRDIV), Capital Requirements Regulation (CRR), Climate Action Plan, Climate Change

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2019 Year in Review: FDA Office of Prescription Drug Promotion

In 2019, the U.S. Food and Drug Administration’s (FDA) Office of Prescription Drug Promotion (OPDP) issued a total of ten enforcement letters targeting advertising and promotion violations for prescription drugs. Of the ten…more

Food and Drug Administration (FDA), Manufacturers, Off-Label Promotion, OPDP, Pharmaceutical Industry

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ESG and Securities Litigation

Recent Trends Show Increased Focus on Allegations of "Greenwashing" Over the past few years, regulators, businesses, and the market in general have become increasingly focused on environmental, social, and governance (“ESG”)…more

Climate Change, Disclosure Requirements, Diversity, Enforcement Actions, Environmental Social & Governance (ESG)

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OIG Publishes Final Information Blocking Enforcement Rule

On July 3, 2023, OIG published its final enforcement rule (the OIG Rule) permitting imposition of civil monetary penalties (CMPs) for certain actors that engage in information blocking in violation of the information blocking…more

21st Century Cures Act, Civil Monetary Penalty, Electronic Protected Health Information (ePHI), Enforcement, Final Rules

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Key Business and Human Rights Issues for 2021

Business and human rights will continue to receive significant attention and development in 2021. Take a look at what is on the horizon . . . COVID-19: Vaccines are being administered in some countries but COVID-19 will…more

Child Labor, Climate Change, Contact Tracing, Coronavirus/COVID-19, Employee Privacy Rights

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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Georgia Results Flip the Senate and Will Lead to More Congressional Investigations

With the majority in both the U.S. House and Senate, Democrats are poised to chair powerful investigative committees in the 117th Congress - With the victories of Raphael Warnock over incumbent Kelly Loeffler, and Jon…more

Anti-Competitive, Congressional Investigations & Hearings, Coronavirus/COVID-19, Diversity, Energy Sector

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Compensation and Benefits Insights – August 2019

Multiple Employer Plans: Proposed IRS Regulations Eliminate the “One Bad Apple” Rule - A multiple employer plan (MEP) is a tax qualified retirement plan that is maintained by two or more employers who are not part of the…more

Benefit Plan Sponsors, Department of Labor (DOL), Employee Benefits, Employee Retirement Income Security Act (ERISA), Exemptions

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SEC Adopts Rules Requiring Certain Trading Entities, Including Certain Investment Advisers and Private Funds, to Register as Broker-Dealers

Section 3(a)(5) of the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”) defines a “dealer” as “any person engaged in the business of buying and selling securities […] for such person’s own account…more

Anti-Avoidance, Broker-Dealer, Investment Adviser, Liquidity, New Rules

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House Republicans Intend to Tie GME Training Funds to Ban Gender Affirming Care

House Republicans have announced their intent to cut federal funding for training new pediatricians to hospitals that perform gender-affirming care on minors. The proposed bill, sponsored by Rep. Dan Crenshaw (R-Texas), would…more

Children's Hospital, Federal Funding

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COVID-19: Permissible And Impermissible Procedures For When Employees Return To The Workplace

As states begin contemplating ways to ease shelter in place restrictions and how to facilitate employees returning to work, employers are faced with developing and implementing new policies and procedures to effectively…more

Americans with Disabilities Act (ADA), Coronavirus/COVID-19, Employer Liability Issues, Equal Employment Opportunity Commission (EEOC)

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Medicare Advantage Payors Have Not Redressed 340B Underpayments

CMS recently published its remedy in response to the Supreme Court’s decision that CMS’s 340B outpatient drug payment policy violated the Medicare statute. Many hospitals that are 340B covered entities will now receive tens of…more

Centers for Medicare & Medicaid Services (CMS), Covered Entities, Final Rules, Hospitals, Medicare Advantage

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Agencies Issue Informal No Surprises Act IDR Guidance on Batching and Air Ambulance Disputes

On November 28, 2023, the Departments of Health and Human Services, Labor, and the Treasury (the Departments) issued two sets of FAQs on aspects of the No Surprises Act (NSA) Independent Dispute Resolution Process (IDR Process)…more

Ambulance Providers, Dispute Resolution, Interim Final Rules (IFR), New Guidance, No Surprises Act (NSA)

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Energy Newsletter - March 2019

Texas Supreme Court Finds Anadarko is Entitled to Over $100 Million in Deepwater Horizon Defense Costs Based on Undefined Term in Insurance Policy - Insurance coverage litigation arising out of the 2010 Deepwater Horizon…more

Arbitration, Clean Water Act, Construction Disputes, Construction Industry, Deepwater Horizon

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FTC and DOJ Issue New Merger Guidelines

On December 18, 2023, the U.S. antitrust enforcers, the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) (collectively, the “Agencies”), issued their final Merger Guidelines…more

Acquisitions, Anti-Competitive, Antitrust Provisions, Department of Justice (DOJ), Enforcement

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Beneficial Ownership Information Reporting Rule Requires Millions of Entities to Report Certain Information to FinCEN Effective January 1, 2024

On March 24, 2023, Financial Crimes Enforcement Network (“FinCEN”), a bureau of the U.S. Department of the Treasury, released its guidance materials on its final rule (the “Rule”) establishing beneficial ownership information…more

Beneficial Owner, Corporate Transparency Act, Department of Transportation (DOT), Final Rules, FinCEN

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2023 M&A Outlook: Recapping Key Takeaways from Dealmaking in 2022 and Navigating New Challenges

Coming off record-setting levels in 2021, M&A deal activity cooled in the second half of 2022. A multitude of factors – including soaring inflation, steadily rising interest rates and the higher cost of financing, geopolitical…more

Acquisitions, Borrowers, Corporate Counsel, Department of Justice (DOJ), Domestic Dealmaking

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No Deal Brexit: Impact on Cross-Border Civil and Commercial Litigation

On 13 September 2018, the UK Government published a guidance note setting out the implications that a “no deal” Brexit would have on civil and commercial disputes and cross-border insolvencies in England and Wales. Civil and…more

Cross-Border, EU, Member State, UK, UK Brexit

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FinCEN Requests Comments on Beneficial Ownership Reporting Requirement; FinCEN’s Request For Information Moves U.S. Towards Modernization Of BSA/AML Regime

The United States Department of the Treasury (“Treasury”) is taking further action to combat corruption, money laundering, terrorist financing, tax fraud, and other illicit activities. Following its Advance Notice of…more

Bank Secrecy Act, Beneficial Owner, BSA/AML, Corporate Transparency Act, Corruption

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Supreme Court Accepts Narrow Definition of Autodialer, Limiting Reach of TCPA

On April 1, in a highly anticipated decision that likely will have a significant effect on litigation under the Telephone Consumer Protection Act (TCPA), the Supreme Court ruled on what qualifies as an “automatic telephone…more

ATDS, Auto-Dialed Calls, Facebook, Facebook Inc v Duguid, Random or Sequential Number Generator

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Court Certifies Class Despite Plaintiff’s Admission that She Consistently Purchased the Product Years Before the Allegedly Misleading “0g Trans Fat” Claim Was Added to the Label

On November 9, 2020, Judge Jeffrey Miller of the Southern District of California certified a class of California citizens alleging that Kroger violated various California consumer protection laws by mislabeling its breadcrumbs…more

Class Certification, False Advertising, Food Labeling, Nutrition Facts Labels, Predominance Requirement

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FDA Publishes White Paper on Artificial Intelligence & Medical Products

On March 15, 2024, FDA published a white paper titled “Artificial Intelligence & Medical Products: How CBER, CDER, CDRH, and OCP are Working Together” (the AI White Paper) on the use of artificial intelligence (AI) across the…more

Artificial Intelligence, CDRH, Center for Biological Diversity, Center for Biologics Evaluation and Research (CBER), Center for Drug Evaluation and Research (CDER)

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New Flexibilities Enacted in Paycheck Protection Program (PPP)

On June 5, 2020, President Trump signed into law the Paycheck Protection Program Flexibility Act, H.R. 7010 (P.L. 116-142). While this law does not add any new funding to the Small Business Administration (SBA) Paycheck…more

Borrowers, CARES Act, Coronavirus/COVID-19, Interim Final Rules (IFR), Loan Forgiveness

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SEC Adopts Rules Requiring Certain Trading Entities, Including Certain Investment Advisers and Private Funds, to Register as Broker-Dealers

Section 3(a)(5) of the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”) defines a “dealer” as “any person engaged in the business of buying and selling securities […] for such person’s own account…more

Anti-Avoidance, Broker-Dealer, Investment Adviser, Liquidity, New Rules

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U.S. Department of Justice Issues New Guidance on the Use and Selection of Corporate Monitors in Criminal Cases

Just three months into the job, Brian Benczkowski, the head of the U.S. Department of Justice’s criminal division, has issued a memorandum entitled “Selection of Monitors in Criminal Division Matters,” providing new guidance on…more

Corporate Monitoring, Department of Justice (DOJ), Government Investigations

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Ninth Circuit Holds That Medical Opinions Do Not Automatically Preclude FCA Liability at the Pleading Stage

In late March, the United States Court of Appeals for the Ninth Circuit revived a whistleblower lawsuit under the False Claims Act (FCA) in which a former employee accused a healthcare provider of submitting reimbursement claims…more

False Claims Act (FCA), Fraud, Health Care Providers, Healthcare Facilities, Healthcare Fraud

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EU Aims for Ban of PFAS. Now is the Time to Act.

Earlier this year, the European Chemicals Agency (ECHA) published a proposal for a ban on the production, use and placing on the market (including import) of at least 10,000 per- and polyfluoroalkyl substances (PFAS). Companies…more

Drug Approvals, ECHA, EU, European Commission, Federal Bans

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Federal Circuit Continues Trend of Finding Diagnostic Inventions to Be Patent-Ineligible

On August 9, 2019, the Federal Circuit issued a public opinion in Genetic Veterinary Sciences, Inc. v. LABOKLIN GmbH & Co. KG, finding claims directed to methods for detecting a genetic marker for a canine hereditary disease to…more

Alice Corporation, Corporate Counsel, Diagnostic Method, Diagnostic Tests, DNA

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CFPB's New Small Business Data Collection Rule

A recent rule (12 CFR Part 1002, the “Rule”) issued in final form by the Consumer Financial Protection Bureau (the “CFPB”) earlier this year imposes a host of data collection and reporting obligations on lenders to small…more

Compliance, Consumer Financial Protection Bureau (CFPB), Consumer Protection Act, Data Collection, Dodd-Frank

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Russian Duma Approves Draft Law on Countersanctions

On May 22, 2018 Russia’s State Duma (the lower house of parliament) passed the third and final reading of the draft law "On measures to influence (counteract) the unfriendly actions of the United States of America and (or) other…more

Economic Sanctions, Exports, Imports, Russia

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Foreign Extortion Prevention Act (FEPA)

How the New Law Creates Legal Risks and Opportunities for International Businesses - On December 22, 2023, President Biden signed into law the 2024 National Defense Authorization Act (NDAA), which will give the U.S. Department…more

Anti-Bribery, Anti-Corruption, Bribery, Department of Justice (DOJ), Enforcement

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Avoiding an Ambiguous Hold Harmless Clause: What Every Lender Should Consider

Lenders rely on indemnification and hold harmless provisions in commitment and engagement letters to protect against claims that may be brought not only by third parties but by borrowers and their affiliates as well. Such…more

Ambiguous, Commitment Letter, Damages, Engagement Letters, Hold Harmless

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IRS Rules that Oil and Gas Infrastructure Assets Yield Good REIT Income

On February 15, 2019, the Internal Revenue Service (the “IRS”) released PLR 201907001 (the “Ruling”), a private letter ruling addressing whether certain income related to the leasing of an oil and gas platform, selling of…more

Capital Assets, Corporate Counsel, Equipment Lease, Internal Revenue Code (IRC), IRS

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Best Practices for Conducting Arbitration Hearings Remotely

If you reside on the East Coast of the United States, in the span of twenty years, you have lived through a devastating terrorist attack, a once-in-a-century Super Storm, and now, a global coronavirus pandemic. Each of these…more

Arbitration, Arbitrators, Coronavirus/COVID-19, Dispute Resolution, Remote Working

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No Deal Brexit: Impact on Cross-Border Civil and Commercial Litigation

On 13 September 2018, the UK Government published a guidance note setting out the implications that a “no deal” Brexit would have on civil and commercial disputes and cross-border insolvencies in England and Wales. Civil and…more

Cross-Border, EU, Member State, UK, UK Brexit

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FTC Proposes Stricter Children’s Privacy Rules in First COPPA Update since 2013

On December 20, 2023, the Federal Trade Commission (FTC) announced proposed revisions to its rules administering the Children’s Online Privacy Protection Act (COPPA). The updates both expand the universe of businesses subject to…more

Biometric Information, COPPA, Cybersecurity, Data Collection, Data Privacy

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Energy Newsletter - April 2017

Navigating Private Equity Fund Limitations for Energy Infrastructure-Focused Investments - Energy infrastructure funds have emerged as a class of funds that offer investors the potential for long-term stable returns, as well…more

Argentina, Bankruptcy Court, Energy Sector, Infrastructure, Keystone XL Pipeline

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He Actually Did It: Trump Administration Implements Medicare Part B “Most Favored Nation” Drug Pricing Reform

On November 20, 2020, 60 days before the end of his Administration, President Trump announced a series of major drug pricing regulations. This Alert summarizes the Most Favored Nation Model (“MFN Model”) for Medicare Part B…more

Administrative Procedure Act, Advanced Notice of Proposed Rulemaking (ANPRM), Affordable Care Act, Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS)

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Start Aiming Now: Employers Have One Year Left to Ensure Compliance with The California Privacy Rights Act (CPRA)

Effective January 1, 2023, the California Privacy Rights Act (“CPRA”), will expand the California Consumer Privacy Act (“CCPA”) by granting employees additional rights over their personal information. Employers will now be…more

California, California Privacy Rights Act (CPRA), Corporate Counsel, Data Collection, Employees

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Fifth Circuit Holds District Court Has Jurisdiction to Decide Repayment Amount Owed by HHS to Medicare Provider as an “Effectuation” of Prior Initial Overpayment Determination

On January 3, 2022, the U.S. Court of Appeals for the Fifth Circuit Court reversed the decision of the District Court for the Western District of Louisiana dismissing for lack of jurisdiction a Medicare provider’s suit seeking a…more

Appeals, Department of Health and Human Services (HHS), Jurisdiction, Medicare, Medicare Appeals Council

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SEC Division of Examinations – 2021 Priorities

On March 3, 2021, the SEC’s Division of Examinations (“Division” or “EXAMS”) published its annual Examination Priorities Report, which identified eight primary areas of focus for Fiscal Year 2021. While many of these priorities…more

Anti-Money Laundering, Broker-Dealer, Coronavirus/COVID-19, Digital Assets, Environmental Social & Governance (ESG)

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Energy Newsletter - July 2018

The New Midstream Transactions - A recent trend in the upstream and midstream oil and gas industry is for midstream services providers to offer certain forms of additional compensation to oil and gas lessees / operators…more

Environmental Policies, EU, Imports, Liquid Natural Gas, NEPA

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White House Expected to Sign Law Opening Competitive Bidding for Organ Procurement and Transplantation Network Activities

White House Expected to Sign Law Opening Competitive Bidding for Organ Procurement and Transplantation Network Activities On July 27, 2023, the U.S. Senate passed H.R. 2544 - Securing the U.S. Organ Procurement and…more

Competitive Bidding, Department of Health and Human Services (HHS), HRSA, Organ Transplant Centers

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Energy Newsletter - June 2018

Lessons for Sellers in Contracting with Emerging Market Buyers: The “Three R’s” to Structuring Payment Security Provisions - The recent rebound in the international energy industry is being driven, at least in part, by a…more

BSEE, Cloud Computing, Energy Policy, Energy Sector, Exports

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Energy Newsletter - March 2020

Disrupting the Disruptor: How a Prepared and Proactive Owner Can Mitigate the Effects of Coronavirus on Construction Projects - Once a remote health issue in China, the rapidly spreading coronavirus (COVID-19) has become not…more

Construction Project, Coronavirus/COVID-19, Energy Sector, Final Rules, Force Majeure Clause

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EU Regulations Restricting Imports of Renewable Natural Gas and Green Hydrogen Derivative Products

The European Commission (EC) is in the process of implementing its “Union database” (UDB) to track all renewable gases and liquid fuels. Gases and fuels, whether produced in the EU or imported, will need to be registered in the…more

Derivatives, EU, European Commission, European Economic Area (EEA), Green Energy

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Russia’s Recent Actions Against Foreign Investors Will Give Rise to Claims Under International Investment Treaties

Since the Russian Federation’s invasion of Ukraine, more than 400 international companies have announced their intentions to scale back or shut down their business operations in Russia. Russia has responded to the exodus of…more

Bilateral Investment Treaties, Economic Sanctions, Energy Charter Treaty, Foreign Investment, Military Conflict

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Contact-Tracing Apps: A Delicate Balancing Act of Workplace Safety and Privacy Rights

As the patchwork of state and local stay-at-home restrictions lighten, organizations are exploring safe return-to-work options, including the use of contact-tracing mobile apps for employees while on company premises.  Such a…more

Americans with Disabilities Act (ADA), Applications, Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, COVID-19 Consumer Data Protection Act

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PCAOB Division of Enforcement’s First Quarter Continues Record-Setting Pace

The PCAOB’s Division of Enforcement and Investigations’ 2024 first quarter activity continued the blistering pace of enforcement since Erica Williams became the Board’s Chair. While the Board’s first quarter enforcement activity…more

Audits, Civil Monetary Penalty, Enforcement Actions, Investigations, PCAOB

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SEC Adopts Rules Requiring Certain Trading Entities, Including Certain Investment Advisers and Private Funds, to Register as Broker-Dealers

Section 3(a)(5) of the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”) defines a “dealer” as “any person engaged in the business of buying and selling securities […] for such person’s own account…more

Anti-Avoidance, Broker-Dealer, Investment Adviser, Liquidity, New Rules

See all updates »

Energy Newsletter - June 2020

The Impact of COVID-19 on Nuclear Electricity Sales Contracts in France - The electricity sector, like numerous others in France, has been heavily affected by the economic shutdown due to the COVID-19 pandemic. The first…more

Administrative Hearings, Amended Rules, CARB, Climate Change, Commercial Bankruptcy

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EU Regulations Restricting Imports of Renewable Natural Gas and Green Hydrogen Derivative Products

The European Commission (EC) is in the process of implementing its “Union database” (UDB) to track all renewable gases and liquid fuels. Gases and fuels, whether produced in the EU or imported, will need to be registered in the…more

Derivatives, EU, European Commission, European Economic Area (EEA), Green Energy

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And So it Begins: What Recent Announcements Mean for the Future of LIBOR

On March 5, 2021, the ICE Benchmark Administration (the “IBA”) issued feedback that it had completed the consultation with LIBOR panel banks that it began in December 2020, and stated that it will be unable to publish certain…more

Alternative Reference Rates Committee (ARRC), Financial Conduct Authority (FCA), ICE Benchmark Administration (IBA), ISDA, Libor

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DOJ's Criminal Division Launches Pilot Program on Voluntary Self-Disclosures for Individuals

On April 15, 2024, the Criminal Division of the U.S. Department of Justice (“DOJ”) announced the launch of its Pilot Program on Voluntary Self-Disclosures for Individuals. U.S. Dep’t of Justice, The Criminal Division’s Pilot…more

Corporate Misconduct, Criminal Investigations, Department of Justice (DOJ), Non-Prosecution Agreements, Pilot Programs

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SEC Amends Beneficial Ownership Reporting Requirements

On October 10, 2023, the Securities and Exchange Commission (the “Commission”) adopted final rules amending the beneficial ownership reporting requirements established by the Commission under Sections 13(d) and 13(g) of the…more

Beneficial Owner, Deadlines, Equity Securities, Final Rules, Investors

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Thinking Beyond the Dispute Resolution Provision in Construction Disputes

When parties cannot resolve a claim during a major construction project, the contract’s dispute resolution provisions do not always need to read as step-by-step instructions. To the contrary, the situation may warrant a…more

Construction Contracts, Construction Disputes, Construction Industry, Construction Litigation, Construction Project

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Supreme Court Issues Landmark Personal Jurisdiction Decision

In 2017, the Supreme Court issued an 8-1 opinion in Bristol-Myers Squibb holding that 592 plaintiffs who took the medication Plavix outside of California could not bring suit in California because personal jurisdiction was…more

Automotive Industry, Bristol-Myers Squibb, Causation, Ford Motor, Ford Motor Co. v Bandemer

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Delaware Chancery Court Decision Dismissing Claims Against SolarWinds Corporation's Board Illuminates Contours of Director Oversight Liability

The Delaware Chancery Court’s recent opinion in Construction Industry Laborers Pension Fund et al. v. Bingle et al., C.A. No. 2021-0494-SG (Del. Ch.) dismissing claims asserted against members of SolarWinds Corporation’s…more

Bad Faith, Cyber Attacks, Cybersecurity, Delaware, Malware

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Regulation S-X Updates and the Pro Forma EBITDA Add-back

On May 21, 2020, the Securities and Exchange Commission (the “SEC”) adopted amendments to the financial disclosure requirements in Regulation S-X (the SEC’s accounting rules for the form and content of financial statements…more

Borrowers, EBITDA, Financial Statements, Lenders, Management Adjustments

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Cyberattack and Ransomware Attack Force Majeure Considerations

As criminal cyberattacks and ransomware attacks on critical infrastructure increase, companies may experience significant business disruptions. Ransomware and cyberattacks may prevent companies from fulfilling contractual…more

Business Disruption, Critical Infrastructure Sectors, Cyber Attacks, Cybersecurity, Force Majeure Clause

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Florida Passes Law Limiting COVID-19 Lawsuits

On Monday, March 29, 2021, Florida Governor Ron DeSantis signed into law a bill that limits COVID-19 liability for Florida health care providers, health care facilities and other businesses. KEY PROVISIONS - Now known as…more

Burden of Proof, Coronavirus/COVID-19, Educational Institutions, Florida, Government Entities

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Foreign Extortion Prevention Act (FEPA)

How the New Law Creates Legal Risks and Opportunities for International Businesses - On December 22, 2023, President Biden signed into law the 2024 National Defense Authorization Act (NDAA), which will give the U.S. Department…more

Anti-Bribery, Anti-Corruption, Bribery, Department of Justice (DOJ), Enforcement

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Genus Medical Technologies LLC v. FDA: D.C. Circuit Holds FDA Cannot Regulate Devices as Drugs

FDA regulation of biomedical products can be like a very complex game theory decision tree. Choices made at each intersection impact the ultimate regulatory framework under which any given product is developed, seeks approval,…more

En Banc Review, Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA), Medical Devices, Petition for Writ of Certiorari

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BGH erklärt sog. Schriftformheilungsklauseln in Gewerberaummietverträgen für unwirksam

Der für das Gewerberaummietrecht zuständige 12. Zivilsenat des Bundesgerichtshofs („BGH“) hat am 27.09.2017 mit einem Paukenschlag die hier beigefügte Entscheidung verkündet, in welchem er zu der seit einigen Jahren kontrovers…more

Commercial Leases, Germany, Tenants

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California Enacts Law Requiring Female Representation on Boards

On September 30, 2018, California Governor Jerry Brown signed into law Senate Bill No. 826 (SB 826). SB 826 adds Sections 301.3 and 2115.5 to the California Corporations Code to require that a publicly held company with a…more

Board of Directors, Diversity, Gender Equity, Woman Board Members

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Florida Passes Law Limiting COVID-19 Lawsuits

On Monday, March 29, 2021, Florida Governor Ron DeSantis signed into law a bill that limits COVID-19 liability for Florida health care providers, health care facilities and other businesses. KEY PROVISIONS - Now known as…more

Burden of Proof, Coronavirus/COVID-19, Educational Institutions, Florida, Government Entities

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Key Recent Developments In Environmental Justice Litigation

Louisiana remains at the forefront of environmental justice activity. In just four days from January 19 to January 23, 2024, two courts in Louisiana offered interpretations to environmental justice efforts in the State of…more

Anti-Discrimination Policies, Appeals, Civil Rights Act, Clean Air Act, Department of Environmental Quality

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American Express Anti-Steering Litigation: Implications for “Umbrella” Plaintiffs’ Standing in Antitrust Suits

On Monday, November 22, 2021, the United States Court of Appeals for the Second Circuit affirmed a district court ruling that “umbrella” plaintiffs—i.e., antitrust class action claimants who purchase from a non-conspirator a…more

American Express, Anti-Steering Rules, Antitrust Injuries, Appeals, Damages

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Contracting for AI Technologies - Top Five Best Practices

Artificial intelligence (“AI”), including generative AI (“GAI”), has gained significant momentum in recent months due to its potential to transform how organizations create content, automate tasks, and provide personalized…more

Artificial Intelligence, Data Security, Disclosure Requirements, Due Diligence, Intellectual Property Protection

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Energy Newsletter - August 2019

Significant Changes to FERC’s Rules for Market-Based Rate Sellers - On July 18, 2019, the Federal Energy Regulatory Commission (“FERC”) issued two orders modifying its rules for sellers to obtain or retain authorization to…more

Energy Sector, FERC, Intercreditor Agreements, ISO/RTO, Latin America

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Energy Newsletter - November 2017

Choice of Law in Host Government Agreements - Choice of law stands as the second “pillar” of contract stabilization, together with stabilization clauses and international arbitration. In fact, choice of law provisions…more

Choice-of-Law, Construction Disputes, Energy Sector, FERC, Foreign Investment

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Payers Attempt to Impose So-Called “White-Bagging” Policies on Hospitals

Over the past 16 months, three of the nation’s largest commercial payers – UnitedHealthcare, Anthem and CIGNA – have instituted new policies affecting how and whether they will pay for high-cost drugs administered in hospital…more

American Hospital Association, Anthem Insurance, CIGNA, Coronavirus/COVID-19, Food and Drug Administration (FDA)

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Compensation and Benefits Insights - August 2018

IRS Issues New 162(m) Guidance - August 21, 2018, the Internal Revenue Service (the “IRS”) issued Notice 2018-68 (the “Notice”) which provides initial guidance and clarification on amendments made to Section 162(m) of the…more

Binding Contractual Rules, Covered Employees, Filing Deadlines, Health and Welfare Plans, IRS

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FASB Proposes New "Practical Expedient" to Recognition of Initial Franchise Fees (ASC 606)

On September 21, 2020, the Financial Accounting Standards Board (“FASB”) announced a proposed Accounting Standards Update (“ASU”), that if enacted, would provide a “practical expedient”, simplifying the analysis supporting the…more

Accounting Standards, FASB, Franchise Agreements, Franchise Fees, New Guidance

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Energy Newsletter - August 2019

Significant Changes to FERC’s Rules for Market-Based Rate Sellers - On July 18, 2019, the Federal Energy Regulatory Commission (“FERC”) issued two orders modifying its rules for sellers to obtain or retain authorization to…more

Energy Sector, FERC, Intercreditor Agreements, ISO/RTO, Latin America

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US Dollar Term SOFR is Here – Why is This Different and How Does it Affect My Loan?

