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“Seismic Shifts in Digital Technology:” Supreme Court Creates Exception to Third-Party Doctrine for Cell-Site Location Information
Dykema, June 2018

After not disturbing the Third-Party Doctrine for more than 40 years, the Supreme Court created a significant exception to it inCarpenter v. United States. Slip Op., 16-402 (Jun. 22, 2018). Under the Third-Party Doctrine, individuals who voluntarily provide personal information to third parties are deemed to relinquish their legitimate reasonable expectation of privacy in that information...

Texas Supreme Court Holds: No Cause of Action for Interference With Inheritance Rights
Dykema, June 2018

On June 22, 2018, in a 5-4 decision, the Supreme Court of Texas settled a conflict in appellate court rulings by holding there is no cause of action in Texas for intentional interference with inheritance...

What The Supreme Court's Wayfair Ruling Means for Businesses
Dykema, June 2018

On June 21, 2018, the U.S. Supreme Court released its much-anticipated opinion inSouth Dakota v. Wayfair, Inc., in which it held that physical presence within a State is no longer a prerequisite to the imposition of liability on out-of-state sellers to collect and remit sales taxes. In doing so, the Court overruled two of its own earlier cases—National Bellas Hess, Inc. v. Department of Revenue of IllinoisandQuill Corp. v. North Dakota...

Anonymous Whistleblowers Make Millions for Reporting Their Own Companies to Federal Regulators
Dykema, June 2018

Ferdose al-Taie, Dallas-based senior counsel in Dykema’s Commercial Litigation group, authored the article “Anonymous Whistleblowers Make Millions for Reporting Their Own Companies to Federal Regulators,” forFOCUS, the quarterly newsletter of the Association of Corporate Counsel (ACC) South Central Texas Chapter. In the article, al-Taie shines a light on the ins and outs of Dodd-Frank Whistleblower awards and who is eligible for consideration...

Supreme Court Decides Fraud Perpetrator is Not Required to Reimburse Victim for Costs of Private Investigation
Dykema, June 2018

InLagos v. United States, 584 U.S. ___ (2018), the Supreme Court issued a unanimous ruling that limits the ability of corporate victims of fraud to seek reimbursement of legal fees for internal investigations. The case began when GE Capital discovered that Sergio Lagos falsified numerous invoices for his company, which he used as collateral to obtain tens of millions of dollars in loans from GE Capital...

Employers: Make Sure You Know Your ABCs
Dinsmore & Shohl LLP, June 2018

As seen in the San Diego Daily Transcript: In a unanimous decision, the California Supreme Court on April 30 addressed the standard to determine whether a worker is an independent contractor or an employee in wage and hour disputes under California’s Industrial Welfare Commission (IWC) wage orders.  In Dynamex Operations West, Inc. v...

The Compliance Challenges of Cross-Border Deals
World Services Group, June 2018

(Article submitted from June 13, 2018 Compliance Week, authored by Joe Mont) The business world continues to be a multinational place, with marketplaces and supply chains that cut across national borders. Global expansion efforts have also spawned a growing desire for cross-border deal making. These mergers and acquisitions, however, are easily complicated by language and cultural differences, in addition to local politics and regulatory regimes...

Tips for Student Expulsion Hearings
Dinsmore & Shohl LLP, June 2018

Last week I attended a student expulsion hearing and it reminded me that now might be a good time to provide some tips to county boards of education on these hearings. As we all know,W. Va. Code 18A-5-1a andState Policy 4373 require that a student be afforded a hearing before the county board of education prior to being expelled. Specifically,W. Va...

The Nuts and Bolts of West Virginia’s Opioid Reduction Act
Dinsmore & Shohl LLP, June 2018

In 2016, West Virginia had the highest death rate in the country from drug overdoses—primarily caused by opioids—at 52.0 for every 100,000 people.[1] The state was on track to exceed that number in 2017.[2] Seeking to enact policies that not only curb but reverse this upward trend, the West Virginia Legislature introduced a number of bills during the 2018 Regular Legislative Session that sought to address this disturbing epidemic. One of these, S.B...

Ohio Supreme Court Determines that Subrogation Applies to Third-Party Settlements Prior to WC Claim Allowance
Dinsmore & Shohl LLP, June 2018

On April 19, 2018, the Ohio Supreme Court determined in Bureau of Workers’ Compensation v. Verlinger (2018-Ohio-1481) that the provisions of Ohio Revised Code § 4123.931 (the subrogation statute) applied to third-party lawsuits prior to the actual establishment of the workers’ compensation claim...

