Code of Federal Regulations

  • Parties Seek To Preserve Arthrex Rights Despite Waiver Ruling

    “Following on Judge Newman's dissent in Sanofi-Aventis Deutschland GmbH v. Mylan Pharmaceuticals Inc., parties are seeking to preserve their rights by challenging the Federal Circuit's holding that a party's failure to raise the Arthrex Appointment Clause issue in their opening brief waives that challenge.” See Article.

    Dec 10, 2019 10:14 PM

  • President Trump signs Executive Order Establishing the Task Force on Missing and Murdered American Indians and Alaska Natives

    In late November, President Trump signed an Executive Order Establishing the Task Force on Missing and Murdered American Indians and Alaska Natives. The task force will “conduct appropriate consultations with tribal governments on the scope and nature of the issues regarding missing and murdered American Indians and Alaska Natives; and develop model protocols and procedures to apply to new and unsolved cases of missing or murdered persons in American Indian and Alaska Native communities. See Order.

    Dec 10, 2019 10:13 PM

  • New Guidance On Medicare Payment Rule Enforcement

    “A few days before Thanksgiving, the news media published an internal memo by the Office of General Counsel (OGC) at the US Department of Health and Human Services (Department) to officials at the Centers for Medicare and Medicaid Services (CMS). The memo expressed OGC's views on the impact of the Supreme Court's Azar v. Allina Health Services, et. al., No. 17-1484 decision earlier this year on the enforcement of various CMS guidance. Specifically, OGC states that Medicare payment rules that meet the Court's standard that did not go through notice-and-comment rulemaking cannot form the basis for an enforcement action, including an overpayment finding.” See Article.

    Dec 10, 2019 10:10 PM

  • 4th Circuit affirms denial of qualified immunity for officers who shot plaintiff after entering unannounced

    In November, the 4th Circuit Court of Appeals affirmed the district court’s order denying summary judgment where officer’s had sought qualified immunity. In this case, plain clothes officers had entered the plaintiff’s apartment with a battering ram to execute a search warrant. The officers did not announce their present and the plaintiff removed a gun from his waistband and which point the officers fired 29 shots. The Court reasoned that “[a] jury reasonably could find under the facts presented that [Plaintiff] did not pose a threat to the officers justifying the use of deadly force.” See Decision.

    Dec 10, 2019 10:03 PM

  • A Paralegal Is Guilty Of The Unauthorized Practice Of Law By Preparing Documents For Litigation And Providing Legal Advice Without Supervision By A Licensed New Jersey Attorney

    “In Baron, the New Jersey Superior Court, Appellate Division, affirmed the decision of the Superior Court, Law Division, Special Civil Part, which held that the defendant paralegal company, Karmin Paralegal Services, committed fraud by performing legal services on behalf of the plaintiff, John Baron. While the Appellate Division reversed that part of the trial court's decision awarding punitive damages to the plaintiff, the Court's guidance on what constitutes the "practice of law" and the implications under New Jersey's Rules of Professional Conduct are important to both the legal community and New Jersey consumers of legal services.” See Article.

    Dec 10, 2019 10:02 PM

  • U.S. Supreme Court grants certiorari in case of Carney v. Adams

    On December 6, the U.S. Supreme Court granted certiorari in the case of Carney v. Adams. The Court will determine whether the retired attorney has standing to challenge a provision of the Delaware constitution that effectively limits service on state courts to members of the Democratic and Republican parties. See Order.

    Dec 10, 2019 10:01 PM

  • Liquidator Compelled To Arbitrate Hurricane Reinsurance Disputes

    “In Integrand Assurance Co. v. Everest Reinsurance Co., an insolvent cedent sought to invalidate the arbitration clause in several reinsurance agreements with several reinsurers and force the reinsurance disputes over Hurricane Irma and Maria claims into the state court governing the cedent's liquidation proceedings. The reinsurers, who all had the same or similar arbitration clauses, moved to dismiss the insolvent cedent's claims and compel arbitration. The district court granted the reinsurers' motions in full and compelled arbitration of all claims, including antitrust and state insurance law claims. In granting the reinsurers' motions, the court noted that in several of the cases, the cedent had demanded arbitration and a dispute arose over whether the cedent's arbitrator was qualified under the arbitration clause.” See Article.