On July 29th, 2021, the Alternative Rates Reference Committee (the “ARRC”) formally recommended the adoption of CME Group’s forward-looking Secured Overnight Financing Rate (“SOFR”) term rates. According to the ARRC, this…more

Alternative Reference Rates Committee (ARRC), Borrowing Statutes, Financial Conduct Authority (FCA), Lending, Libor

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Pharmaceuticals and Active Pharmaceutical Ingredients - Biden Administration Issues 100-Day Supply Chain Review Report

On June 8, 2021, four Executive Branch Departments issued reports mandated by President Biden’s February 24, 2021 Executive Order on America’s Supply Chains (the “America’s Supply Chains E.O.” or the “E.O.”). The E.O. directed…more

Batteries, Biden Administration, Buy American Act, Defense Production Act, Department of Health and Human Services (HHS)

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SEC Adopts Rules Requiring Certain Trading Entities, Including Certain Investment Advisers and Private Funds, to Register as Broker-Dealers

Section 3(a)(5) of the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”) defines a “dealer” as “any person engaged in the business of buying and selling securities […] for such person’s own account…more

Anti-Avoidance, Broker-Dealer, Investment Adviser, Liquidity, New Rules

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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Tokyo Dispute Resolution & Crisis Management Newsletter – August 2020 - Mining Arbitration in the Asia-Pacific

The Asia-Pacific region integrates the mining industry within the life cycle of the global economy more fluidly than perhaps anywhere else in the world. Metals and minerals extracted from the region are transported to the…more

Arbitration, Asia Pacific, Contractors, Global Economy, Infrastructure

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Energy Newsletter - May 2017

Taking the Long View - How Appropriate Foresight Supports the Development and Execution of Large-Cap Construction Projects - Introduction - The arduous, start-to-finish process of developing and constructing a…more

Architects, Construction Industry, Energy Sector, Exports, Oil & Gas

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IRS and Treasury Issue Proposed Regulations Easing Some of the Burden of the Fractions Rule

Executive Summary On November 22, the Internal Revenue Service (“IRS”) and Treasury Department issued proposed regulations (REG-136978-12, the “Proposed Regulations”) under the “fractions rule” of Section 514(c)(9)(E) of the…more

Internal Revenue Code (IRC), IRS, Proposed Regulation, Taxable Income, U.S. Treasury

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U.S. Department of Energy Releases Report on Securing America’s Clean Energy Supply Chain

DEPARTMENT OF ENERGY PROPOSES SEVERAL POLICY ACTIONS TO OVERCOME ENERGY SUPPLY CHAIN CHALLENGES AND TRANSITION TO CLEAN ENERGY - This is the second in a series of client alerts that will be published in the near future…more

Batteries, Biden Administration, Charging Stations, Clean Energy, Department of Defense (DOD)

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Proposed HSR Rule Changes to Increase Investment Fund Reporting, Exempt Minority Acquisitions by Activist Investors

On Monday, September 21, 2020, the Federal Trade Commission, with the support of the Department of Justice’s Antitrust Division, proposed changes to the rules governing merger notification under the Hart-Scott-Rodino Act of…more

De Minimus Quantity Exemption, Department of Justice (DOJ), Federal Register, Federal Trade Commission (FTC), Hart-Scott-Rodino Act

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FDA Issues Draft Guidance on Use of Data Monitoring Committees in Clinical Trials

The U.S. Food and Drug Administration (FDA or Agency) has issued draft guidance, Use of Data Monitoring Committees in Clinical Trials, that applies to sponsors of clinical trials of investigational drugs, biologics, and devices…more

Clinical Trials, Conflicts of Interest, Draft Guidance, Food and Drug Administration (FDA)

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Avoiding an Ambiguous Hold Harmless Clause: What Every Lender Should Consider

Lenders rely on indemnification and hold harmless provisions in commitment and engagement letters to protect against claims that may be brought not only by third parties but by borrowers and their affiliates as well. Such…more

Ambiguous, Commitment Letter, Damages, Engagement Letters, Hold Harmless

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Anpassung von Vergütungssystemen und deren Veröffentlichung aufgrund der OffenlegungsVO

Nach Art. 5 der OffenlegungsVO muss die AIF-KVG, ein „Finanzmarktteilnehmer“ im Sinne der Verordnung, im Rahmen ihrer „Vergütungspolitik“ (remuneration policy) angeben, „inwiefern diese mit der Einbeziehung von…more

Business Strategies, Disclosure Requirements, Environmental Social & Governance (ESG), EU, Investment Management

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PCAOB Division of Enforcement’s First Quarter Continues Record-Setting Pace

The PCAOB’s Division of Enforcement and Investigations’ 2024 first quarter activity continued the blistering pace of enforcement since Erica Williams became the Board’s Chair. While the Board’s first quarter enforcement activity…more

Audits, Civil Monetary Penalty, Enforcement Actions, Investigations, PCAOB

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IRS Rules that Oil and Gas Infrastructure Assets Yield Good REIT Income

On February 15, 2019, the Internal Revenue Service (the “IRS”) released PLR 201907001 (the “Ruling”), a private letter ruling addressing whether certain income related to the leasing of an oil and gas platform, selling of…more

Capital Assets, Corporate Counsel, Equipment Lease, Internal Revenue Code (IRC), IRS

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Bill to Make Local Coverage Determinations More Transparent Introduced in House

On July 11, 2016, Reps. Lynn Jenkins (R-Kan.) and Ron Kind (D-Wis.) introduced the Local Coverage Determination Clarification Act (H.R. 5721), with the goal of modifying the LCD process performed by Medicare Administrative…more

Local Coverage Determination (LCD), MACs, Proposed Amendments

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Executive Order Restricts Foreign Access to U.S. Data, Citing National Security Risks

On February 28, 2024, President Biden signed Executive Order (EO) 14117 titled “Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern.” On March 5, 2024,…more

Advanced Notice of Proposed Rulemaking (ANPRM), Artificial Intelligence, Biden Administration, Biometric Information, Cyber Espionage

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Georgia House Bill 192 – Codifying and Clarifying the Business Judgment Rule in Georgia

Georgia Legislature Acts to Nullify Georgia Supreme Court’s Decision in FDIC v. Loudermilk - After passing both the Georgia House of Representatives and the Georgia Senate, House Bill 192 is awaiting the signature of the…more

Business Judgment Rule, FDIC, GA Supreme Court, Gross Negligence

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OIG Issues Favorable Advisory Opinion Regarding Use of Online Directory to Find Healthcare Providers

On July 11, 2023, OIG posted Advisory Opinion 23-04 regarding the use of an online healthcare directory for Federal healthcare program beneficiaries to find and book appointments with medical providers. Requestor sought OIG’s…more

Advisory Opinions, Anti-Kickback Statute, Civil Monetary Penalty, Federal Health Care Programs (FHCP), Health Care Providers

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OIG Increases Expectations for Compliance Officers in Its New Compliance Program Guidance – What Compliance Officers at Pharmaceutical and Medical Device Companies Need to Consider

On November 6, 2023, the U.S. Department of Health and Human Services Office of Inspector General (“OIG”) issued its anticipated General Compliance Program Guidance (“GCPG”) for the health care industry. The GCPG serves as a…more

Chief Compliance Officers, Compliance, Corporate Integrity Agreement, Disclosure Requirements, Enforcement

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20 State Attorneys General Push Congress to Address Environmental Justice

Advancing Environmental Justice (“EJ”) is a central pillar of the Biden Administration. Beginning with President Biden’s Executive Order “Tackling the Climate Crisis at Home and Abroad,” signed during his first week in office,…more

Biden Administration, Climate Change, Enforcement Actions, Environmental Justice, Environmental Protection Agency (EPA)

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Trade and Manufacturing Alert - November 2017

KORUS Renegotiation Update - As we have reported previously, United States Trade Representative (USTR) Robert Lighthizer formally notified Korea in July that the U.S. requested a special Joint Committee meeting under the…more

China, Exports, Free Trade Agreements, Intellectual Property Protection, Korea

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AMLO Proposes New Legislation to Regulate the Oil & Gas Industry

On March 26, 2021, the President of Mexico, Andrés Manuel López Obrador (“AMLO”), sent a new bill to Congress intended to amend the Federal Hydrocarbons Law (the “Hydrocarbons Bill”). This is AMLO’s latest attempt to upend the…more

Energy Sector, Exports, Foreign Investment, Hydrocarbons, Imports

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EPA Updates Its Vehicle and Engine Tampering & Aftermarket Defeat Device Enforcement Policy

The updates attempt to provide more clarity for modern vehicles and parts - On November 23, 2020, the U.S. Environmental Protection Agency (“EPA”) updated its policy for enforcement of vehicle and engine tampering and…more

CARB, Clean Air Act, Environmental Protection Agency (EPA), Environmental Violations, Guidance Update

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United States Trade Representative Releases Proposed List Of Chinese Products For Potential 25 Percent Tariff To Combat Discriminatory Or Unreasonable Technology Transfer, Intellectual Property, And Innovation Practices

As outlined in our prior client alert, on March 22, 2018, President Trump signed a memorandum instructing his administration to take action against the “unfair and harmful acquisition of U.S. technology” by China. Part of the…more

China, Presidential Memorandum, Tariffs, USTR

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The UK Has Left the EU but Northern Ireland Has Stayed, More Or Less

The UK will be out of the EU - The UK left the EU on 31 January. There will be a transition period during which the UK will be bound by EU law but will not have a vote or be part of EU decision-making. The transition is set…more

Beverage Manufacturers, Cross-Border Transactions, EU, Exports, Food Manufacturers

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ESG Impact Watch: Blockchain

Blockchain technology is increasing in popularity across industries but, in its current iteration, triggers significant environmental, social, and governance (ESG) considerations. As the financial services sector simultaneously…more

Blockchain, Data Mining, Digital Ledger Technology, Environmental Social & Governance (ESG), Greenhouse Gas Emissions

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New Obama Administration Employment-based Visa Rule and Trump's Plan to Target Visa Abuse Create Uncertainty For Employers

President-elect Trump made enforcement of immigration laws a centerpiece of his campaign. On November 21, 2016, Mr. Trump stated that he will make investigation of abuses in “visa programs that undercut the American worker” a…more

Department of Homeland Security (DHS), Department of Labor (DOL), Enforcement, H-1B, Presidential Elections

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Contracting for AI Technologies - Top Five Best Practices

Artificial intelligence (“AI”), including generative AI (“GAI”), has gained significant momentum in recent months due to its potential to transform how organizations create content, automate tasks, and provide personalized…more

Artificial Intelligence, Data Security, Disclosure Requirements, Due Diligence, Intellectual Property Protection

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FTC Announces First Enforcement of the Health Breach Notification Rule

On February 1, the Federal Trade Commission (“FTC”) announced its first enforcement action under the Health Breach Notification Rule (“HBNR” or “Rule”) against GoodRx, a direct-to-consumer digital healthcare and prescription…more

Application Programming Interface (APIs), Breach Notification Rule, Data Privacy, Enforcement, Federal Trade Commission (FTC)

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Energy Newsletter - September 2020

Climate Change Litigation on the Horizon with Trump Environmental Overhaul - On July 16, 2020, President Trump’s Council on Environmental Quality (“CEQ”) published the long-awaited final rule revising the implementing…more

CEQ, CFIUS, Climate Change, Coronavirus/COVID-19, Debt Restructuring

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"Trust the Force"

Fifth Circuit Concludes That Forced Change of Control Was Not The Product of Duress - The U.S. Court of Appeals for the Fifth Circuit affirmed a lower court’s rejection of a guarantor’s duress defense in the face of a $58…more

Change of Control, Economic Duress, Forbearance Agreements, Lenders, Personal Guaranties

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Pre-Marketing: Risks and Considerations Relating to Bespoke Securitization Transactions

The current volatility in financial markets has caused an increase in interest in pre-marketing certain bespoke securitization transactions, including esoteric, real estate-based, whole business, music royalty and digital…more

Appraisal, Due Diligence, Financial Markets, Indemnification, Investors

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Regulation Best Interest: Updates and Developments

It’s been nearly five months since the Securities and Exchange Commission (“SEC”) approved Regulation Best Interest: The Broker-Dealer Standard of Conduct (“Reg BI”). As discussed in our June 27, 2019 Client Alert, Reg BI…more

Broker-Dealer, Fiduciary Duty, Financial Industry Regulatory Authority (FINRA), Form CRS, Investment Adviser

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Outer Continental Shelf Leasing: BOEM Withdraws Controversial Sole Liability Orders

On February 17, 2017, the Bureau of Ocean Energy Management (“BOEM”), which manages oil and gas leasing in the Outer Continental Shelf, announced that it is withdrawing previously-issued orders to sole liability property owners…more

BOEM, Commercial Leases, Leases, Oil & Gas, Outer Continental Shelf

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Department of Justice Reverses Course on Class Action Waivers

In the ongoing debate over whether class action waivers in employee arbitration agreements violate the National Labor Relations Act (“NLRA”), the Department of Justice (“DOJ”) has done an about-face–switching stances from…more

Arbitration Agreements, Class Action, Class Action Arbitration Waivers, Department of Justice (DOJ), NLRA

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California’s New Law To Prevent Greenwashing In Environmental Marketing For Voluntary Carbon Offsets

As part of a package of new climate change legislation, on October 7, 2023, California Governor Gavin Newsom signed into law the Voluntary Carbon Market Disclosures Act (“VCMDA” or “AB 1305”). Intended as an effort to reduce…more

California, Civil Monetary Penalty, Climate Change, Corporate Governance, Environmental Violations

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Industry-Focused American Rescue Plan Act Summary – Aviation

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARP Act) into law, which provides approximately $1.9 trillion in financial assistance to individuals and industries impacted by COVID-19. The ARP…more

American Rescue Plan Act of 2021, Aviation Industry, CARES Act, Consolidated Appropriations Act (CAA), Coronavirus/COVID-19

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H2ypotheticals - September 13, 2022

On August 16, 2022, President Biden signed the Inflation Reduction Act of 2022 (the Act). The Act includes multiple tax benefits for hydrogen production, storage and utilization, summarized in the following King & Spalding…more

Energy Sector, Hydrogen Power, Investment Tax Credits, IRS, Production Tax Credit

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FDA Issues Draft Guidance on Use of Data Monitoring Committees in Clinical Trials

The U.S. Food and Drug Administration (FDA or Agency) has issued draft guidance, Use of Data Monitoring Committees in Clinical Trials, that applies to sponsors of clinical trials of investigational drugs, biologics, and devices…more

Clinical Trials, Conflicts of Interest, Draft Guidance, Food and Drug Administration (FDA)

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Delaware Chancery Court Holds Corporate Officers Owe Duty of Oversight

Vice Chancellor Laster Extends This Fiduciary Duty, Previously Recognized only as to Corporate Directors - On January 25, 2023, the Delaware Court of Chancery answered an important question of officer liability, holding for…more

Class Action, Compliance, Corporate Misconduct, Corporate Officers, DE Supreme Court

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Threading the Needle in “Tax-Free” Spinoffs

With the rise in inflation and downturn in economies, spin-offs have become an increasingly popular method of unlocking shareholder value in a down market. Often, the ability to obtain tax-free treatment in the U.S. for the…more

Economic Downturn, Incentive Stock Options, National Insurance Contributions, Price Inflation, Restricted Stocks

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FTC Announces 2024 Jurisdictional Threshold Updates for Interlocking Directorates and HSR Filing Thresholds

On January 22, 2024, the Federal Trade Commission (FTC) announced revised jurisdictional thresholds for determining whether a proposed transaction must be reported to federal authorities under the Hart-Scott-Rodino (HSR)…more

Consolidated Appropriations Act (CAA), Federal Trade Commission (FTC), Filing Requirements, Hart-Scott-Rodino Act, Interlocking Directorate

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Reform to Mexican Electricity Law to Come into Effect

On March 2, 2021, and after a short-lived debate, the Mexican Federal Senate approved a bill that will modify Mexico’s Electricity Industry Law, effectively reversing rights granted to private investors in that sector (the…more

Clean Energy, Electricity, Energy Projects, Energy Reform, Foreign Investment

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Artificial Intelligence and the Fair Housing Act: Algorithms Under Attack?

The Fair Housing Act (“FHA”), enacted more than fifty years ago, prohibits discriminatory practices in housing. The FHA makes it illegal to “make unavailable or deny . . . a dwelling to any person” or “discriminate against any…more

Algorithms, Anti-Discrimination Policies, Artificial Intelligence, Fair Housing Act (FHA), Federal Trade Commission (FTC)

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Energy Newsletter - May 2020

Energy Explosion: 10 Trends to Watch in Energy Restructuring - On April 20, 2020, U.S. benchmark crude traded negative for the first time. This drastic drop in price was caused by the perfect storm of the Saudi Arabia-Russia…more

Carbon Off-Set Credits, Coronavirus/COVID-19, Energy Sector, Foreign Investment, Mexico

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Gas Stove Ban Update: Ninth Circuit Says "No" to City of Berkeley Ban on Gas Stoves

The gas stove wars continue to heat up. On April 17, 2023, the United States Court of Appeals for the Ninth Circuit took a stand and ruled that the City of Berkeley does not have the authority to prohibit connecting natural gas…more

Appeals, Consumer Product Safety Commission (CPSC), Department of Energy (DOE), ECPA, Natural Gas

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H2 2021: Latin America Enforcement Review

To close out 2021, enforcement authorities throughout the Americas continued to investigate fraud, corruption, and other misconduct across the region. For 2022, we expect an uptick of anticorruption investigations as a result…more

Anti-Corruption, Anti-Money Laundering, Biden Administration, Corporate Counsel, Corruption

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New Legal Obligations of Companies to Respect Human Rights in Latin America

The business “responsibility to respect” human rights in Latin America, until recently, was governed mainly by soft law, namely the United Nations Guiding Principles on Business and Human Rights (“UNGP’s”). Two new legal…more

Climate Change, EU Directive, Human Rights, Latin America, Risk Assessment

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U.S. Supreme Court Holds Plaintiffs May Use RICO to Enforce Foreign Arbitral Awards

In a January 17, 2023 Client Alert, we addressed the U.S. Supreme Court’s decision to grant certiorari in CMB Monaco v. Smagin and Yegiazaryan v. Smagin, two cases which concern the use of the Racketeer Influenced and Corrupt…more

Bribery, Domestic Injury, Embezzlement, Foreign Arbitral Awards, Fraud

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Threading the Needle in “Tax-Free” Spinoffs

With the rise in inflation and downturn in economies, spin-offs have become an increasingly popular method of unlocking shareholder value in a down market. Often, the ability to obtain tax-free treatment in the U.S. for the…more

Economic Downturn, Incentive Stock Options, National Insurance Contributions, Price Inflation, Restricted Stocks

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Court Dismisses Shareholder Suit Seeking To Recover Stock Drop from FDA Nonapproval of Experimental Drug

Companies that sell products or services that cannot be marketed without regulatory preclearance, and particularly companies that develop experimental drugs and medical devices, should take note of the recent opinion by Judge…more

Advisory Committee, Dismissals, Food and Drug Administration (FDA), Loss Causation, Medical Devices

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NHTSA Releases Guidance on Enforcement of Safety-Related Defects in Automated Vehicle Technologies - Agency’s stance raises implications for software manufacturers and suppliers

Last week, the National Highway Traffic Safety Administration (NHTSA) released its final Enforcement Guidance Bulletin on Safety-Related Defects and Automated Safety Technologies. The Guidance makes clear that the agency’s…more

Automation Systems, Enforcement, Final Guidance, Motor Vehicles, NHTSA

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Russia’s Recent Actions Against Foreign Investors Will Give Rise to Claims Under International Investment Treaties

Since the Russian Federation’s invasion of Ukraine, more than 400 international companies have announced their intentions to scale back or shut down their business operations in Russia. Russia has responded to the exodus of…more

Bilateral Investment Treaties, Economic Sanctions, Energy Charter Treaty, Foreign Investment, Military Conflict

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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California Hospitals Sue Insurance Company Over Delayed Patient Discharges

Last week, the California Hospital Association (CHA), which represents more than 400 hospitals, filed a lawsuit against Anthem Blue Cross (Anthem) alleging that Anthem’s untimely arrangement for, and authorization of, medically…more

California, Health Insurance, Hospitals, Injunctive Relief, Patient Discharge Planning

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Enforcing the Level Playing Field in the EU-UK Trade and Cooperation Agreement

In December 2020, the EU and UK announced the conclusion of a free trade agreement or ‘Association Agreement’, termed the Trade and Cooperation Agreement (“TCA”). The TCA has two core features. First, the TCA is a free trade…more

CETA, Cooperation Agreement, EU, Free Trade Agreements, International Arbitration

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Energy Newsletter - March 2020

Disrupting the Disruptor: How a Prepared and Proactive Owner Can Mitigate the Effects of Coronavirus on Construction Projects - Once a remote health issue in China, the rapidly spreading coronavirus (COVID-19) has become not…more

Construction Project, Coronavirus/COVID-19, Energy Sector, Final Rules, Force Majeure Clause

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CMS Proposes New DMEPOS Coverage Policies and Payment Rates, and Seeks to Codify HCPCS Application, Benefit Category and Payment Determination Processes

On November 4, 2020, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule (the Proposed Rule) outlining proposals for the coverage and payment for durable medical equipment, prosthetics, orthotics, and…more

21st Century Cures Act, Centers for Medicare & Medicaid Services (CMS), DMEPOS, Filing Deadlines, Food and Drug Administration (FDA)

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California’s New Law To Prevent Greenwashing In Environmental Marketing For Voluntary Carbon Offsets

As part of a package of new climate change legislation, on October 7, 2023, California Governor Gavin Newsom signed into law the Voluntary Carbon Market Disclosures Act (“VCMDA” or “AB 1305”). Intended as an effort to reduce…more

California, Civil Monetary Penalty, Climate Change, Corporate Governance, Environmental Violations

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Energy Newsletter - September 2020

Climate Change Litigation on the Horizon with Trump Environmental Overhaul - On July 16, 2020, President Trump’s Council on Environmental Quality (“CEQ”) published the long-awaited final rule revising the implementing…more

CEQ, CFIUS, Climate Change, Coronavirus/COVID-19, Debt Restructuring

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Reconsider That Term Sheet: DOJ "Safe Harbor Policy" Announcement Incentivizes Merger-Related Disclosures

On October 4, 2023, the Department of Justice’s (“DOJ”) Deputy Attorney General Lisa Monaco announced a new “Mergers & Acquisitions Safe Harbor Policy” (“M&A Safe Harbor Policy” or “Policy”) for companies that voluntarily…more

Acquisitions, Corporate Misconduct, Department of Justice (DOJ), Disclosure, Disgorgement

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Posting Requirements of the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”), which goes into effect on April 1, 2020, requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons…more

Coronavirus/COVID-19, Department of Labor (DOL), Families First Coronavirus Response Act (FFCRA), Notice Requirements, Posting Requirements

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Energy Newsletter - May 2018

Courts Hold Clean Water Act Regulates Discharges through Groundwater, as Congress and Regulators Consider Responses - The Ninth Circuit and Fourth Circuit have joined a growing number of lower courts finding that the Clean…more

Clean Water Act, Energy Sector, Greenhouse Gas Emissions, Groundwater, Infrastructure

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Energy Newsletter - September 2018

A Texas Federal Judge Turns Up the Heat on Oil Companies Facing Climate Change-Related Securities Class Actions - On August 14, 2018, the United States District Court for the Northern District of Texas issued a surprisingly…more

Abu Dhabi Global Markets (ADGM), Climate Change, Environmental Protection Agency (EPA), EU, Exxon Mobil

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King & Spalding Represents Medicaid Beneficiaries in a Suit to Challenge the Approval of the TennCare III Medicaid Demonstration Project

On April 22, 2021, thirteen Medicaid beneficiaries, represented by the National Health Law Program, the Tennessee Justice Center, and King & Spalding, filed a complaint in the U.S. District Court for the District of Columbia…more

Block Grants, Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS), Medicaid, Medicaid Act

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Tokyo Dispute Resolution and Crisis Management Newsletter - January 2019

Significant White Collar Developments at the U.S. Department of Justice: 2018 in Review - Amid the daily barrage of news stories from the US relating to the Robert Mueller investigation, the opioid epidemic and the U.S…more

Bribery, Corporate Misconduct, Criminal Prosecution, Crisis Management, Cryptocurrency

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CFPB Issues Final Rule Banning Class Action Waivers in Consumer Finance Contracts

On July 10, 2017, the Consumer Financial Protection Bureau (CFPB) announced a final Rule banning the use of class action waivers in a broad range of consumer finance agreements. The Rule, which was expected in light of prior…more

Arbitration, Arbitration Agreements, Class Action, Class Action Arbitration Waivers, Consumer Contracts

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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Task Force Report and NIST Revisions Highlight Need for Increased Private-Sector Cybersecurity Efforts

New technologies enhance the capabilities and efficiency of the energy industry. But these technologies also bring increasing cyber risks to the industry, the economy, and national security. Recognizing that critical energy…more

Cyber Attacks, Cybersecurity, Energy Sector, NIST, Popular

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Energy Newsletter - January 2018

Gas Market Reform in Asia: an Update on the Implementation of Third Party Access to LNG Import Terminals - The rise of natural gas and LNG in Asia continues apace, fuelled by a convergence of plentiful global LNG supply,…more

Asia, CERCLA, China, Environmental Protection Agency (EPA), Liquid Natural Gas

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U.S. Supreme Court Holds Plaintiffs May Use RICO to Enforce Foreign Arbitral Awards

In a January 17, 2023 Client Alert, we addressed the U.S. Supreme Court’s decision to grant certiorari in CMB Monaco v. Smagin and Yegiazaryan v. Smagin, two cases which concern the use of the Racketeer Influenced and Corrupt…more

Bribery, Domestic Injury, Embezzlement, Foreign Arbitral Awards, Fraud

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Anti-Money Laundering Implications for the Art Market in the UK

Introduction - The art market is characterised by high-value, portable items that can be bought and exchanged quickly and often confidentially. These features, which make the market inherently vulnerable to many types of…more

Anti-Money Laundering, Customer Due Diligence (CDD), HMRC, Money Laundering, National Crime Agency (NCA)

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Big Data and Bigger Disputes? How New Data Technologies Impact Construction Disputes

The last decade has seen the emergence of Big Data platforms allowing parties to major construction projects to digitize and integrate more and more of the engineering, design and build phase of their projects. Such…more

Audits, Big Data, Construction Disputes, Contractors, Engineering

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CMS Reminds Providers to Identify Off-Campus Provider-Based Departments on Enrollment Forms

In connection with CMS’s implementation of Section 603 of the Bipartisan Budget Act of 2015 (BBA15), which directs CMS to no longer pay hospitals the full OPPS rate for services furnished in non-excepted off-campus…more

Bipartisan Budget Act, Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Hospitals, Off-Campus Departments

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The Implications of a Revived Disparate Impact Doctrine Under a Biden CFPB

Every change in presidential administration results in shifts to agencies’ policy priorities and enforcement efforts. In a Biden Administration, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”), in particular, is…more

Biden Administration, Consumer Financial Products, Consumer Financial Protection Bureau (CFPB), Department of Justice (DOJ), Discriminatory Lending Practices

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DIAC Issues New Arbitration Rules

On 25 February 2022, the board of directors of the Dubai International Arbitration Centre (“DIAC”) approved the new DIAC Arbitration Rules (the “2022 Rules”). The DIAC Rules, which were published on 2 March 2022, will come into…more

Arbitration, DIFC, Dispute Resolution, Dubai, Dubai International Arbitration Center (DIAC)

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COVID-19 Impacts on Businesses and Their Intellectual Property Rights

Part 2 of a 2 Part Series: Avoiding and/or Eliminating Loss of IP Rights During the COVID-19 Pandemic - As a follow-on to our series, COVID-19 Impacts on Businesses and Their Intellectual Property Rights, companies need to…more

Coronavirus/COVID-19, Domain Names, Intellectual Property Protection, Patents, Proprietary Information

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District Court Orders HHS to Clear Medicare Appeals Backlog By 2022

On November 1, 2018, in response to a 2014 lawsuit filed by several individual hospitals and the American Hospital Association (“AHA”), the U.S. District Court for the District of Columbia ruled that the Department of Health and…more

American Hospital Association, Appeals, Department of Health and Human Services (HHS), Hospitals, Medicare

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Indonesia Introduces CCS/CCUS Regulation

Indonesia has set an ambitious target to reach net zero emissions by 2060. The deployment of clean energy technologies, such as carbon capture and storage (“CCS”) and carbon capture, utilization and storage (“CCUS”), will play…more

Carbon Capture and Sequestration, Carbon Emissions, Contractors, Energy Sector, Indonesia

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DOJ Corporate Enforcement Policy Revisions Target Executive Compensation, Following Multi-Agency Trend

On March 2, 2023 and March 3, 2023, in a pair of speeches by Deputy Attorney General (DAG) Lisa Monaco and Criminal Division Assistant Attorney General (AAG) Kenneth Polite, the U.S. Department of Justice (DOJ) announced…more

Clawbacks, Compliance, Corporate Crimes, Corporate Integrity Agreement, Corporate Misconduct

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The CHIPS Plus Act Promises Support and Incentives for Semiconductor Manufacturing in the United States

On August 9, 2022, President Joseph R. Biden signed the CHIPS and Science Act of 2022 (the “CHIPS Plus Act”). As enacted, the CHIPS Plus Act amends legislation and appropriates funding for semiconductor incentives originally…more

Foreign Investment, Incentives, Manufacturers, NDAA, Research and Development

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ESG Agenda

BlackRock Doubles Down on Sustainability - • BlackRock signals substantially more assertive posture on climate-related issues • New approach to shareholder proposals saw BlackRock support 54% of environmental and social…more

Benchmarking, BlackRock, Climate Change, Coronavirus/COVID-19, Diversity and Inclusion Standards (D&I)

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FTC Announces 2024 Jurisdictional Threshold Updates for Interlocking Directorates and HSR Filing Thresholds

On January 22, 2024, the Federal Trade Commission (FTC) announced revised jurisdictional thresholds for determining whether a proposed transaction must be reported to federal authorities under the Hart-Scott-Rodino (HSR)…more

Consolidated Appropriations Act (CAA), Federal Trade Commission (FTC), Filing Requirements, Hart-Scott-Rodino Act, Interlocking Directorate

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Data Localization in Russia: Fines Alert Update

On December 2, 2019, President Putin signed the law regarding the introduction of administrative fines for failure to comply with personal data localization requirements set by the Law on Personal Data since September 1, 2015…more

Administrative Fines, Data Localization Law, Fines, New Legislation, Personal Data

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The Inflation Reduction Act Clears the Senate

