Code of Federal Regulations

  • FDA Submits Expedited Timeline for Graphic Health Warnings Rule

    “The FDA has submitted a proposed, expedited schedule for the issuance of a final graphic warnings rule for cigarettes. Last month, Judge Indira Talwani of the U.S. District Court for the District of Massachusetts ordered FDA to expedite the issuance of a final rule for cigarette graphic warnings after finding that FDA "unlawfully withheld" or "unreasonably delayed" the promulgation of graphic health warnings as mandated by the 2009 Tobacco Control Act. On October 5, 2018, FDA provided the Court an accelerated schedule that would result in the submission of the final rule for publication in the Federal Register by May 2021.” See Article.

    Oct 12, 2018 7:05 PM

  • Contracts May ‘Legally’ Obligate A Party to Pay, Even Without A Court Judgment

    “Time and again, courts have been tasked with construing ambiguous and inconsistent terms in contracts[.] Recently, the Sixth Circuit revisited the issue of interpreting contractual language in Dark Horse Express, LLC v. Lancer Insurance Company, holding in its August 6, 2018 opinion that a contract's language requiring an insurance provider "to pay all sums" that the insured "legally must pay" did not first require a court judgment.” See Article.

    Oct 12, 2018 7:04 PM

  • NYC mayor signs legislation allowing individuals to change their sex designation on their birth certificates to "X"

    On October 10, the mayor of New York signed legislation that will allow individuals to change the sex designation on their birth record to conform to the individual’s gender identity. The application will be supported by a signed and notarized statement by the individual, attesting that the request for a change of gender to female, male, or “X” is to conform the person’s legal gender to the person’s gender identity. The term “X” means a gender that is not exclusively male or female. See Legislation.

    Oct 12, 2018 7:03 PM

  • 5th Circuit Affirms Dismissal of Securities Class Action for Failure to Adequately Allege Material Misstatements and Loss Causation

    “On October 3, 2018, the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of a putative securities class action against Whole Foods Market, Inc. and certain of its executives under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5.” See Article.

    Oct 12, 2018 7:02 PM

  • NYAG Continues Scrutiny of Overbroad Non-Compete Agreements

    “The New York State Office of the Attorney General (NYAG), working with the Illinois Attorney General, announced on September 18, 2018 that it had reached a settlement with WeWork Companies, Inc. regarding its use of non-compete agreements. The WeWork settlement follows earlier non-compete related settlements by the NYAG with, among others, Jimmy John's Gourmet Sandwiches ("Jimmy John's") on June 22, 2016, and Examination Management Services, Inc. on August 4, 2016. The NYAG also recently published an FAQ on the use of non-compete agreements in New York, which identifies these settlements, as well as highlighting non-compete legislation that the NYAG proposed to the New York Assembly. Based on these settlements and the proposed legislation, a theme has emerged, which provides valuable guidance to New York employers in their use of non-compete agreements.” See Article.

    Oct 12, 2018 6:58 PM

  • Federal judge certifies class of homeless who filed suit against Berkeley, CA

    On September 25, a federal judge certified a class of homeless individuals filing suit against the city of Berkeley, California. The class alleges violations of their 4th and 14th Amendment rights when the individuals were forced from where they were staying and any property that they were unable to carry was seized and thrown away. See Decision.

    Oct 12, 2018 6:58 PM

  • California to Require IoT Device Security Measures

    “The new California Consumer Privacy Act is not the only California privacy law that companies will have to prepare for in 2019. Beginning on January 1, 2020, California will also require a manufacturer of a "connected device" (i.e., an IoT device) to equip that device with reasonable security features.” See Article.

    Oct 12, 2018 6:56 PM

  • EDNY Sticks a Form in Angus Steak Sandwich Class Action Complaint

    “A federal court in the Eastern District of New York recently dismissed a putative class action filed against Dunkin' Brands alleging deceptive advertising with respect to its Angus Steak & Egg Breakfast Sandwich and Angus Steak & Egg Wake-Up Wrap. Judge Carolyn Amon dismissed the claims by out-of-state plaintiffs on jurisdictional grounds, and found the challenged product names were not misleading as a matter of law. The case clarified the standard that class-action plaintiffs must meet for the court to find specific personal jurisdiction, and demonstrated yet another court's willingness to rule as a matter of law on whether advertising is misleading to a reasonable consumer.” See Article.

