On January 24, 2012, the Federal Trade Commission announced its annual revision of the interlocking directorates thresholds under Section 8 of the Clayton Act.  The new thresholds were effective January 27, 2012.   The purpose of Section 8 of the Clayton Act is to prevent a “person” from serving as an officer or director of corporations that compete with one another in the marketplace, unless that competition is very limited.   For more information on the new thresholds, please click here for the January 27, 2012 Alert published by the Antitrust and Competition Client Service Group.

Premerger Notification Thresholds Increased

Effective February 27, 2012, the jurisdictional thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, will be increased.  Pursuant to statutory amendments made in 2000, the thresholds are annually adjusted based on changes in gross national product.  One key effect of this year’s indexing is that transactions will only be reported if the Size of Transaction exceeds $68.2 million, an increase over last year’s $66 million threshold.  To read more about the 2012 thresholds, please click here for the Alert published by the Antitrust and Competition Client Service Group on January 27, 2012.

SEC Changes Settlement Policy for Enforcement Actions With Parallel Criminal Proceedings

The SEC announced in January a significant change in its settlement policy for civil enforcement actions in which the defendant is also subject to parallel criminal proceedings.  Under the SEC’s new policy, any defendant who has admitted to or been found guilty of criminal conduct cannot settle parallel SEC charges without also admitting the SEC’s allegations.  For more information on the new policy, please click here to read the Alert published by the White Collar Defense & Investigations and Securities Litigation & Enforcement Client Service Groups on January 13, 2012.

NAD Reviews Use of Facebook’s “Like” Feature in Promotions

In 2010, Facebook offered its users the ability to click a button indicating that they “like” a company or a product.  Once clicked, the “liked” product appears on a user’s Facebook Wall and the user’s screen name or icon could also appear on the company’s Facebook page along with other users who liked the product.   Companies quickly realized the benefit of being “liked,” and encouraged consumers to “like” their products by making incentives available only to those who liked the product.  This practice is often referred to as a “like-gated” promotion.  The use of these promotions has raised consumer protection questions, and the National Advertising Division of the Council for Better Business Bureaus (“NAD”) has recently issued its first decision involving a like-gated promotion.  To learn more about the decision and allegations considered, please click here to read the Bulletin published by the Internet & New Media Group on January 3, 2012.  

FTC Guidance on How to Incentivize Bloggers

One of the advantages of the new media is that it permits others to help advertise a retailer’s products.  The Federal Trade Commission (FTC) takes the position that if a company provides bloggers with a gift, that fact must be disclosed by the blogger to consumers.   The FTC has now provided some guidance on how companies can comply with this obligation.  According to a letter released by the FTC in connection with an investigation, Hyundai’s advertising agency provided bloggers with gift certificates as an incentive to talk about Hyundai’s forthcoming Super Bowl ad.  Although some bloggers disclosed they had received free gift certificates, others did not.  To read more about the FTC’s decision in this matter and how to avoid liability when incentivizing bloggers, please click here to read the January 10, 2010 Bulletin published by the Internet & New Media group.

IRS Announces New Off-Shore Voluntary Disclosure Program Without a Deadline

On January 9, 2012, the IRS announced a third voluntary disclosure program designed to bring offshore money back into the U.S. tax system and to help people with undisclosed income from hidden offshore accounts become current with their taxes.  Unlike the 2009 and 2011 programs, this program will be open for an indefinite period of time.  To learn more, please click here for the Tax Advice and Controversy Client Service Group’s January 2012 Bulletin.

SEC Advisory Committee Recommends Relaxing Restrictions on Solicitation and Advertising in Private Offerings

On January 6, 2012, the Advisory Committee on Small and Emerging Companies established by the Securities and Exchange Commission (SEC) recommended that the SEC take immediate action to permit general solicitation and general advertising in private offerings of securities under Rule 506 of Regulation D where securities are sold only to accredited investors.  For more information on the recommendation and its implications, please click here to read the January 6, 2012 Alert published by the Corporate Finance and Securities Client Service Group.

Third Circuit Issues Opinion in New Jersey Abandoned Property Litigation

The Third Circuit has issued a long-awaited decision in the New Jersey Abandoned Property litigation, NJ Retail Merchants Association v. Andrew Sidamon-Eristoff.  The court affirmed the District Court’s decision in this important escheat case with broad implications for members of the prepaid industry.  As background, in 2010 New Jersey passed an abandoned property law that, if upheld, would have been devastating for gift card and prepaid card issuers doing business in New Jersey.  To learn more about the NJ abandoned property law and the decision in this case, please click here to read the Alert published by the Financial Institutions Client Service Group on January 27, 2012.

‘Tis the Season for Reporting and Commenting

The first quarter of 2012 brings several reporting deadlines required by the Directorate of Defense Trade Controls (DDTC), Bureau of Industry and Security (BIS) and Office of Antiboycott Compliance (OAC).  To learn more about some of the reporting requirements coming up in the first quarter of 2012, please click here to read the International Regulatory Bulletin No. 492 published January 10, 2012.

