September 13, 2018

Current Updates and Legal Developments Fall 2018

PUBLIC SECTOR UNIONS CANNOT IMPOSE FEES ON NON-MEMBERS, SUPREME COURT RULES PUBLIC SECTOR UNIONS CANNOT REQUIRE NON-MEMBERS to contribute to expenses related to union business, the U.S. Supreme Court ruled, overturning a 41-year-old decision. Janus v. AFSCME, Council 31, 2018 U.S. LEXIS 4028 (June 2018). In a 5-4 ruling, the high court held that the imposition of socalled agency fees on public sector employees violates...

September 13, 2018

Enforcing Settlements and Consent Decrees

By: Jim Wagstaffe , The Wagstaffe Group COURTS HAVE INHERENT POWER TO ENFORCE SETTLEMENTS between the parties in cases pending before them. 1 However, courts have no inherent power to enforce settlement agreements after a case has been dismissed: “Enforcement of the settlement agreement . . . is more than just a continuation or renewal of the dismissed suit, and hence requires its own basis for jurisdiction.”...

September 13, 2018

Top 10 Practice Tips: Risk Factor Disclosures

By: Stuart Gelfond and Joshua Wechsler , Fried, Frank, Harris, Shriver & Jacobson LLP, Hayley Cohen , Tradeweb Item 503(c) (17 C.F.R. § 229.503) of Regulation S-K requires that an issuer include in its registration statement a risk factor disclosure, which sets forth the possible circumstances or situations that could make investing in a company’s securities risky or speculative. While it is rare that...

September 13, 2018

Drafting Blunder: Hiding Contractual Provisions in Documents That Don’t Look, Feel, or Smell Like Contracts

By: Timothy Murray , Murray, Hogue & Lannis BUSINESSES OFTEN CONDUCT THEIR TRADES BY UTILIZING documents that don’t appear to be contractual in nature but that contain contractual provisions—the information brochure accompanying a smartphone might include a mandatory arbitration clause; a dry-cleaning ticket might have a limitation of liability printed on the back; an online retailer’s order page...

September 13, 2018

Taxing Online Sales: Impact of the South Dakota v. Wayfair Decision

Includes Analysis by: Carolynn Kranz , Kranz & Associates PLLC Mark Muntean , Charles Swenson and Iris Kitamura , Kranz & Associates PLLC This article discusses the impact of the U.S. Supreme Court’s landmark decision in South Dakota v. Wayfair, Inc. 1 and provides guidance related to resulting changes. In addition to evaluating the ruling in Wayfair and the precedents that went before it, this article...

September 13, 2018

Telemedicine and Digital Health: Strategic Opportunities and Legal Considerations for Private Equity Investment

By: Christopher Donovan , Heidi Jeffery , Nathaniel Lacktman , and Melesa Freerks , Foley & Lardner LLP THIS ARTICLE ASSESSES THE CHARACTERISTICS OF THE digital health industry and examines whether the market is ripe for notable private equity investment. The broad scope of digital health includes categories such as mobile health, health information technology, wearable devices, telehealth and telemedicine, and...

September 13, 2018

Ransomware Planning and Response Best Practices

By: Nolan Goldberg and Anisha Shenai-Khatkhate , Proskauer Rose LLP Ransomware attacks have become a prevalent cybersecurity threat. These attacks pose significant legal and financial risks to both individuals and organizations. This article addresses steps to take to minimize the risk of a ransomware attack and reduce the harm that a successful attack can cause What Is Ransomware? Ransomware is a form of malicious...

September 13, 2018

Pros and Cons of Shared Space Agreements

By: Daniel A. Suckerman and Stacey C. Tyler , Lowenstein Sandler LLP With co-working spaces such as WeWork growing in popularity, real estate attorneys are frequently called upon to help clients navigate the pitfalls of shared space agreements. This article discusses shared space agreements generally, how these agreements differ from leases, advantages and disadvantages of these agreements from the user’s perspective...

September 13, 2018

Strategic Use of Patent Examiner Interviews

By: Frank DeLucia and Luciano Ricondo , Merchant & Gould After a patent application is filed in the U.S. Patent and Trademark Office (USPTO), and during the stage in which the application is being examined by a patent examiner, it can often be helpful to conduct an interview with the examiner in an attempt to advance the prosecution of the application towards allowance. This article provides guidance for practitioners...

September 13, 2018

Unwinding the Department of Labor’s Fiduciary Rule

By: George M. Sepsakos and Michael P. Kreps , Groom Law Group, Chartered This article discusses the implications of the Fifth Circuit Court of Appeals’ vacatur of the Department of Labor’s (DOL) Fiduciary Rule 1 and related amendments to other prohibited transaction exemptions (PTEs) in Chamber of Commerce of the United States v. United States Dep’t of Labor, 885 F.3d 360 (5th Cir. 2018). BY REPLACING...

September 13, 2018

Key Considerations for Drafting Compliant English-Only Policies

By: Jamala S. McFadden , Chandra C. Davis , and Raquel H. Crump , McFadden Davis, LLC This article provides guidance for drafting, implementing, and enforcing effective and legally compliant English-only policies in the workplace. English-only policies require employees to speak English while on the job. While there are definite benefits to employers from enacting such policies, they are not without risk. BECAUSE...

September 13, 2018

Market Trends: Structured Finance, Securitization and Derivatives

By: Jordan Yaret , Mikhel Schecter , and Bryant Mendel , Paul, Weiss, Rifkind, Wharton & Garrison LLP STRONG ECONOMIC GROWTH AND HISTORICALLY LOW interest rates boosted U.S. structured finance issuance to $510 billion in 2017, a 37% increase over 2016 volume. This growth occurred across a wide range of asset classes. Up and down the credit curve, spreads (i.e., the difference between what the issuer receives from...