    Oct 12, 2018 6:55 PM

  • Career Development Quarterly

    Issue number #66-3 (September 2018) of publication Career Development Quarterly is now available

    Oct 12, 2018 4:48 AM

  • Los Angeles Business Journal

    Issue number #40-37 (September 2018) of publication Los Angeles Business Journal is now available

    Oct 12, 2018 4:48 AM

  • Arkansas Business

    Issue number #35-38 (September 2018) of publication Arkansas Business is now available

    Oct 12, 2018 4:48 AM

  • 6th Circuit Denies Review of Judgment Favoring Former Employee in Retaliation Claim Under the Mine Act

    “The Sixth Circuit recently upheld an administrative decision in favor of a miner's whistleblower complaint, further underscoring the need for mine operators to implement strong anti-retaliation policies and keep detailed supporting records of internal investigations and employment-related decisions.” See Article.

    Oct 11, 2018 10:27 PM

  • 9th Circuit rules in dispute over bus ad regulatioins

    On September 27, the 9th Circuit Court affirmed in part and reversed in part the district court's summary judgment in an action brought under 42 U.S.C. § 1983 alleging that King County unconstitutionally refused to display plaintiffs' submitted ads concerning global terrorism on the exterior of its public buses. The Court determined that the County's bus advertising program was a nonpublic forum, that the County permissibly rejected the factually inaccurate ad because the First Amendment does not require the County to display patently false content in a nonpublic forum, that the County's rejection of the revised ad did not withstand scrutiny and that the County's disparagement standard discriminates, on its face, on the basis of viewpoint. Concluding, the Court held that the disruption standard was facially valid but that, on this record, the County unreasonably applied the standard to plaintiffs' ad. See Decision.

    Oct 11, 2018 10:26 PM

  • New York Reins in the Use of Automobile Kill Switches

    “On October 2, 2018, New York Governor Andrew Cuomo signed into law legislation limiting the use of remote disabling devices by automobile lenders. New York Senate Bill 2484 ("SB 2484"), which took immediate effect, imposes new disclosure requirements on auto lenders before they can use the devices colloquially known as "kill switches" to repossess vehicles from defaulted borrowers.” See Article.

    Oct 11, 2018 10:19 PM

  • 6th Circuit: district court erred in granting relief under the CWA in Tennessee Clean Water Network v. Tennessee Valley Authority

    On September 24, the 6th Circuit Court found that the district court erred in granting relief under the Clean Water Act (CWA) in the case of Tennessee Clean Water Network v. Tennessee Valley Authority. The issue in this case was whether the CWA regulates discharge from coal ash ponds that allegedly leaks from the ponds through the groundwater into the Cumberland River. The Court found that the district court’s ‘hydrological connection theory’ has no support in either the text or history of the CWA and related environmental laws. See Decision.

    Oct 11, 2018 9:34 PM

  • President Trump Nominates Bernard McNamee to Fill Vacancy at FERC

    “On October 3, 3018, President Donald Trump announced his intent to nominate Bernard L. McNamee to fill the vacant seat on FERC, for the term expiring June 30, 2020, resulting from Commissioner Robert Powelson's resignation. If nominated, confirmed, and sworn in, Mr. McNamee would restore the Republican majority among FERC Commissioners.”See Article.

    Oct 11, 2018 9:33 PM

  • Misconduct complaints filed against Kavanaugh transferred to 10th Circuit Court

    On October 10, Chief Justice John G. Roberts Jr. transferred the misconduct complaint proceedings against Judge Kavanaugh to the 10th Circuit Court after receiving the request from the Judicial Council of the District of Columbia Circuit. See Transfer Letter.

    Oct 11, 2018 9:32 PM

  • Florida Court Dismisses Website Accessibility Case, Clarifying ‘Nexus’ Requirement for Stating a Claim Under the ADA

    “Florida court rules that plaintiff must allege more than being unable to learn about a brick-and-mortar business to state a claim that an allegedly inaccessible website violates the ADA.” See Article.

    Oct 11, 2018 9:30 PM

  • Delaware Chancery Court Finally Finds MAE

    “In a significant decision, a Delaware court found that a target company has suffered a material adverse effect (MAE), allowing a would-be buyer to abandon an announced merger.” See Article.

    Oct 11, 2018 9:30 PM

  • New Jersey Amends Combined Reporting, Adopts Marketplace Facilitator Law

    As part of Governor Murphy's efforts to "modernize" business taxes, New Jersey enacted sweeping changes to its corporation business tax ("CBT"), including combined reporting and market sourcing for services. [Recently,] Governor Murphy signed two bills into law that further change the business tax landscape: A4495, which provides additional changes to the CBT; and A4496, which imposes sales and use tax on remote sellers and marketplace facilitators in light of the Supreme Court's decision in South Dakota v. Wayfair." See Article.

    Oct 11, 2018 12:28 AM

  • Kavanaugh and the Congressional Schedule

    "[Recently] by a vote of 51-49, the U.S. Senate ended debate on the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States. The vote was on party lines, though Sen. Joseph Manchin III (D-WV) voted "yes" while Sen. Lisa Ann Murkowski (R-AK) voted 'no.'" See Article.