The New U.S. Sanctions Against Iran

The new economic sanctions legislation signed by the President on December 31st is part of a 565 page defense authorization bill.  In signing the legislation, the President issued a statement saying that the legislation’s Iranian sanctions provisions ”would interfere with my constitutional authority to conduct foreign relations by directing the Executive [Branch] to take certain positions in negotiations or discussions with foreign governments” and “that should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.”    To learn more about the main provisions of the legislation, please click here to read a January 10, 2012 Memorandum published by the International Trade group.

 Investors Beware:  Dividends from Proceeds of Bribes at Risk

In a civil recovery proceeding under the UK’s Proceeds of Crime Act, a London court has approved an order agreed by Mabey Engineering (Holdings) Ltd with the Serious Fraud Office to repay dividends derived from contracts won by its subsidiary through unlawful conduct.  Please click here to read more in the International Regulatory Bulletin No. 493 published January 13, 2012. 

Broker-Dealers who face inspections from regulators should take heed of recent guidance provided by the two principal securities regulatory agencies.  The regulators are the Financial Industry Regulatory Authority (“FINRA”) and the SEC’s Office of Compliance Inspections and Examinations.  Their jointly issued “National Examination Risk Alert” offers guidance on policies and procedures that broker-dealers should consider for branch office inspection programs.  To learn more, please click here to read the Alert published by the White Collar Defense & Investigations and Securities Litigation & Enforcement Client Service Groups on December 13, 2011.

State Taxation of Former Residents’ Retirement Income

Recently, the New York State Department of Taxation and Finance issued an Advisory Opinion regarding whether New York State may impose income tax on distributions from a nonqualified deferred compensation plan made to a former resident.  The opinion, consistent with federal law, concluded that New York State may not impose tax on these retirement payments.  To read more about the Advisory Opinion, please click here for the Alert published by the Employee Benefits and Executive Compensation Client Service Group on December 28, 2011.

Reminder Regarding Information Reporting For Corporate Actions That Affect Stock Basis

Issuers of securities who undertook an “organizational action” in 2011 that affected the basis of such securities are required to file an information return reporting such action.  The Information Return for actions taken in 2011 was due to be filed January 17, 2012 for actions taken in 2011.  For more information on timing of returns for actions in 2012 and subsequent years, please click here to read the Tax Advice and Controversy Client Service Group Bulletin published December 30, 2011. 

Recent Internal IRS Guidance Regarding Economic Substance Doctrine

In July 2011, the Large Business and International Division of the IRS issued an internal directive setting forth the process examiners should follow when determining whether to apply the economic substance doctrine to challenge a transaction.  To learn more about the process to be followed and insight into when the doctrine, as codified, may be applicable, please click here to read the Bulletin published by the Tax Advice and Controversy Practice Group in December 2011.

Expanded US Tax Reporting and Anti-Abuse Provisions designed to Discourage U.S. Persons from Hiding Income and Assets in Foreign Countries

The Foreign Account Tax Compliance Act enacted in 2010 as part of the Hiring Incentives to Restore Employment Act added Section 6038D to the Internal Revenue Code which requires any U.S. individual taxpayer holding interest in “specified foreign financial assets” that exceed in the aggregate a certain value threshold to attach newly issued IRS Form 8938 to the Taxpayer’s annual income tax return.  To read more, please click here for the Bulletin published by the Tax Advice and Controversy Client Service Group in December 2011.

 On December 19, 2011 the Treasury issued temporary regulations and the related Form 8938 and instructions in final.  To learn more about the temporary regulations and related Form, please click here for the Bulletin published by the Private Client Group in December 2011.

Sunshine Law Proposed Regulations Published; Reporting Requirements Delayed

On December 19, 2011, the Centers for Medicare and Medicaid (“CMS”) published proposed rules for implementation of the federal payment sunshine law, which was included within the federal health care reform law passed in March 2010.  To learn more about the obligations imposed under the law for manufacturers of drugs, medical devices, biologicals and medical supplies who make payments to physicians or teaching hospitals, please click here for the Alert published by the Life Sciences and Health Care Client Service Group on December 19, 2011.

Significant Changes To California Employment Law Effective January 1, 2012

Effective January 1, 2012, California employers will be required to comply with the California Wage Theft Prevention Act of 2011, which includes significant new burdens on employers to provide written notice of various types of information to employees at the time of hire.  To read more about the mandated information, please click here for the Alert published by the Labor and Employment Client Service Group on December 22, 2011.

Combination of Holme Roberts & Owen LLP into Bryan Cave LLP Bolsters Bryan Cave’s Sports, Sponsorship and Event Venue Group

To read about how the combination of Holme Roberts & Owen into Bryan Cave bolsters the firm’s Sports, Sponsorship and Event Venue Group, please click here to read the Alert published by that client service group on December 7, 2011. 

The Joy of College Sports

To read the article titled The Joy of College Sports — Why the NCAA’s Efforts to Preserve Amateurism are Both Lawful and in the Best Interest of College Athletics by Philip D. Bartz and Nicholas S. Sloey, published December 13, 2011, please click here.

New EU Sanctions Against Iran and Syria

On December 1, 2011, the European Council approved additional economic sanctions against Iran and Syria.  To learn more about the new sanctions, please click here to read the Memorandum published by the International Trade Group on December 5, 2011.