House Passage and President Biden’s Signature Expected This Week - On Sunday, August 7, following an all-night voting session, the Senate approved the Inflation Reduction Act (IRA) by a vote of 51-50. The IRA was considered…more

Affordable Care Act, Biden Administration, Carbon Capture and Sequestration, Clean Air Act, Corporate Taxes

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Energy Newsletter - October 2016

Negotiating an In-Project Construction Dispute - Many thorny and competing interests are implicated when an ongoing major construction project experiences an unanticipated event that impacts the project schedule or costs,…more

Construction Contracts, Construction Industry, Construction Project, De Novo Standard of Review, Due Process

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The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 Brings Significant Change to Employers with Mandatory Pre-Dispute Arbitration Agreements

Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445) and on March 3, 2022 President Biden signed it into law (the “Act”). The Act amends the Federal Arbitration Act (the…more

#MeToo, Biden Administration, Civil Rights Act, Federal Arbitration Act, Mandatory Arbitration

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Compensation and Benefits Insights – August 2019

Multiple Employer Plans: Proposed IRS Regulations Eliminate the “One Bad Apple” Rule - A multiple employer plan (MEP) is a tax qualified retirement plan that is maintained by two or more employers who are not part of the…more

Benefit Plan Sponsors, Department of Labor (DOL), Employee Benefits, Employee Retirement Income Security Act (ERISA), Exemptions

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OIG Increases Expectations for Compliance Officers in Its New Compliance Program Guidance – What Compliance Officers at Pharmaceutical and Medical Device Companies Need to Consider

On November 6, 2023, the U.S. Department of Health and Human Services Office of Inspector General (“OIG”) issued its anticipated General Compliance Program Guidance (“GCPG”) for the health care industry. The GCPG serves as a…more

Chief Compliance Officers, Compliance, Corporate Integrity Agreement, Disclosure Requirements, Enforcement

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Real Estate of Mind: Key UK/US Real Estate Insights for GCC Investors in 2023

Following our inaugural Real Estate of Mind round up (see here) of trends in the sector earlier this year, as 2022 draws to a close, we have set off on the road once again to connect with clients and friends alike in Bahrain,…more

Bahrain, Borrowers, FIRRMA, Global Market, Investment

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First Circuit Dismisses Claim That Fidelity Violated Its Fiduciary Duties By Retaining Float

In July, the Court of Appeals for the First Circuit rejected a claim that Fidelity breached its fiduciary duties by retaining “float” earned while Fidelity was handling 401(k) plan distributions. (Float is interest earned in…more

Department of Labor (DOL), Fidelity Investments, Fiduciary Duty, Stock Float

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American Express Anti-Steering Litigation: Implications for “Umbrella” Plaintiffs’ Standing in Antitrust Suits

On Monday, November 22, 2021, the United States Court of Appeals for the Second Circuit affirmed a district court ruling that “umbrella” plaintiffs—i.e., antitrust class action claimants who purchase from a non-conspirator a…more

American Express, Anti-Steering Rules, Antitrust Injuries, Appeals, Damages

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Pumping the Brakes: FinCEN Reopens Comment Period for Controversial Crypto Reporting & Recordkeeping Rules

After Widespread Market Opposition in an Expedited First Round of Comments, FinCEN Solicits More Feedback on Rule Seeking to “Close Gaps” in Virtual Currency Anti-Money Laundering Rules On January 14, in a surprise move, the…more

Administrative Procedure Act, Anti-Money Laundering, Bank Secrecy Act, Biden Administration, Cryptocurrency

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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EUROPE – New Interim Guidance on Parallel EMA-HTA Body Scientific Advice

On July 3, 2023, the European Medicines Agency (“EMA”) and the European Commission published a Guidance on Parallel EMA/HTA body Scientific Advice for the Interim Period (“Guideline”). The Guideline organizes parallel…more

Applications, Confidentiality Agreements, EU, European Medicines Agency (EMA), Health Technology

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The Constitutional Changes in Chile and their Impact on the Construction Industry

Chile’s reputation for political and economic stability and a transparent business environment was shaken in 2019 when Chileans took to the streets decrying the country’s inequalities and urging governmental reform. This unrest…more

Chile, Constitutional Challenges, Construction Industry, Infrastructure, Investment

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Garfield v. Boxed

SPAC Companies May Need to Evaluate Stock Structure in Wake of Delaware Court of Chancery Ruling - Companies that previously became public by merger with a Special Purpose Acquisition Company (“SPAC”) may need to re-evaluate…more

Attorney's Fees, Shareholders, Special Purpose Acquisition Companies (SPACs), Stocks

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SEC and FINRA Emphasize Cybersecurity, AML, and Reg BI as Key Areas of Focus for Broker-Dealer Examinations in 2021

The U.S. Securities and Exchange Commission (SEC) and Financial Industry Regulatory Authority (FINRA) have each published their annual examination priorities for 2021, signaling areas of scrutiny that broker-dealers should…more

Anti-Money Laundering, Broker-Dealer, Compliance, Conflicts of Interest, Cybersecurity

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Considering a Move to Texas? Here’s What You Need to Know About Patent Litigation

California-based tech companies have increasingly been moving their operations to Texas over the last two years, a trend that has only accelerated as remote and hybrid work have become a fact of life. Whether your company has…more

Inter Partes Review (IPR) Proceeding, Judges, Patent Litigation, Patents, Texas

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

See all updates »

Plastics and PFAS – Recent Developments Target Food and Beverage Packaging

In recent months, a variety of state legislatures have passed laws that restrict or regulate packaging, including that used for food and beverages. One set of laws concerns extended producer responsibility (EPR) programs that…more

Environmental Protection Agency (EPA), Oregon, PFAS, Plastics, Popular

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Energy Newsletter - April 2019

Shifting Dynamics in Latin America - On March 5, 2019, King & Spalding hosted an Energy Forum, titled “Shifting Dynamics in Latin America”, to discuss the political and regulatory changes in Latin America and their impact on…more

Climate Change, Cross-Border Transactions, Due Diligence, Energy & Climate Debates, Energy Sector

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Trade & Manufacturing - August 2019

The United States And China Engage In A New Set Of Trade Talks, But President Trump Announces A Tariff Of 10 Percent On $300 Billion Worth Of Chinese Imports - On July 30, 2019, the United States and China opened a new round…more

Buy America, Canada, China, Dispute Resolution, EU

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NAV Facilities

In its most simple form, a net asset value-based facility (“NAV Facility”) is a credit facility, whereby availability under the facility is based on the net asset value of the portfolio investments of the borrower, often a…more

Default, Interest Rates, Investors, Liquidity, NAV

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The Supreme Court Has Held that Individual PAGA Claims Can Be Severed and Compelled to Arbitration: But What Happens to the Non-Individual Portion of the Claim?

In its much-anticipated decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022), the U.S. Supreme Court held that the Federal Arbitration Act (“FAA”) preempts California law to the extent that it precludes the…more

Arbitration, CA Supreme Court, California, Federal Aviation Administration (FAA), Labor Code

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Florida Magistrate Judge Rules Against Florida’s Efforts to Prohibit CMS from Enforcing an Informational Bulletin on Health Care-Related Taxes

On January 29, 2023, a Florida Magistrate Judge recommended denying the State of Florida’s Motion for Preliminary Injunction and granting CMS’s Motion to Dismiss in connection with the implementation and enforcement of its…more

Advanced Payment Program, Centers for Medicare & Medicaid Services (CMS), Class Action, Financing, Florida

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Imposter Websites Prompt Regulatory Warning to Financial Industry

On April 29, 2019, FINRA published an Information Notice alerting to a potential increase in member firms falling victim to imposter websites – websites designed to appear legitimate but that actually serve as a vehicle to…more

Authentication, Cybersecurity, Fake Websites, Financial Fraud, Financial Industry Regulatory Authority (FINRA)

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Mexico’s Supreme Court Weighs-In on AMLO’s Reform to Power Sector Law

Last year King & Spalding issued an informative note regarding a new bill (“LIE Bill”) in the power sector introduced by Mexico’s President Andrés Manuel López Obrador (“AMLO”) that, after a fast-track congressional vote, came…more

Forum Shopping, Mexico, Mexico Supreme Court of Justice, Public Utility

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Protections for Hydrogen Projects Under the Modernized Energy Charter Treaty

For over two decades, investors in the energy sector have benefited from protections found in The Energy Charter Treaty (“ECT”). Investors in hydrogen projects will soon be able to benefit from these same protections…more

Energy Charter Treaty, EU, Foreign Investment, Hydrogen Power, Investment

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Q2 2021: Latin America Enforcement Review

This summary is part of our regular reporting of trends and developments related to investigations and enforcement activity into fraud, corruption, and other misconduct by authorities in the United States and the Americas and…more

Anti-Corruption, Austria, Banks, Biden Administration, Brazil

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Upcoming Reforms to Corporate Criminal Liability in the UK

Traditionally in UK law, in order to hold a company criminally liable, enforcement authorities must prove wrongdoing by a senior person representing the company’s “controlling mind and will.” Through this “identification…more

Corporate Crimes, Enforcement, Fraud, Liability, Scope of Discovery Requests

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Eighth Circuit Rules No Successor Liability for Buyer from Asset Foreclosure Sale

On September 19, 2019, the U.S. Court of Appeals for the Eighth Circuit affirmed a lower court’s conclusion that a purchaser at a private foreclosure sale has no successor liability to a debtor’s unpaid creditors. BACKGROUND…more

Counterclaims, Creditors, Debtors, Deficiency Judgments, Foreclosure

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Return to Attender: Getting Back to the Office

Since companies began their return to the office post-pandemic, there has been an increasing polarization between those which feel the future is to ‘work anywhere’, versus those which see remote working as a COVID aberration and…more

Employment Tribunals, Flexible Work Arrangements, Hybrid Plan, Remote Working, Return-to-Work Agreements

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A Brief Overview of the Federal Rulemaking Process in the United States

Since the enactment of the Inflation Reduction Act of 2022 (the “IRA”) in the United States, the Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) have issued notices of proposed regulations…more

Administrative Procedure Act, Congressional Review Act, Department of Energy (DOE), Department of Labor (DOL), GAO

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California’s New Law To Prevent Greenwashing In Environmental Marketing For Voluntary Carbon Offsets

As part of a package of new climate change legislation, on October 7, 2023, California Governor Gavin Newsom signed into law the Voluntary Carbon Market Disclosures Act (“VCMDA” or “AB 1305”). Intended as an effort to reduce…more

California, Civil Monetary Penalty, Climate Change, Corporate Governance, Environmental Violations

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COVID-19: Permissible And Impermissible Procedures For When Employees Return To The Workplace

As states begin contemplating ways to ease shelter in place restrictions and how to facilitate employees returning to work, employers are faced with developing and implementing new policies and procedures to effectively…more

Americans with Disabilities Act (ADA), Coronavirus/COVID-19, Employer Liability Issues, Equal Employment Opportunity Commission (EEOC)

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FTC Signals Increased Enforcement Effort Against Ineffective Data Security Protocols

With two recent enforcement actions, the Federal Trade Commission (FTC) has shown that administering appropriate data security policies is an area of priority. On October 24, 2022, the FTC announced a Proposed Consent Order…more

Cryptocurrency, Data Breach, Data Protection, Data Security, Employee Training

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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Engine Overhaul: The Hague Court of Arbitration (Hague CAA) Updates its Rules

While all eyes of the aviation industry are currently on this year’s Paris Air Show and the record purchases of India’s airlines, aviation lawyers ask themselves how to resolve disputes that arise out of these billion-dollar…more

Arbitration, Arbitration Awards, New Rules, The Hague

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The Administration Takes Aim At Drug Prices Again – This Time Through A Controversial Framework for Exercising March-In Rights

The Biden Administration recently announced a plan to leverage an old tool in a new way to try to reduce drug costs: exercising “march-in rights” under the Bayh-Dole Act for drugs that were supported by government funding. …more

Bayh-Dole Act, Biden Administration, Department of Health and Human Services (HHS), Drug Pricing, Federal Contractors

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SEC Adopts Final Climate Disclosure Rules

Proposed rules are moderately scaled-back in final version; Scope 1 and 2 are required if material; Scope 3 is out; compliance will still be burdensome - On March 6, 2024, by a split vote of 3-2, the U.S. Securities and…more

Climate Change, Compliance, Disclosure Requirements, Final Rules, Greenhouse Gas Emissions

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NAV Facilities

In its most simple form, a net asset value-based facility (“NAV Facility”) is a credit facility, whereby availability under the facility is based on the net asset value of the portfolio investments of the borrower, often a…more

Default, Interest Rates, Investors, Liquidity, NAV

See all updates »

Defense Department Releases Report On Strengthening Defense-Critical Supply Chains

Evaluates Defense Industrial Base Supply Chains and Outlines Strategic Investments in Vital National Security Items - This is the first in a series of client alerts that will be published in the near future regarding…more

Batteries, Defense Production Act, Department of Defense (DOD), Department of Energy (DOE), Department of Transportation (DOT)

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

See all updates »

Africa Bulletin - September 2019

INTRODUCTION - It has been a busy few months for private equity activity in Africa. Statistics and transactions have illustrated a growing appetite for investment in the continent and, crucially, growing confidence and…more

Africa, Anti-Corruption, Economic Development, Financial Markets, Foreign Investment

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Saudi PPPs - Assessing the Impact of the Saudi Privatisation Law

Twelve months have passed since the Private Sector Participation Law (the Privatisation Law) was published in Umm Al-Qura, the Official Gazette of the Kingdom of Saudi Arabia (the Kingdom), with the objectives of increasing…more

Dispute Resolution, Foreign Direct Investment, Investment, Lenders, Payment Systems

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EDPB Publishes Guidelines On Territorial Scope For Public Consultation

On November 16, 2018, the European Data Protection Board (“EDPB”), the General Data Protection Regulation (“GDPR”) successor of the Art. 29 Data Protection Working Group, released its long-awaited Guidelines 3/2018 on the…more

EU, European Data Protection Board (EDPB), Extraterritoriality Rules, General Data Protection Regulation (GDPR)

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Energy Newsletter - December 2019

Rekindling the Flame: Oil & Gas Securitizations - A number of recent structurings of investment-grade rated securitizations of oil and gas wells are sparking conversations in the U.S. upstream oil and gas industry about this…more

Arbitration, Climate Change, Energy Sector, Green Buildings, International Chamber of Commerce (ICC)

See all updates »

A Pathway for Medicare Coverage for Breakthrough Devices: Take Two

On June 27, 2023, the Centers for Medicare & Medicaid Services (“CMS” or the “Agency”) issued a “Notice with Comment Period” (“Notice”) describing a new process for providing expedited Medicare coverage for certain eligible…more

Centers for Medicare & Medicaid Services (CMS), Food and Drug Administration (FDA), Health Technology, Medicare, Post-Market Approval

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US Supreme Court Rules Section 1782 Discovery is Unavailable for Use in Private Foreign Commercial Arbitrations and Certain Investment Arbitrations

On June 13, 2022, in a unanimous consolidated decision authored by Justice Amy Coney Barrett, the U.S. Supreme Court ruled that the scope of 28 U.S.C. § 1782(a) (Section 1782), which authorizes federal courts to order discovery…more

28 U.S.C. § 1782, Arbitration, Federal Arbitration Act, Foreign Arbitration Clauses, ICSID

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California's New Climate Disclosure Requirements: A Work in Progress

In groundbreaking legislation, California continues to lead the nation in climate change regulation by enacting the bulk of the California Climate Accountability Package – an unprecedented climate disclosure mandate for public…more

California, Climate Action Plan, Climate Change, Disclosure Requirements, Greenhouse Gas Emissions

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Limitations on Arbitrator Authority to Issue Pre-Hearing, Non-Party Discovery in the Wake of Aixtron

Third party discovery may be helpful to providers in arbitrations. For example, if a provider is in a dispute with a health plan, if there are questions as to whether the health plan or the medical group has financial…more

Arbitration, Arbitrators, Federal Arbitration Act, Third-Party

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DOJ Announces Civil CyberFraud Initiative to Use False Claims Act to Enforce Cybersecurity Standards in Government Contracts

On October 6, the Deputy Attorney General (“DAG”) announced a new Department of Justice (“DOJ”) Civil Cyber-Fraud Initiative – an effort that pulls together attorneys and experts across DOJ focused on fraud enforcement,…more

Compliance, Critical Infrastructure Sectors, Cyber Attacks, Cybersecurity, Department of Justice (DOJ)

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NAIC's Focus on Investment Management Agreements (IMAs) involving Private Equity-Owned Insurers

As private equity investors continue to increase their presence in the insurance industry with acquisitions of insurers and reinsurance of blocks of insurance contracts through insurer portfolio companies and segregated cells,…more

Conflicts of Interest, Insurance Industry, Investment Management, Investors, Life Insurance

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Data Localization in Russia: Fines Alert Update

On December 2, 2019, President Putin signed the law regarding the introduction of administrative fines for failure to comply with personal data localization requirements set by the Law on Personal Data since September 1, 2015…more

Administrative Fines, Data Localization Law, Fines, New Legislation, Personal Data

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IRS and Treasury Issue Guidance on Section 40B Sustainable Aviation Fuel Credit

Section 40B of the Internal Revenue Code of 1986 (the “Code”) enacted by the Inflation Reduction Act of 2022 (the “IRA”) provides credits for each gallon of sustainable aviation fuel (“SAF”) sold or used by a taxpayer before…more

Aviation Industry, Carbon Offset and Reduction Scheme for International Aviation (CORSIA), Clean Air Act, Department of Energy (DOE), Environmental Protection Agency (EPA)

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Changes Needed To Data Sharing In The EU To Safeguard Against Security And Border Management Challenges

On 16 April 2018, Giovanni Buttarelli, the European Data Protection Supervisor (“EDPS”), published Opinion 4/2018 on the Proposals for two Regulations establishing a framework for interoperability between EU large-scale…more

Data Protection, Data-Sharing, EU

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Energy Newsletter - February 2018

Developing an FSRU Project in New Markets: 10 Key Considerations - As at 1 July 2017, the total number of operational floating storage and regasification units (“FSRUs”) globally stood at 26, with 23 operating as terminals…more

Energy Sector, FERC, Foreign Investment, Human Rights, Income Taxes

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Infrastructure Investment and Jobs Act: Key Provisions and Considerations for Project Participants

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (“Infrastructure Act”), which provides for $550 billion in new federal spending on infrastructure in the United States over a…more

Anti-Fraud Provisions, Biden Administration, Broadband, Buy America, Carbon Capture and Sequestration

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Department of Labor Finalizes Changes to QPAM Exemption

Investment managers who manage private employee benefit plan and individual retirement account (collectively, “Plan”) assets have long relied on Prohibited Transaction Class Exemption 84-14 (commonly referred to as the “QPAM…more

Criminal Convictions, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Federal Register, Internal Revenue Code (IRC)

See all updates »

Energy Newsletter - December 2019

Rekindling the Flame: Oil & Gas Securitizations - A number of recent structurings of investment-grade rated securitizations of oil and gas wells are sparking conversations in the U.S. upstream oil and gas industry about this…more

Arbitration, Climate Change, Energy Sector, Green Buildings, International Chamber of Commerce (ICC)

See all updates »

Upcoming Reforms to Corporate Criminal Liability in the UK

Traditionally in UK law, in order to hold a company criminally liable, enforcement authorities must prove wrongdoing by a senior person representing the company’s “controlling mind and will.” Through this “identification…more

Corporate Crimes, Enforcement, Fraud, Liability, Scope of Discovery Requests

See all updates »

The USPTO Shutdown: Causes and Implications

How a USPTO Shutdown Will Affect PTAB Litigation and Prosecution Matters & Strategies - The government shutdown began December 22, 2018, but the United States Patent and Trademark Office (USPTO) and district and appeals…more

Discovery Disputes, Filing Requirements, Government Shutdown, Patent Prosecution, Patent Trial and Appeal Board

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SEC Files Action Against Company and its General Counsel for Loss Contingency Accrual and Disclosure Failures – What to Know

SEC’s Factual Allegations - On September 9, 2016, the Securities and Exchange Commission (“SEC”) filed a complaint against RPM International Inc. (“RPM”) and its General Counsel and Chief Compliance Officer, alleging the…more

Department of Justice (DOJ), Disclosure Requirements, False Claims Act (FCA), Internal Investigations, Loss Contingencies

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SEC Chairman Calls for Legal Bulletin on EMMA Disclosures

Is information posted on EMMA subject to greater scrutiny under the antifraud provisions of the federal securities laws than when posted only on an issuer’s website?…more

Anti-Fraud Provisions, Broker-Dealer, Disclosure Requirements, EMMA, Investment Adviser

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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US Supreme Court Rules Section 1782 Discovery is Unavailable for Use in Private Foreign Commercial Arbitrations and Certain Investment Arbitrations

On June 13, 2022, in a unanimous consolidated decision authored by Justice Amy Coney Barrett, the U.S. Supreme Court ruled that the scope of 28 U.S.C. § 1782(a) (Section 1782), which authorizes federal courts to order discovery…more

28 U.S.C. § 1782, Arbitration, Federal Arbitration Act, Foreign Arbitration Clauses, ICSID

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Foreign Extortion Prevention Act (FEPA)

How the New Law Creates Legal Risks and Opportunities for International Businesses - On December 22, 2023, President Biden signed into law the 2024 National Defense Authorization Act (NDAA), which will give the U.S. Department…more

Anti-Bribery, Anti-Corruption, Bribery, Department of Justice (DOJ), Enforcement

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SEC Chairman Calls for Legal Bulletin on EMMA Disclosures

Is information posted on EMMA subject to greater scrutiny under the antifraud provisions of the federal securities laws than when posted only on an issuer’s website?…more

Anti-Fraud Provisions, Broker-Dealer, Disclosure Requirements, EMMA, Investment Adviser

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FDA Warns Drug & Device Firms Against Delaying & Limiting Facility Inspections in New Draft Guidance

On December 16, 2022, the U.S. Food & Drug Administration (“FDA” or “Agency”) published an important and noteworthy draft guidance document entitled “Circumstances that Constitute Delaying, Denying, Limiting, or Refusing a Drug…more

Citations, Draft Guidance, FDARA, FDASIA, Federal Food Drug and Cosmetic Act (FFDCA)

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US EPA Releases Guidance on Legal Tools to Advance Environmental Justice

On May 26, 2022, the Environmental Protection Agency’s Office of the General Counsel released EPA Legal Tools to Advance Environmental Justice (“EJ Legal Tools”). The document builds on and updates EPA’s 2011 Plan EJ 2014: Legal…more

Air Quality Standards, Clean Air Act, Clean Water Act, Department of Justice (DOJ), Department of Labor (DOL)

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Can’t We All Just Get Along? Four Key Areas of Dispute in the Evolving Landscape of LIBOR Cessation Litigation

On November 30, 2020, parties to legacy LIBOR contracts breathed a collective sigh of relief as LIBOR’s administrator Intercontinental Exchange, Inc. (“ICE”) announced that US Dollar LIBOR would continue to be published until…more

Adjustable-Rate Mortgage, Alternative Reference Rates Committee (ARRC), Class Action, Enforcement Actions, EU

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Spokeo II : On Remand from Supreme Court, Ninth Circuit Finds Statutory Violation of Fair Credit Reporting Act Sufficient to Confer Article III Standing

On August 15, 2017, in a much-anticipated opinion in a case that has drawn national attention in the past three years, the United States Court of Appeals for the Ninth Circuit held that an alleged violation of the Fair Credit…more

Article III, Class Action, Fair Credit Reporting Act (FCRA), Injury-in-Fact, Remand

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Force Majeure during Construction – Are you Ready? (From the Owner’s Perspective)

Hurricanes Harvey, Irma and Maria have come and gone. Looking back, were you ready? What should you be doing to prepare for the next hurricane? Lawyers spend considerable amounts of time defining the scope of force majeure…more

Construction Contracts, Construction Industry, Force Majeure Clause

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Utilizing Structured Finance Techniques in Distressed Situations

Securitization, and structured finance generally, is a critical capital-raising tool for many companies. Utilizing one or more bankruptcy-remote special purpose entities to legally isolate the credit risk of quality,…more

Bankruptcy Code, Bankruptcy Court, Capital Raising, Contingency Plans, Credit Enhancements

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District Court Enjoins Montana State Statute Which Prohibits Healthcare Providers from Denying Employment Based on a Person’s Lack of COVID-19 Vaccination

On March 18, 2022, a group of providers successfully obtained a preliminary injunction to stop enforcement of a Montana statute that prohibits employers, including healthcare providers, from compelling their employees to…more

Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Employee Benefits, Final Rules, Health Care Providers

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The Airline Industry and the CARES Act: What Secured Lenders Need to Know

Since its enactment, aviation related companies have received well over $50 billion in grants and loans under the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) that was passed in March 2020. But how do…more

Aviation Industry, Bankruptcy Code, CARES Act, Coronavirus/COVID-19, Loan Forgiveness

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Report: $10 Billion in Provider Relief Funds Diverted to Operation Warp Speed For Vaccine Development

According to an exclusive report from STAT, sometime last year, federal officials decided to redirect billions in funds from the $175 billion CARES Act’s Provider Relief Fund to the “Operation Warp Speed” (OWS) vaccine…more

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

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New Drivers, Same Bumpy Ride

Congressional Tech Focus Will Continue This Term, Fueled by Bipartisan - Scrutiny on Multiple Fronts With the Democratic party now in control of both the House and the Senate, we anticipate increased congressional oversight…more

Communications Decency Act, Competition, Diversity and Inclusion Standards (D&I), Drivers, Employee Rights

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California Enacts Law Requiring Female Representation on Boards

On September 30, 2018, California Governor Jerry Brown signed into law Senate Bill No. 826 (SB 826). SB 826 adds Sections 301.3 and 2115.5 to the California Corporations Code to require that a publicly held company with a…more

Board of Directors, Diversity, Gender Equity, Woman Board Members

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Georgia Appellate Court Rejects All Fee Non-Disclosure Claims Against Multifamily Lender

On February 21, 2023, the Georgia Court of Appeals awarded multifamily real estate lender ORIX USA (and its affiliates) a complete victory in a decision affirming in part and reversing in part a summary judgment ruling entered…more

Appellate Courts, Georgia, Lenders, Mortgage-Backed Securities, Multi-Family Housing

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Mobile Employees: Tax Issues to Consider in Remote Working Policies

As the U.S. transitions from the acute phase of COVID-19, the lasting impact of changes ushered in by the pandemic is becoming clear, most notably the shift toward remote work. While no longer a necessity, remote work remains…more

Coronavirus/COVID-19, Deferred Compensation, Double Taxation, Hybrid Plan, Jurisdiction

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Infrastructure Investment and Jobs Act: Key Provisions and Considerations for Project Participants

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (“Infrastructure Act”), which provides for $550 billion in new federal spending on infrastructure in the United States over a…more

Anti-Fraud Provisions, Biden Administration, Broadband, Buy America, Carbon Capture and Sequestration

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First Settlement by OCR in a Phishing Cyber-Attack Investigation

On December 7, 2023, OCR released a statement that it was settling a phishing cyber-attack investigation into Lafourche Medical Group (the Medical Group) which specializes in emergency medicine, occupational medicine, and…more

Corrective Actions, Cyber Attacks, Health Insurance Portability and Accountability Act (HIPAA), Investigations, OCR

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Africa Bulletin - September 2019

INTRODUCTION - It has been a busy few months for private equity activity in Africa. Statistics and transactions have illustrated a growing appetite for investment in the continent and, crucially, growing confidence and…more

Africa, Anti-Corruption, Economic Development, Financial Markets, Foreign Investment

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EPA Releases a Cumulative Impacts Addendum to its Environmental Justice Tool Kit

On January 11, 2023, EPA’s Office of the General Counsel released a Cumulative Impacts Addendum (“Addendum”) to its May 2022 publication Legal Tools To Advance Environmental Justice, continuing to signal its focus on cumulative…more

Civil Rights Act, Clean Air Act, Clean Water Act, Environmental Justice, Environmental Protection Agency (EPA)

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REIT Advisor – March 2020

On March 2, 2020, the Securities and Exchange Commission (the “SEC”) released its final rule amending the financial disclosure requirements applicable to registered debt offerings that include credit enhancements, including…more

Amended Regulation, Disclosure Requirements, Final Rules, Financial Statements, New Rules

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And So It Begins: The First DFS Transition Period Comes to an End August 28

In September 2016, the New York Department of Financial Services (“DFS”) introduced the first draft of its cybersecurity regulation, which is now in a position to lead a new trend in industry-specific cybersecurity regulation…more

Cybersecurity, Department of Financial Services, Incident Response Plans, Risk Assessment

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The Beginning of the National Bioengineered Food Disclosure Standard

In our last issue of the International Food Law Gazette, we reported on the changing legal landscape for the labeling of genetically engineered (GE) foods (more commonly referred to as genetically modified organisms, or GMO). In…more

Agricultural Sector, Bioengineering, Food Manufacturers, Genetically Engineered Seed, GMO

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Rule 192

On January 25, 2023, the Securities and Exchange Commission (“SEC”) issued a release reproposing new Rule 192 (the “Proposed Rule”) under the Securities Act of 1933 (the “Securities Act”), which is intended to prevent the sale…more

Asset-Backed Securities, Conflicts of Interest, Dodd-Frank, Liquidity, Proposed Rules

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Executive Order Establishes New Outbound Investment Screening Program

Prohibitions targeted to prevent China’s exploitation of dual-use technology - On August 9, 2023, President Biden signed a historic Executive Order on Addressing United States Investments in Certain National Security…more

Advanced Notice of Proposed Rulemaking (ANPRM), CFIUS, China, Compliance, Covered Transactions

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Criminal and Civil Enforcement of the Defense Production Act

The Defense Production Act (the “DPA” or “the Act”) and its implementing regulations are among the tools available to the federal government as it responds to the COVID-19 pandemic. The DPA provides the federal government broad…more

Coronavirus/COVID-19, Defense Production Act, Personal Protective Equipment, Price Gouging, Public Health Emergency

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France – New Offense of Providing Instruments to Facilitate Tax Fraud

The fight against tax fraud occupies a central place in the French Finance Act for 2024. Among the various proposals is the new Article 1744 of the French tax code, which creates the offense of making instruments available…more

France, Money Laundering, Penalties, Tax Code, Tax Fraud

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Trade & Manufacturing - July 2018

The Trump Administration Announces Final List Of Articles Subject To Section 301 Tariffs - On June 15, the Office of the United States Trade Representative (“USTR”) released the final list of 818 Chinese products that will…more

Aluminum Sales, Canada, China, Imports, Mexico

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AdvaMed Updates Code of Ethics on Interactions with HCPs: What’s the Impact on MedTech?