    Oct 11, 2018 12:26 AM

  • Court Declines to Certify 'Slack Fill' Class Action

    "A Missouri federal judge recently denied certification of a proposed "slack fill" class action against the maker of "Mike and Ike" candy. The suit claimed that candy company Just Born, Inc. tricked consumers into thinking they were getting more product than they actually paid for by virtue of empty space ("slack fill") at the top of the boxes when they are opened. The court, however, held that because many putative class members knew and did not care about the extra space in the box and purchased the products anyway, individualized issues of knowledge, injury, and standing would predominate the action." See Article.

    Oct 11, 2018 12:21 AM

  • ESIC Market

    Issue number #49-2 (May 2018) of publication ESIC Market is now available

    Oct 10, 2018 4:49 AM

  • University Business

    Issue number #21-10 (October 2018) of publication University Business is now available

    Oct 10, 2018 4:49 AM

  • D.C. Circuit Overturns FERC Order Denying ANR Storage Market-Based Rate Authority

    “On September 21, 2018, the United States Court of Appeals for the District of Columbia Circuit D.C. Circuit) ruled that FERC's order to deny ANR Storage Company's (ANR) request to charge market-based rates was arbitrary and capricious. The D.C. Circuit found that FERC provided no basis for treating ANR differently from another competitor, DTE Energy Company (DTE) in a prior decision, and that FERC's explanation for why intrastate facilities could not restrain ANR's exercise of market power was internally inconsistent. As such, the D.C. Circuit remanded the proceeding back to FERC.” See Article.

    Oct 9, 2018 10:03 PM

  • FCC Announces Launch of National Lifeline Eligibility Verifier

    “On October 2, 2018, the Federal Communications Commission released Public Notice DA-18-1009 announcing the launch of the National Lifeline Eligibility Verifier in Six States: Colorado, Mississippi, Montana, New Mexico, Utah and Wyoming. Starting on November 2, 2018, Eligible Telecommunications Carriers (ETCs) in these six states will be required to use the National Verifier System to make eligibility determinations for all consumers applying for Lifeline service.” See Article.

    Oct 9, 2018 10:02 PM

  • Supreme Court of Nevada considers implications of stipulation to discover schedule where court later enters a scheduling order

    On September 27, the Supreme Court of Nevada considered the situation where the parties to a civil lawsuit stipulated to a discovery schedule that expressly waived the usual requirement, otherwise contained in Rule 16.1(a)(2)(B) of the Nevada Rules of Civil Procedure (NRCP), that written reports be produced and exchanged summarizing the anticipated testimony of all expert witnesses designated to appear at trial. Much later in the case, the district court entered a scheduling order that extended the deadline for identifying expert witnesses. The Supreme Court of Nevada held that “the intent of the parties ultimately controls the duration and scope of the stipulation and, in the absence of any evidence of an intention to the contrary, the stipulation should be read to continue in effect until and unless expressly vacated either by the court or by a subsequent agreement between the parties.” See Decision.

    Oct 9, 2018 10:02 PM

  • Supreme Court Hears Arguments on Applicability of Federal Arbitration Act to Transportation Independent Contractor Agreements

    “On Oct. 3, 2018, the U.S. Supreme Court heard oral argument in the case of New Prime Inc. v. Oliveira. This case addresses (1) whether an arbitrator or the court should resolve a dispute over the applicability of the Federal Arbitration Act's Section 1 exemption for "contracts of employment" of transportation workers, and (2) whether the Section 1 exemption is applicable to independent contractor agreements.” See Article.

    Oct 9, 2018 10:00 PM

  • Supreme Court of Ohio: oil-and-gas land professionals, who help obtain oil-and-gas leases for oil-and-gas-development companies, must be licensed real-estate brokers

    The Supreme Court of Ohio held that oil-and-gas land professionals, who help obtain oil-and-gas leases for oil-and-gas-development companies, must be licensed real-estate brokers when they engage in the activities described in R.C. 4735.01(A) with respect to oil-and-gas leases. The Court reasoned that this was because the plain language of R.C. 4735.01 does not exclude oil-and-gas land professionals or oil-and-gas leases from the relevant definitions set forth in the statute. See Decision.

    Oct 9, 2018 9:55 PM

  • NLRB Limits Protections for Striking Workers in Consolidated Communications

    “Though the NLRA provides robust protections for striking employees, the Board's decision in Consolidated Communications demonstrates some of the limits of those protections. On October 2, 2018, the NLRB held that inherently dangerous acts calculated to intimidate do not fall within the broad scope of the NLRA's protections.” See Article.

    Oct 9, 2018 9:47 PM