Be Careful What you Wish For:  DDTC Issues Proposed Brokering Revisions

Since Part 129 of the International Traffic in Arms Regulations (ITAR) was adopted, it has caused much confusion in the industry regarding who was a “broker,” if “brokering activities” (subject to U.S. jurisdiction) were occurring, and, if so, what requirements needed to be satisfied.  To read more, please click here to read the International Regulatory Bulletin No. 491 published by the International Trade Group on December 27, 2011.

Next Steps in Export Control Reform:  State and Commerce Departments Issue Proposed Rules Related to Jurisdiction of Ground Vehicles, Aircraft and Gas Turbine Engines

On November 7, 2011 and December 6, 2011, the Department of State, Directorate of Defense Trade Controls (DDTC) issued proposed rules to amend the International Traffic in Arms Regulations.  To learn more about the proposed rules, please click here to read the International Regulatory Bulletin No. 489 published by the International Trade Group on December 8, 2011.

Pilot VAT Reform Program Announced for Shanghai

In October 2011, the Chinese State Council announced that it would launch a pilot value-added tax reform program effective January 1, 2012.  To learn more about the industries to which the program will initially apply and the policy documents signaling the official transformation from a Business Tax to a value-added tax (“VAT”), please click here to read the International Regulatory Bulletin No. 490 published by the International Trade Group on December 9, 2011.

The Federal Reserve Board recently posted a second set of questions and answers to the “Frequently Asked Questions About Regulation II (Debit Card Interchange Fees and Routing)” on the Fed’s website.  This current release of FAQs has been merged with the previously published FAQs, with the newer questions annotated with the date added.  For a summary of the new issues addressed in the FAQs, please click here to read the Alert published by the Financial Institutions Client Service Group on November 28, 2011.

FinCen Issues FAQs and Holds Webinar on Prepaid Access Rule

The Financial Crimes Enforcement Network ( “FinCEN”) recently released a set of FAQs related to the final rule on prepaid access that was issued on July 29, 2011 (the “Rule”).  The FAQs are intended to provide interpretive guidance for the Rule, not supersede or replace any part of it.  FinCen also recently  gave a webinar presentation on the Rule.  The most significant clarifications to the Rule made by FinCen are discussed in an Alert published by the Financial Institutions Client Service Group on November 28, 2011. To read this discussion,  please click here.

Supreme Court to Determine Whether Corporations Are Liable in U.S. Courts for Human Rights Violations Committed Abroad

The U.S. Supreme Court may soon decide the extent to which corporations may be sued for alleged human rights violations which arise in connection with their business activities outside the U.S.  The Court has granted certiorari petitions in two cases brought against corporations for alleged human rights violations committed abroad.  In each case, the claims were discussed by a Court of Appeals on the ground that corporations are immune from such suits.  The cases will be argued in tandem, even though different statutes apply.  To read more the cases and the statutes being applied, please click here for the Alert published by the Commercial Litigation Client Service Group on November 11, 2011.

SFO Launches New Initiative to Encourage Whistle-Blowing

On November 1, 2011, the Serious Fraud Office (“SFO”) launched a new service, “SFO Confidential,” for company insiders to report in confidence suspected serious or complex fraud or corruption.  The service launched a telephone hot-line providing access to a dedicated team of SFO operatives, as well as an on-line reporting system.  To learn more, please click here to read the Alert published by the Global Anti-Corruption Team, London, on November 2, 2011.

California Requires Retailers and Manufacturers to Comply with Anti-Slavery and Human Trafficking Law by January 1, 2012

The California Transparency in Supply Chain Act (“Act”), signed into law by Governor Schwarzenegger in September 2010 and effective January 1, 2012, requires retailers and manufacturers doing business in California to disclose their efforts to eradicate slavery and human trafficking from their direct supply chains for goods offered for sale.  The disclosure must be posted on the retailer or manufacturer’s website with a conspicuous and easily understood link from the homepage.  To learn about the requirements of the Act and covered retailers and manufacturers, please click here for the Alert published by the Retail Team on November 1, 2011. 

New Economic Sanctions Against Iran

New economic sanctions have been announced against Iran.  For a summary of the additional sactions issued by the United States, Canada, the UK and Switzerland, please click here to read the memorandum published by the International Trade Group on November 22, 2011.  Also, EU officials have agreed in principle to the addition of approximately 200 individuals or entities to its list of those with whom dealings are prohibited under existing economic sanctions.  The additions are targeted at those believed to be involved in Iranian nuclear or military activities.

The National Labor Relations Board announced on October 5, 2011, the decision to postpone until January 31, 2012 the effective date of its recently published rule requiring employers to post notices informing employees of their rights under the National Labor Relations Act.  The NLRB finalized its new notice-posting requirement in August and at that time announced that the rule would take effect on November 14, 2011.  However, federal lawsuits were filed challenging the rule and prompting many questions and uncertainty from employers across the nation.  To learn more about the rule, please click here to read the Alert published by the Labor & Employment Client Service Group on October 6, 2011.

The Computer Fraud and Abuse Act (CFAA) — The Benefits of a Computer Use Policy That Restricts Employee Access

Employers that provide employees unfettered access to company computer systems may unwittingly forfeit a valuable statutory remedy against the misappropriation of electronic data.   Such employers should ensure that they have a computer use policy in place that explicitly distinguishes between authorized and unauthorized use.  To learn more about the Act and the  federal avenue it provides to pursue employees who have misappropriated electronic information, please click here to read the Alert published by the Labor & Employment Client Service Group on October 27, 2011.