DOJ to Reduce “Piling on” Penalties to Incentivize Corporate Voluntary Self Disclosures
Dykema, June 2018

On May 9, 2018, Deputy Attorney General Rod J. Rosenstein released a new “Policy on Coordination of Corporate Resolution Penalties” (“Policy”) in an effort to ameliorate the unwarranted “piling on” of penalties by the Department of Justice (“DOJ”) and other law enforcement agencies outside of the DOJ. The Policy’s teeth come in the form of the new section 1-12.100 to the United States Attorney Manual, which requires U.S...

The Superfund Task Force – One Year Later
Dinsmore & Shohl LLP, May 2018

It was this time last year that U.S. Environmental Protection Agency Administrator Scott Pruitt created a Superfund Task Force to “provide recommendations . . ...

Getting The Deal Through – Shipbuilding 2018: England and Wales
Haynes and Boone, LLP, May 2018

Getting the Deal Through – Shipbuilding is part of the series of Getting the Deal Through law guides published by Law Business Research that provide an overview of specialist areas of the law in a variety of international jurisdictions. It is published annually and the seventh edition, published in May 2018, covers 13 jurisdictions. Leading practitioners from each jurisdiction answer the same key questions...

Employers Triumph - Arbitration Class and Collective Action Waivers Are Enforceable - But What Should Employers Do?
Haynes and Boone, LLP, May 2018

In a landmark victory for employers, the Supreme Court of the United States held that agreements requiring employees to arbitrate claims on an individual basis are enforceable. The case, Epic Systems Corp. v. Lewis,1 consolidated three different cases on appeal from the Fifth Circuit, Seventh Circuit and Ninth Circuit...

Employers Triumph – Arbitration Class and Collective Action Waivers Are Enforceable – But What Should Employers Do?
Haynes and Boone, LLP, May 2018

In a landmark victory for employers, the Supreme Court of the United States held that agreements requiring employees to arbitrate claims on an individual basis are enforceable. The case,Epic Systems Corp. v. Lewis,1consolidated three different cases on appeal from the Fifth Circuit, Seventh Circuit and Ninth Circuit...

Additional Duties on Imported Vehicles and Parts May Result From New Investigation: Comment and Hearing Dates Imminent
Dykema, May 2018

Not long after President Trump announced that the U.S. would impose tariffs on steel and aluminum, the Department of Commerce launched an investigation that may lead to additional duties on imported vehicles and automotive parts. Effective, the Department will now examine whether imports of vehicles and auto parts threaten U.S. national security...

Does Your Bank’s Website Invite ADA Lawsuits?
Waller, May 2018

Does your bank have a website? Unless your bank uses an abacus to tally deposits, the answer is probably yes. If so, do you know if your bank’s website complies with the Americans with Disabilities Act (“ADA”)? Did you even know that your website might be subject to scrutiny under the ADA? Let’s discuss. Did you even know that your website might be subject to scrutiny under the ADA? Let’s discuss...

CUSIP Clarity: MSRB Amends Rule to Exclude Direct Purchase Transactions from CUSIP Requirements
Dinsmore & Shohl LLP, May 2018

Effective on June 14, 2018, changes to Rule G-34 (the Rule) of the Municipal Securities Rulemaking Board (MSRB) will include an exception to the CUSIP requirements for certain direct purchase transactions with a bank or related entity (Direct Purchase Exception)...

Haynes and Boones Insurance Recovery Group Expands to East Coast
Haynes and Boone, LLP, May 2018

Barry Buchman, Adrian Azer and Greg Van Houten have joined Haynes and Boone, LLP’s Washington, D.C. office in the Insurance Recovery Practice, expanding the group’s presence coast-to-coast. Partner Barry Buchman brings more than 20 years of experience and looks forward to helping the practice flourish in Washington, D.C., and the East Coast...

The Printed Matter Doctrine - Praxair Distrib., Inc. v. Mallinckrodt Hosp. Prods. IP Ltd.
Haynes and Boone, LLP, May 2018

InPraxair Distrib., Inc. v. Mallinckrodt Hosp. Prods. IP Ltd., 2016-2616, -2656, in a decision authored by Judge Lourie, the Court of Appeals for the Federal Circuit held that the printed matter doctrine is properly applied during claim construction and can include not just printed matter, but also mental steps...