June 23, 2018

Confidentiality and Whistleblowing: Where In-House Counsel’s Competing Interests Collide

By: Devika Kewalramani, Moses & Singer                       With a changing legal landscape, increasing regulatory compliance, and global economic uncertainties, corporations—foreign and domestic—are under greater pressure to meet their business objectives in a more cost-effective way. In this evolving corporate...

June 23, 2018

Insuring Construction Risks Through Commercial General Liability Policies

By: Ellen M. Chapelle , Gould & Ratner LLP In most construction projects, the general contractor traditionally takes control of the site and is responsible for its means and methods of construction, and, therefore, should bear primary liability for damage arising from construction operations. MOST CONSTRUCTION CONTRACTS REQUIRE THE GENERAL contractor to purchase commercial general liability (CGL) coverage to assure...

June 23, 2018

Due Diligence: Antitrust Issues

By: Michael B. Bernstein , Matthew A. Tabas , and Matthew H. Fine , Arnold & Porter Even in the very earliest stages of planning a merger or an acquisition, it is never too soon to begin considering the antitrust issues. In fact, it is critical to provide parties with guidance about ensuring compliance with the antitrust laws during due diligence, including guidance on avoiding inappropriate information sharing...

June 23, 2018

Stored Communications Act: Practical Considerations

By: Michael E. Lackey and Oral D. Pottinger , Myer Brown LLP The Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., governs the disclosure of electronic communications stored with technology providers. Passed in 1986 as part of the Electronic Communications Privacy Act (ECPA), the SCA remains relevant to address issues regarding the privacy and disclosure of emails and other electronic communications. ...

June 23, 2018

Stored Communications Act Issues Checklist

This is a high-level checklist for examining issues involving the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., which comprises one of the major components of the Electronic Communication Privacy Act (ECPA). The other major component of the ECPA is the Wiretap Act, 18 U.S.C. § 2510 et seq. The Wiretap Act generally governs when communications (whether electronic, oral, or wire) are “intercept...

June 23, 2018

Issues Related to Human Resources Outsourcing

By: James E. Meadows and Terese M. Connolly , Culhane Meadows PLLC This article discusses special issues that may arise in the context of Human Resources Outsourcing (HRO). HRO is a form of business process outsourcing (BPO) focused on the functions that have typically been performed or managed through a company’s human resources (HR) or personnel department. The accepted industry definition of an HRO transaction...

June 23, 2018

The GDPR Compliance Deadline Has Arrived—Are You Prepared?

By: Nicholas R. Merker, Ice Miller LLP The deadline for organizations to comply with the European Union (EU) General Data Protection Regulation (GDPR) is upon us. 1 As of May 25, 2018, all entities covered under the GDPR must be able to demonstrate their compliance to EU regulators. The expanded territorial reach of the GDPR means organizations in the United States must comply if they either offer goods or services...

June 23, 2018

Climate Change Considerations in M&A Transactions

By: Annemargaret Connolly and Thomas Goslin, Weil Gotshal & Manges LLP Introduction CLIMATE CHANGE IS ARGUABLY THE MOST HIGH-PROFILE and rapidly evolving environmental issue facing the global business community today. Governments of nearly every nation have acknowledged the risks posed by a warming climate and taken some action either to combat those risks, to mitigate the physical effects of climate change, or...

June 23, 2018

Court-Ordered Alternative Dispute Resolution

By: Jim Wagstaffe And The Wagstaffe Group The article discusses the various types of alternative dispute resolution (ADR) for a federal case and covers topics such as the courts’ requirement to develop ADR procedures and their power to require parties to consider or participate in them, cases exempt from ADR, mediation, arbitration, early neutral evaluations, judicial settlement conferences, and summary jury trials...

June 23, 2018

Pharmaceutical Patent Litigation Strategies

By: Jeffrey Alan Hovden, Robins Kaplan LLP This article discusses strategies that counsel for brand-name and generic drug companies may employ in pharmaceutical patent litigation under the Drug Price Competition and Patent Term Restoration Act of 1984, commonly known as the Hatch-Waxman Act. It focuses on litigating infringement and validity of active pharmaceutical ingredient (API), formulation, and treatment patents...

June 23, 2018

Liquidated Damages Drafting Blunders

By: Timothy Murray , Murray, Hogue & Lannis Parties drafting contracts often want to set in stone the precise dollar amount of damages that will be awarded in the event of a breach, commonly called liquidated damages. The idea is that if a breach occurs, this provision makes it unnecessary for the aggrieved party to prove actual damages. The benefits of such a provision—promoting certainty and eliminating...

June 23, 2018

Top 10 Practice Tips: Private Placement Transactions

By: Chris Kelly, Jones Day IN RECENT YEARS, THE STAFF OF THE U.S. SECURITIES AND Exchange Commission (SEC) has undertaken an initiative to bolster capital formation, including by providing companies more flexibility to access U.S. capital markets. As a result, recent changes to law and SEC interpretations provide companies with a broad range of potential private financing opportunities that can be executed more quickly...

June 23, 2018

Current Updates and Legal Developments—Summer 2018

SUPREME COURT AFFIRMS CONSTITUTIONALITY OF AIA PATENT REVIEW PROCESS A PROVISION IN THE AMERICA INVENTS ACT (AIA) allowing for pre-trial review of existing patents does not violate Article III or the Seventh Amendment of the U.S. Constitution, the U.S. Supreme Court has held. In Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 2018 U.S. LEXIS 2630 (April 24, 2018), the high court affirmed, 7-2, a...