Qualified Retirement Plan Limits for Calendar Year 2012

 The IRS has announced its 2012 cost-of-living adjustments for retirement plans.   To access a chart reflecting the qualified plan limits for calendar years 2009-2012, please click here for the Alert published by the Employee Benefits & Executive Compensation Client Service Group on October 24, 2011.

FINCEN Issues a Notice of Proposed Rulemaking Requiring Cross-Border Report for Prepaid Cards

The Financial Crimes Enforcement bureau has released a proposed rulemaking that would require consumers holding prepaid cards aggregating more than $10,000 in value to report the cards when crossing into or out of the U.S., in the same way that they report cash, travelers checks and other monetary instruments.  Please click here to read the Alert published by the Financial Institutions Client Service Group on October 18, 2011.

Significant Changes to California Employment Law Effective January 1, 2012

Governor Jerry Brown recently signed into law a bill dramatically limiting California employers’ ability to use consumer credit reports in connection with employment applications or decisions to continue employment of current employees.  Employers who use credit reports to evaluate applicants/employees cannot use them after January 1, 2012 unless one of the exceptions set forth in the law applies.  To learn more, click here to read the Alert published by the Labor & Employment Client Service Group on October 24, 2011.

New Employment Regulations Will Affect Maternity, Foreigner Insurance in China

The Social Insurance Law of the People’s Republic of China became effective July 1, 2011.  Accompanied by a set of implementing regulations, the law forms a standardized social security framework for all employers and employees in China.  To read about the detailed rules and regulations issued by China’s national, provincial and municipal governments to implement and clarify the law, please click here for the Alert published by the Asia Labor & Employment Client Service Group on October 4, 2011.

The use of social media has become one of the most rapidly-changing areas in employment law today.  What most employers do not realize is that the National Labor Relations Board has become very active in policing both the substance of social media policies and the actions of employers in addressing social media concerns.  Please click here to read an overview of NLRB activity in the area of employee use of social media published by the Labor & Employment and Internet & New Media Client Service Groups on September 23, 2011.

Check It Out and Check It Off:  2012 Group Health Plan Checklist

While the Patient Protection and Affordable Care Act, as amended (“PPACA”), required significant design changes for group health plans in 2010 or 2011, some additional requirements must be implemented for 2012.  Please click here to read the Alert published by the Employee Benefits & Executive Compensation Client Service Group on September 7, 2011. 

IRS Establishes a Voluntary Classification Settlement Program

The IRS recently announced a new settlement program for employers with misclassified workers.  Under the new program, employers can get a significant reduction in their federal employment tax liability associated with past nonemployment treatment by agreeing to properly classify their workers for future tax period.  The announcement came on the heels of recent announcements that the IRS, Department of Labor and various state agencies are collaborating on examining worker misclassification issues.  To learn more about the new program, please click here to read the Alert published by the Employee Benefits & Executive Compensation Client Service Group on September 30, 2011.

Department of Labor Issues Final Rule Requiring Follow-On Contractors to Hire Their Predecessor’s Employees

The Department of Labor issued a final rule just before Labor Day that, in effect, will given certain employees now performing under Federal government service contracts employment for life or at least for as long as the government continues to contract for those services.  Although the rule does not take effect until the Federal Acquisition Regulation Council issues its complementary regulations, matters are sufficiently final that contractors should begin planning for how they are going to comply.  To learn more about this new regulation, click here to read the Alert published by the Government Contracts Team on September 8, 2011.

U.S. House Panel Hears Divergent Opinions on SRO Oversight of Investment Advisers

Fund managers and other investment advisers should be aware that Congress is now considering legislation that would significantly alter regulation of the nation’s registered investment advisers.  A key House subcommittee has heard widely divergent views on the proposed legislation entitled the “Investment Adviser Oversight Act of 2011.”  To learn more about the draft legislation, click here to read the Alert published by the White Collar Defense and Investigations Securities Litigation and Enforcement Client Service Groups on September 20, 2011.

New Patent Reform Bill Poised to Significantly Change U.S. Patent Law

On September 8, 2011, Congress approved the Leahy-Smith America Invents Act of 2011.  The Act materially alters a long history of patent law in the United States.   Among the provisions addressed by the Act are who is entitled to a patent (“first to file” versus ”first to invent”) and who may file a “false marking” lawsuit.  To read more about how the Act alters patent law, please click here to read the Bulletin published by the Intellectual Property Client Service Group on September 12, 2011. 

FinCEN Issues Final Rule on Prepaid Access; Extends Compliance Date for Many Aspects of the Final Rule

New anti-money laundering regulations that directly impact retail business that issue or sell gift cards or other prepaid cards were issued by the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN),  The regulations require the collection and verification of customer information when certain prepaid cards are sold or reloaded.  To read an overview of the Final Rule, please click here for the Alert published by the Financial Institutions Client Service Group on September 6, 2011. The Final Rule was set to go into effect on September 27, but FinCEN announced that it has extended the compliance date for most aspects of the regulations.  For information on how the compliance dates changed, please click here to read the Alert published on September 12, 2011.