On March 18, 2022, the Advanced Medical Technology Association (“AdvaMed”) announced revisions to its Code of Ethics on Interactions with Health Care Professionals (“Code”). The revised Code will take effect June 1, 2022…more

AdvaMed, Anti-Kickback Statute, Department of Health and Human Services (HHS), Ethics, Final Rules

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OIG Publishes Final Information Blocking Enforcement Rule

On July 3, 2023, OIG published its final enforcement rule (the OIG Rule) permitting imposition of civil monetary penalties (CMPs) for certain actors that engage in information blocking in violation of the information blocking…more

21st Century Cures Act, Civil Monetary Penalty, Electronic Protected Health Information (ePHI), Enforcement, Final Rules

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The Rise in Ghost Kitchens

The introduction of meal delivery apps, including UberEats, GrubHub and DoorDash, has expanded e-commerce in the food industry and increased the size of the food delivery market. Over the last five years prior to the start of…more

Coronavirus/COVID-19, DoorDash, Food and Drug Administration (FDA), Food Safety, Food Safety and Inspection Service (FSIS)

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Tokyo Dispute Resolution & Crisis Management Newsletter – August 2020 - Mining Arbitration in the Asia-Pacific

The Asia-Pacific region integrates the mining industry within the life cycle of the global economy more fluidly than perhaps anywhere else in the world. Metals and minerals extracted from the region are transported to the…more

Arbitration, Asia Pacific, Contractors, Global Economy, Infrastructure

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Recent Court Ruling Illustrates The Perils Insurers Face When Sending Boilerplate Coverage Letters To Georgia Policyholders

Federal Court in Georgia Applies Hoover Rule Finding that Insurers Who Sent Denial Letters Waived Right to Assert Other Coverage Defenses Later. Eight years ago in Hoover v. Maxum Indemnity Co., 730 S.E.2d 413 (Ga. 2012),…more

Boilerplate Language, Denial of Insurance Coverage, False Claims Act (FCA), GA Supreme Court, Georgia

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New FDA Guidance on Control of Nitrosamine Impurities

FDA Releases Guidance on the Agency’s Understanding of Nitrosamine Impurities - On September 1, 2020, the U.S. Food and Drug Administration (“FDA”) released a new guidance document, Guidance for Industry: Control of…more

APIs, Food and Drug Administration (FDA), New Guidance, Over The Counter Drugs (OTC), Prescription Drugs

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MedPAC Recommends Cuts to Urban Hospital’s Medicare Payments

On April 5, the Medicare Payment Advisory Commission (MedPAC) issued a unanimous recommendation to decrease some urban outpatient hospitals’ Medicare payments, while increasing rural hospital payments to improve emergency…more

Hospitals, Medicare, MedPAC

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Gas Stove Ban Update: Ninth Circuit Says "No" to City of Berkeley Ban on Gas Stoves

The gas stove wars continue to heat up. On April 17, 2023, the United States Court of Appeals for the Ninth Circuit took a stand and ruled that the City of Berkeley does not have the authority to prohibit connecting natural gas…more

Appeals, Consumer Product Safety Commission (CPSC), Department of Energy (DOE), ECPA, Natural Gas

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The Administration Takes Aim At Drug Prices Again – This Time Through A Controversial Framework for Exercising March-In Rights

The Biden Administration recently announced a plan to leverage an old tool in a new way to try to reduce drug costs: exercising “march-in rights” under the Bayh-Dole Act for drugs that were supported by government funding. …more

Bayh-Dole Act, Biden Administration, Department of Health and Human Services (HHS), Drug Pricing, Federal Contractors

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U.S. Supreme Court Holds Plaintiffs May Use RICO to Enforce Foreign Arbitral Awards

In a January 17, 2023 Client Alert, we addressed the U.S. Supreme Court’s decision to grant certiorari in CMB Monaco v. Smagin and Yegiazaryan v. Smagin, two cases which concern the use of the Racketeer Influenced and Corrupt…more

Bribery, Domestic Injury, Embezzlement, Foreign Arbitral Awards, Fraud

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OMB Finalizes Regulatory Guidance On “Buy America Preferences For Infrastructure Projects”

Revised guidance takes effect on October 22, 2023 and will be supplemented by forthcoming memorandum - On August 23, the Office of Management and Budget (“OMB”) published final Guidance for Grants and Agreements to “support…more

Buy American Act, Federal Acquisition Regulations (FAR), Financial Assistance Policies, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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Buyers Beware - Delaware Chancery Court Orders CorePower to Honor Acquisition of Franchisee Studios

On March 1, 2022, Vice Chancellor Slights of the Delaware Chancery Court ordered CorePower Yoga (“CorePower”) to close the acquisition of 34 yoga studios from its largest franchisee, Level 4 Yoga (“Level 4”). The parties entered…more

Acquisitions, Coronavirus/COVID-19, Damages, Force Majeure Clause, Material Adverse Effects

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COVID-19 Impacts on Businesses and Their Intellectual Property Rights

Part 2 of a 2 Part Series: Avoiding and/or Eliminating Loss of IP Rights During the COVID-19 Pandemic - As a follow-on to our series, COVID-19 Impacts on Businesses and Their Intellectual Property Rights, companies need to…more

Coronavirus/COVID-19, Domain Names, Intellectual Property Protection, Patents, Proprietary Information

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Indonesia Introduces CCS/CCUS Regulation

Indonesia has set an ambitious target to reach net zero emissions by 2060. The deployment of clean energy technologies, such as carbon capture and storage (“CCS”) and carbon capture, utilization and storage (“CCUS”), will play…more

Carbon Capture and Sequestration, Carbon Emissions, Contractors, Energy Sector, Indonesia

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Mandatory Remote Working - Can Employers Force Their Employees to Work From Their Homes?

The red-hot labor market seems to be cooling off. The (im)perfect storm of unprecedented inflation, market volatility and a looming recession are causing employers to rethink their human capital strategies to get ahead of the…more

Employer Mandates, Employment Contract, Equal Pay, Human Capital, Jurisdiction

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COVID-19 Health Care Fraud Enforcement on the Rise: What’s Ahead for the Life Sciences & Healthcare Industries

On April 20, 2022, the Department of Justice (“DOJ”) announced twenty-one (21) defendants were charged in nine (9) different districts related to $149 million in COVID-19-related false billing issues. $8 million in cash and…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Confidential Information, Coronavirus/COVID-19, Department of Justice (DOJ)

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Covenants Reconsidered In Preparation for New Lease Accounting Rules (ASC 842; IFRS 16)

A joint effort by the Financial Accounting Standards Board (“FASB”) and the International Financial Reporting Standards Foundation (“IFRS”) will fundamentally reset the accounting treatment of leases under both US-GAAP and IFRS…more

FASB, Financial Services Industry, GAAP, IFRS

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The Common Law Touch - The status of English law for international business post-Brexit

The UK referendum result in June 2016, which saw the majority of the electorate vote to leave the European Union (EU), has presented many questions about the future legal implications of a Brexit. While individual legislative…more

English Common Law, EU, Member State, Referendums, UK

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EPA Proposes to Cut 2020 and 2021 Volumes for the Renewable Fuel Standards Program, While Aiming to Increase 2022 Volumes

On December 7, 2021, the U.S. Environmental Protection Agency (“EPA”) signed and submitted for publication in the Federal Register its proposed rule for setting renewable fuel percentage standards. The proposed rule sets the…more

Biofuel, Clean Air Act, Coronavirus/COVID-19, Energy Policy Act, Environmental Protection Agency (EPA)

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U.S. District Court Dismisses Commodity Exchange Act Claims as Impermissibly Foreign

On August 27, 2020, Judge George B. Daniels of the U.S. District Court for the Southern District of New York granted a Rule 12(c) motion for judgment on the pleadings made by financial institutions facing benchmark-rigging…more

Appeals, Chicago Mercantile Exchange (CME), Commodity Exchange Act (CEA), Commodity Futures Contracts, Dismissals

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The EU General Court confirms the Commission's jurisdiction to review transactions that do not meet any national thresholds

In its judgment of 13 July 2022, the EU General Court confirmed that transactions that do not meet EU or Member State thresholds can be referred by national competition authorities to the European Commission (the “Commission”)…more

EU, EUMR, General Court of the European Union (GCEU), Jurisdiction, New Guidance

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Mallory Opinion: Constitutionality Of Jurisdiction By Registration May Be A Mirage

The Supreme Court’s recent opinion in Mallory v. Norfolk Southern Railway Co.. concerned the constitutionality of a Pennsylvania statute providing that registering to do business in the state constitutes a sufficient basis for…more

Commerce Clause, Constitutional Challenges, Due Process, Foreign Corporations, Fourteenth Amendment

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European Union To Push Ahead With Cross-Border Evidence Law

In a move which has drawn fire from industry and civil-liberties groups, the European Union (“EU”) is moving forward with a bill to enable law enforcement authorities to access digital evidence held by private companies in other…more

Cross-Border, EU, Evidence

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SEC Approves Significant Changes to Auditor’s Reports: New Disclosure Implications for Companies

On October 23, 2017, the Securities and Exchange Commission, or the SEC, unanimously approved new rules and amendments designed to render auditor’s reports more informative to investors. These provisions were proposed by the…more

Audits, Disclosure Requirements, Securities and Exchange Commission (SEC)

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Congressional Insight into Strategy to Combat Cyberattacks on the Healthcare Industry

On April 16, 2024, the House Committee on Energy and Commerce held a bipartisan hearing on the issue of cyberattacks involving healthcare providers. The Committee called as witnesses cybersecurity professionals and…more

Cyber Attacks, Cybersecurity, Data Breach, FBI, Health Care Providers

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Energy Newsletter - May 2021

Business and Human Rights: Energy and extractives in a changing landscape of new generation trade agreements protecting and promoting both trade and human rights - As allegations of genocide, forced labour, or widespread…more

Energy Sector, Enforcement Actions, Environmental Justice, Environmental Protection Agency (EPA), Human Rights

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Trump Administration Releases List Of $200 Billion In Chinese Imports Proposed To Be Subject To 10 Percent Tariff

Comments Sought By August 17, 2018 On List Of Over 6,000 Potentially Affected Tariff Lines - The U.S. Trade Representative (USTR) has announced a new list of products imported from China that it proposes would be subject to…more

China, Imports, Tariffs, Trump Administration, USTR

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Eleventh Circuit Confirms that Issuers are not Required to Disclose Retention of Outside Promotional Firms

On December 15, 2016, the United States Court of Appeals for the Eleventh Circuit affirmed the dismissal of a securities class action against Galectin Therapeutics Inc., a Georgia-based biotechnology company. The suit alleged…more

Disclosure Requirements, Financial Markets, Pharmaceutical Industry, Public Offerings, Publicly-Traded Companies

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Treasury Issues Final Regulations Addressing “Domestically Controlled” REIT Status

On April 25, 2024, the IRS and Treasury issued final regulations (the “Final Regulations”) addressing whether a real estate investment trust (a “REIT”) or a regulated investment company (a “RIC”) will constitute a “domestically…more

C-Corporation, Fair Market Value, Final Rules, FIRPTA, Income Taxes

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The EU General Court confirms the Commission's jurisdiction to review transactions that do not meet any national thresholds

In its judgment of 13 July 2022, the EU General Court confirmed that transactions that do not meet EU or Member State thresholds can be referred by national competition authorities to the European Commission (the “Commission”)…more

EU, EUMR, General Court of the European Union (GCEU), Jurisdiction, New Guidance

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Saudi Arabia unveils new US$50 billion water desalination programme - The Kingdom to offer privatisations as well as new water desalination project contracts

The Ministry of Environment, Water and Agriculture of Saudi Arabia has announced a new water desalination programme involving private sector participation worth over an estimated US$50 billion. The programme will be split…more

Desalination, Private Sector, Public Private Partnerships (P3s), Saudi Arabia, Water

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SEC Adopts Final Climate Disclosure Rules

Proposed rules are moderately scaled-back in final version; Scope 1 and 2 are required if material; Scope 3 is out; compliance will still be burdensome - On March 6, 2024, by a split vote of 3-2, the U.S. Securities and…more

Climate Change, Compliance, Disclosure Requirements, Final Rules, Greenhouse Gas Emissions

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FDA's Latest Salvo in the LDT Wars

On September 29, 2023, the Food & Drug Administration (“FDA” or the “Agency”) published the long-awaited proposed rule on laboratory developed tests (“LDT Proposed Rule”). The proposed rule is open for public comment through…more

CLIA, Draft Guidance, Emergency Use Authorization (EUA), Federal Food Drug and Cosmetic Act (FFDCA), Food and Drug Administration (FDA)

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CMS Finalizes Rule Regarding Marketing Changes, Beneficiary Protections, and Coverage for Medicare Parts C and D

On April 4, 2024, CMS published a final rule implementing certain policy changes to the Medicare Advantage (MA) Program (Medicare Part C) and the Medicare Prescription Drug Benefit Program (Medicare Part D). According to the…more

Agents, Beneficiaries, Brokers, Centers for Medicare & Medicaid Services (CMS), Chronic Care Managment (CCM)

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EU-U.S. Privacy Shield: Assessing The New Regime

Businesses have now had four months to get to grips with the new EU-U.S. Privacy Shield for transatlantic data transfers after it came into force in August 2016. As the New Year looms, what are the emerging trends we have seen…more

Data Privacy, Data Protection Authority, EU, EU-US Privacy Shield, European Commission

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PCAOB Division of Enforcement’s First Quarter Continues Record-Setting Pace

The PCAOB’s Division of Enforcement and Investigations’ 2024 first quarter activity continued the blistering pace of enforcement since Erica Williams became the Board’s Chair. While the Board’s first quarter enforcement activity…more

Audits, Civil Monetary Penalty, Enforcement Actions, Investigations, PCAOB

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Uptick In Coordinated U.S.-Brazil Anti-Corruption Enforcement

As companies expand across borders and invest more heavily abroad, foreign enforcement authorities are following the example set by the U.S. Department of Justice and the U.S. Securities and Exchange Commission in directing…more

Anti-Corruption, Enforcement Authority, Foreign Corrupt Practices Act (FCPA), Multi-Jurisdictional Litigation, Odebrecht

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2023 M&A Outlook: Recapping Key Takeaways from Dealmaking in 2022 and Navigating New Challenges

Coming off record-setting levels in 2021, M&A deal activity cooled in the second half of 2022. A multitude of factors – including soaring inflation, steadily rising interest rates and the higher cost of financing, geopolitical…more

Acquisitions, Borrowers, Corporate Counsel, Department of Justice (DOJ), Domestic Dealmaking

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Thinking Beyond the Dispute Resolution Provision in Construction Disputes

When parties cannot resolve a claim during a major construction project, the contract’s dispute resolution provisions do not always need to read as step-by-step instructions. To the contrary, the situation may warrant a…more

Construction Contracts, Construction Disputes, Construction Industry, Construction Litigation, Construction Project

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Sponsor Debt Purchases as Affiliated Lenders

In response to changes in the marketplace, it’s possible that borrowers will employ debt buybacks as a way to ease their overall net leverage levels (either as a means to cure financial covenant defaults resulting from the…more

Credit Agreements, Financial Institutions, Financial Services Industry, Financial Sponsors, Lenders

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CMS Issues Guidance for Medicare Contractors to Pay For Section 1115 Day

On March 16, 2023, CMS issued Change Request 12669, which contains instructions for Medicare Administrative Contractors (MACs) to begin the process of retroactively reimbursing DSH hospitals for inpatient days attributable to…more

Centers for Medicare & Medicaid Services (CMS), Medicaid, Medicare, Medicare Administrative Contractors (MAC), New Guidance

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U.S. Supreme Court Unanimously Rules On Standing Requirements For Section 11 Claims In Direct Listings

On June 1, 2023, the United States Supreme Court unanimously held that a stockholder bringing claims under Section 11 of the Securities Act of 1933 must plead and prove that they purchased shares traceable to the allegedly…more

Direct Listing, Initial Public Offering (IPO), NYSE, SCOTUS, Section 11

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What Next for the ACA after Texas v. U.S.? What the Industry Needs to Know While the Case Is on Appeal

United States District Court Judge Reed O’Connor of the Northern District of Texas issued a ruling on Friday, December 14, 2018, declaring the Patient Protection and Affordable Care Act (ACA) unconstitutional in its entirety. …more

Affordable Care Act, Federal Taxes, SCOTUS, Tax Reform, Unconstitutional Condition

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Energy Newsletter - August 2019

Significant Changes to FERC’s Rules for Market-Based Rate Sellers - On July 18, 2019, the Federal Energy Regulatory Commission (“FERC”) issued two orders modifying its rules for sellers to obtain or retain authorization to…more

Energy Sector, FERC, Intercreditor Agreements, ISO/RTO, Latin America

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Real Estate of Mind: Key UK/US Real Estate Insights for GCC Investors in 2023

Following our inaugural Real Estate of Mind round up (see here) of trends in the sector earlier this year, as 2022 draws to a close, we have set off on the road once again to connect with clients and friends alike in Bahrain,…more

Bahrain, Borrowers, FIRRMA, Global Market, Investment

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DOJ Announces FCA Settlement with NIH-Funded Institute Related to Disclosure of Foreign Influence in Research

The Department of Justice (DOJ) recently announced that it reached a $5,500,000 settlement with a biomedical research institute that received NIH grant funding–the Van Andel Research Institute (VARI)–to resolve allegations that…more

Department of Justice (DOJ), Enforcement Actions, Failure To Disclose, False Claims Act (FCA), Federal Grants

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Supreme Court Accepts Narrow Definition of Autodialer, Limiting Reach of TCPA

On April 1, in a highly anticipated decision that likely will have a significant effect on litigation under the Telephone Consumer Protection Act (TCPA), the Supreme Court ruled on what qualifies as an “automatic telephone…more

ATDS, Auto-Dialed Calls, Facebook, Facebook Inc v Duguid, Random or Sequential Number Generator

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Treasury Issues Final Regulations Addressing “Domestically Controlled” REIT Status

On April 25, 2024, the IRS and Treasury issued final regulations (the “Final Regulations”) addressing whether a real estate investment trust (a “REIT”) or a regulated investment company (a “RIC”) will constitute a “domestically…more

C-Corporation, Fair Market Value, Final Rules, FIRPTA, Income Taxes

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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EPA’s Revised Rule for Ethylene Oxide ("EtO") Manufacturers

In a just-released air toxics rule for miscellaneous organic chemical manufacturing (“MON”) sources, the U.S. Environmental Protection Agency (“EPA”) retains its controversial risk value for ethylene oxide (“EtO”). In doing so,…more

Air Pollution, Environmental Protection Agency (EPA), NESHAP, New Rules, Toxic Chemicals

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District of Maryland Holds that “Specific Evidence” Must be Presented to Prove Lender Knowledge of Loan Applicant Fraudulent Actions

On April 1, 2022, the U.S. District Court for the District of Maryland granted in part and denied in part motions for summary judgment brought by lenders on claims against them for alleged participation in fraud by a borrower…more

Aiding and Abetting, Fraud, Loans, Maryland, Negligence

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Glass Lewis Issues 2018 Voting Policies Update

On November 22, 2017, Glass Lewis issued its updated proxy voting guidelines for the upcoming 2018 proxy season. Notable updates applicable to U.S. companies include new or revised policies relating to: ..gender diversity on…more

Diversity, Glass Lewis, Proxy Season, Proxy Voting Guidelines, Shareholders

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No Deal Brexit: Impact on Cross-Border Civil and Commercial Litigation

On 13 September 2018, the UK Government published a guidance note setting out the implications that a “no deal” Brexit would have on civil and commercial disputes and cross-border insolvencies in England and Wales. Civil and…more

Cross-Border, EU, Member State, UK, UK Brexit

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Rebuilding Infrastructure in America: The White House Legislative Outline — General Overview and Insight

In early February, the White House released President Donald J. Trump’s legislative goals for rebuilding U.S. infrastructure. Implementation of these goals would rely heavily on states, the private sector and private funding to…more

Infrastructure, Infrastructure Financing, Trump Administration

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A Privileged Position

HR Managers and in-house lawyers frequently face the task of navigating and protecting legal privilege. Issues around privilege often arise during internal investigations, data subject access requests and discussions of…more

Attorney-Client Privilege, Confidential Information, Employment Tribunals, Grievance Process, Legal Advice Privilege

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Quantum Quarterly – Issue 12 – 4 Quarter 2020

Claimant is an Australian joint venture between Chile’s Antofagasta plc and Canada’s Barrick Gold Corporation. In 2006, Claimant became a party to a joint venture agreement between it and the Government of Balochistan with the…more

Arbitration, Burden of Proof, Causation, Compensation, Contributory Negligence

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DOJ's Criminal Division Launches Pilot Program on Voluntary Self-Disclosures for Individuals

On April 15, 2024, the Criminal Division of the U.S. Department of Justice (“DOJ”) announced the launch of its Pilot Program on Voluntary Self-Disclosures for Individuals. U.S. Dep’t of Justice, The Criminal Division’s Pilot…more

Corporate Misconduct, Criminal Investigations, Department of Justice (DOJ), Non-Prosecution Agreements, Pilot Programs

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Recently Introduced Legislation Designed To Secure Voting Systems

On September 21, 2016, Representative Hank Johnson (R-GA) introduced two bills in the U.S. House of Representatives that aim to protect U.S. voting systems from hackers. These two pieces of legislation—the “Election…more

Department of Homeland Security (DHS), Federal Elections, Hackers, Infrastructure, Voter Registration

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Changes to the UAE Foreign Ownership Laws

In September 2020, the UAE Cabinet of Ministers (the Cabinet) issued Law No. 26 of 2020 (the Amendment) which amended certain provisions of the UAE Companies Law No. 2 of 2015 (the Companies Law). The amendments include…more

Financial Institutions, Foreign Investment, Foreign Ownership, Proposed Amendments, United Arab Emirates (UAE)

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Spotlight on PFAS and Other Substances in Cosmetics Likely to Grow in 2022

This year – 2022 – may finally be the year that the effort to modernize safety standards in the U.S. for cosmetics and other personal care products, which has been ongoing since 2013, comes to fruition. If so, the new cosmetics…more

Best Practices, Cosmetics, EU, European Commission, Food and Drug Administration (FDA)

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New York State OMIG Announces Updates to Self-Disclosure Program

On August 21, 2023, the New York State Office of the Medicaid Inspector General (OMIG) published an update to its self-disclosure program. The update allows for two (2) types of self-disclosures: (i) an Abbreviated Statement…more

Corrective Actions, Medicaid, New York, OMIG, Overpayment

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The 2024 UAE Financial Restructuring and Bankruptcy Law: What is New?

On 31 October 2023, Federal Law Decree No. (51) concerning Financial Restructuring and Bankruptcy (the New Law) was published in the UAE Federal Gazette. The New Law comes into force on 1 May 2024 and will repeal the 2016 Law on…more

Automatic Stay, Bankruptcy Court, Bankruptcy Trustees, Commercial Bankruptcy, Creditors

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Energy Newsletter - May 2018

Courts Hold Clean Water Act Regulates Discharges through Groundwater, as Congress and Regulators Consider Responses - The Ninth Circuit and Fourth Circuit have joined a growing number of lower courts finding that the Clean…more

Clean Water Act, Energy Sector, Greenhouse Gas Emissions, Groundwater, Infrastructure

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AshleyMadison.com Operators Settle With FTC And States For $1.66 Million

On December 14, 2016, the Federal Trade Commission (the “FTC”) announced that ruby Corp., ruby Life Inc., and ADL Media Inc. (the “Defendants”) agreed to a settlement with the FTC, 13 states, and the District of Columbia. The…more

Ashley Madison, Data Breach, Federal Trade Commission (FTC), Personally Identifiable Information, Websites

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Surprise Year-End SEC Disgorgement Legislation Settles Some Issues but Raises Others

The legitimacy and scope of the SEC’s “disgorgement” remedy have been the focus of increasing scrutiny for the better part of the past decade. Among other things, two Supreme Court decisions in the past four years placed…more

Appropriation, Disgorgement, Investors, Kokesh v SEC, Liu v Securities and Exchange Commission

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Changes to the UAE Foreign Ownership Laws

In September 2020, the UAE Cabinet of Ministers (the Cabinet) issued Law No. 26 of 2020 (the Amendment) which amended certain provisions of the UAE Companies Law No. 2 of 2015 (the Companies Law). The amendments include…more

Financial Institutions, Foreign Investment, Foreign Ownership, Proposed Amendments, United Arab Emirates (UAE)

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Compensation and Benefits Insights – September 2019

“Exit Contribution” an End-Run Around de minimis Withdrawal Liability - A recent ruling from the U.S. Court of Appeals for the Fourth Circuit, Sheet Metal Workers’ National Pension Fund v. Four-C-Aire, Inc. (4th Cir. July 3,…more

Appeals, Collective Bargaining Agreements (CBA), Compensation & Benefits, De Minimis Claims, Deferred Compensation

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Europe - Between The EU Clinical Trials Regulation And The UK Guideline On Clinical Trials

Last week the Regulation on Clinical Trials (“CTR”) finally became effective in the European Union (“EU”) and replaced the prior Clinical Trials Directive 2001/20 (“CTD”). The CTR was adopted in 2014 and was meant to enter into…more

Clinical Trials, Data Privacy, Deadlines, Disclosure Requirements, EU

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Focus on ESG: What it Means for REITs

Over the past 18 months, shareholder focus on environmental, social and governance issues - known collectively as “ESG” - has increased significantly. Once the target area of specialty investors, ESG issues are now a higher…more

Investors, Proxy Season, Publicly-Traded Companies, REIT, Shareholders

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House Passes SELF DRIVE Act, With Security And Privacy In Mind

On Wednesday, September 6, the U.S. House of Representatives unanimously passed H.R. 3388, the SELF DRIVE Act (the “Act”). While the Act’s primary purpose is to preempt state laws that regulate automated vehicles, and instead to…more

Automotive Industry, Cybersecurity, Driverless Cars, Privacy Policy

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Accelerated Covid-19 Vaccine Clinical Trials

Liability exposure and shields for vaccine developers - As the number of COVID-19 cases continues to rise every day, efforts to develop vaccines across the globe have hit record speeds. In the U.S., the U.S. Food and Drug…more

Center for Biologics Evaluation and Research (CBER), Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Department of Health and Human Services (HHS), European Medicines Agency (EMA)

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A Rock or A Hard Place?