    Dec 10, 2019 10:00 PM

  • Significant FCC Ruling Distinguishes Online Fax Services Not in Violation of TCPA

    In a welcome win to defendants fighting TCPA fax class actions, the Consumer and Governmental Affairs Bureau of the Federal Communications Commission (the Bureau) issued a declaratory ruling finding that a facsimile sent to an online fax service (as opposed to a traditional fax machine) is not covered under the Telephone Consumer Protection Act (TCPA). (See Article)

    Dec 10, 2019 7:32 PM

  • It’s About Time - SBA Proposes To Merge Small Business Mentor-Protégé Programs & Other Proposed Changes to the Small Business Program Regulations

    For those of you who are long time readers of this author and blog, I have talked regularly about the United States Small Business Administration (“SBA”) and its various iterations of the Mentor-Protégé Programs (“M-P”) over the years. The SBA has announced some changes that will have significant, and overly positive, impacts on the M-P Programs. (See Article)

    Dec 10, 2019 7:32 PM

  • Sun Capital Wins - But All Private Equity Funds May Not

    Just before Thanksgiving, the First Circuit Court of Appeals handed a “win” to Sun Capital’s private equity funds which had been battling against multiemployer pension withdrawal liability since the 2008 bankruptcy of the portfolio company, Scott Brass. (See Article)

    Dec 10, 2019 7:32 PM

  • Who Can Hold Real Estate In Oregon?

    The field is wide open as far as what kind of entity can invest in and hold real estate in Oregon. And even though any legal entity may be used, most commercial real estate in Oregon is owned by a single-purpose entity, an LLC. If an entity is formed in another state, unless it merely holds real estate without doing more, it must qualify to do business in Oregon. (See Article)

    Dec 10, 2019 7:32 PM

  • Federal Regulators Provide Much-Needed Banking Relief To Hemp Industry

    On Tuesday, December 3, 2019, several federal regulators issued a statement providing banks with an update on the legal status of hemp and some much-needed relief. Specifically, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Financial Crimes Enforcement Network, and the Office of the Comptroller of the Currency, as well as the Conference of State Bank Supervisors clarified that financial institutions may now treat hemp similarly to any other commodity. (See Article)

    Dec 10, 2019 7:32 PM

  • SBA's Long-Awaited Implementation of the Runway Extension Act Is Finally Here

    For many small business government contractors, the winter holidays came early on December 5, 2019, when the Small Business Administration (“SBA”) issued its final rule adjusting its regulations on the calculation of average annual receipts in small business size determinations for revenue-based size standards. Since Congress passed the Small Business Runway Extension Act of 2018 (“Runway Extension Act” or “the Act”) last December, contractors, as well as their lawyers, have been patiently waiting for the SBA to implement the Act’s change to the review period for annual receipts from three years to five. While many were initially hopeful the Act would take immediate effect, SBA, and the Gover (See Article)

    Dec 10, 2019 7:32 PM

  • CCPA Review: The CCPA May Prohibit Some, But Not All, State Consumer Protection Law Claims

    In less than one month, the California Consumer Privacy Act of 2018 (CCPA) will go into effect and begin a new era of data breach litigation. While the California Attorney General is charged with generally enforcing the state’s landmark privacy law, consumers’ ability to rely on a violation of the CCPA as a basis for violations of other state law statutes will be a concern. (See Article)

    Dec 10, 2019 7:32 PM

  • The Activism Vulnerability Report - Q3 2019

    FTI Consulting (“FTI”) welcomes our clients and friends to our inaugural edition of The Activism Vulnerability Report (the “Report”). With the rise of shareholder activism in recent years and its evolution into an asset class of its own, FTI’s Activism and M&A Solutions team sought to assess the vulnerability of our clients and the industries in which they compete. Please see full Publication below for more information. (See Article)

    Dec 10, 2019 7:32 PM

  • Commerce Proposed Rule Could Restrict Tech & Data Transactions Involving Foreign Counterparties

    Key Points- A recently proposed U.S. Department of Commerce rule would empower the Secretary of Commerce to prohibit information and communications technology or services transactions with “foreign adversaries” on a case-by-case basis if the Secretary determined those transactions threaten the U.S. digital economy or national security. (See Article)

    Dec 10, 2019 7:32 PM

  • Practical Pointers for Pre-Merger Information Exchange in Transactions Between Competitors

    M&A Monitor focuses on legal issues of interest to M&A practitioners for private and closely held companies, providing explanation, analysis and practical application on timely topics. (See Article)

    Dec 10, 2019 7:32 PM

  • Blog: SEC fast tracks a “no” to NYSE primary direct listing proposal

    You’d have to assume that the SEC didn’t spend a whole lot of time agonizing over the rule proposal—as reported by CNBC and Reuters, it took only a little over a week for the SEC to reject the NYSE’s proposed rule change that would have allowed companies going public to raise capital through primary direct listings. (See Article)

    Dec 10, 2019 7:32 PM

  • It’s Not Really “Hip” to be Eeyore

    We get to work with really smart and insightful attorneys, and while we are often hired to help teach them new skills and client insights, the reality is we learn a lot from them. I walk away with different perspectives and ideas from each interaction. (See Article)