New Dual/Third Country National Rule Continues to Present Challenges

A new rule took effect in August which amended the International Traffic in Arms Regulations (ITAR) to include a new license exemption for the transfer of defense articles to dual/third country national employees of approved non-U.S. licensees under ITAR agreements.  To read about the new rule, please click here for International Regulatory Bulletin published September 28, 2011.

DDTC Updates its “Guidelines for Preparing Electronic Agreements” to Implement New Dual/Third Country National Rule

In August, DDTC updated its “Guidelines for Preparing Electronic Agreements” (the “Guidelines”) to reflect implementation of the new rule and provide guidance to exporters preparing ITAR agreements.  To learn more, please click here to read the International Regulatory Bulletin published September 28, 2011.

 Electronic Payment of Registration Fees

The Directorate of Defense Trade Controls (DDTC) issued an amendment to the International Traffic in Arms Regulations (ITAR) that requires a change in the method of payment for registration fees.  Effective September 26, 2011, all registration fees must be paid electronically via Automated Clearing House.  To read about the amendment, please click here for the International Regulatory Bulletin published September 15, 2011.

French Working Time for Executives:  Lump-Sum Remuneration Agreements Based on a Fixed Number of Working Days Per Year (so-called Forfaits-Jours)

The legal duration of work for employees in France is 35 hours per week, meaning that any hours required to be worked above this limit would normally be considered overtime.  Executives are, however, most often not subject to this limit.  For an outline of how the French Labor Code distinguishes between three types of executives, please click here to read the September 2011 Briefing published by the Paris Labor & Employment Client Service Group.

 The Agency Workers Regulations 2010

UK’s new Agency Workers Regulations come into force on 1 October 2011.  The regulations are intended to give agency workers the same basic employment rights and conditions as permanent staff employed directly by the relevant company.  To learn about the new regulations, please click here for the September 2011 Briefing published by the London Labour and Employment Client Service Group.

China Announces Legal Changes That May Broaden Power to Investigate Bribery

In August the National People’s Congress of the People’s Republic of China released the draft Criminal Procedure Law Amendment to the public for comment.  If passed, the amendment is expected to provide additional protection to the civil rights of accused parties.  However, critics say that the amendment would also provide authorities legal cover to utilize secret locations to detain subjects suspected of engaging in acts involving national security, terrorism, or other serious crimes which may include serious bribery.  To read about the amendment, please click here for the International Regulatory Bulletin published September 27, 2011.

On May 26, 2011, the U.S. Supreme Court upheld the Arizona law that sanctions employers for hiring unauthorized aliens and endorsed Arizona’s requirement that employers use the federal E-Verify screening program.  A 5-3 majority of the Court found that language in the Immigration Reform and Control Act of 1986 did not pre-empt the Arizona Law.  For the answers to frequently asked questions about the Arizona law, please click here to read the Client Alert published by the Labor & Employment Client Service Group on August 4, 2011.

Employers Should Consider Expressly Prohibiting FMLA Fraud

Many employers have updated their FMLA policies to reflect recent amendments to the law and revisions to the regulations.  Another aspect of an FMLA policy that merits attention is ensuring that the policy expressly prohibits FMLA fraud and specifies the penalty for the offense.  The United States Court of Appeals for the Ninth Circuit issued an unpublished opinion earlier this year that reinforces the need for express fraud prohibition.  To learn more about the implications of the opinion, please click here to read the Client Alert published by the Labor & Employment Client Service Group on August 19, 2011.

SEC Proxy Access Rule Vacated by Federal Court

The U.S. Court of Appeals for the District of Columbia Circuit recently set aside and vacated Exchange Act Rule 14a-11 concerning shareholder proxy access, adopted by the SEC on August 25, 2010.  On a petition for review, a panel held that the SEC had “failed adequately to consider the rule’s effect upon efficiency, competition and capital formation,” as the SEC was required to do under its enabling statutes.  Thus, the Court held that adoption of the Rule was “arbitrary and capricious” and vacated the Rule.  To read more about the decision, please click here to read the Alert published by the Corporate Finance and Securities Client Service Group published August 4, 2011.

Distressed Debt Transfers & Restructurings in a Dynamic Environment

It is unclear whether we are toward the end, or in the middle, of the largest economic downturn since the Great Depression.  What is clear, however, is that we are in a dynamic environment with a large amount of stress on the domestic and world economy.    For a discussion of the strategic opportunities in the area of debt transfers and restructurings in this environment, please click here for an article by the Bankruptcy, Creditors Rights and Real Estate groups.

New York Legislature Enacts Power Plan Siting Law

On August 4, 2011, Governor Cuomo signed the Power NY Act of 2011.  This legislation includes measures to promote energy efficiency and renewable energy, but its most significant provisions reinstate a “one stop” approval process for new and expanded power plants under Article X of the Public Service Law.  To learn more about the new Article X, please click here to read the Bulletin published by the Environmental Client Service Group on August 9, 2011.