Supreme Court Upholds Class and Collective Action Waivers
Dinsmore & Shohl LLP, May 2018

In a much anticipated opinion, the Supreme Court on Monday held that class action waivers in arbitration agreements are enforceable. In a 5-4 decision written by Justice Neil Gorsuch, the Court stated that “Congress has instructed in the Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise...

Cyber Insurance for Financial Institutions
Fredrikson & Byron, P.A., May 2018

Many financial institutions already realize the importance of cyber insurance coverage, but a joint statement issued by the Federal Financial Institutions Examination Council (FFIEC) last month further emphasizes the need for inclusion of cyber insurance in your risk management program. Current regulations do not require banks to have cyber insurance coverage, but it can prove to be a critical policy as the number and sophistication of cyber incidents increase...

Supreme Court Approves Waiver of Class/Collective Actions In Arbitration Agreements. What Does it Mean for Employers?
Dykema, May 2018

Earlier this year, the U.S. Supreme Court issued its long-awaited decision in Epic Systems Corp. v. Lewis, resolving an issue on which several Courts of Appeals and various federal agencies and administrations had disagreed. At issue in Epic Systems (and two companion cases presenting the same issue: Ernst & Young LLP. v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc...

Comply or Face the Consequences! Contractual Compliance Required to Vary a Contract.
Haynes and Boone, LLP, May 2018

As Lord Sumption’s leading judgment of the Supreme Court inRock Advertising Limited v MWB Business Exchange Centres Limited[2018] UKSC 24 states, it is rare that modern litigation raises truly fundamental issues in the law of contract. This case, however, raisedtwosuch issues, although as a result of the Court’s decision on the first issue, it was not necessary to decide the “difficult” second issue...

Media, Entertainment, and First Amendment Newsletter, May 2018
Haynes and Boone, LLP, May 2018

View a PDF of the May 2018 Edition of the Haynes and Boone Media, Entertainment and First Amendment Newsletter. Fox News v. TVEyesShows Fair-Use Defense Remains Risky Business “It seems to me that if there were any logic to our language, trust would be a four letter word...

Supreme Court Overturns Federal Ban on Sports Betting
Dinsmore & Shohl LLP, May 2018

In a landmark ruling today (May 14, 2018), the United States Supreme Court overturned the ruling of the 3rd Circuit Court of Appeals that upheld the constitutionality of the Professional and Amateur Sports Protection Act (PASPA), the federal statute that effectively prohibits all sports betting in the United States by restricting states (other than a few grandfathered states, including Nevada) from authorizing sports betting...

Health Law Vitals - A Healthcare Newsletter from Haynes and Boone, May 2018
Haynes and Boone, LLP, May 2018

View a PDF of the May 2018 edition of the Haynes and Boone Health Law Vitals newsletter. Healthcare Hazards Involving Medical Records During Bankruptcy Companies in the healthcare industry face many unique challenges when undergoing a bankruptcy, including challenges arising due to the federal and state law framework governing the use and disclosure of medical information. In February 2018, the U.S...

Recapturing Seniority (Service Personnel and Professional Personnel)
Dinsmore & Shohl LLP, May 2018

A common question we receive from school systems relates to whether certain employees (both service personnel and professional personnel) recapture their seniority if there has been a break in their employment with the school system but they later return to employment.  Often a break in employment is the result of a voluntary break or unfortunately a reduction in force...

Legal Challenges in Servicing Marijuana Growers
Fredrikson & Byron, P.A., May 2018

As states rapidly begin to legalize the use of marijuana for both medical and recreational purposes, banks face uncertainty about their ability to accept marijuana-related deposits, provide financing for marijuana growers, or permit use of credit cards on their payment systems. Recreational marijuana is not legal in Iowa today, but as broader legalization becomes more likely, it is important for Iowa banks to understand the relevant state and federal laws...

Guidelines for Comprehensive Management of Waste Requiring Special Management in the Hydrocarbons Sector
Haynes and Boone, LLP, May 2018

TheADMINISTRATIVE PROVISIONS THAT SET FORTH THE GUIDELINES FOR COMPREHENSIVE MANAGEMENT OF WASTE REQUIRING SPECIAL MANAGEMENT IN THE HYDROCARBONS SECTOR(the “Guidelines”) were published in Mexico’s Federal Official Gazette on May 2, 2018 and became effective the following day...