Reporting overseas enforcement action against Senior Managers to the Prudential Regulation Authority. On 7 November 2018, the Prudential Regulation Authority (“PRA”) issued two final notices against two individuals who had…more

Banking Sector, Enforcement Actions, Japan, NYDFS, Prudential Regulation Authority (PRA)

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FDA Updates Draft Guidance on Promotional Labeling and Advertising Considerations for Biological Reference Products and Biosimilars

On April 25, 2024, FDA published a revised draft guidance, Promotional Labeling and Advertising Considerations for Prescription Biological Reference Products, Biosimilar Products, and Interchangeable Biosimilar Products –…more

Advertising, Biosimilars, Draft Guidance, Food and Drug Administration (FDA), Interchangeability

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The Issue of Phthalates in Food Packaging and Processing Heats Up

In recent decades, the use of plastics has proliferated. Overall, they have shown to provide a cost-friendly, durable and versatile solution to many consumer needs across virtually all categories of products regulated by the…more

Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), Food and Drug Administration (FDA), Food Manufacturers, GRAS

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EPA’s Draft Strategic Plan Emphasizes Resilience and Adaption to Climate Change

This Client Alert—Part 2 of an ongoing series—provides an overview of one of EPA’s key objectives in its draft Strategic Plan: Developing resilience and adaptation to climate change impacts. Other alerts in the series can be…more

Center for Biological Diversity, Climate Change, Endangered Species Act (ESA), Enforcement, Environmental Protection Agency (EPA)

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Reconsider That Term Sheet: DOJ "Safe Harbor Policy" Announcement Incentivizes Merger-Related Disclosures

On October 4, 2023, the Department of Justice’s (“DOJ”) Deputy Attorney General Lisa Monaco announced a new “Mergers & Acquisitions Safe Harbor Policy” (“M&A Safe Harbor Policy” or “Policy”) for companies that voluntarily…more

Acquisitions, Corporate Misconduct, Department of Justice (DOJ), Disclosure, Disgorgement

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It’s Not Just for Dietary Supplements Anymore: FTC Revises and Expands Guidance for Health Claims

Signaling a renewed focus on consumer protection in the health claims space, the Federal Trade Commission (“FTC”) has revamped its 1998 guidance titled Dietary Supplements: An Advertising Guide for Industry and extended the…more

Consumer Protection Laws, Dietary Supplements, Digital Health, Federal Trade Commission (FTC), Food and Drug Administration (FDA)

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U.S. International Trade Commission to Investigate Potential Waiver of International Intellectual Property Rights for COVID-19 Diagnostics and Therapeutics

On February 1, 2023, the U.S. International Trade Commission (the “ITC”) initiated an investigation into the impact of intellectual property (“IP”) rights on the production, supply, and availability of diagnostics and…more

Coronavirus/COVID-19, Intellectual Property Protection, International Trade Commission (ITC), Supply Chain, TRIPS Agreement

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The Shift in M&A Litigation From Delaware to Federal Court: Has the Song Remained the Same?

Federal securities class action filings continued their record pace during the first half of 2018, bolstered by the recent uptick in M&A-related filings, which comprised 50% of the overall cases. In these M&A cases, a plaintiff…more

Acquisitions, Class Action, Financial Services Industry, Mergers

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FERC Proposes to Amend its PURPA Regulations to Recognize Hydrogen Production in Certain Fuel Cell Systems as Useful Thermal Energy in Qualifying Cogeneration Facilities

Hydrogen as a fuel for industrial applications, transportation, distribution and power generation, and for energy storage, is gaining worldwide momentum as a key component in the pursuit of decarbonization. The Federal Energy…more

Federal Register, FERC, Hydrogen Power, Natural Gas, New Regulations

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Delaware Court of Chancery Dismisses Litigation Arising from Controller Buyout of Books-A-Million Under "MFW" Framework

On October 10, 2016, the Delaware Court of Chancery issued its decision in In re Books-A-Million, Inc. Stockholders Litigation. The decision, authored by Vice Chancellor J. Travis Laster, is important because it applies the…more

Acquisitions, Bad Faith, Board of Directors, Business Judgment Rule, Buyouts

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Energy Newsletter - October 2016

Negotiating an In-Project Construction Dispute - Many thorny and competing interests are implicated when an ongoing major construction project experiences an unanticipated event that impacts the project schedule or costs,…more

Construction Contracts, Construction Industry, Construction Project, De Novo Standard of Review, Due Process

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The Department of Justice Announces a New Program to Pay Financial Rewards to Whistleblowers for Information About Corporate Crimes

On March 7, 2024, Deputy Attorney General Lisa Monaco announced that the Justice Department intends to offer new financial incentives for whistleblowers to report allegations about white collar crimes that result in asset…more

Compensation, Corporate Crimes, Corporate Misconduct, Department of Justice (DOJ), Securities and Exchange Commission (SEC)

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Avoiding an Ambiguous Hold Harmless Clause: What Every Lender Should Consider

Lenders rely on indemnification and hold harmless provisions in commitment and engagement letters to protect against claims that may be brought not only by third parties but by borrowers and their affiliates as well. Such…more

Ambiguous, Commitment Letter, Damages, Engagement Letters, Hold Harmless

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FASB Clarifies Revenue Recognition of Initial Franchise Fees (ASC 606)

This past Monday, November 5, 2018, the Financial Accounting Standards Board (“FASB”) published much-sought after guidance regarding the recognition of franchise fees under Accounting Standard Codification 606, Revenue…more

Accounting Standards, FASB, Financial Services Industry, GAAP

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LDT Final Rule: Shifting the LDT Battlefield

On April 29, 2024, the Food and Drug Administration (“FDA” or “the Agency”) released a pre-publication version of the highly anticipated laboratory developed test final rule (“LDT Final Rule”). The LDT Final Rule is scheduled…more

Compliance, Enforcement, False Statements, Federal Food Drug and Cosmetic Act (FFDCA), Final Rules

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Energy Newsletter - June 2018

Lessons for Sellers in Contracting with Emerging Market Buyers: The “Three R’s” to Structuring Payment Security Provisions - The recent rebound in the international energy industry is being driven, at least in part, by a…more

BSEE, Cloud Computing, Energy Policy, Energy Sector, Exports

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The Anti-Money Laundering Act and Crypto Collide: Non-Fungible Tokens

As NFTs gain popularity, buyers and sellers should consider the potential issues related to federal anti-money laundering laws. While non-fungible tokens (“NFTs”) have existed for several years, the market for NFTs grew…more

Anti-Money Laundering, Bank Secrecy Act, Bitcoin, Blockchain, Compliance

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UK Data Protection: Deviation from the Strict EU Regime

Data is yet again at the top of the agenda in the UK Parliament. Seeking to balance the need for the protection of privacy of data and enabling data-driven growth, the UK Department for Science, Innovation and Technology…more

Data Breach, Data Protection, DPA, EU, UK

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Regulation S-X Updates and the Pro Forma EBITDA Add-back

On May 21, 2020, the Securities and Exchange Commission (the “SEC”) adopted amendments to the financial disclosure requirements in Regulation S-X (the SEC’s accounting rules for the form and content of financial statements…more

Borrowers, EBITDA, Financial Statements, Lenders, Management Adjustments

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"Gig" Economy - Emerging Themes and Global Perspectives

On-demand workers (“gig workers”) represent a growing portion of the global workforce. While the continued growth of this category presents opportunities for employers to recalibrate their workforce strategy, it also creates…more

Employee Definition, Gig Economy, Independent Contractors, Misclassification, Unions

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ILPA Updates Guidance on Continuation Funds

In May, the Institutional Limited Partners Association (ILPA) introduced its long-awaited guidance on Continuation Funds. LPs have, in ILPA’s view, become “increasingly frustrated” with timeframes and economics in these complex…more

Carried Interest, Disclosure Requirements, Due Diligence, Guidance Update, Institutional Limited Partners Association (ILPA)

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Major Changes Finalized to Stark Rules, Anti-Kickback Statute Safe Harbors and the Beneficiary Inducements CMP

CMS and OIG released highly anticipated final changes to the rules implementing the Stark Law, the safe harbors issued under the Anti-Kickback Statute (AKS) and the beneficiary inducements provision in the civil monetary…more

Anti-Kickback Statute, Centers for Medicare & Medicaid Services (CMS), Civil Monetary Penalty, Cybersecurity, Digital Health

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Washington Insight - September 2016

House Financial Services Committee Votes To Repeal And Replace Dodd-Frank - On September 13th, the House Financial Services Committee approved the Financial CHOICE Act of 2016 to repeal and replace key parts of the 2010…more

Broker-Dealer, Class Action, Commercial Real Estate Market, Consumer Financial Protection Bureau (CFPB), Cyber Threats

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CMS Revises Immediate Jeopardy Citation Guidance

On March 5, 2019, CMS issued new guidance for surveyors to identify immediate jeopardy cases. CMS revised the previous version of Appendix Q to clarify and increase consistency for identifying immediate jeopardy and…more

Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Hospitals, New Guidance

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ESG Agenda

BlackRock Doubles Down on Sustainability - • BlackRock signals substantially more assertive posture on climate-related issues • New approach to shareholder proposals saw BlackRock support 54% of environmental and social…more

Benchmarking, BlackRock, Climate Change, Coronavirus/COVID-19, Diversity and Inclusion Standards (D&I)

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CMS Proposes Sweeping Changes to the Medicare Shared Savings Program

As part of the CY 2023 Physician Fee Schedule proposed rule (the Proposed Rule) released on July 7, 2022, CMS has proposed significant changes to the Medicare Shared Savings Program (MSSP). The agency’s press release…more

ACOs, Centers for Medicare & Medicaid Services (CMS), Health Care Providers, Medicaid, Medicare

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REIT Going-Private Transactions

Current market conditions have set the stage for a wave of REIT public-to-private transactions. For private equity funds, flush with record levels of cash, REITs trading at a discount to net asset value represent an attractive…more

Private Equity Funds, REIT, Shareholders

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Energy Newsletter - July 2018

The New Midstream Transactions - A recent trend in the upstream and midstream oil and gas industry is for midstream services providers to offer certain forms of additional compensation to oil and gas lessees / operators…more

Environmental Policies, EU, Imports, Liquid Natural Gas, NEPA

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Cryptocurrency: Legal Developments and Outlook

Federal and state regulators have taken an increased interest in regulating cryptocurrencies, digital assets, and the larger blockchain ecosystem. This landscape is opaque and rapidly evolving, and many industry participants…more

Anti-Money Laundering, Bitcoin, Bitcoin Mining, Blockchain, CFIUS

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Generative AI: Investigations Watch

Generative AI has captured the world’s attention, and regulators are no exception. Indeed, the FTC and other regulators are increasingly active on multiple fronts—from large scale antitrust enforcement efforts, to issues as…more

Antitrust Investigations, Artificial Intelligence, Data Collection, Federal Trade Commission (FTC), Internal Investigations

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EU and Ukraine to recognize and enforce each other’s court decisions

On April 24, 2023, the EU Council announced that it will seek treaty relations with Ukraine under the framework of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters…more

Enforcement, EU, Foreign Judgments, Hague Convention, Ukraine

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The Department of Justice Announces a New Program to Pay Financial Rewards to Whistleblowers for Information About Corporate Crimes

On March 7, 2024, Deputy Attorney General Lisa Monaco announced that the Justice Department intends to offer new financial incentives for whistleblowers to report allegations about white collar crimes that result in asset…more

Compensation, Corporate Crimes, Corporate Misconduct, Department of Justice (DOJ), Securities and Exchange Commission (SEC)

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ESG and Securities Litigation

Recent Trends Show Increased Focus on Allegations of "Greenwashing" Over the past few years, regulators, businesses, and the market in general have become increasingly focused on environmental, social, and governance (“ESG”)…more

Climate Change, Disclosure Requirements, Diversity, Enforcement Actions, Environmental Social & Governance (ESG)

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U.S. House of Representatives Passes Drug-Pricing Bill

On December 12, 2019, the U.S. House of Representatives passed a major Democratic drug-pricing bill, H.R. 3, or the “Elijah E. Cummings Lower Drug Costs Now Act.” If enacted, HHS would be allowed to negotiate the prices of up…more

Health Care Providers, Medicare, Medicare Part D, Pending Legislation, Pharmaceutical Industry

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Energy Newsletter - August 2019

Significant Changes to FERC’s Rules for Market-Based Rate Sellers - On July 18, 2019, the Federal Energy Regulatory Commission (“FERC”) issued two orders modifying its rules for sellers to obtain or retain authorization to…more

Energy Sector, FERC, Intercreditor Agreements, ISO/RTO, Latin America

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Share Price/NAV Disconnects in Current Markets

The last several weeks generated a dislocation in the capital markets not seen since the Great Recession or, in many instances, ever. REIT stocks as a group have been hit hard with the RMZ down approximately 34.41% over the…more

Economic Downturn, Real Estate Investments, Real Estate Market, REIT

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California's 2022 Proposed Labor and Employment Laws - Pending Legislation that Employers Should Monitor

California employers, both new and old, should take note of pending bills that could further expand companies’ legal responsibilities under California’s extensive and unique labor and employment laws. Below is a sampling of the…more

California, California Privacy Rights Act (CPRA), Corporate Counsel, DFEH, EEO-1

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Further Court Guidance on the Enforceability of Liquidated Damages

Shortly after the long-awaited Supreme Court judgment on the operation of liquidated damages in the event of termination, the English courts have delivered another important judgment on the operation of liquidated damages, this…more

Construction Contracts, Guidance Update, Liquidated Damages, Settlement, UK

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FTC Issues Near-Total Ban on Non-Competes in Final Rule, with a Narrow Exception for Existing Agreements with “Senior Executives”

On April 23, 2024, the Federal Trade Commission (FTC), in a party-line vote, approved its final rule banning most non-compete agreements. The final rule bans all non-competes nationwide, including de facto non-competes,…more

Corporate Executives, Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC)

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Florida Appellate Court Holds that Bank Does Not Owe Fiduciary Duties to Customer in Connection with Lending to Third-Party

On August 30, 2023, the Florida Third District Court of Appeal affirmed the dismissal of negligence claims against First National Bank of South Miami brought by a group of limited liability companies after a bank customer used…more

Appellate Courts, Fiduciary Duty, Florida, Limited Liability Company (LLC), Negligence

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EPA's New Actions in the Battery Industry May Promote Uniformity

The United States Environmental Protection Agency (“EPA”) issued a voluntary Request for Information (“RFI”) on June 9, 2022, regarding best practices for battery recycling and labeling guidelines. 87 Fed. Reg. 35,202. The RFI…more

Battery, Department of Labor (DOL), Infrastructure Investment and Jobs Act (IIJA), Labeling, Lithium Batteries

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Not in My Court: Northern District of Texas Bankruptcy Court Dismisses NRA Bankruptcy Cases as Filed in Bad Faith

On May 11, 2021, Judge Harlin D. Hale, of the Bankruptcy Court for the Northern District of Texas (the “Court”) found that the bankruptcy cases of the National Rifle Association of America (“NRA”) and its subsidiary Sea Girt LLC…more

Bad Faith, Bankruptcy Code, Bankruptcy Court, Chapter 11, Dismissals

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Supreme Court Decision on Computer Fraud and Abuse Act: Implications for Cybersecurity and Insider Threat Programs

Earlier this month, the Supreme Court issued its first major decision on the Computer Fraud and Abuse Act (“CFAA”) in Van Buren v. United States. The decision has significant implications for how organizations protect…more

Computer Fraud and Abuse Act (CFAA), Databases, Police, Popular, SCOTUS

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FDA Updates Draft Guidance on Promotional Labeling and Advertising Considerations for Biological Reference Products and Biosimilars

On April 25, 2024, FDA published a revised draft guidance, Promotional Labeling and Advertising Considerations for Prescription Biological Reference Products, Biosimilar Products, and Interchangeable Biosimilar Products –…more

Advertising, Biosimilars, Draft Guidance, Food and Drug Administration (FDA), Interchangeability

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ESG Impact Watch: Blockchain

Blockchain technology is increasing in popularity across industries but, in its current iteration, triggers significant environmental, social, and governance (ESG) considerations. As the financial services sector simultaneously…more

Blockchain, Data Mining, Digital Ledger Technology, Environmental Social & Governance (ESG), Greenhouse Gas Emissions

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Repairing A “Crack” in Insider Trading Regulation: SEC Rule 10b5-1 Trading Plans Face Increased Scrutiny

SEC Rule 10b5-1 plans have long provided an effective means for corporate insiders to buy and sell their own company’s securities without fear of civil or criminal insider trading liability, but these plans have come under…more

Administrative Orders, Disclosure Requirements, EDGAR, Enforcement Actions, Good Faith

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NAIC Developments Affecting Insurer Investment Portfolios

This bulletin discusses pending actions of the (a) National Association of Insurance Commissioners (NAIC) Valuation of Securities (E) Task Force (VOS Task Force) to address certain issues associated with insurer investments in…more

Arbitrage, Bonds, Credit Ratings, Feeder Funds, Insurance Industry

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Energy Newsletter - September 2018

A Texas Federal Judge Turns Up the Heat on Oil Companies Facing Climate Change-Related Securities Class Actions - On August 14, 2018, the United States District Court for the Northern District of Texas issued a surprisingly…more

Abu Dhabi Global Markets (ADGM), Climate Change, Environmental Protection Agency (EPA), EU, Exxon Mobil

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Best Practices for Conducting Arbitration Hearings Remotely

If you reside on the East Coast of the United States, in the span of twenty years, you have lived through a devastating terrorist attack, a once-in-a-century Super Storm, and now, a global coronavirus pandemic. Each of these…more

Arbitration, Arbitrators, Coronavirus/COVID-19, Dispute Resolution, Remote Working

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New Obama Administration Employment-based Visa Rule and Trump's Plan to Target Visa Abuse Create Uncertainty For Employers

President-elect Trump made enforcement of immigration laws a centerpiece of his campaign. On November 21, 2016, Mr. Trump stated that he will make investigation of abuses in “visa programs that undercut the American worker” a…more

Department of Homeland Security (DHS), Department of Labor (DOL), Enforcement, H-1B, Presidential Elections

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SEC Adopts Rules Requiring Certain Trading Entities, Including Certain Investment Advisers and Private Funds, to Register as Broker-Dealers

Section 3(a)(5) of the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”) defines a “dealer” as “any person engaged in the business of buying and selling securities […] for such person’s own account…more

Anti-Avoidance, Broker-Dealer, Investment Adviser, Liquidity, New Rules

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The 2024 UAE Financial Restructuring and Bankruptcy Law: What is New?

On 31 October 2023, Federal Law Decree No. (51) concerning Financial Restructuring and Bankruptcy (the New Law) was published in the UAE Federal Gazette. The New Law comes into force on 1 May 2024 and will repeal the 2016 Law on…more

Automatic Stay, Bankruptcy Court, Bankruptcy Trustees, Commercial Bankruptcy, Creditors

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A National Call for Equity

Shifting from Diversity and Inclusion to Diversity, Equity, and Inclusion in the Workplace - Given the events related to the tragic death of George Floyd, Breonna Taylor, Ahmaud Arbery and countless others in May 2020 and…more

Best Practices, C-Suite Executives, Corporate Culture, Diversity, Diversity and Inclusion Standards (D&I)

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Measure - Spring 2018

Welcome to the Spring 2018 issue of measure, King & Spalding’s Middle East periodic newsletter. Following a host of legal developments in the region over recent months, we look at the following in this issue: ..Noting that…more

Capital Markets, Confidential Information, Data Protection, Health Care Providers, Initial Coin Offering (ICOs)

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DOJ Corporate Enforcement Policy Revisions Target Executive Compensation, Following Multi-Agency Trend

On March 2, 2023 and March 3, 2023, in a pair of speeches by Deputy Attorney General (DAG) Lisa Monaco and Criminal Division Assistant Attorney General (AAG) Kenneth Polite, the U.S. Department of Justice (DOJ) announced…more

Clawbacks, Compliance, Corporate Crimes, Corporate Integrity Agreement, Corporate Misconduct

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Energy Newsletter - July 2019

Choose Your Own Adventure: Farmouts of International Oil & Gas Interests and the AIPN 2019 Model Form - When I teach about the Association of International Petroleum Negotiator’s (AIPN) Model International Farmout Agreement…more

Assignments, Chapter 11, Clean Energy, Commercial Bankruptcy, Default

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D.C. Developments: Expanded Paid Leave for Private Sector Employees and Revised Non-Compete Law

Effective October 1, 2022, employers with employees who provide a significant portion of their services in the District of Columbia (“D.C.”) are impacted by two important changes: (i) the expansion of mandatory paid leave…more

Covered Employees, Exceptions, Family and Medical Leave Act (FMLA), Highly Compensated Employees, Non-Compete Agreements

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IRS and Treasury Issue Guidance on Section 40B Sustainable Aviation Fuel Credit

Section 40B of the Internal Revenue Code of 1986 (the “Code”) enacted by the Inflation Reduction Act of 2022 (the “IRA”) provides credits for each gallon of sustainable aviation fuel (“SAF”) sold or used by a taxpayer before…more

Aviation Industry, Carbon Offset and Reduction Scheme for International Aviation (CORSIA), Clean Air Act, Department of Energy (DOE), Environmental Protection Agency (EPA)

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FDA Issues Draft Guidance on Use of Data Monitoring Committees in Clinical Trials

The U.S. Food and Drug Administration (FDA or Agency) has issued draft guidance, Use of Data Monitoring Committees in Clinical Trials, that applies to sponsors of clinical trials of investigational drugs, biologics, and devices…more

Clinical Trials, Conflicts of Interest, Draft Guidance, Food and Drug Administration (FDA)

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FASB Proposes New "Practical Expedient" to Recognition of Initial Franchise Fees (ASC 606)

On September 21, 2020, the Financial Accounting Standards Board (“FASB”) announced a proposed Accounting Standards Update (“ASU”), that if enacted, would provide a “practical expedient”, simplifying the analysis supporting the…more

Accounting Standards, FASB, Franchise Agreements, Franchise Fees, New Guidance

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Start Aiming Now: Employers Have One Year Left to Ensure Compliance with The California Privacy Rights Act (CPRA)

Effective January 1, 2023, the California Privacy Rights Act (“CPRA”), will expand the California Consumer Privacy Act (“CCPA”) by granting employees additional rights over their personal information. Employers will now be…more

California, California Privacy Rights Act (CPRA), Corporate Counsel, Data Collection, Employees

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Energy Newsletter - February 2020

U.S. Government’s Continued Focus on Large Ship Air Emissions - The U.S. Environmental Protection Agency (“EPA”) and the U.S. Coast Guard (“USCG”) continue to signal interest in addressing air pollution from large ships and…more

Air Pollution, Air Quality Standards, Carbon Emissions, Energy Sector, Environmental Policies

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Gas Stove Ban Update: Ninth Circuit Says "No" to City of Berkeley Ban on Gas Stoves

The gas stove wars continue to heat up. On April 17, 2023, the United States Court of Appeals for the Ninth Circuit took a stand and ruled that the City of Berkeley does not have the authority to prohibit connecting natural gas…more

Appeals, Consumer Product Safety Commission (CPSC), Department of Energy (DOE), ECPA, Natural Gas

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A New Era For Activist Defense: Going Beyond the Relics of the 80s

New Market Paradigm and Pandemic Impact Requires New Solutions for U.S. Public Companies - After years of tremendous economic growth, COVID-19 has unleashed unprecedented market volatility and extreme value dislocations for…more

Coronavirus/COVID-19, Corporate Governance, Corporate Strategy, Disclosure Requirements, Publicly-Traded Companies

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Biden Administration Initiates Inquiry Targeting "Connected Vehicles," with Chinese Electric Vehicles and Supply Chain As Clear Target For Regulation

The Biden Administration announced on February 29, 2024, that it is commencing an inquiry into whether the involvement of “foreign adversaries” in the information and communications technology and services (“ICTS”) supply chain…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, Bureau of Industry and Security (BIS), China, Cybersecurity

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Russia’s Recent Actions Against Foreign Investors Will Give Rise to Claims Under International Investment Treaties

Since the Russian Federation’s invasion of Ukraine, more than 400 international companies have announced their intentions to scale back or shut down their business operations in Russia. Russia has responded to the exodus of…more

Bilateral Investment Treaties, Economic Sanctions, Energy Charter Treaty, Foreign Investment, Military Conflict

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Insights from the First SCC Express Dispute Assessment

Sweden is no stranger to innovations – from energy, to furniture, to music – and international arbitration is no exception. Indeed, the SCC Arbitration Institute (SCC) proudly refers to itself as the one of the leading…more

Arbitration, Dispute Resolution, Expedited Actions Process, International Arbitration, SCC

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ELTIF 2 Chancen und Defizite

BaFin veröffentlicht einen FAQ zur überarbeiteten ELTIF-Verordnung - Am 1. Februar 2024 hat die Bundesanstalt für Finanzdienstleistungs­aufsicht (BaFin) ein FAQ zur am 10. Januar 2024 in Kraft getretenen, überarbeiteten…more

BaFin, Banking Sector, ELTIF, EU, Financial Institutions

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OMB Releases Cybersecurity Report On Federal Agencies

On May 30, the Office of Management and Budget (“OMB”) released the Federal Cybersecurity Risk Determination Report and Action Plan (the “Report”). The Report is the result of investigations ordered by President Trump pursuant…more

Cybersecurity, Executive Orders, OMB, Popular

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Recent Executive Order Addresses Privacy

On July 9, 2021, the Biden administration published an executive order focused on promoting and increasing economic competition. While the bulk of the executive order focuses on increased scrutiny of merger activity, two notable…more

Biden Administration, Consumer Financial Protection Bureau (CFPB), Dodd-Frank, Executive Orders, Federal Trade Commission (FTC)

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FDA Reverses HHS Exemption of Class I and Class II Medical Devices from Section 510(k)

Premarket Notification Again Required for Patient and Surgeon's Examination Gloves and Dozens of Class II Devices Proposed for Exemption by Former HHS Secretary - On April 16, 2021, the Food and Drug Administration (“FDA” or…more

Department of Health and Human Services (HHS), Exemptions, Federal Food Drug and Cosmetic Act (FFDCA), Federal Register, Food and Drug Administration (FDA)

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USTR Ambassador Tai Provides New Details About the Administration's China Trade Policy

Existing Section 301 duties to be kept in place; new exclusion process to be implemented - This morning, at the Center for Strategic and International Studies, U.S. Trade Representative Ambassador Katherine Tai provided new…more

China, Tariffs, Trade Policy, USTR

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What is Happening to My LIBOR Now? Simplification of the ARRC’s Hardwired Approach

On March 25, 2021, the Alternative Reference Rates Committee (the “ARRC”) issued supplemental guidance to its recommended hardwired fallback language for U.S. dollar LIBOR denominated syndicated and bilateral business loans. The…more

Alternative Reference Rates Committee (ARRC), Financial Conduct Authority (FCA), ICE Benchmark Administration (IBA), IOSCO, Libor

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Eleventh Circuit Holds that D’Oench Doctrine Bars Lack of Authority Defense

On January 12, 2023, the U.S. Court of Appeals for the Eleventh Circuit reversed the dismissal of a claim against Renasant Bank seeking to invalidate a security interest that Renasant acquired through an FDIC receivership…more

Appeals, D’Oench Doctrine, FDIC, Security Agreements

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From the Chat Room to the Board Room – Knowing Your Meme Stock

WHAT TO CONSIDER TO AVOID A SPIRAL, IF YOUR COMPANY IS THE NEXT TO GO VIRAL. The recent meteoric rise (and subsequent fall) of GameStop, AMC Theaters and a host of other “meme stocks” has prompted hedge funds, investment…more

GameStop, Hedge Funds, Internet Memes, Investment, Investment Banks

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2023 M&A Outlook: Recapping Key Takeaways from Dealmaking in 2022 and Navigating New Challenges

Coming off record-setting levels in 2021, M&A deal activity cooled in the second half of 2022. A multitude of factors – including soaring inflation, steadily rising interest rates and the higher cost of financing, geopolitical…more

Acquisitions, Borrowers, Corporate Counsel, Department of Justice (DOJ), Domestic Dealmaking

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The 2024 UAE Financial Restructuring and Bankruptcy Law: What is New?