Protecting Trademark Owner Rights Under the New .XXX, Adult Entertainment Sponsored Top-Level Domain

After years of debate, ICANN has approved the sponsored top-level domain (sTLD) .xxx.  Unlike general top-level domains (e.g., .com, .net, .info) which can be registered by anyone, sTLDs are specialized domains limited to members of a specific community or specific content, based on industry, technical, or other themes (the “Sponsored Community”).  Examples of sTLDS include:  .gov for governmental entities, .edu for post-secondary educational institutions, and .aero for members of the air transport industry.  The Sponsored Community for .xxx is the adult entertainment industry.  Nevertheless, the new sTLD is expected to have a  broad impact on all brand owners in a way that previous sTLDs have not.  A domain devoted to the adult entertainment industry is perceived by many as more likely to result in “squatters” of YourTrademark.xxx, and the content of such sites to have a much greater impact on the public perception of brands.  To learn more, please click here to read the Bulletin published by the Intellectual property Client Service Group on August 3, 2011.

Bryan Cave Launches Sports, Sponsorship and Event Venue Group

In response to the ongoing evolution of the world of sports, sponsorship and event venues into a world of big business, Bryan Cave has announced the formation of a Sports, Sponsorship and Event Venue Group.  To learn more about this practice and the group, please click here to read the Alert published by the new Industry Practice Team on August 9, 2011.

Malaysia Extends Trial Period for Permit Validation System

On 26 July 2011, the Ministry of International Trade and Industry issued a Circular on the Royal Malaysian Customs Permit Validation System, amending an earlier Circular by extending the trial period for the System, originally scheduled to end on 31 July 2011, to a later date.  To learn more, please click here to read the Asia Trade Alert published by the International Consulting Group on 12 August 2011.

The Internal Revenue Service, Department of Health and Human Services and Department of Labor have revised the interim final regulations governing internal claims and appeals and external reviews for non-grandfathered group health plans under the 2010 health reform law.  The have also revised the forms for adverse benefit determinations and updated the list of state consumer assistance programs.  Many of the changes ease the burden of plan administration.  To learn more, please click here to read the Alert published by the Employee Benefits & Executive Compensation Client Service Group on July 1, 2011. 

IRS Issues Guidance on Health Plan Excise Tax Returns, Code Section 162(m)

On June 24, 2011, the IRS finalized rules on automatic extensions for Form 8928 Excise Tax Returns for employer-sponsored health plans and also released guidance on performance-based compensation plans of public companies.  For highlights of the rules, please click here to read the Alert published by the Employee Benefit & Executive Compensation Client Service Group on July 7, 2011.

FTC Suit Signals Increased Scrutiny of Advertising Endorsements

In May, the FTC brought suit against a company that sold a promissory note business system based upon the allegation that the company used consumer testimonials that could not be substantively substantiated, and that the company did not adequately disclose the typical performance that consumers were likely to achieve.  This marks the thirteenth case this year in which the Commission has alleged that a company has deceptively used testimonials and endorsements.  To read more, please click here for the Bulletin published by the Consumer Protection Group on July 5, 2011.

EPA Issues The Cross-State Air Pollution Rule To Reduce Power Plant Emissions In the Eastern United States

In July the U.S. Environmental Protection Agency (EPA) issued the Cross-State Air Pollution Rule (Cross-State Rule), requiring power plants in 27 states to reduce their emissions of nitrogen oxides and power plants in 23 of these states to also reduce their emissions of sulfur dioxide.    The purpose of the rulemaking is to ratchet down power plant emissions that contribute to elevated concentrations of ozone in downwind states.  For a summary of the relevant provisions of the Clean Air Act and the new Cross-State Rule, please click here to see the Bulletin published by the Environmental Client Service Group on July 22, 2011.

California Supreme Court Applies State Law Overtime Rules To Nonresident Employees

On June 30, 2011, the California Supreme Court, in Sullivan v. Oracle Corporation, issued an opinion unanimously holding that California based businesses must pay out of state workers overtime in accordance with California law for work performed in the state.  The court also found that the failure to pay legally required overtime to these nonresident employees constitutes an “unlawful . . . business act or practice” for purposes of California’s Unfair Competition Law.  For a summary of the case, please click here to see the Alert published by the Labor & Employment Client Service Group on July 13, 2011.

Antitrust Agencies Announce New HSR Form

The Federal Trade Commission and Department of Justice Antitrust Division have announced a new Notification and Report Form intended to ease the filing burden on parties required to report their transactions under the Hart-Scott-Rodino Act of 1976.  According to the agencies, the changes are also intended to increase efficiency in reviewing transactions.  To learn more, please click here to read the Alert published by the Antitrust, Franchise & Consumer Law Client Service Group on July 18, 2011.

 Proposed Changes in U.S. Anti-Boycott Law

Congressman Berman (D. Cal.) has proposed an amendment to the law governing the U.S. Commerce Department’s anti-boycott regulations to eliminate the mandate that the Regulations contain their current exceptions for compliance with foreign boycotts.  Under the amendment, the executive branch would be given the discretion to provide for exceptions but would not, as now, be required to do so.  For more information, please click here to read the Memorandum prepared by the International Trade practice dated July 29, 2011. 

The UK Bribery Act 2010

The long-awaited UK Bribery Act 2010 came into force in July, making it an offence for a person associated with an organisation (including its staff) to bribe a person or entity intending to obtain or retain business, or to obtain a business advantage.  Of most concern to HR practitioners has been the ongoing debate surrounding corporate hospitality.  For more information, please click here to read the Briefing published by the Labour and Employment Client Service Group ( London) dated July 1, 2011, and click here to read the International Regulatory Bulletin published July 1, 2011.