    Dec 10, 2019 7:32 PM

  • FERC Revises Methodology for Evaluating Base Return on Equity of Public Utilities

    In a long-awaited decision, the Federal Energy Regulatory Commission (FERC) issued Opinion No. 569 adopting a new methodology to determine whether the rate of return on common equity (ROE) used to calculate cost-based rates of a regulated public utility is unreasonable, and, if so, to establish a reasonable ROE for that utility. (See Article)

    Dec 10, 2019 7:32 PM

  • Georgia 2020 Legislative Session Preview

    When the 236 members of the Georgia General Assembly convene on January 13 for the final year of the 2019-2020 biennial session, several issues will compete for their attention before turning their full focus toward the 2020 elections. (See Article)

    Dec 10, 2019 7:32 PM

  • Illinois Cannabis Trailer Bill Signed Into Law; Are More Substantive Changes Coming?

    As we wrote about here, Illinois lawmakers last month passed a bill designed to clean up parts of the Cannabis Regulation and Tax Act. Yesterday, Gov. J.B. Pritzker signed that bill into law at a ceremony at Cabrini Green Legal Aid. (See Article)

    Dec 10, 2019 7:32 PM

  • Minimizing The Risks Of GDPR For U.S. Academic Institutions

    After the implementation of the General Data Protection Regulation (GDPR) in May 2018, U.S. academic institutions continue to grapple with compliance issues. Institutions must address areas where there is exposure to risk and train their employees to minimize that exposure. (See Article)

    Dec 10, 2019 7:32 PM

  • Chancery Declines to Establish New Rule Concerning Books and Records Inspections Related to Proxy Contests

    High River Limited Partnership v. Occidental Petroleum Corp., C.A. No. 2019-0403-JRS (Del. Ch. Nov. 14, 2019). Section 220 of the DGCL grants stockholders a qualified right to inspect corporate books and records “necessary and essential” to a “proper purpose.” (See Article)

    Dec 10, 2019 7:32 PM

  • Mraz Sues Festival Sponsor Over Use of Footage

    Last week, Grammy Award-winning singer-songwriter Jason Mraz filed a lawsuit against MillerCoors, arguing that the company used his song “I’m Yours” in an Instagram post promoting Coors Light without his consent. (See Article)

    Dec 10, 2019 7:32 PM

  • SEC Rejects NYSE's Proposed Rules on Direct Listings

    On November 26, 2019, the New York Stock Exchange (NYSE) filed a notice of proposed rule change with the Securities and Exchange Commission (SEC) that would have modified NYSE’s direct listing rules to (1) permit companies to raise capital through a direct listing and (2) relax the distribution requirements applicable to the process. (See Article)

    Dec 10, 2019 7:32 PM

  • Tips for employers to avoid holiday party headaches

    While office holiday parties provide employees with an opportunity to celebrate a successful year with their colleagues, they can also cause headaches for employers. With some advanced planning, employers can minimize their risk of liability and spend their holiday parties enjoying the celebration, rather than disciplining employees. (See Article)

    Dec 10, 2019 7:32 PM

  • Trademarks 101

    On September 25, 2019, Fish Principal Keith Barritt and Associate Nancy Ly hosted the Trademark and Copyright webinar “Trademarks 101.” The webinar focused on the basics of trademark law – what trademarks are, why they matter, how they are acquired and enforced, among many other topics. (See Article)

    Dec 10, 2019 7:32 PM

  • Is eDiscovery Existing in a Post-Sanctions World?

    Is eDiscovery Existing in a Post-Sanctions World? The short (and obvious) answer is no. Rule 37(e) isn’t going anywhere. But recent case law indicates a trend where sanctions seem to be harder to come by, which may play into what concerns in-house legal teams as they consider the technologies they may need. (See Article)

    Dec 10, 2019 7:32 PM

  • HHS Analyzes Legal Impact of Allina on Agency Enforcement

    The US Department of Health and Human Services (HHS) Office of General Counsel (OGC) offered the healthcare industry the benefit of its legal analysis of the recent US Supreme Court opinion in Azar v. Allina Health Services (Allina) with respect to its impact on Medicare payment rules, sharing its Memorandum to the Principal Deputy Administrator & Director of the Center for Medicare dated October 31, 2019 (OGC Memo) with the public. The OGC recognized at the outset the primary directive of the decision –“The Supreme Court made clear that Congress has imposed more stringent procedural requirements for certain Medicare rules than the framework that otherwise would apply under the Administrative Procedure Act (APA).” (See Article)

    Dec 10, 2019 7:32 PM