On 31 October 2023, Federal Law Decree No. (51) concerning Financial Restructuring and Bankruptcy (the New Law) was published in the UAE Federal Gazette. The New Law comes into force on 1 May 2024 and will repeal the 2016 Law on…more

Automatic Stay, Bankruptcy Court, Bankruptcy Trustees, Commercial Bankruptcy, Creditors

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BGH erklärt sog. Schriftformheilungsklauseln in Gewerberaummietverträgen für unwirksam

Der für das Gewerberaummietrecht zuständige 12. Zivilsenat des Bundesgerichtshofs („BGH“) hat am 27.09.2017 mit einem Paukenschlag die hier beigefügte Entscheidung verkündet, in welchem er zu der seit einigen Jahren kontrovers…more

Commercial Leases, Germany, Tenants

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Utilizing Structured Finance Techniques in Distressed Situations

Securitization, and structured finance generally, is a critical capital-raising tool for many companies. Utilizing one or more bankruptcy-remote special purpose entities to legally isolate the credit risk of quality,…more

Bankruptcy Code, Bankruptcy Court, Capital Raising, Contingency Plans, Credit Enhancements

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Recognition of Part 26A Restructuring Plans in Germany

German real estate company Adler recently made headlines by successfully implementing a €6bn restructuring by way of a UK Part 26A Restructuring Plan. The Plan involved the subordination of Adler’s existing notes to new money…more

Debt Collection, EU, Foreign Judgments, Germany, Hague Convention

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Pedro Castillo’s failed coup d’état plunges Peru into political turmoil

On December 7, 2022, the Peruvian Congress was scheduled to call an impeachment vote against President Pedro Castillo on corruption charges. Hours before, the Peruvian President addressed the country in a surprise televised…more

Anti-Corruption, Foreign Direct Investment, Mining, Peru

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HHS Advisory Opinion Buttresses Broad Immunity Under PREP Act For COVID-19 Countermeasures But Important Considerations For Manufacturers Remain

The U.S. government has taken several steps in recent weeks to encourage companies to respond rapidly to the COVID-19 pandemic and resulting medical-supply shortage. As discussed here, to assuage concerns about potential tort…more

Coronavirus/COVID-19, Department of Health and Human Services (HHS), Food and Drug Administration (FDA), Immunity, Public Readiness and Emergency Preparedness Act (PREP Act)

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FTC Proposes Stricter Children’s Privacy Rules in First COPPA Update since 2013

On December 20, 2023, the Federal Trade Commission (FTC) announced proposed revisions to its rules administering the Children’s Online Privacy Protection Act (COPPA). The updates both expand the universe of businesses subject to…more

Biometric Information, COPPA, Cybersecurity, Data Collection, Data Privacy

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Major Shift in Best Price Proposed in Grab Bag of MDRP Reforms

The title of CMS’s May 26 proposed rule, “Misclassification of Drugs, Program Administration and Program Integrity Updates Under the MDRP,” buries the lede. Amid twenty Medicaid Drug Rebate Program-related proposals—some…more

Audits, Centers for Medicare & Medicaid Services (CMS), Fraud, Manufacturers, MDRP

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LDT Final Rule: Shifting the LDT Battlefield

On April 29, 2024, the Food and Drug Administration (“FDA” or “the Agency”) released a pre-publication version of the highly anticipated laboratory developed test final rule (“LDT Final Rule”). The LDT Final Rule is scheduled…more

Compliance, Enforcement, False Statements, Federal Food Drug and Cosmetic Act (FFDCA), Final Rules

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Treasury Issues Final Regulations Addressing “Domestically Controlled” REIT Status

On April 25, 2024, the IRS and Treasury issued final regulations (the “Final Regulations”) addressing whether a real estate investment trust (a “REIT”) or a regulated investment company (a “RIC”) will constitute a “domestically…more

C-Corporation, Fair Market Value, Final Rules, FIRPTA, Income Taxes

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Equality of Arms Between Experts: English High Court Offers Forceful Reminder by Excluding Expert Evidence Mid-Trial

A recent decision issued by the Technology and Construction Court has provided a helpful reminder for experts, counsel and clients of the importance of ensuring equality of arms between experts and, in that connection, of…more

Disclosure Requirements, Expert Witness, Rules of Civil Procedure

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EPA Announces Four Public Meetings of the Scientific Advisory Board PFAS Review Panel

EPA has announced four public meetings of the Scientific Advisory Board PFAS Review Panel to take place in December and January. The proposed agenda is robust and includes at least three core components. First, the Panel will…more

Advisory Board, Drinking Water, Environmental Protection Agency (EPA), PFAS, Public Health

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Managing Global Risks in Light of the Pandora Papers Leak

On October 3, the International Consortium of Investigative Journalists began reporting on millions of confidential documents relating to the financial activities of heads of state, international business leaders, and other…more

Business Partners, Criminal Investigations, Data Collection, Documentation, Enforcement

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NAV Facilities

In its most simple form, a net asset value-based facility (“NAV Facility”) is a credit facility, whereby availability under the facility is based on the net asset value of the portfolio investments of the borrower, often a…more

Default, Interest Rates, Investors, Liquidity, NAV

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Trade & Manufacturing - News of Note - January 2017

Customs and Border Protection Issues Update On Enforcement Of Trade Orders - U.S. Customs and Border Protection (CBP) released its AD/CVD Update for June/July 2016. As explained in the January 2015 and the August 2016…more

Anti-Dumping Duty, Canada, China, Countervailing Duties, Customs and Border Protection

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US Supreme Court Concludes Debtors May Not Terminate Trademark Rights of Licensees by Rejection in Bankruptcy, Resolving Circuit Split

On May 20, 2019, the U.S. Supreme Court held that rejection of a trademark license does not automatically terminate the licensee’s right to use the trademark, settling a decades-old question at the intersection of intellectual…more

Bankruptcy Appellate Panel (BAP), Bankruptcy Code, Breach of Contract, Commercial Bankruptcy, Debtors

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EPA Announces Four Public Meetings of the Scientific Advisory Board PFAS Review Panel

EPA has announced four public meetings of the Scientific Advisory Board PFAS Review Panel to take place in December and January. The proposed agenda is robust and includes at least three core components. First, the Panel will…more

Advisory Board, Drinking Water, Environmental Protection Agency (EPA), PFAS, Public Health

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Strategic Alternatives for Real Estate Portfolios Part III – Initial Public Offering (IPO) Transactions

The review of strategic alternatives can be a daunting task even for the most seasoned executives and directors of real estate companies and real estate investment trusts. This is particularly true in today’s real estate…more

Acquisitions, Capital Markets, Initial Public Offering (IPO), Liquidity, Real Estate Market

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ESG Trending Topics - Japan

Japan’s Big Banks Bet on Infrastructure + ESG. In anticipation of increased infrastructure spending worldwide to meet countries’ net-zero carbon targets, Japanese banks Sumitomo Mitsui and MUFG have recently launched…more

Carbon Emissions, Electricity, Environmental Social & Governance (ESG), Infrastructure, Japan

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Injunction Prohibiting CMS Enforcement of COVID-19 Vaccine Mandate for Healthcare Workers Partially Lifted, Potentially Opening Door for CMS to Resume Enforcement of Vaccine Mandate for Half of the U.S.

On Wednesday, December 15, 2021, the Fifth Circuit Court of Appeals denied the federal government’s petition for a stay pending appeal of the preliminary injunction issued by a federal district court in Louisiana that prohibits…more

Administrative Procedure Act, Centers for Medicare & Medicaid Services (CMS), Coronavirus/COVID-19, Employer Mandates, En Banc Review

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What Next for the ACA after Texas v. U.S.? What the Industry Needs to Know While the Case Is on Appeal

United States District Court Judge Reed O’Connor of the Northern District of Texas issued a ruling on Friday, December 14, 2018, declaring the Patient Protection and Affordable Care Act (ACA) unconstitutional in its entirety. …more

Affordable Care Act, Federal Taxes, SCOTUS, Tax Reform, Unconstitutional Condition

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DOL Expresses Extreme Skepticism About Allowing 401(k) Plan Participants to Invest in Cryptocurrency

On March 10, 2022, the U.S. Department of Labor (the “DOL”) issued Compliance Assistance Release No. 2022-01 (the “Release”) regarding 401(k) plan participant-directed investments in cryptocurrencies. The Release “cautions plan…more

401k, Cryptocurrency, Department of Labor (DOL), Digital Assets, Employee Retirement Income Security Act (ERISA)

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Supreme Court Poised To Decide What Allegations Make The Grade In University Fee Case, With Broader Implications For ERISA Retirement Plan Fiduciaries

Last month, the U.S. Supreme Court heard argument in an ERISA case that could have sweeping ramifications for retirement plan fiduciaries. The case—Hughes v. Northwestern University—tees up a threshold question that has vexed…more

401k, Class Action, Employee Benefits, Employee Retirement Income Security Act (ERISA), Fiduciary Duty

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UAE Introduces Substantial Amendments to Promotion Rules for Foreign Funds

The Securities and Commodities Authority of the United Arab Emirates (“SCA”) recently adopted certain changes to the rules governing the distribution of foreign funds in the UAE, pursuant to which several methods for…more

Foreign Investment, Private Funds, UAE Securities & Commodities Authority (the SCA), United Arab Emirates (UAE)

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CMS’s Hospital Readmissions Reduction Program May Not Be Used to Deny Individual Commercial Claims

The Hospital Readmissions Reduction Program (HRRP) is a Medicare value-based purchasing program that reduces payments to hospitals with excess readmissions. This performance program penalizes hospitals up to three percent of…more

Affordable Care Act, Centers for Medicare & Medicaid Services (CMS), Commercial Insurance Policies, Hospital Readmission, Hospitals

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Electronic Health Records Vendor Agrees to $155 Million Settlement to Resolve FCA Allegations, Required to Make Free Upgrades to Affected Products

On May 31, 2017, the DOJ announced a $155 million settlement with eClinicalWorks (ECW), one of the nation’s largest electronic health records (EHR) vendors, to resolve a False Claims Act lawsuit brought by a whistleblower. The…more

Corporate Integrity Agreement, Department of Health and Human Services (HHS), Electronic Health Record Incentives, False Claims Act (FCA), Medicaid

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Anti-Satellite Tests and the Growing Demand for Space Debris Mitigation

The threat of anti-satellite (ASAT) weapons is once again front and center in the news, raising questions about norms for responsible state behavior in space. ASAT tests are used by countries to destroy or incapacitate…more

Aerospace, EU, Innovative Technology, NASA, Satellites

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Pre-Marketing: Risks and Considerations Relating to Bespoke Securitization Transactions

The current volatility in financial markets has caused an increase in interest in pre-marketing certain bespoke securitization transactions, including esoteric, real estate-based, whole business, music royalty and digital…more

Appraisal, Due Diligence, Financial Markets, Indemnification, Investors

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Florida Digital Bill of Rights

On June 6, 2023, the Florida Digital Bill of Rights (“FDBR”) was signed into law, and goes into effect on July 1, 2024 with some exceptions—the prohibition of government-directed content moderation of social media platforms and…more

Data Protection, Enforcement, Fair Credit Reporting Act (FCRA), FERPA, Gramm-Leach-Blilely Act

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A Business Court in Texas: What It Means for Litigants, Attorneys, and Commercial Law

After years of stalled attempts, Texas will soon be the thirtieth state to establish a specialized business court specifically designed to hear complex commercial cases. House Bill 19, recently approved by the Texas…more

Appeals, Business Court, Business Litigation, Jurisdiction, Penalties

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AIFMD II Credit Funds

Loan Origination Funds Have a Lot of Wood to Chop Before Aifmd II Kicks In - Following a review of the AIFMD, the Commission, in a draft amending directive published in 2021, noted that common rules should be laid down to…more

Alternative Investment Fund Managers Directive (AIFMD), Close-Ended Funds, Credit Funds, Disclosure Requirements, Documentation

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EPA Updates Its Vehicle and Engine Tampering & Aftermarket Defeat Device Enforcement Policy

The updates attempt to provide more clarity for modern vehicles and parts - On November 23, 2020, the U.S. Environmental Protection Agency (“EPA”) updated its policy for enforcement of vehicle and engine tampering and…more

CARB, Clean Air Act, Environmental Protection Agency (EPA), Environmental Violations, Guidance Update

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India to Promote Mining of Lithium and Five Other Critical Minerals

On 2 August 2023, India’s Parliament passed the Mines and Minerals (Development and Regulation) Amendment Bill, 2023 (“Amendment Bill”) to amend the Mines and Minerals (Development and Regulation) Act, 1957 (“Act”). The Act…more

Atomic Energy, India, Mineral Exploration, Mineral Leases, Minerals

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CFPB Issues Final Rule Banning Class Action Waivers in Consumer Finance Contracts

On July 10, 2017, the Consumer Financial Protection Bureau (CFPB) announced a final Rule banning the use of class action waivers in a broad range of consumer finance agreements. The Rule, which was expected in light of prior…more

Arbitration, Arbitration Agreements, Class Action, Class Action Arbitration Waivers, Consumer Contracts

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U.S. Supreme Court Strikes Down “Wholly Groundless” Exception Where Parties Have Agreed to Arbitrate Arbitrators’ Jurisdiction

On January 8, 2019, the United States Supreme Court issued a unanimous decision in Henry Schein, Inc. et al. v. Archer & White Sales, Inc., No. 17–1272, 2019 WL 122164 (U.S. Jan. 8, 2019), in which the Court yet again considered…more

Appeals, Arbitration Agreements, Arbitrators, Contract Terms, Exceptions

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SEC Adopts Final Climate Disclosure Rules

Proposed rules are moderately scaled-back in final version; Scope 1 and 2 are required if material; Scope 3 is out; compliance will still be burdensome - On March 6, 2024, by a split vote of 3-2, the U.S. Securities and…more

Climate Change, Compliance, Disclosure Requirements, Final Rules, Greenhouse Gas Emissions

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Managing Securities Litigation Risks in a Time of Coronavirus Insecurities

Spiraling fears over the coronavirus and the multiplication of virus outbreaks across the globe have impacted the worldwide economy, threatened supply chains, and caused severe stock market declines and disruptions in the U.S…more

Coronavirus/COVID-19, Disclosure Requirements, Infectious Diseases, MD&A Statements, PSLRA

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Personal Liability Exposure for Bank Executives and Compliance Officers

On March 4, 2020, the U.S. Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”) announced its assessment of a civil monetary penalty totaling $450,000 against Michael LaFontaine, a former Chief Operational…more

Anti-Money Laundering, Bank Secrecy Act, Banking Sector, Enforcement Actions, FinCEN

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Commerce Establishes Advisory Council on Trade Enforcement and Compliance

On January 4, the Department of Commerce (Commerce) announced the establishment of the Advisory Council on Trade Enforcement and Compliance (ACTEC). The ACTEC is a government-business forum that will seek “stakeholder input…more

Obama Administration, Trade Policy, U.S. Commerce Department

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Energy Newsletter - June 2020

The Impact of COVID-19 on Nuclear Electricity Sales Contracts in France - The electricity sector, like numerous others in France, has been heavily affected by the economic shutdown due to the COVID-19 pandemic. The first…more

Administrative Hearings, Amended Rules, CARB, Climate Change, Commercial Bankruptcy

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Energy Newsletter - September 2020

Climate Change Litigation on the Horizon with Trump Environmental Overhaul - On July 16, 2020, President Trump’s Council on Environmental Quality (“CEQ”) published the long-awaited final rule revising the implementing…more

CEQ, CFIUS, Climate Change, Coronavirus/COVID-19, Debt Restructuring

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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FSOC and the Systemic Risk of Nonbank Companies

In a response to the difficulties it experienced in identifying nonbank systemically important entities, the Financial Stability Oversight Council (FSOC) has proposed a new procedure for detecting and dealing with potential…more

Dodd-Frank, Federal Reserve, FSOC, Nonbank Firms, Risk Assessment

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New Russia Sanctions Legislation

The U.S. Senate passed this week a measure to codify, strengthen and expand sanctions against the Russian Federation in response to its activities in Ukraine, cyber-attacks, interference in the U.S. Presidential election, and…more

Energy Sector, Executive Orders, Oil & Gas, Russia, Sanctions

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D.C. Circuit Concludes that Serial Periods of Exclusivity May Be Available Under the Orphan Drug Act

On March 13, 2020, the U.S. Court of Appeals for the D.C. Circuit affirmed the D.C. District Court’s 2018 summary judgment ruling in favor of Eagle Pharmaceuticals and against the FDA, finding that (1) the Orphan Drug Act…more

Abbreviated New Drug Application (ANDA), Administrative Procedure Act, Food and Drug Administration (FDA), Orphan Drugs, Pharmaceutical Industry

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NAIC's Focus on Investment Management Agreements (IMAs) involving Private Equity-Owned Insurers

As private equity investors continue to increase their presence in the insurance industry with acquisitions of insurers and reinsurance of blocks of insurance contracts through insurer portfolio companies and segregated cells,…more

Conflicts of Interest, Insurance Industry, Investment Management, Investors, Life Insurance

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Update – Sweden’s Request to Ban American Lobster in the EU Risks Violating the Rules of the WTO

In July 2016, we reported that the Swedish Government had requested that the European Union impose a ban on imports of U.S./Canadian live lobster (Homarus americanus). Sweden argues that Homarus americanus should be designated…more

EU, Food Borne Bacteria, Imports, Scientific Evidence, Sweden

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HHS Office for Civil Rights Issues Guidance Regarding HIPAA Requirements for Online Tracking Technologies

On December 1, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services provided guidance on the intersection of the Health Insurance Portability and Accountability Act (HIPAA) and the use of online…more

Business Associates Agreement (BAA), Data Protection, Department of Health and Human Services (HHS), Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA)

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Supreme Court Ruling in AHA v. Becerra May Affect 340B Hospitals' Reimbursement Rights Against Medicare Advantage Plans

Hospitals that participate in the 340B program may be entitled to additional monies from Medicare Advantage plans in the wake of the Supreme Court’s decision in AHA v. Becerra. In AHA v. Becerra, a unanimous Supreme Court…more

Ambulatory Surgery Centers, American Hospital Association et al v Becerra Secretary Of Health And Human Services et al, Centers for Medicare & Medicaid Services (CMS), Hospitals, Medicare Advantage

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FTC Issues Near-Total Ban on Non-Competes in Final Rule, with a Narrow Exception for Existing Agreements with “Senior Executives”

On April 23, 2024, the Federal Trade Commission (FTC), in a party-line vote, approved its final rule banning most non-compete agreements. The final rule bans all non-competes nationwide, including de facto non-competes,…more

Corporate Executives, Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC)

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The Age of Competition - The Supreme Court Decides the First BPCIA Case

In a landmark ruling for the biotech and pharmaceutical industries, a unanimous Supreme Court decided Sandoz Inc. v. Amgen Inc., 582 U.S. ____, Nos. 15-1039, 15-1195 (June 12, 2017), its first biosimilar case governed by the…more

aBLA, Biotechnology, BPCIA, Confidential Information, Opt-Outs

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CFPB's New Small Business Data Collection Rule

A recent rule (12 CFR Part 1002, the “Rule”) issued in final form by the Consumer Financial Protection Bureau (the “CFPB”) earlier this year imposes a host of data collection and reporting obligations on lenders to small…more

Compliance, Consumer Financial Protection Bureau (CFPB), Consumer Protection Act, Data Collection, Dodd-Frank

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Mexico Enacts New Legal Regime for Mining Concessions

On May 8, 2023, Mexico enacted an amendment in matters pertaining to mining and water to its mining law; national waters law; general law for ecologic equilibrium and environmental protection (LGEEPA); and general law for the…more

Compensation, Environmental Social & Governance (ESG), Mexico, New Amendments

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Spotlight on PFAS and Other Substances in Cosmetics Likely to Grow in 2022

This year – 2022 – may finally be the year that the effort to modernize safety standards in the U.S. for cosmetics and other personal care products, which has been ongoing since 2013, comes to fruition. If so, the new cosmetics…more

Best Practices, Cosmetics, EU, European Commission, Food and Drug Administration (FDA)

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Cyberattack and Ransomware Attack Force Majeure Considerations

As criminal cyberattacks and ransomware attacks on critical infrastructure increase, companies may experience significant business disruptions. Ransomware and cyberattacks may prevent companies from fulfilling contractual…more

Business Disruption, Critical Infrastructure Sectors, Cyber Attacks, Cybersecurity, Force Majeure Clause

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FTC and DOJ Announce New Draft Merger Guidelines

vOn July 19, 2023, the U.S. antitrust enforcers, the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) (collectively, the “Agencies”), released draft merger guidelines for public…more

Antitrust Division, Biden Administration, Department of Justice (DOJ), Draft Guidance, Enforcement

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FTC Issues Near-Total Ban on Non-Competes in Final Rule, with a Narrow Exception for Existing Agreements with “Senior Executives”

On April 23, 2024, the Federal Trade Commission (FTC), in a party-line vote, approved its final rule banning most non-compete agreements. The final rule bans all non-competes nationwide, including de facto non-competes,…more

Corporate Executives, Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC)

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India to Promote Mining of Lithium and Five Other Critical Minerals

On 2 August 2023, India’s Parliament passed the Mines and Minerals (Development and Regulation) Amendment Bill, 2023 (“Amendment Bill”) to amend the Mines and Minerals (Development and Regulation) Act, 1957 (“Act”). The Act…more

Atomic Energy, India, Mineral Exploration, Mineral Leases, Minerals

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U.S. Commerce Department Launches First CHIPS for America Funding Opportunity

Applications For Leading Edge Commercial Fabrication Facilities And For Current-Generation Facilities Accepted Beginning March 31, 2023 And June 26, 2023, Respectively - On August 9, 2022, President Joseph R. Biden signed the…more

Due Diligence, Eligibility, Federal Funding, Foreign Investment, Loans

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EU Regulations Restricting Imports of Renewable Natural Gas and Green Hydrogen Derivative Products

The European Commission (EC) is in the process of implementing its “Union database” (UDB) to track all renewable gases and liquid fuels. Gases and fuels, whether produced in the EU or imported, will need to be registered in the…more

Derivatives, EU, European Commission, European Economic Area (EEA), Green Energy

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U.S. Government’s Continued Focus on Large Ship Air Emissions

The U.S. Environmental Protection Agency (“EPA”) and the U.S. Coast Guard (“USCG”) continue to signal interest in addressing air pollution from large ships and ocean-going vessels. Since statements made by EPA personnel in 2014,…more

Carbon Monoxide Exposure, Civil Liability, Clean Air Act, Coast Guard, Criminal Liability

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A Business Court in Texas: What It Means for Litigants, Attorneys, and Commercial Law

After years of stalled attempts, Texas will soon be the thirtieth state to establish a specialized business court specifically designed to hear complex commercial cases. House Bill 19, recently approved by the Texas…more

Appeals, Business Court, Business Litigation, Jurisdiction, Penalties

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EPA's Reconsideration of Ethylene Oxide Under the Clean Air Act - A Sign of Future Chemicals Policy to Come?

On January 25, 2022, the U.S. Environmental Protection Agency (“EPA”) reaffirmed its interpretation of ethylene oxide (“EtO”) requirements which may signal EPA’s increased scrutiny of chemical emissions generally and the…more

Chemicals, Clean Air Act, Environmental Protection Agency (EPA), IRIS, NESHAP

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It’s Not Just for Dietary Supplements Anymore: FTC Revises and Expands Guidance for Health Claims

Signaling a renewed focus on consumer protection in the health claims space, the Federal Trade Commission (“FTC”) has revamped its 1998 guidance titled Dietary Supplements: An Advertising Guide for Industry and extended the…more

Consumer Protection Laws, Dietary Supplements, Digital Health, Federal Trade Commission (FTC), Food and Drug Administration (FDA)

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COVID as a Force Majeure Event - An Interesting and Unexpected Development in Singapore

The Appellate Division of the Singapore High Court recently provided the construction industry with interesting, and somewhat unexpected, guidance regarding COVID as a force majeure event in the context of construction…more

Appeals, Construction Contracts, Construction Industry, Coronavirus/COVID-19, Corporate Counsel

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Significant 2021 Proxy Advisor Policy Changes

Proxy advisory firms ISS and Glass Lewis have issued their annual updated proxy voting guidelines for the upcoming 2021 proxy season. Glass Lewis’s new guidelines apply to shareholder meetings on or after January 1, 2021, while…more

Advance Notice, Board of Directors, Diversity and Inclusion Standards (D&I), Environmental Policies, Exclusive Forum

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Sharp Teeth: Civil and Criminal Liability for Officers and Directors of Insolvent Saudi and UAE Companies

The recent detention of a restructuring professional in the United Arab Emirates serves as a stark reminder that directors and officers of insolvent or distressed companies can face personal liability for their actions or…more

Bankruptcy Court, Books & Records, Chapter 13, Civil Liability, Corporate Counsel

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COVID-19 Impacts on Businesses and Their Intellectual Property Rights

Part 2 of a 2 Part Series: Avoiding and/or Eliminating Loss of IP Rights During the COVID-19 Pandemic - As a follow-on to our series, COVID-19 Impacts on Businesses and Their Intellectual Property Rights, companies need to…more

Coronavirus/COVID-19, Domain Names, Intellectual Property Protection, Patents, Proprietary Information

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Beyond the Palette: Issues in art disputes in the English Courts

Fine art is big business. The three most expensive paintings to have ever been sold – Salvator Mundi by Leonardo da Vinci, Interchange by Willem de Kooning and The Card Players by Paul Cézanne – have an inflation-adjusted…more

Art Collections, Breach of Contract, Fine Art, Inflation Adjustments, Investors

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Infrastructure Investment and Jobs Act: Key Provisions and Considerations for Project Participants

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (“Infrastructure Act”), which provides for $550 billion in new federal spending on infrastructure in the United States over a…more

Anti-Fraud Provisions, Biden Administration, Broadband, Buy America, Carbon Capture and Sequestration

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Recent Enforcement Trends Regarding the Use of Off-Channel Communications on Personal Devices

What U.K. Firms Need to Know - INTRODUCTION - Over the past decade, the use of messaging applications, such as WhatsApp, for business purposes as an alternative to traditional email has grown exponentially. Ease of use and…more

CFTC, Data Privacy, Data Retention, Employee Training, Enforcement

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Texas Supreme Court Removes Procedural Gotcha in Lawsuits Against Engineers, Architects, and Other Licensed Professionals

On April 28, 2017, the Texas Supreme Court held that trial courts have discretion whether to dismiss a lawsuit against a licensed professional with or without prejudice when a plaintiff fails to file an expert affidavit…more

Affidavits, Architects, Engineering, Good Cause, TX Supreme Court

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CMS Issues Proposed PPS Rule for Inpatient Psychiatric Hospitals

On March 28, 2024, CMS issued its fiscal year (FY) 2025 prospective payment system (PPS) proposed payment rule for inpatient psychiatric hospitals (IPFs). The proposed rule is expected to be published in the Federal Register on…more

Centers for Medicare & Medicaid Services (CMS), Proposed Legislation, Prospective Payment System (PPS), Psychiatric Hospitals, Quarterly Report

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Russia’s Payment of Principal and Interest in Rubles of U.S. Dollar-Denominated Debt May Give Rise to Claims under International Investment Treaties

On April 11, 2022, the EMEA Credit Derivatives Determinations Committee (CDDC) determined that the state-owned Russian Railways is in default on a missed bond payment. Russian Railways tried to make the interest payment due…more

Bilateral Investment Treaties, Bondholders, Bonds, Compliance, EMEA

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Energy Newsletter - April 2019

Shifting Dynamics in Latin America - On March 5, 2019, King & Spalding hosted an Energy Forum, titled “Shifting Dynamics in Latin America”, to discuss the political and regulatory changes in Latin America and their impact on…more

Climate Change, Cross-Border Transactions, Due Diligence, Energy & Climate Debates, Energy Sector

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Washington Insight - September 2016

House Financial Services Committee Votes To Repeal And Replace Dodd-Frank - On September 13th, the House Financial Services Committee approved the Financial CHOICE Act of 2016 to repeal and replace key parts of the 2010…more

Broker-Dealer, Class Action, Commercial Real Estate Market, Consumer Financial Protection Bureau (CFPB), Cyber Threats

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NAV Facilities

In its most simple form, a net asset value-based facility (“NAV Facility”) is a credit facility, whereby availability under the facility is based on the net asset value of the portfolio investments of the borrower, often a…more

Default, Interest Rates, Investors, Liquidity, NAV

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SEC Examination Priorities for 2020 Include Both Emerging and Existing Concerns for Registered Investment Advisers and Broker-Dealers

On January 7, 2020, the Securities and Exchange Commission (“SEC”) issued its 2020 Examination Priorities, a yearly publication highlighting new and existing areas of focus for the Office of Compliance Inspections and…more

Anti-Money Laundering, Broker-Dealer, Cybersecurity, Financial Industry Regulatory Authority (FINRA), FinTech

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Buyers Beware - Delaware Chancery Court Orders CorePower to Honor Acquisition of Franchisee Studios

On March 1, 2022, Vice Chancellor Slights of the Delaware Chancery Court ordered CorePower Yoga (“CorePower”) to close the acquisition of 34 yoga studios from its largest franchisee, Level 4 Yoga (“Level 4”). The parties entered…more

Acquisitions, Coronavirus/COVID-19, Damages, Force Majeure Clause, Material Adverse Effects

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New York Tallies A Record-Breaking Number Of Data Breach Notices

On March 21, 2017, the Attorney General (“AG”) of New York, Eric T. Schneiderman, announced that his office received a record number of data breach notices in 2016. The total number of breach notifications received by the AG’s…more

Attorney General, Breach Notification Rule, Data Breach, Data Security, Hackers

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Compensation and Benefits Insights – September 2016 #2

Hardly Water Under the Bridge: NLRB, SEC, OSHA Mount Offensive Against Confidentiality Agreements - A recent New York Times story shed light on complaints by an employee of Bridgewater Associates, a $154 billion hedge fund…more

Confidential Information, Deadlines, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Health and Welfare Plans

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GAO Report Finds Medicare Advantage Risk Adjustment Model Underestimated Spending for Beneficiaries with Functional Limitations

On September 10, 2018, the United States Government Accountability Office (GAO) published a report titled “Medicare Advantage: Benefits and Challenges of Payment Adjustments Based on Beneficiaries’ Ability to Perform Daily…more

GAO, Medicare, Medicare Advantage

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New York Appellate Division Dismisses Junior Mezz Lender’s Claims for Fraudulent Inducement and Fraudulent Concealment, Allows U.C.C. Foreclosure Sale to Proceed