Mexico: Farmout Bidding Round 2018
Haynes and Boone, LLP, May 2018

The National Hydrocarbons Commission (“CNH”) announced on April 26, 2018, the so-called “farmout” bid process CNH-A-C6-7 Asociaciones/2018. This new bid round comprises seven onshore conventional blocks for exploration and production that are located in the states of Veracruz, Tabasco and Chiapas, covering collectively 4,580.8 km2. CNH estimates these blocks have conventional prospective resources of approximately 405.1 million barrels of crude oil equivalent...

Foreign Companies Pursuing Business in China: Proceed with Caution
Verrill Dana, LLP, May 2018

The trade relationship between the United States and China is top of mind for many business owners, especially within the technology sector. Recently, Chinese President Xi Jinping denied the U.S. Government’s request to end subsidies for key industries identified by the “Made in China 2025 Initiative,” including new advanced information technology, aviation, rail, new energy vehicles, agricultural machinery, new materials and biopharma...

Dynamex Operations v. Superior Court: Reclassification of Independent Contractors
Dinsmore & Shohl LLP, May 2018

On April 30, 2018, the California Supreme Court rejected a delivery company’s challenge to a trial court’s decision to certify a class of delivery drivers in a wage and hour class action case, embracing a standard that presumes workers are employees instead of independent contractors.  The high court’s ruling adopts a much broader definition of the term “employ,” which as a result expands the meaning of the term “employee...

Commercial Lenders “Receive” Good News with Michigan’s Adoption of the Uniform Commercial Real Estate Receivership Act
Dykema, May 2018

On May 7, 2018, Michigan’s version of the Uniform Commercial Real Estate Receivership Act (the “Act”) will go into effect—bringing long-overdue clarity to the laws surrounding receivers and receiver-managed properties. For decades, lenders, borrowers, owners, property managers, and other parties in business (or litigation) with receiver-managed properties in Michigan have had to rely upon a patchwork of case law and the limited guidance offered by MCR 2...

SEC Brings First Enforcement Action Against a Public Company for Failing to Disclose Data Breach
Haynes and Boone, LLP, May 2018

On April 24, 2018, the Securities and Exchange Commission (“SEC” or the “Commission”) announced its first enforcement action against a public company for failing to disclose a data breach. In a settled cease-and-desist order, the SEC imposed a $35 million civil penalty against Altaba Inc., formerly known as Yahoo! Inc...

"How to Transform International Registrations Under the Madrid Protocol" By Robert P Felber Jr INTA Bulletin
Waller, May 2018

The Madrid system for the International Registration of trademarks is a convenient and economical system for applicants in member countries to secure trademark registrations in other member countries throughout the world. There are 98 contracting parties to the Madrid Protocol, covering 114 countries, including the United Kingdom, the United States, Mexico, China, and much of Europe and the Pacific Rim (http://www.wipo.int/madrid/en/)...

EPA Streamlining of NSR Review
Dinsmore & Shohl LLP, April 2018

EPA Administrator Pruitt recently issued another policy to help streamline the New Source Review (NSR) Program. After receiving comments from many industry sources that the NSR Program should be reformed given its heavy time and cost burden, the Trump EPA has made reforming the NSR Program a priority...

President Trump Issues Memorandum to EPA to Ease NAAQS Implementation Impacts on Industry
Dinsmore & Shohl LLP, April 2018

On April 12, 2018, President Trump issued a memorandum to Administrator Pruitt to promote domestic manufacturing and job creation through policies intended to streamline implementation of national ambient air quality standards (NAAQS)...

Kentucky Revises Requirements for New and Existing Heat Exchangers
Dinsmore & Shohl LLP, April 2018

On March 9, 2018, revisions to the requirements for new and existing indirect heat exchangers contained in 401 KAR 59:015 and 401 KAR 61:015 became effective. Indirect heat exchangers with a heat input capacity greater than one million Btu/hour (MMBtu/hour) are subject to either 401 KAR 59:015 (new sources) or 401 KAR 61:015 (existing sources). The classification as new or existing depends upon when the indirect heat exchanger was installed...

The Mexican Senate Approves TPP Trade Treaty Signed by 11 Countries
Haynes and Boone, LLP, April 2018

Earlier this year, Mexico´s Senate approved the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”) formerly known as the Trans-Pacific Partnership ("TPP"). The CPTPP will enter into force once six of its members ratify the Treaty pursuant to their internal legal procedures. Mexico is the first member to ratify the Treaty...