FSA Remuneration:  Update for Financial Services Clients Operating in the UK

The deadline for compliance with the FSA’s revised Remuneration Code was 1 January 2011 for firms already in-scope of the Code, and 1 July 2011 for firms coming within the scope of the Code for the first time.  For an update on the template that may be used in drafting the Remuneration Policy Statement, please click here to read the Briefing published by the Labour and Employment Client Service Group (London) on July 28, 2011.

Asia Trade – Update on Trade Agreements

Malaysia and Korea have agreed to conduct separate studies to assess the feasibility of commencing free trade agreement negotiations.   This is a follow-up to the decision made by leaders of both countries to explore means of further enhancing and strengthening bilateral trade and investment relations.  For more information, please click here to read the May – June 2011 Bulletin published by the International Trade Group.

 Export Controls, Economic Sanctions and the New Republic of South Sudan

The U.S. Commerce Department has welcomed the new Republic of South Sudan to the family of nations to which export controls apply by recognizing that it is no longer to be treated as part of Sudan.  It will now have its own separate designation on the Commerce Country Chart and be placed in Country Group B for license exception and other purposes.  For more information, please click here to read the memorandum published by the International Trade Group July 12, 2011.

The SEC’s recent adoption of rules to implement the whistleblower program mandated by the Dodd-Frank Act has particular significance for enforcement of the Foreign Corrupt Practices Act.  For a discussion of the overall SEC enforcement context for the new whistleblower rules, a summary of the rules,  and a discussion of the key issues for FCPA enforcement, including recommendations that companies should take now, please click here to read the Alert published by the Global Anti-Corruption Team of the Securities Litigation and Enforcement  and International Trade Groups on June 22, 2011.

Supreme Court De-Certifies Largest Employment Discrimination Class Action In History

In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court reversed a lower court’s decision to certify a nationwide class pursuing employment discrimination claims against the nation’s largest employer.  A 5-4 majority of the Court concluded that the class of 1.5 million current and former female employees could not satisfy the commonality requirement.  For a discussion of the decision, please click here to read the Alert published by the Class and Derivative Actions section of the Labor & Employment Client Service Group on June 21, 2011.

Supreme Court Draws Bright Line Barring Securities Fraud Claims Against Advisers to Companies Who Do Not “Make” Statements At Issue

In June the U.S. Supreme Court issued a significant decision restricting the ability of plaintiffs to bring securities fraud actions against adviser defendants who play a role in preparing statements actually made by companies they are advising.  In Janus Group, et al. v. First Derivative Traders, the court held that an investment adviser to a mutual fund could not be sued in a private securities fraud action for false statements made in mutual fund prospectuses.  To read more, please click here for the Alert published by the Securities Litigation and Enforcement practice group on June 16, 2011.

Supreme Court Substantially Limits Federal District Courts’ Ability To Enjoin Similar Class Actions In State Courts

In Smith v. Bayer Corp., a case the Court indicates “does not even strike us as close,” the United States Supreme Court placed considerable limits on district courts’ powers to enjoin copycat class actions from proceeding in state courts.  Class action defendants that defeat class certification in federal court will have a difficult time obtaining injunctions to prevent another plaintiff from seeking to certify a similar class action in state court.  To learn more about the decision, please click here to read the Class and Derivative Actions Group’s Alert published June 16, 2011.

United States Supreme Court Defines Limits of Bankruptcy-Court Jurisdiction, Raises Additional Questions

The Supreme Court’s recent decision in Stern v. Marshall has significant implications for litigants, such as lenders, who often are forced to litigate non-bankruptcy issues in bankruptcy courts.  The case involves the sixteen-year-old legal battle between model/actress Anna Nicole Smith and her late husband’s son, Pierce Marshall.  To read more about the decision, please click here to read the Bankruptcy, Restructuring and Creditors’ Rights Client Service Group’s Alert published June 28, 2011.

Supreme Court Rejects Applying Stringent Loss Causation Requirement To Obtain Class Certification in Securities Fraud Class Actions

In a decision of consequence for publicly traded companies and their directors and officers, the Supreme Court recently rejected any requirement that class action plaintiffs prove “loss causation” at the class certification stage.  The decision in Erica P. John Fund, Inc. v. Halliburton Co. takes away from defense lawyers what might have been a valuable tool in seeking to defeat motions to have a class certified.  To read more about the decision, please click here for the Alert published by the Class and Derivative Actions practice of the Securities Litigation and Enforcement Client Service Group on June 9, 2011.

Supreme Court Considers Important Fiduciary Issues Under ERISA

In CIGNA Corp. v. Amara, an employee class action lawsuit, the Supreme Court discussed fiduciary disclosure requirements, the level of harm participants must show to prevail in a claim of breach of fiduciary duty, and remedies available to participants harmed by a fiduciary breach under ERISA.  To learn more about the opinion, please click here to read the Alert published by the Employee Benefits & Executive Compensation Client Service Group on June 1, 2011.