On January 18, 2024, New York’s Appellate Division rejected a junior mezzanine lender’s contention that it was fraudulently induced to amend the parties’ intercreditor agreement, because it failed to identify specific…more

Duty to Disclose, Foreclosure, Fraudulent Inducement, Mezzanine Lenders, Mortgages

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Force Majeure during Construction – Are you Ready? (From the Owner’s Perspective)

Hurricanes Harvey, Irma and Maria have come and gone. Looking back, were you ready? What should you be doing to prepare for the next hurricane? Lawyers spend considerable amounts of time defining the scope of force majeure…more

Construction Contracts, Construction Industry, Force Majeure Clause

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New Expansive Rules for Clawback of Incentive-Based Compensation

Several recent developments with the U.S. Securities and Exchange Commission (“SEC”) come into effect this year, including the new pay-versus-performance proxy disclosure as well as new Rule 10b5-1 rules and related disclosure…more

Clawbacks, Disclosure Requirements, Form 10-K, Incentive Compensation, Indemnification

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Beyond the Fenceline: Environmental Justice Updates – December 2023

Environmental Justice: 2023 Year in Review and 2024 Look-Ahead - As a concept, Environmental Justice, or EJ, has been around for more than 40 years. Beginning as a slogan at protests in Warren County, NC in 1982, EJ became…more

Biden Administration, CEQ, Clean Air Act, Climate Change, Department of Energy (DOE)

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UAE Introduces Substantial Amendments to Promotion Rules for Foreign Funds

The Securities and Commodities Authority of the United Arab Emirates (“SCA”) recently adopted certain changes to the rules governing the distribution of foreign funds in the UAE, pursuant to which several methods for…more

Foreign Investment, Private Funds, UAE Securities & Commodities Authority (the SCA), United Arab Emirates (UAE)

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Energy Newsletter - March 2020

Disrupting the Disruptor: How a Prepared and Proactive Owner Can Mitigate the Effects of Coronavirus on Construction Projects - Once a remote health issue in China, the rapidly spreading coronavirus (COVID-19) has become not…more

Construction Project, Coronavirus/COVID-19, Energy Sector, Final Rules, Force Majeure Clause

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REIT Advisor - June 2017

Business Disruption Risk - Given the recent events around the world, including both terrorist attacks and severe storms, REITs continue to cite business interruption risks as a significant concern for implementing corporate…more

Business Disruption, REIT, Securities and Exchange Commission (SEC)

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The Dubai International Financial Centre Implements the New Data Protection Law

The Dubai International Financial Centre (the DIFC), a financial free zone in the United Arab Emirates (the UAE), is the leading financial hub for the Middle East, Africa and South Asia. It has implemented the new enhanced Data…more

Africa, Asia, California, California Consumer Privacy Act (CCPA), Data Breach

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New Cyber Incident Reporting Law Covering Range of Critical Infrastructure Companies

On March 15, 2022, President Biden signed into law the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (the “Act”) as part of an omnibus appropriations bill. The Act compels “covered entities” — companies in a…more

Critical Infrastructure Sectors, Cyber Attacks, Cyber Incident Reporting, Cybersecurity, Cybersecurity Information Sharing Act (CISA)

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U.S. Supreme Court Will Rule on Whether Section 1782 Discovery is Available for Use in Private Foreign Commercial Arbitrations

In a highly anticipated decision, the U.S. Supreme Court has granted certiorari in Servotronics, Inc. v. Rolls-Royce PLC, et al. and agreed to address the question of whether federal courts may authorize discovery pursuant to 28…more

Certiorari, Commercial Arbitration, Discovery, Federal Arbitration Act, International Arbitration

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CMS Announces Part D Senior Savings Model for Seniors Requiring Insulin

Citing the high cost of insulin as a common barrier to proper diabetes treatment, CMS has announced a new model to allow beneficiaries additional Part D plan options with lower out-of-pocket costs for insulin. Under the Part D…more

Centers for Medicare & Medicaid Services (CMS), Health Plan Sponsors, Medicare, Medicare Part D, Pharmaceutical Industry

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IRS and Treasury Issue Interim Guidance on 1% Stock Buyback Tax

On December 27, 2022, the IRS and Treasury issued Notice 2023-2 (the “Notice”), which provides guidance relating to the application of the new excise tax on repurchases of corporate stock (the “Stock Buyback Tax”) under Section…more

De Minimus Quantity Exemption, Fair Market Value, Guidance Update, Internal Revenue Code (IRC), IRS

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Multi-Family Living: the Cladding Issue

Following the tragedy of the Grenfell Tower fire in June 2017, the widespread use of dangerous, inappropriate cladding materials on multi-storey buildings was brought to the attention of the market and the regulators. In the…more

Certifications, Multi-Family Development, Multi-Family Housing, Residential Real Estate Market, UK

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EUROPE – New Interim Guidance on Parallel EMA-HTA Body Scientific Advice

On July 3, 2023, the European Medicines Agency (“EMA”) and the European Commission published a Guidance on Parallel EMA/HTA body Scientific Advice for the Interim Period (“Guideline”). The Guideline organizes parallel…more

Applications, Confidentiality Agreements, EU, European Medicines Agency (EMA), Health Technology

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Department of Labor Finalizes Changes to QPAM Exemption

Investment managers who manage private employee benefit plan and individual retirement account (collectively, “Plan”) assets have long relied on Prohibited Transaction Class Exemption 84-14 (commonly referred to as the “QPAM…more

Criminal Convictions, Department of Labor (DOL), Employee Retirement Income Security Act (ERISA), Federal Register, Internal Revenue Code (IRC)

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ESG Agenda

BlackRock Doubles Down on Sustainability - • BlackRock signals substantially more assertive posture on climate-related issues • New approach to shareholder proposals saw BlackRock support 54% of environmental and social…more

Benchmarking, BlackRock, Climate Change, Coronavirus/COVID-19, Diversity and Inclusion Standards (D&I)

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Key Recent Developments In Environmental Justice Litigation

Louisiana remains at the forefront of environmental justice activity. In just four days from January 19 to January 23, 2024, two courts in Louisiana offered interpretations to environmental justice efforts in the State of…more

Anti-Discrimination Policies, Appeals, Civil Rights Act, Clean Air Act, Department of Environmental Quality

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Implementing A Competitive Natural Gas Market In Mexico - CENAGAS to hold its first open season

Centro Nacional de Control de Gas Natural (CENAGAS) has received authorization from the Comisión Reguladora de Energía (CRE) to conduct its first open season for the assignment of available capacity on a firm basis in the…more

Competitive Bidding, Deadlines, Electricity, Energy Sector, Foreign Investment

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Treasury Issues Final Regulations Addressing “Domestically Controlled” REIT Status

On April 25, 2024, the IRS and Treasury issued final regulations (the “Final Regulations”) addressing whether a real estate investment trust (a “REIT”) or a regulated investment company (a “RIC”) will constitute a “domestically…more

C-Corporation, Fair Market Value, Final Rules, FIRPTA, Income Taxes

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CMS Issues IPPS and LTCH Proposed Rule for FY 2025

On April 10, 2024, CMS issued its annual Hospital Inpatient Prospective Payment System (IPPS) and Long-Term Care Hospital (LTCH) Prospective Payment System (PPS) Proposed Rule for Fiscal Year (FY) 2025 (the Proposed Rule). In…more

Centers for Medicare & Medicaid Services (CMS), Consolidated Appropriations Act (CAA), Food and Drug Administration (FDA), Graduate Medical Education, Inpatient Prospective Payment System (IPPS)

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What is Happening to My LIBOR Now? Simplification of the ARRC’s Hardwired Approach

On March 25, 2021, the Alternative Reference Rates Committee (the “ARRC”) issued supplemental guidance to its recommended hardwired fallback language for U.S. dollar LIBOR denominated syndicated and bilateral business loans. The…more

Alternative Reference Rates Committee (ARRC), Financial Conduct Authority (FCA), ICE Benchmark Administration (IBA), IOSCO, Libor

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The USPTO Shutdown: Causes and Implications

How a USPTO Shutdown Will Affect PTAB Litigation and Prosecution Matters & Strategies - The government shutdown began December 22, 2018, but the United States Patent and Trademark Office (USPTO) and district and appeals…more

Discovery Disputes, Filing Requirements, Government Shutdown, Patent Prosecution, Patent Trial and Appeal Board

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Energy Newsletter - September 2020

Climate Change Litigation on the Horizon with Trump Environmental Overhaul - On July 16, 2020, President Trump’s Council on Environmental Quality (“CEQ”) published the long-awaited final rule revising the implementing…more

CEQ, CFIUS, Climate Change, Coronavirus/COVID-19, Debt Restructuring

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OCR Issues Revised Guidance on Use of Online Tracking Technologies as AHA Lawsuit Looms

On March 18, 2024, the Office for Civil Rights (OCR) of the Department of Health and Human Services (HHS) updated the guidance first issued in December 2022 regarding the use of online tracking technologies in the public-facing …more

American Hospital Association, Department of Health and Human Services (HHS), Health Information Technologies, Health Insurance Portability and Accountability Act (HIPAA), OCR

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European Chemical Agency Publishes Call for Evidence on the Use of Formaldehyde Releasers

On July 6, 2016, the European Chemicals Agency (ECHA) issued a call for evidence from relevant stakeholders to gather information on the uses of formaldehyde releasers. ECHA intends to issue a report to inform the Commission’s…more

Chemicals, ECHA, EU, REACH, Request For Information

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OMB Finalizes Regulatory Guidance On “Buy America Preferences For Infrastructure Projects”

Revised guidance takes effect on October 22, 2023 and will be supplemented by forthcoming memorandum - On August 23, the Office of Management and Budget (“OMB”) published final Guidance for Grants and Agreements to “support…more

Buy American Act, Federal Acquisition Regulations (FAR), Financial Assistance Policies, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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A Brief Overview of the Federal Rulemaking Process in the United States

Since the enactment of the Inflation Reduction Act of 2022 (the “IRA”) in the United States, the Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) have issued notices of proposed regulations…more

Administrative Procedure Act, Congressional Review Act, Department of Energy (DOE), Department of Labor (DOL), GAO

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Energy Newsletter - July 2019

Choose Your Own Adventure: Farmouts of International Oil & Gas Interests and the AIPN 2019 Model Form - When I teach about the Association of International Petroleum Negotiator’s (AIPN) Model International Farmout Agreement…more

Assignments, Chapter 11, Clean Energy, Commercial Bankruptcy, Default

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Federal District Court in Alabama Declares CTA Unconstitutional; DOJ Appeals to 11th Circuit; FinCEN Requires Continued Compliance

On March 1, 2024, a federal judge in the U.S. District Court for the Northern District of Alabama ruled that the Corporate Transparency Act (“CTA”) is unconstitutional. The CTA and its implementing regulations require that many…more

Alabama, Beneficial Owner, Civil Monetary Penalty, Corporate Transparency Act, Criminal Penalties

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FDA Ushers in New Program for Drug Products Manufactured Using Innovative Manufacturing Technologies

Under Section 3213 of Food and Drug Omnibus Reform Act, the U.S. Food & Drug Administration (“FDA” or the “Agency”) is required to establish the Advanced Manufacturing Technologies Designation Program, an initiative intended to…more

Abbreviated New Drug Application (ANDA), Draft Guidance, Food and Drug Administration (FDA), Marketing, Pharmaceutical Industry

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Iowa Joins Five Other States with Comprehensive Privacy Law

Iowa became the sixth U.S. state to pass a comprehensive privacy law after the governor signed Senate File 262 (“the Act”) on March 28. The Act significantly echoes its non-California predecessors, particularly the Utah Consumer…more

California Consumer Privacy Act (CCPA), GLBA Privacy, Health Insurance Portability and Accountability Act (HIPAA), Privacy Laws, State Privacy Laws

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Energy Newsletter - January 2019

Clean Water Agencies Propose to Redefine and Limit “Waters of the United States” - The United States EPA and the United States Army Corps of Engineers are proposing to redefine—and significantly limit—the scope of “Waters of…more

Abu Dhabi Global Markets (ADGM), Clean Water Act, Cross-Border Transactions, Energy Sector, Liquidated Damages

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DOL Expresses Extreme Skepticism About Allowing 401(k) Plan Participants to Invest in Cryptocurrency

On March 10, 2022, the U.S. Department of Labor (the “DOL”) issued Compliance Assistance Release No. 2022-01 (the “Release”) regarding 401(k) plan participant-directed investments in cryptocurrencies. The Release “cautions plan…more

401k, Cryptocurrency, Department of Labor (DOL), Digital Assets, Employee Retirement Income Security Act (ERISA)

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Energy Newsletter - August 2019

Significant Changes to FERC’s Rules for Market-Based Rate Sellers - On July 18, 2019, the Federal Energy Regulatory Commission (“FERC”) issued two orders modifying its rules for sellers to obtain or retain authorization to…more

Energy Sector, FERC, Intercreditor Agreements, ISO/RTO, Latin America

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Not So Special – Securities And Antitrust Regulators May Increase Attention To SPACs In The Coming Year

In a remarkable year for the equity markets in 2020, the increased use of Special Purpose Acquisition Companies (“SPACs”) to take companies public stands out as a defining trend. In 2020, well-known private businesses – like…more

Collusion, Department of Justice (DOJ), Division of Corporate Finance, Due Diligence, Federal Trade Commission (FTC)

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AIFMD II Credit Funds

Loan Origination Funds Have a Lot of Wood to Chop Before Aifmd II Kicks In - Following a review of the AIFMD, the Commission, in a draft amending directive published in 2021, noted that common rules should be laid down to…more

Alternative Investment Fund Managers Directive (AIFMD), Close-Ended Funds, Credit Funds, Disclosure Requirements, Documentation

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Beneficial Ownership Information Reporting Rule Requires Millions of Entities to Report Certain Information to FinCEN Effective January 1, 2024

On March 24, 2023, Financial Crimes Enforcement Network (“FinCEN”), a bureau of the U.S. Department of the Treasury, released its guidance materials on its final rule (the “Rule”) establishing beneficial ownership information…more

Beneficial Owner, Corporate Transparency Act, Department of Transportation (DOT), Final Rules, FinCEN

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EPA’s Draft Strategic Plan Emphasizes Resilience and Adaption to Climate Change

This Client Alert—Part 2 of an ongoing series—provides an overview of one of EPA’s key objectives in its draft Strategic Plan: Developing resilience and adaptation to climate change impacts. Other alerts in the series can be…more

Center for Biological Diversity, Climate Change, Endangered Species Act (ESA), Enforcement, Environmental Protection Agency (EPA)

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DOJ Issues Memorandum Urging Government Lawyers to Dismiss ‘Meritless’ False Claims Act Cases

The Department of Justice recently issued an internal guidance memo to DOJ attorneys regarding the dismissal of meritless False Claims Act (FCA) cases. Michael Granston, the Director of DOJ’s Civil Fraud Section, first made…more

Department of Justice (DOJ), Dismissals, False Claims Act (FCA), National Security, Qui Tam

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New York Trial Court Holds that Strong Public Policy Commitment to Fair Lending Practices Defeats Loan Agreement’s Choice of Law Provision

On September 5, 2023, a New York state court invalidated a loan agreement’s choice of law provision, ruling that the loan agreement was void and depriving the lender of both principal and interest payments. The lender, Samson…more

Breach of Contract, Fair Lending, Interest Rates, Loan Agreements, New York

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Recent Enforcement Trends Regarding the Use of Off-Channel Communications on Personal Devices

What U.K. Firms Need to Know - INTRODUCTION - Over the past decade, the use of messaging applications, such as WhatsApp, for business purposes as an alternative to traditional email has grown exponentially. Ease of use and…more

CFTC, Data Privacy, Data Retention, Employee Training, Enforcement

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European Union Member States Vote In Support Of The Privacy Shield

On July 8, 2016, the European Union (“EU”) member states voted in support of the Privacy Shield through the Article 31 Committee, which is composed of representatives of the 28 member states. The Privacy Shield would replace…more

EU, EU Data Protection Laws, EU-US Privacy Shield, European Commission, International Data Transfers

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Treasury Issues Final Regulations Addressing “Domestically Controlled” REIT Status

On April 25, 2024, the IRS and Treasury issued final regulations (the “Final Regulations”) addressing whether a real estate investment trust (a “REIT”) or a regulated investment company (a “RIC”) will constitute a “domestically…more

C-Corporation, Fair Market Value, Final Rules, FIRPTA, Income Taxes

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OMB Finalizes Regulatory Guidance On “Buy America Preferences For Infrastructure Projects”

Revised guidance takes effect on October 22, 2023 and will be supplemented by forthcoming memorandum - On August 23, the Office of Management and Budget (“OMB”) published final Guidance for Grants and Agreements to “support…more

Buy American Act, Federal Acquisition Regulations (FAR), Financial Assistance Policies, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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FDA Alerts Pharmaceutical Manufacturers to Risk of Benzene in Certain Drugs

FDA Continues to Focus on Identifying and Controlling Trace Impurities in Drugs - On December 23, 2021, the U.S. Food and Drug Administration (“FDA”) alerted drug manufacturers that FDA was investigating the root cause of…more

Food and Drug Administration (FDA), Hydrocarbons, Manufacturers, PFAS, Pharmaceutical Industry

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CARES Act Summary: What It Means for Nonprofits

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed into law on March 27, 2020 provides a $2 trillion economic stimulus package to offset the hardship that businesses are experiencing in connection with the…more

Banks, Business Closures, Business Interruption, CARES Act, Centers for Medicare & Medicaid Services (CMS)

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Supreme Court Ruling in AHA v. Becerra May Affect 340B Hospitals' Reimbursement Rights Against Medicare Advantage Plans

Hospitals that participate in the 340B program may be entitled to additional monies from Medicare Advantage plans in the wake of the Supreme Court’s decision in AHA v. Becerra. In AHA v. Becerra, a unanimous Supreme Court…more

Ambulatory Surgery Centers, American Hospital Association et al v Becerra Secretary Of Health And Human Services et al, Centers for Medicare & Medicaid Services (CMS), Hospitals, Medicare Advantage

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Court Certifies Class Despite Plaintiff’s Admission that She Consistently Purchased the Product Years Before the Allegedly Misleading “0g Trans Fat” Claim Was Added to the Label

On November 9, 2020, Judge Jeffrey Miller of the Southern District of California certified a class of California citizens alleging that Kroger violated various California consumer protection laws by mislabeling its breadcrumbs…more

Class Certification, False Advertising, Food Labeling, Nutrition Facts Labels, Predominance Requirement

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DOJ Issues Memorandum Urging Government Lawyers to Dismiss ‘Meritless’ False Claims Act Cases

The Department of Justice recently issued an internal guidance memo to DOJ attorneys regarding the dismissal of meritless False Claims Act (FCA) cases. Michael Granston, the Director of DOJ’s Civil Fraud Section, first made…more

Department of Justice (DOJ), Dismissals, False Claims Act (FCA), National Security, Qui Tam

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Bye-Bye Big Boys? The SEC Turns its Enforcement Focus to Private Deals

On April 4, 2023, the U.S. Securities and Exchange Commission (“SEC”) filed suit against Charlie Javice, the 31-year-old founder of Frank, a student loan and financial aid assistance company. That same day, the U.S. Attorney’s…more

Bank Fraud, Department of Justice (DOJ), Enforcement, Financial Aid, Penalties

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Supreme Court Rules that Citizenship of a Real Estate Investment Entity is Based on Citizenship of its Members, Which Includes Shareholders

On March 7, 2016, the U.S. Supreme Court (the “Supreme Court”) ruled that the citizenship of a Real Estate Investment Entity (“REIT”), for purposes of federal diversity jurisdiction, is based on the citizenship of its members,…more

Americold Realty Trust v Conagra Foods, Citizenship, Diversity Jurisdiction, Members, REIT

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CMS Outlines Strategy to Advance Health Equity

Pursuant to Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, federal agencies and departments, including HHS, have recently released their plans to advance…more

Centers for Medicare & Medicaid Services (CMS), Children's Health Insurance Program (CHIP), Data Collection, Executive Orders, Healthcare

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OIG Issues Advisory Opinion on Medical Group’s Proposed Employment of Individual Excluded from Participation in Federal Health Care Programs

On May 25, 2022, OIG posted an Advisory Opinion analyzing a medical group’s proposal to employ an individual excluded from participation in federal health care programs to perform marketing tasks related to workers’ compensation…more

Advisory Opinions, Civil Monetary Penalty, False Claims Act (FCA), Federal Health Care Programs (FHCP), OIG

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Proposed Changes to South Korea’s Personal Information Protection Act

On November 2018, the South Korean National Assembly considered a bill to amend the Personal Information Protection Act (“PIPA”) to give the Personal Information Protection Commission (“PIPC”) enforcement powers of its own…more

Data Protection, Personal Information Protection Act, South Korea

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Uptick In Coordinated U.S.-Brazil Anti-Corruption Enforcement

As companies expand across borders and invest more heavily abroad, foreign enforcement authorities are following the example set by the U.S. Department of Justice and the U.S. Securities and Exchange Commission in directing…more

Anti-Corruption, Enforcement Authority, Foreign Corrupt Practices Act (FCPA), Multi-Jurisdictional Litigation, Odebrecht

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California Proposes Designating PFOA as a Carcinogen under Proposition 65

Designation of PFOA as a Carcinogen Will Increase Litigation Risks and Expand Proposition 65 Labeling Obligations - On March 19, 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) announced that it…more

California, National Toxicology Program (NTP), OEHHA, PFAS, Proposition 65

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FDA Ushers in New Program for Drug Products Manufactured Using Innovative Manufacturing Technologies

Under Section 3213 of Food and Drug Omnibus Reform Act, the U.S. Food & Drug Administration (“FDA” or the “Agency”) is required to establish the Advanced Manufacturing Technologies Designation Program, an initiative intended to…more

Abbreviated New Drug Application (ANDA), Draft Guidance, Food and Drug Administration (FDA), Marketing, Pharmaceutical Industry

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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Cassirer Argument: Ownership of Nazi-looted art to be determined by choice-of-law

A painting by Camille Pissarro hangs in a Spanish museum that the Nazis stole from a Jewish family in 1939. For fifteen years the parties have litigated who the rightful owner is: the museum or the family. The case may well turn…more

Choice-of-Law, Fine Art, Foreign Sovereign Immunities Act of 1976 (FSIA), Nazi Looted Art, Spain

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EPA’s Inspector General Recommends Review of Ethylene Oxide and Chloroprene Standards to Address Health Risks, Environmental Justice Concerns

On May 6, 2021, the U.S. Environmental Protection Agency’s (“EPA”) Office of Inspector General (“OIG”) published the results of an audit examining EPA’s response to updated cancer risk values for two chemicals: ethylene oxide…more

Cancer, Environmental Justice, Environmental Protection Agency (EPA), NESHAP, OIG

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LDT Final Rule: Shifting the LDT Battlefield

On April 29, 2024, the Food and Drug Administration (“FDA” or “the Agency”) released a pre-publication version of the highly anticipated laboratory developed test final rule (“LDT Final Rule”). The LDT Final Rule is scheduled…more

Compliance, Enforcement, False Statements, Federal Food Drug and Cosmetic Act (FFDCA), Final Rules

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Europe's Definition of Green Hydrogen (RFNBO) Adopted into EU Law

On June 20, 2023, the European Commission (the Commission) published the EU’s definition of green hydrogen in the Official Journal. This completes the legislative process for these two long-awaited and highly controversial…more

EU, European Commission, Greenhouse Gas Emissions, Hydrogen Power, Inflation Reduction Act (IRA)

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NAIC Developments Affecting Insurer Investment Portfolios

This bulletin discusses pending actions of the (a) National Association of Insurance Commissioners (NAIC) Valuation of Securities (E) Task Force (VOS Task Force) to address certain issues associated with insurer investments in…more

Arbitrage, Bonds, Credit Ratings, Feeder Funds, Insurance Industry

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Arbitrating Premature Claims: An Issue of Admissibility

The question of whether a party’s failure to comply with a mandatory step in a multi-tiered dispute resolution clause is an issue of “admissibility” or “jurisdiction” was a hot topic in the international arbitration sphere for…more

Admissibility, Arbitration, Arbitration Agreements, Enforcement, Hong Kong

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IRS Proposed Regulations and DOL Guidance Clarify Certain Aspects of the Prevailing Wage and Apprenticeship Requirements

The U.S. Department of Treasury (“Treasury”) and IRS issued proposed regulations (“Proposed Regulations”) on August 29, 2023, regarding increased credit or deduction amounts available under the Inflation Reduction Act of 2022…more

Apprenticeships, Books & Records, Compliance, Davis-Bacon Act, Department of Labor (DOL)

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Executive Order Restricts Foreign Access to U.S. Data, Citing National Security Risks

On February 28, 2024, President Biden signed Executive Order (EO) 14117 titled “Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern.” On March 5, 2024,…more

Advanced Notice of Proposed Rulemaking (ANPRM), Artificial Intelligence, Biden Administration, Biometric Information, Cyber Espionage

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Biden Administration Initiates Inquiry Targeting "Connected Vehicles," with Chinese Electric Vehicles and Supply Chain As Clear Target For Regulation

The Biden Administration announced on February 29, 2024, that it is commencing an inquiry into whether the involvement of “foreign adversaries” in the information and communications technology and services (“ICTS”) supply chain…more

Advanced Notice of Proposed Rulemaking (ANPRM), Biden Administration, Bureau of Industry and Security (BIS), China, Cybersecurity

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FDA Announces Updates to Two Guidance Documents Concerning Breast Implant Safety and Transparency

Maintaining its focus on breast implant safety, on September 28, 2020, FDA announced the issuance of the final guidance, “Breast Implants— Certain Labeling Recommendations to Improve Patient Communication,” (the “2020 Final…more

Food and Drug Administration (FDA), Guidance Update, Labeling, Medical Devices

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Mexico Enacts New Legal Regime for Mining Concessions

On May 8, 2023, Mexico enacted an amendment in matters pertaining to mining and water to its mining law; national waters law; general law for ecologic equilibrium and environmental protection (LGEEPA); and general law for the…more

Compensation, Environmental Social & Governance (ESG), Mexico, New Amendments

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U.S. International Trade Commission to Investigate Potential Waiver of International Intellectual Property Rights for COVID-19 Diagnostics and Therapeutics

On February 1, 2023, the U.S. International Trade Commission (the “ITC”) initiated an investigation into the impact of intellectual property (“IP”) rights on the production, supply, and availability of diagnostics and…more

Coronavirus/COVID-19, Intellectual Property Protection, International Trade Commission (ITC), Supply Chain, TRIPS Agreement

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M&A, Real Estate and Other Transactions

While sophisticated transaction parties have been aware for some time of the need to evaluate potential liabilities associated with PFAS compounds, EPA’s proposal to designate PFOS and PFOA as hazardous substances under CERCLA…more

Acquisitions, CERCLA, Environmental Protection Agency (EPA), Environmental Site Assessment, Liability

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Energy Newsletter - May 2020

Energy Explosion: 10 Trends to Watch in Energy Restructuring - On April 20, 2020, U.S. benchmark crude traded negative for the first time. This drastic drop in price was caused by the perfect storm of the Saudi Arabia-Russia…more

Carbon Off-Set Credits, Coronavirus/COVID-19, Energy Sector, Foreign Investment, Mexico

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OMB Finalizes Regulatory Guidance On “Buy America Preferences For Infrastructure Projects”

Revised guidance takes effect on October 22, 2023 and will be supplemented by forthcoming memorandum - On August 23, the Office of Management and Budget (“OMB”) published final Guidance for Grants and Agreements to “support…more

Buy American Act, Federal Acquisition Regulations (FAR), Financial Assistance Policies, Infrastructure, Infrastructure Investment and Jobs Act (IIJA)

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Anti-Satellite Tests and the Growing Demand for Space Debris Mitigation

The threat of anti-satellite (ASAT) weapons is once again front and center in the news, raising questions about norms for responsible state behavior in space. ASAT tests are used by countries to destroy or incapacitate…more

Aerospace, EU, Innovative Technology, NASA, Satellites

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Supreme Court Stays OSHA Vaccine-or-Test Mandate for Large Businesses

On January 13, 2022, the Supreme Court issued its first rulings related to the Biden Administration’s COVID-19 vaccine mandates. In the case of NFIB v. OSHA, by a vote of 6-3, the Court held that the COVID-19 vaccination and…more

Centers for Medicare & Medicaid Services (CMS), Constitutional Challenges, Coronavirus/COVID-19, Employer Mandates, OSHA

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Supreme Court Accepts Narrow Definition of Autodialer, Limiting Reach of TCPA

On April 1, in a highly anticipated decision that likely will have a significant effect on litigation under the Telephone Consumer Protection Act (TCPA), the Supreme Court ruled on what qualifies as an “automatic telephone…more

ATDS, Auto-Dialed Calls, Facebook, Facebook Inc v Duguid, Random or Sequential Number Generator

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COVID-19: Tax measures announced by Governments in France, Germany, United Kingdom and United States