Eleventh Circuit Deepens Circuit Split over the FCA’s Statute of Limitations
Dinsmore & Shohl LLP, April 2018

The Eleventh Circuit’s recent decision in United States ex rel. Hunt v. Cochise Consultancy, Inc., has further complicated the answer to what should be a simple question:  What is the statute of limitations in qui tam action when the government declines to intervene?  There are currently three different answers to that seemingly simple question depending on the forum in which a case is filed...

Frequent Fee Follies: OCIE Identifies Most Frequent Advisory Fee Compliance Issues
Haynes and Boone, LLP, April 2018

Last week, the Securities and Exchange Commission’s Office of Compliance Inspections and Examinations (“OCIE”) released a Risk Alert covering the most frequent advisory fee and expense compliance issues identified in over 1,500 deficiency letters sent to registered investment advisers during the past two years. The alert highlighted six categories of compliance risks frequently observed by the OCIE...

Seventh Circuit Issues Strong Endorsement of Learned Intermediary Doctrine in Medical-Device MDL
Patterson Belknap Webb & Tyler LLP, April 2018

The manufacturer of a product generally has a duty to warn the end-consumer of any serious risks associated with that product. In the context of prescription drugs and medical devices, however, the “learned intermediary” doctrine holds that the manufacturer need not warn the end-consumer (i.e., patient). Instead, the manufacturer discharges its obligations by warning the prescribing physician...

Reserved Vacancies
Dinsmore & Shohl LLP, April 2018

Personnel Season is nearly over for county boards of education. Now that Personnel Season is coming to an end, a common question we often see relates to W. Va. Code 18A-4-7a(k)(2) and how to handle the statutory provision of reserving vacancies for individual professionals subject to release (i.e. reduced in force)...

You’ve Been Hacked! A Cybersecurity Disclosure Guide for In-House Legal Counsel
Dinsmore & Shohl LLP, April 2018

If your company has a cybersecurity incident, this guide is intended help you think through critical disclosure requirements and will direct you to sample disclosures from other companies that have endured cybersecurity issues. I. Introduction With the recent string of high profile cybersecurity attacks, the U.S. Securities and Exchange Commission (the SEC) issued further guidance regarding public companies’ disclosure of cybersecurity incidents...

New York City and State Pass Expansive Anti-Sexual Harassment Legislation
Haynes and Boone, LLP, April 2018

Employers in New York City and New York State will be required to conduct mandatory sexual harassment training and take other steps designed to prevent sexual harassment in the workplace in response to new legislation passed by the City and the State. New York City On April 11, 2018, the New York City Council passed the Stop Sexual Harassment in New York City Act, which is expected to be signed promptly by Mayor de Blasio...

Department of Labor Wage and Hour Division Releases Three Opinion Letters
Dinsmore & Shohl LLP, April 2018

On April 12, 2018, the U.S. Department of Labor’s (DOL) Wage Hour Division released three opinion letters regarding the legality of certain arrangements under the Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), and Title III of the Consumer Credit Protection Act (CCPA). The first letter addresses a question commonly faced by employers—whether an employee is entitled to compensation for time spent traveling away from the employee’s home community...

The IP Beacon, April 2018
Haynes and Boone, LLP, April 2018

View the PDF version of the April 2018 IP Beacon. Are Works Generated by AI Subject to IP Protection? When Philip Dick wrote the 1968 novel "Do Androids Dream of Electric Sheep?," the inspiration for the 1982 film "Blade Runner," artificial intelligence was more fiction than science. Fifty years later, theHarvard Business Reviewpredicts that AI will be the single biggest technological development of our era, as transformative as the steam engine or electricity...

Workplace Sexual Harassment Claims - The #MeToo Movement
Dykema, April 2018

Due in part to the #MeToo movement, employers have experienced an influx of workplace sexual harassment claims. More than ever, employers have been reminded of their legal and ethical duties to create harassment-free workplaces. These duties involve preventing foreseeable sexual harassment including proactively training employees about discrimination and harassment. This also entails properly investigating sexual harassment claims and immediately correcting known harassment...

Fed. Circ. Case May Change Biosimilar IPR Strategy
Patterson Belknap Webb & Tyler LLP, April 2018

 Biosimilar developers have been aggressive in filing petitions for inter partesreviews of biologics patents before the Patent Trial and Appeal Board, many ofthem preceding the filing of a marketing application. Such early IPRs are attractiveto biosimilar makers, because they provide a chance to challenge innovator patentsyears before the biosimilar maker files a marketing application with the U.S. Foodand Drug Administration...

 

 

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