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“Weingarten” Rights - Flip Flop
Lowenstein Sandler LLP, November 2004

In a far-reaching decision, the National Labor Relations Board (“NLRB”) recently ruled that the right of an employee to have a representative or co-worker present at a investigatory meeting that the employee reasonably believes might result in discipline covers unionized workplaces only...

2016 HSR THRESHOLDS ANNOUNCED BY FEDERAL TRADE COMMISSION
Lowenstein Sandler LLP, February 2016

The Federal Trade Commission has announced new premerger notification thresholds that will take effect February 25, 2016, and thus apply to transactions closing on or after that date. Under the 2001 amendments to the Hart-ScottRodino (HSR) Act, 15 U.S.C. 18a, the Act’s jurisdictional thresholds are adjusted annually to reflect changes in gross national product. The newly announced adjustments will increase the HSR Act thresholds by approximately 2.5%...

5 Insurance Insolvency Tips for Corporate Policyholders
Lowenstein Sandler LLP, July 2015

Corporations buy insurance for protection against certain risks and liabilities. Often, after the insurance is purchased, policyholders do not give another thought to whether their insurance companies will remain in existence as solvent entities when a claim is asserted, or whether they are prepared to take the steps necessary to protect what is left of their insurance asset should the insurer go “belly up...

A Haystack in a Hurricane: Right of Publicity Doctrine Continues to Clash with New Media
Lowenstein Sandler LLP, August 2015

I n 1956, a court likened the state of publicity law (i.e., the right to control the commercial use of one’s identity) in the United States to a “haystack in a hurricane.”1 Since then, courts have brought little clarity to the doctrine. Indeed, recent case law in the videogame space has not resolved the seemingly incongruous opinions among various courts and has highlighted the inherent confl ict between the doctrine and the First Amendment...

A Key for Getting Debtor-in-Possession Financing
Lowenstein Sandler LLP, March 2016

When a company enters Chapter 11 bankruptcy protection and wants debtor-in-possession (DIP) financing from a bank or permission to spend proceeds of accounts receivable that have been pledged (that is, use cash collateral), it needs the bankruptcy court’s approval. A key part of the debtor’s request is a budget, which typically covers 13 weeks.The debtor will try to show that it can pay claims that arise after the case commences that haveadministrative status...

A Late-Summer Dive Into The HSR Annual Report
Lowenstein Sandler LLP, August 2015

The Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice released the Hart-Scott-Rodino annual report for fiscal year 2014 on Aug. 12, 2015.[1]Although there is little chance the report will be turned into a major motion picture, it does provide an in-depth look both at the agencies’ merger enforcement efforts and at the workings of the antitrust premerger notification program from October 2013 through September 2014...

A Lesser-Known Evidentiary Privilege: The Tax Practitioner Privilege
Lowenstein Sandler LLP, April 2016

To an older generation of lawyers, the idea that conversations between an accountant and a client might be protected by an evidentiary privilege was largely a foreign concept. No accountant-client privilege existed in the common law, or anywhere in federal law. Thus, while tax advice to a taxpayer might be shielded from disclosure if rendered by an attorney, the same advice was generally fair game for discovery in a tax proceeding or other lawsuit if an accountant was the source...

A Little More You Need to Know About the “Ordinary Course of Business” and “New Value” Preference Defenses
Lowenstein Sandler LLP, October 2016

This article discusses recent court decisions that have further developed the law regarding the application of the ordinary course of business and new value preference defenses...

A Question of the Past: How Much Did You Make at Your Last Job?...
Lowenstein Sandler LLP, May 2017

Joining the trend that began in Massachusetts and has spread to Philadelphia, New Orleans, and Puerto Rico, New York City is the next city to restrict employers from inquiring, at any stage of the hiring process, about a job applicant’s salary history. Proponents of these laws claim they will foster gender pay equity and narrow the pay gap between the sexes; critics assert that such laws violate free speech...

A Rock And A Hard Place: US Discovery And Chinese Law
Lowenstein Sandler LLP, August 2015

Alongside increases in trade between the United States and China, Chinese companies increasingly find themselves embroiled in litigation in U.S. courts. U.S. litigation can pose unique dilemmas for even the most sophisticated People's Republic of China companies.The issues faced by PRC companies were highlighted by a recent ruling from the Southern District of New York involving ZTE, a Chinese telecommunications company...

Additional Obligations for New York Employers Coming Down the Pike: Paid Family Leave and Higher Minimum Wage
Lowenstein Sandler LLP, April 2016

Just when employers think they have figured out how to navigate their way through the federal Family and Medical Leave Act (the “FMLA”), the state of New York has added more lanes to the highway by enacting a new law that will provide much greater benefits to New York employees. In a budget agreement that Governor Andrew Cuomo and the New York State Senate and Assembly leaders reached, a new law requiring employers to provide paid family leave to their employees has emerged...

Advice to Cyber Insurance Buyers: You Are Not Alone
Lowenstein Sandler LLP, May 2017

One of the first steps in the underwriting process requires the company to submit an application to the insurer. The application will seek baseline information about the company’s size, number of records maintained, type of information maintained, security policies and procedures, and disaster planning. The company’s ability to answer those questions with complete and detailed information is critical...

After the Storm: Seven Tips to Preserve Coverage for Winter Storm Jonas-Related Losses
Lowenstein Sandler LLP, January 2016

After dropping more than two feet of snow this past weekend on several major cities and bringing the East Coast from North Carolina to New York to a standstill, Winter Storm Jonas lived up to its nickname, “Snowzilla.” Predictions already are coming in as to the amount of damages caused by the storm. One reinsurance broker, Aon Benfield, predicted that the storm was likely to cause multibillion-dollar losses...