Based on the information available as of today, please find below an update regarding the exceptional tax measures implemented in France, Germany, United-Kingdom and United-States to support companies and business in the…more

Coronavirus/COVID-19, France, Germany, Relief Measures, Tax Credits

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First CCPA Settlement Announced

On August 24, the California Attorney General (“AG”) announced its first enforcement settlement under the California Consumer Privacy Act (“CCPA”). The $1.2M fine with an international retailer settled claims that the retailer…more

California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), Cookies, Data-Sharing, Enforcement

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Florida Enacts Transformative Tort Reform Legislation

On Friday, March 24, 2023, Governor Ron DeSantis signed into law House Bill 837, providing an overhaul to tort law in the state of Florida. The new legislation makes transformative changes, including reducing the statute of…more

Attorney-Client Privilege, Bad Faith, Disclosure Requirements, Florida, Liability

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ICBC Settles AML/BSA and CSI Matters with DFS, Fed: Three Take-Aways

AML Developments - What You Need to Know - Earlier this month, the New York State Department of Financial Services (“DFS”) and the Federal Reserve Board of Governors (“FRB”) announced settlements with the Industrial and…more

Banking Regulators, BSA/AML, China, Civil Monetary Penalty, Compliance

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Energy Newsletter - April 2020

Developing Contingency Plans: The NYDFS Mandate on Licensed Virtual Currency Businesses - The events surrounding COVID-19 have increased the use of fintech products, both out of necessity and convenience. Shelter-in-place…more

Banking Sector, Chief Information Security Officer (CISO), Compliance, Confidential Information, Coronavirus/COVID-19

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Dispute boards – a globally growing popularity, but limited use in the Middle East

Unsurprisingly, a volatile and disrupted economic climate will likely have a flow-on impact upon major infrastructure projects. For example, the COVID-19 pandemic continues to deeply disrupt economic activities globally,…more

Coronavirus/COVID-19, Dispute Adjudication Board (DAB), Dispute Boards, FIDIC Contracts, Middle East

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Repairing A “Crack” in Insider Trading Regulation: SEC Rule 10b5-1 Trading Plans Face Increased Scrutiny

SEC Rule 10b5-1 plans have long provided an effective means for corporate insiders to buy and sell their own company’s securities without fear of civil or criminal insider trading liability, but these plans have come under…more

Administrative Orders, Disclosure Requirements, EDGAR, Enforcement Actions, Good Faith

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Beyond the Palette: Issues in art disputes in the English Courts

Fine art is big business. The three most expensive paintings to have ever been sold – Salvator Mundi by Leonardo da Vinci, Interchange by Willem de Kooning and The Card Players by Paul Cézanne – have an inflation-adjusted…more

Art Collections, Breach of Contract, Fine Art, Inflation Adjustments, Investors

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Tax-Exempt Mayo Clinic Awarded $11.5M UBIT Refund, Invalidating Treasury Regulations In the Process

In a recent taxpayer win, the United States District Court for the District of Minnesota granted summary judgment in an $11.5 million refund claim brought by the Mayo Clinic (“Mayo”) on the basis that certain Treasury…more

Chevron Deference, Chevron v NRDC, Internal Revenue Code (IRC), IRS, Mayo Clinic

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Pumping the Brakes: FinCEN Reopens Comment Period for Controversial Crypto Reporting & Recordkeeping Rules

After Widespread Market Opposition in an Expedited First Round of Comments, FinCEN Solicits More Feedback on Rule Seeking to “Close Gaps” in Virtual Currency Anti-Money Laundering Rules On January 14, in a surprise move, the…more

Administrative Procedure Act, Anti-Money Laundering, Bank Secrecy Act, Biden Administration, Cryptocurrency

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Quantum Quarterly – Issue 12 – 4 Quarter 2020

Claimant is an Australian joint venture between Chile’s Antofagasta plc and Canada’s Barrick Gold Corporation. In 2006, Claimant became a party to a joint venture agreement between it and the Government of Balochistan with the…more

Arbitration, Burden of Proof, Causation, Compensation, Contributory Negligence

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FTC Announces 2024 Jurisdictional Threshold Updates for Interlocking Directorates and HSR Filing Thresholds

On January 22, 2024, the Federal Trade Commission (FTC) announced revised jurisdictional thresholds for determining whether a proposed transaction must be reported to federal authorities under the Hart-Scott-Rodino (HSR)…more

Consolidated Appropriations Act (CAA), Federal Trade Commission (FTC), Filing Requirements, Hart-Scott-Rodino Act, Interlocking Directorate

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ESG Trending Topics - Japan

Japan’s Big Banks Bet on Infrastructure + ESG. In anticipation of increased infrastructure spending worldwide to meet countries’ net-zero carbon targets, Japanese banks Sumitomo Mitsui and MUFG have recently launched…more

Carbon Emissions, Electricity, Environmental Social & Governance (ESG), Infrastructure, Japan

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USTR Seeks Comments Regarding Whether To Remove China Tariffs On Additional Medical-Care Products

Agency also seeks comments to "keep current on developments in our national fight against the coronavirus pandemic" - On Friday, March 20, the United States Trade Representative (“USTR”) published a document entitled “USTR:…more

Coronavirus/COVID-19, Public Comment, Section 301, Tariffs, USTR

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Utilizing Structured Finance Techniques in Distressed Situations

Securitization, and structured finance generally, is a critical capital-raising tool for many companies. Utilizing one or more bankruptcy-remote special purpose entities to legally isolate the credit risk of quality,…more

Bankruptcy Code, Bankruptcy Court, Capital Raising, Contingency Plans, Credit Enhancements

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President Biden Signs Made-In-America Executive Order

Articulates Administration Policy And Creates New Made In America Office To Review Proposed Waivers Of “Made In America Laws” - On January 25, 2021, President Joseph R. Biden Jr. signed an Executive Order on Ensuring the…more

Biden Administration, Buy American Act, Executive Orders, Federal Acquisition Regulations (FAR), Jones Act

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Industry-Focused American Rescue Plan Act Summary

Agriculture & Food Products - On March 11, 2021, President Joseph R. Biden Jr. signed into law the American Rescue Plan Act of 2021 (“ARPA” or “the Act”),[i] which provides $1.9 trillion in federal funds for a broad array of…more

American Rescue Plan Act of 2021, Coronavirus/COVID-19, Food Products ., Joe Biden, Relief Measures

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Mid-Year Report: FINRA Enforcement Builds Momentum After Historic Penalties

After collecting near-record amounts in fines, restitution, and disgorgement in 2021 – which included a $70 million monetary penalty against a financial institution in a single action – FINRA continues to raise the bar on…more

Conflicts of Interest, Customer Protection Rule, Disgorgement, Enforcement Actions, Financial Industry Regulatory Authority (FINRA)

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Supreme Court Poised To Decide What Allegations Make The Grade In University Fee Case, With Broader Implications For ERISA Retirement Plan Fiduciaries

Last month, the U.S. Supreme Court heard argument in an ERISA case that could have sweeping ramifications for retirement plan fiduciaries. The case—Hughes v. Northwestern University—tees up a threshold question that has vexed…more

401k, Class Action, Employee Benefits, Employee Retirement Income Security Act (ERISA), Fiduciary Duty

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Update – Sweden’s Request to Ban American Lobster in the EU Risks Violating the Rules of the WTO

In July 2016, we reported that the Swedish Government had requested that the European Union impose a ban on imports of U.S./Canadian live lobster (Homarus americanus). Sweden argues that Homarus americanus should be designated…more

EU, Food Borne Bacteria, Imports, Scientific Evidence, Sweden

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Department of Energy Announces $2.6 Billion Funding Opportunities for Carbon Capture, Storage and Transport Projects

On July 13, the U.S. Department of Energy (DOE) issued Notices of Intent indicating that the agency will begin soliciting applications in the coming months for funding support for two programs involving carbon capture,…more

Carbon Capture and Sequestration, Carbon Emissions, Department of Energy (DOE), Energy Sector, Infrastructure

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CMS Proposes to Cancel Episode Payment Models, Cardiac Rehab Incentive Payment Model and Revise Comprehensive Care for Joint Replacement Incentive Payment Model

On August 15, 2017, CMS announced a proposed rule to cancel the Episode Payment Models (EPMs) and Cardiac Rehabilitation (CR) incentive payment model scheduled to begin January 1, 2018, and to rescind the regulations governing…more

Alternative Payment Models (APM), Centers for Medicare & Medicaid Services (CMS), Episode Payment Models (EPM), Health Care Providers

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Mallory Argument: Plaintiff Seeks To “Change The Jurisdictional Landscape”

A Virginia resident sued a Virginia company headquartered in Virginia over events that occurred in Virginia. And he filed his lawsuit in…… Pennsylvania. The Court heard argument earlier this week in Mallory v. Norfolk Southern…more

DaimlerChrysler v Bauman, Goodyear, Jurisdiction, Mallory v Norfolk Southern Railway Co, SCOTUS

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LNG Disputes on the Rise

Although some in the LNG industry are generally aware of price review disputes (mostly in Europe) that occurred during the last decade, the growing overall trend globally in LNG disputes (especially via international…more

Buyers, Infrastructure, International Arbitration, Liquid Natural Gas, Oil & Gas

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Zeitlich befristete Änderung der Insolvenzantragspflicht wegen Überschuldung

Erneute Lockerung der Insolvenzantragspflicht durch das SanInsKG - Mit dem „Gesetz zur vorübergehenden Anpassung sanierungs- und insolvenzrechtlicher Vorschriften zur Abmilderung von Krisenfolgen“ (kurz: Sanierungs- und…more

Coronavirus/COVID-19, Insolvency, Liability, Reorganizations, Restructuring

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Pre-Marketing: Risks and Considerations Relating to Bespoke Securitization Transactions

The current volatility in financial markets has caused an increase in interest in pre-marketing certain bespoke securitization transactions, including esoteric, real estate-based, whole business, music royalty and digital…more

Appraisal, Due Diligence, Financial Markets, Indemnification, Investors

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And So it Begins: What Recent Announcements Mean for the Future of LIBOR

On March 5, 2021, the ICE Benchmark Administration (the “IBA”) issued feedback that it had completed the consultation with LIBOR panel banks that it began in December 2020, and stated that it will be unable to publish certain…more

Alternative Reference Rates Committee (ARRC), Financial Conduct Authority (FCA), ICE Benchmark Administration (IBA), ISDA, Libor

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Compensation and Benefits Insights – April 2020

On November 22, 2019, the U.S. Court of Appeals for the First Circuit (the “First Circuit”) reversed the 2016 decision of the U.S. District Court for the District of Massachusetts (the “District Court”) in Sun Capital Partners…more

Compensation & Benefits, Employee Benefits, Employee Retirement Income Security Act (ERISA), Joint and Several Liability, Multiemployer Plan

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Lenders – Caution Required

Lenders need to adopt some risk mitigation techniques as the market operates in frothy conditions - Against a backdrop of optimistic asset valuations driving increased leverage multiples across the large cap and mid-market…more

Financial Services Industry, Lenders, Payment-In-Kind

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OIG Hospital Compliance Program Audit Claims $22 Million in Extrapolated Overpayments

A recent report issued by OIG finding an Indiana community hospital owed over $22 million in extrapolated overpayments carries some important lessons for hospitals audited under OIG’s hospital compliance program. As described in…more

Administrative Appeals, Administrative Procedure Act, Audits, Billing, Department of Justice (DOJ)

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Potential Remedies for Russia’s Suspension of Foreign Investors’ Intellectual Property Rights

Potential Remedies for Russia’s Suspension of Foreign Investors’ Intellectual Property Rights: International Investment Arbitration - Foreign investors in Russia may have remedies pursuant to international investment treaties…more

Bilateral Investment Treaties, Economic Sanctions, Foreign Investment, Intellectual Property Protection, International Arbitration

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Energy Newsletter - July 2019

Choose Your Own Adventure: Farmouts of International Oil & Gas Interests and the AIPN 2019 Model Form - When I teach about the Association of International Petroleum Negotiator’s (AIPN) Model International Farmout Agreement…more

Assignments, Chapter 11, Clean Energy, Commercial Bankruptcy, Default

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Transient but Modern: How Popup is giving Retail a Facelift

As traditional leasing plans, for retail spaces in particular, have been interrupted by bankruptcies of traditional retailers and the shift in consumer habits to online shopping, a more transient tenant form is gaining…more

Commercial Leases, Commercial Property Owners, Commercial Real Estate Market, Commercial Tenants, Contract Terms

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Energy Newsletter - September 2020

Climate Change Litigation on the Horizon with Trump Environmental Overhaul - On July 16, 2020, President Trump’s Council on Environmental Quality (“CEQ”) published the long-awaited final rule revising the implementing…more

CEQ, CFIUS, Climate Change, Coronavirus/COVID-19, Debt Restructuring

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CMS Expands Flexibilities Under Hospital Without Walls Initiative

Last week, CMS announced additional flexibilities that expand its Hospital Without Walls initiative, which provides broad regulatory flexibility that allows hospitals to provide services in locations beyond their existing walls…more

Ambulatory Surgery Centers, Centers for Medicare & Medicaid Services (CMS), Hospitals, Medicare, Telehealth

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GAO Issues Report Urging HHS to Address Worsening Maternal Health Outcomes

The Government Accountability Office (GAO) issued a report this month finding that maternal health outcomes worsened during the COVID-19 pandemic and urging HHS to use its resources to address the maternal health crisis…more

CARES Act, Centers for Disease Control and Prevention (CDC), Coronavirus/COVID-19, Department of Health and Human Services (HHS), GAO

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SCCA Publishes New Arbitration Rules

The Saudi Center for Commercial Arbitration (“SCCA”) announced on 1 May 2023 the publication of its revised SCCA Arbitration Rules (the “2023 Rules”). This follows the SCCA’s announcement in November 2022 of i) the formation of…more

Arbitration, Arbitration Agreements, DIFC, Mediation, New Rules

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Rule 192

On January 25, 2023, the Securities and Exchange Commission (“SEC”) issued a release reproposing new Rule 192 (the “Proposed Rule”) under the Securities Act of 1933 (the “Securities Act”), which is intended to prevent the sale…more

Asset-Backed Securities, Conflicts of Interest, Dodd-Frank, Liquidity, Proposed Rules

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Congressional Insight into Strategy to Combat Cyberattacks on the Healthcare Industry

On April 16, 2024, the House Committee on Energy and Commerce held a bipartisan hearing on the issue of cyberattacks involving healthcare providers. The Committee called as witnesses cybersecurity professionals and…more

Cyber Attacks, Cybersecurity, Data Breach, FBI, Health Care Providers

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SEC Adopts Private Fund Reform Rules

On August 23, 2023, in a 3-2 vote, the SEC adopted a rule package (the “Adopted Rules”) that establishes significant new obligations for private fund advisers under the Investment Advisers Act of 1940. While the Adopted Rules…more

Audits, Books & Records, Clawbacks, Compliance, Disclosure Requirements

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EPA's Reconsideration of Ethylene Oxide Under the Clean Air Act - A Sign of Future Chemicals Policy to Come?

On January 25, 2022, the U.S. Environmental Protection Agency (“EPA”) reaffirmed its interpretation of ethylene oxide (“EtO”) requirements which may signal EPA’s increased scrutiny of chemical emissions generally and the…more

Chemicals, Clean Air Act, Environmental Protection Agency (EPA), IRIS, NESHAP

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Trimming Back the Claws: Eleventh Circuit Strengthens Creditor “New Value” Defense Against Avoidable Preference Lawsuits

The U.S. Court of Appeals for the Eleventh Circuit reversed a bankruptcy court’s decision which held that a “subsequent new value” defense to avoidable preference liability must be reduced by payments the creditor-defendant…more

Appeals, Bankruptcy Code, Bankruptcy Court, Liquidity, New Value Exception

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Fake It Till You Make It: The Travel Rule And Virtual Currencies

The Travel Rule is an old friend for those familiar with banking regulations and anti-money laundering rules. The Rule, first issued by FinCEN in 1995 with fiat currency in mind, requires banks and nonbank financial institutions…more

Anti-Money Laundering, Bitcoin, Cryptocurrency, Data Security, FATF

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Saudi Arabia Takes First Steps to Privatise US$50 Billion of Water Sector Assets

Ali Al-Hazmi Appointed Governor of Saline Water Conversion Corporation as Kingdom Proceeds with Vision 2030 Privatisation Initiative - The Kingdom of Saudi Arabia last week announced that Ali Al-Hazmi is replacing…more

Saudi Arabia, Water Conservation

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Tech Companies Endorse Federal Data Privacy Laws In Congress

On Wednesday, September 26, representatives from some of the United States’ largest technology and communications companies appeared before Congress to testify regarding consumers’ data privacy. The Senate Committee on…more

California Consumer Privacy Act (CCPA), Consumer Privacy Rights, Data Privacy, Federal Trade Commission (FTC), Privacy Laws

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ELTIF 2 Chancen und Defizite

BaFin veröffentlicht einen FAQ zur überarbeiteten ELTIF-Verordnung - Am 1. Februar 2024 hat die Bundesanstalt für Finanzdienstleistungs­aufsicht (BaFin) ein FAQ zur am 10. Januar 2024 in Kraft getretenen, überarbeiteten…more

BaFin, Banking Sector, ELTIF, EU, Financial Institutions

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Energy Newsletter - June 2020

The Impact of COVID-19 on Nuclear Electricity Sales Contracts in France - The electricity sector, like numerous others in France, has been heavily affected by the economic shutdown due to the COVID-19 pandemic. The first…more

Administrative Hearings, Amended Rules, CARB, Climate Change, Commercial Bankruptcy

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HHS, the Department of Labor, and the Department of the Treasury Release Proposed Rules and a Report to Congress regarding Mental Health Parity

On July 25, 2023, HHS, the Department of Labor, and the Department of the Treasury (the Departments) issued proposed rules (Proposed Rules) and other information regarding health plan and issuer compliance with mental health…more

Centers for Medicare & Medicaid Services (CMS), Compliance, Consolidated Appropriations Act (CAA), Department of Health and Human Services (HHS), Department of Labor (DOL)

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A New Era For Activist Defense: Going Beyond the Relics of the 80s

New Market Paradigm and Pandemic Impact Requires New Solutions for U.S. Public Companies - After years of tremendous economic growth, COVID-19 has unleashed unprecedented market volatility and extreme value dislocations for…more

Coronavirus/COVID-19, Corporate Governance, Corporate Strategy, Disclosure Requirements, Publicly-Traded Companies

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BGH erklärt sog. Schriftformheilungsklauseln in Gewerberaummietverträgen für unwirksam

Der für das Gewerberaummietrecht zuständige 12. Zivilsenat des Bundesgerichtshofs („BGH“) hat am 27.09.2017 mit einem Paukenschlag die hier beigefügte Entscheidung verkündet, in welchem er zu der seit einigen Jahren kontrovers…more

Commercial Leases, Germany, Tenants

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FTC Issues Near-Total Ban on Non-Competes in Final Rule, with a Narrow Exception for Existing Agreements with “Senior Executives”

On April 23, 2024, the Federal Trade Commission (FTC), in a party-line vote, approved its final rule banning most non-compete agreements. The final rule bans all non-competes nationwide, including de facto non-competes,…more

Corporate Executives, Department of Labor (DOL), Employment Contract, Federal Bans, Federal Trade Commission (FTC)

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DOJ Issues New Corporate Compliance Guidelines; Document Outlines Criteria for the Criminal Division’s Evaluation of Corporate Compliance Programs

Recently, and without the fanfare that often accompanies new policy guidance regarding corporate fraud, the Fraud Section of the Department of Justice posted a document on its website entitled “Evaluation of Corporate Compliance…more

Acquisitions, Compliance, Corporate Fraud, Department of Justice (DOJ), Foreign Corrupt Practices Act (FCPA)

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Preparing REITs for Shareholder Activists

Hostile public company investors routinely garner headline coverage in media outlets like the New York Times and the Wall Street Journal by engaging in aggressive tactics with public companies – a strategy typically referred to…more

Corporate Governance, Publicly-Traded Companies, REIT, Shareholder Activism, Shareholder Proposals

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Bank Failures May Raise CFIUS Issues

Companies need to be aware of filing requirements before taking foreign money - On March 14, 2023, after a week of three bank failures that marked the largest such crisis since 2008, policymakers continued seeking private…more

CFIUS, Corporate Counsel, Critical Infrastructure Sectors, Enforcement, Executive Orders

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NIST Announces Plan To Develop Privacy Framework

On September 4, 2018, the National Institute for Standards and Technology (NIST) announced that it would begin a collaborative process to develop a new Privacy Framework. Modeled on the agency’s Framework for Improving Critical…more

Cybersecurity, Cybersecurity Framework, Data Privacy, NIST

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United States Supreme Court Limits Deference Standard in Kisor v. Wilkie Decision

On June 26, 2019, the United States Supreme Court issued its decision in Kisor v. Wilkie. After hearing oral arguments in March, the Court considered whether to overrule the Auer deference standard, the long-standing doctrine of…more

Administrative Agencies, Ambiguous, Appeals, Auer Deference, Kisor v Wilkie

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Energy Newsletter - January 2018

Gas Market Reform in Asia: an Update on the Implementation of Third Party Access to LNG Import Terminals - The rise of natural gas and LNG in Asia continues apace, fuelled by a convergence of plentiful global LNG supply,…more

Asia, CERCLA, China, Environmental Protection Agency (EPA), Liquid Natural Gas

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The Insider: Key Developments for Chief Legal Officers and Corporate Legal Teams

Welcome to the inaugural issue of The Insider. This new publication from King & Spalding’s Public Companies Practice, which will be produced periodically, is focused on key developments for chief legal officers and their…more

Attorney-Client Privilege, D&O Insurance, Disclosure Requirements, Diversity and Inclusion Standards (D&I), Duty to Monitor

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Energy Newsletter - May 2017

Taking the Long View - How Appropriate Foresight Supports the Development and Execution of Large-Cap Construction Projects - Introduction - The arduous, start-to-finish process of developing and constructing a…more

Architects, Construction Industry, Energy Sector, Exports, Oil & Gas

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DOJ Corporate Enforcement Policy Revisions Target Executive Compensation, Following Multi-Agency Trend

On March 2, 2023 and March 3, 2023, in a pair of speeches by Deputy Attorney General (DAG) Lisa Monaco and Criminal Division Assistant Attorney General (AAG) Kenneth Polite, the U.S. Department of Justice (DOJ) announced…more

Clawbacks, Compliance, Corporate Crimes, Corporate Integrity Agreement, Corporate Misconduct

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Indonesia Introduces CCS/CCUS Regulation

Indonesia has set an ambitious target to reach net zero emissions by 2060. The deployment of clean energy technologies, such as carbon capture and storage (“CCS”) and carbon capture, utilization and storage (“CCUS”), will play…more

Carbon Capture and Sequestration, Carbon Emissions, Contractors, Energy Sector, Indonesia

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“Purple Book” Patent Listing Under Biological Product Patent Transparency Act: What is Required, and What to Expect?

The Biological Product Patent Transparency Act (“BPPT”) – tucked into Congress’s omnibus spending bill (“Consolidated Appropriations Act,” H.R. 133, Pub. L. No. 116-260) signed into law on December 27, 2020 – is the first-ever…more

Abbreviated New Drug Application (ANDA), aBLA, Antitrust Violations, BPCIA, Consolidated Appropriations Act (CAA)

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Considerations for Hybrid Rule 144A and 4(a)(2) Transactions

Sophisticated investors in structured finance products are increasingly demonstrating an interest in entering the market via direct private placements pursuant to Section 4(a)(2) of the Securities Act of 1933, either in private…more

Financial Products, Hybrid Plan, Investors, Non-Disclosure Agreement, Private Placements

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Avoiding an Ambiguous Hold Harmless Clause: What Every Lender Should Consider

Lenders rely on indemnification and hold harmless provisions in commitment and engagement letters to protect against claims that may be brought not only by third parties but by borrowers and their affiliates as well. Such…more

Ambiguous, Commitment Letter, Damages, Engagement Letters, Hold Harmless

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Venue Changes for State Antitrust Enforcement

The $1.7 trillion government-wide omnibus spending bill announced by Congress on Tuesday incorporates a provision, entitled the State Antitrust Enforcement Venue Act (“the State AG Venue Act”), which could significantly alter…more

Antitrust Division, Corporate Counsel, Enforcement, State Attorneys General, Venue

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Mere Statutory FACTA Violations Are Not Enough to Establish Article III Standing

On February 2, 2018, the United States District Court for the Northern District of Alabama dismissed a Fair and Accurate Credit Transaction Act (“FACTA”) lawsuit because, among other things, the plaintiff failed to allege a…more

Article III, Debit and Credit Card Transactions, FACTA, Standing

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Register of Overseas Entities: What foreign companies need to know about buying, selling or transferring property or land in the UK

When the Economic Crime (Transparency and Enforcement) Act 2022 came into force on 15 March 2022, a key aspect was the creation of a Register of Overseas Entities with the stated aim of ensuring transparency about who ultimately…more

Beneficial Owner, Deeds, Foreign Entities, Registration Statement, Responsible Managing Officer

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Commercial Mortgage Loan Repurchase Agreements: COVID-19 Related Issues, Temporary Agreements and What May Come Next

The abrupt halt in commercial activity caused by the 2019 Novel Coronavirus (“COVID-19”) has had a significant impact on the global economy, and in particular, the commercial real estate market. As a result, the commercial real…more

Borrowers, Commercial Mortgages, Coronavirus/COVID-19, Interest Payments, Loan Modifications

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Considering a Move to Texas? Here’s What You Need to Know About Patent Litigation

California-based tech companies have increasingly been moving their operations to Texas over the last two years, a trend that has only accelerated as remote and hybrid work have become a fact of life. Whether your company has…more

Inter Partes Review (IPR) Proceeding, Judges, Patent Litigation, Patents, Texas

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The New Saudi Special Economic Zones

On 14 April 2023, the Economic Cities and Special Zones Authority (ECZA) announced the launch of four special economic zones (SEZs) in the Kingdom of Saudi Arabia (the Kingdom) to accelerate the diversification of the national…more

Exports, Foreign Investment, Imports, Investment, Investors

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Recent Developments in Coburn: Walking the Tightrope of Cooperating with DOJ while Maintaining an Independent Investigation

In February 2022, a District of New Jersey court in United States v. Coburn took the surprising step of compelling a private company to produce internal investigation materials to two of its former executives, who were indicted…more

Attorney-Client Privilege, Brady Violation, Corporate Misconduct, Department of Justice (DOJ), Evidentiary Hearings

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Saudi Arabia’s New Civil Transactions Regulation

The Civil Transactions Regulation (the “CTR”) was promulgated on 18 June 2023 and entered into force on 16 December 2023. The CTR was conceived as one of four key reforms announced in February 2021 to enhance the general…more

Breach of Contract, Contract Termination, Contract Terms, Dispute Resolution, Force Majeure Clause

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FDA Issues Discussion Paper on LDTs

Following its recent announcement that it would not finalize its 2014 draft guidance on laboratory developed tests (“LDTs”), the U.S. Food and Drug Administration (“FDA”) issued a Discussion Paper on Laboratory Developed Tests…more

Centers for Medicare & Medicaid Services (CMS), CLIA, Draft Guidance, Food and Drug Administration (FDA), Laboratory Developed Tests

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Controversial Bavarian Police Law Impacts Personal Freedom, Sets Off Protests

On May 15, 2018, the Bavarian state parliament passed a new “police task law” (“PAG”) with 89 votes in favor and 67 votes against. The new law will come into effect on May 25, 2018. Bavaria’s prime minister Markus Söder of the…more

Cloud Storage, Germany, Police

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IRS Provides Temporary Guidance on the Treatment of Certain Stock Distributions by Publicly Offered REITs and RICs

On May 4, 2020, the Internal Revenue Service (the “IRS”) released temporary guidance (Revenue Procedure 2020-19, or “the Revenue Procedure”) on the treatment of certain stock distributions by publicly offered real estate…more

IRS, Mortgage REITS, Popular, Revenue Procedures, RICs

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CARB Strictly Interprets Performance Aftermarket Part Laws in New Enforcement Advisory

CARB takes the position that distributors, sellers, and installers of uncertified performance aftermarket parts are liable for any illegal use of those products. On July 10, the California Air Resources Board (“CARB”)…more

Aftermarket Purchases, CARB, Executive Orders, Motor Vehicles, Safe Harbors

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NAIC's Focus on Investment Management Agreements (IMAs) involving Private Equity-Owned Insurers

As private equity investors continue to increase their presence in the insurance industry with acquisitions of insurers and reinsurance of blocks of insurance contracts through insurer portfolio companies and segregated cells,…more

Conflicts of Interest, Insurance Industry, Investment Management, Investors, Life Insurance

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Pre-Marketing: Risks and Considerations Relating to Bespoke Securitization Transactions

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JD Supra Privacy Policy

Updated: Dec 28, 2021:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and companies and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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