Ailing Community Hospitals Is Chapter 11 a cure?
Lowenstein Sandler LLP, May 2016

Bankruptcy, once considered a nuclear option, is now increasingly used by struggling non-profit community hospitals. Just like corporate America, the healthcare sector views Chapter 11 as a tool to deleverage a balance sheet or accomplish a sale without full creditor consent.It's instructive to know how the healthcare sector, specifically non-profit hospitals, got to this point...

Amarin Off-Label Promotion Decision: A Watched Pot Boils
Lowenstein Sandler LLP, August 2015

It is now just over 21 years since the 1994 filing of the groundbreaking case of Washington Legal Foundation v...

Asset Management M&A Is Here To Stay
Lowenstein Sandler LLP, June 2017

There’s a lot of sound reasoning behind the idea that asset management mergers and acquisitions are likely to slow in 2017 after several very busy years, including $17.1 billion in transactions last year alone. Global equity market and political uncertainties abound — and as more investors flock to passive investments, there will be continued pressure on managers to lower fees and yet find ways to increase operational efficiencies to maintain profitability...

Bankruptcy: Leveraging the CRO
Lowenstein Sandler LLP, March 2016

Recent news about conflicts when a lender counsel is designated by a borrower made me think about the complicated but often valuable practice of bankrupt companies employing chief restructuring officers (CROs). A CRO managing the restructuring and reorganization process can free up management to spend its time actually running the business...

BANKS IN HOT WATER OVER ADRs
Lowenstein Sandler LLP, August 2015

Recent class action lawsuits filed in Arkansas federal court suggest that American Depositary Receipt holders are losing millions to banks that are allegedly manipulating foreign exchange conversion rates. An American Depositary Receipt, or “ADR,” is a security issued by an American depository bank and traded on American exchanges whose value is tied to the securities of foreign issuers that are traded on foreign exchanges. The U.S...

Battered And Coated French Fries As A Fresh Vegetable Eligible For PACA Protection: Are You Kidding?
Lowenstein Sandler LLP, October 2004

The recent USDA rule, the French Fry Rule, which adds battering and coating to the list of processes approved under PACA, has been upheld in a recent United States District Court decision. The Perishable Agricultural Commodities Act (“PACA”) grants preferred trust fund protection to eligible unpaid sellers and suppliers of perishable agricultural commodities...

Be Careful What You Say: One Court's Look At Confidentiality Under The Uniform Mediation Act
Lowenstein Sandler LLP, January 2006

On November 22, 2004, the New Jersey Legislature enacted the Uniform Mediation Act (the “UMA” or the “Act”) codifying for the first time “uniform standards and procedures for mediation and mediators.” Central to the Act is its provisions on confidentiality. Three of the UMA’s thirteen sections are devoted to this topic: the first sets forth a privilege against disclosure, the second details waiver and preclusion of the privilege, and the third outlines exceptions to the privilege...

Beware of patent trolls: Insurance coverage for infringement lawsuits brought by non-practicing entities
Lowenstein Sandler LLP, November 2015

On May 26 the U.S. Supreme Court issued a decision that is certain to give a significant boost to plaintiffs alleging patent infringement. The high court in Commil USA LLC v. Cisco Systems Inc., 135 S. Ct. 1920 (2015), held that a good-faith belief that a patent is invalid is not a legal defense to a claim of induced infringement...

BEWARE THE OCR
Lowenstein Sandler LLP, April 2016

There are certain universal truths that we all can agree on, such as “Let a sleeping bear lie”; “Never poke an anaconda with a stick”;1 “Don’t leave confidential health information in your car.” We write to add a new universal truth to this list: “Don’t ignore the OCR.” Few of us will have the opportunity (or desire) to wake a sleeping bear or poke an anaconda with a stick. Yet under the new practices put into place by the Office of Civil Rights (“OCR”) for the U.S...

Beware: Native Advertising Regulators Have Finally Grown Restless
Lowenstein Sandler LLP, March 2016

Nearly three months after the FTC issued its long-awaited native advertising guidelines, the commission on Tuesday settled a complaint against Lord & Taylor regarding the retailer’s alleged failure to disclose payment for a magazine article and social influencer posts on Instagram.This is the first FTC action relating to native advertising since the December issuance of its Enforcement Policy Statement on Deceptively Formatted Advertisements [PDF]...

Beyond HTML5 and Java: What Developers and Publishers Need to Know When Creating Mobile Health Apps
Lowenstein Sandler LLP, November 2016

Mobile app usage has penetrated nearly every industry and facet of our lives, from banking and dating to transportation and dining. This is especially true in the health and wellness sector. In 2014, the number of U.S. consumers using mobile health apps was only 16 percent. Two years later, this percentage doubled to 33 percent 1 and continues to grow rapidly...

Big Changes in the Wage and Hour Landscape
Lowenstein Sandler LLP, May 2016

Today, May 18, 2016, the United States Department of Labor (the “DOL”) announced that it is increasing the salary threshold for positions exempt from overtime from $23,600 to $47,476. If you have any employees currently classified as exempt from overtime who are paid less than $47,476 on a salaried basis, you will be required (1) to keep time records for all hours worked and (2) to pay that employee overtime if he or she works 40 or more hours in any given week...

 

 

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