Class Action Waivers in Commercial and Consumer Arbitration Agreements after Concepcion

In AT&T Mobility, LLC v. Concepcion, the Supreme Court struck down a  California rule that invalidated more class action waivers in consumer contracts.  Many have hailed (or railed against) Concepcion as the death knell for class actions.  To read more about the case, please click here to read the Alert published by the Class and Derivative Actions, Commercial Litigation, Franchise and Distribution Law and Retail Groups on June 8, 2011.

Recent Supreme Court Decisions Clarify Important Patent Issues

In separate decisions, the Court clarified three important aspects of patent law.  To learn more about the Court’s decisions in Global-Tech Appliances, Inc. v. SEB SA (that inducement of patent infringement requires knowledge that a patent exists and the acts constitute infringement of that patent), Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems Inc. (that the Bayh-Dole Act does not change ownership of inventions that result from federal funding), and Microsoft Corp. v. i4i Ltd. Partnership (that a factual challenge to a patent’s validity requires clear and convincing evidence), please click here to read the Bulletin published by the Intellectual Property Client Service Group on June 10, 2011.

Georgia’s Immigration Crackdown Phases in E-Verify Requirements for Private Employers

In May Georgia became the latest state to enact immigration legislation when Governor Nathan Deal executed the Illegal Immigration Reform and Enforcement Act of 2011 (IIREA).  Portions of the law took effect on July 1, 2011, with the remaining portions becoming effective during the next two years.  To learn more about the Act, please click here to read the June 30, 2011 Alert published by the Labor & Employment Client Service Group.

ICANN Approves Process to Apply for Dot-Anything Domain Names

Following three years of intense discussions, commentary and numerous reports, in June the Internet Corporation for Assigned Names and Numbers (ICANN) — the body overseeing the Internet — approved a process to register virtually any combination of letters as a generic top-level name, such as “.com” and “.net,” among others.  Under the process, applicants may now seek ownership of terms such as “.bryancave,” “.movies,” and “.newyork.”   Please click here to read the June 30, 2011 Bulletin published by the Intellectual Property Client Service Group about the process.

Texas Law Allows Employees to Store Concealed Weapons in Privately Owned Automobiles in Company Parking Lots 

In June, Texas Governor Rick Perry signed into law Senate Bill 321, making it unlawful for an employer to prohibit an employee who holds a concealed handgun license from transporting or storing a lawfully possessed firearm or ammunition in a locked, privately owned automobile in any parking facility the employer provides for employees.  In passing the law, Texas has joined a growing number of states that restricts employers’ rights to exclude firearms from their parking facilities.  To read more about the legislation, please click here to read the Alert published by the Labor & Employment Client Service Group on June 29, 2011.

Increased Scrutiny of Contractors’ Code of Ethics, Compliance Program, and Internal Controls is Likely

A one-sentence addition to the Federal Acquisition Regulation effective June 30 should cause Federal contractors that have not reviewed their codes of conduct and business ethics recently to do so.  Similarly, they should also check that any business ethics awareness and compliance program required by their contracts will pass muster.  To learn more about the addition to the regulation, please click here to read the Alert published by the Government Contracts Team on June 22, 2011.

I-129 Form Amended to Require Certification by Petitioner of Compliance with U.S. Export Controls

As of February 20, 2011, the I-129 Petition for a Non-Immigrant Worker form for the first time requires companies that desire to sponsor a foreign national for temporary work in the United States to attest to compliance with U.S. export regulations.  Although this does not create any new compliance obligations, the required certification has raised awareness about export compliance with regards to the licensing of non-U.S. persons.  To learn more, please click here for the International Regulatory Bulletin published June 10, 2011.

DDTC Issues Proposed Rule Clarifying the Definition of “Defense Service”

In April the Department of State, Directorate of Defense Trade Controls issued a proposed rule to amend the International Traffic in Arms Regulations to clarify the scope of activities that constitute a “defense service.”   The proposed rule also introduces new definitions, dividing maintenance activities into one of three categories.  DDTC accepted public comment on the proposed rule through June 13, 2011.  To read more about the proposed rule, please click here to read the International Regulatory Bulletin published June 9, 2011.

News Alert – German Labor Law & HR

Please click here to read the Briefing published by the Labor and Employment Client Service Group (Hamburg) on June 15, 2011.  The Briefing addresses the following topics under German employment law:  (i) Length of service under the age of 25 has to be taken into account in the calculation of notice periods under German law; (ii) German Agency work sector faces claims amounting to millions.  Companies that borrowed employees also face liability risks; and (iii) Drafting and serving notice letters under German law .

The Judge in the U.S. District Court for the Eastern District of Missouri, Southeastern Division, entered an order dismissing a lawsuit filed by Lt. Gov. Peter Kinder that challenged the Patient Protection and Affordable Care Act.  Kinder et al v. Geithner et al. was filed in July 2010 by Kinder, joined in by six other Missouri residents, as a private citizen after the state’s attorney general declined to join other states in challenging the health care law.  To read more about the order in this case, please click here to see the Alert published by the Life Sciences and Health Care Client Service Group on May 3, 2011.

FTC Cracking Down on Affiliate Advertisers

In April the FTC filed 10 lawsuits against companies and individuals that run affiliate advertising websites.  These lawsuits come within two months of an earlier round of lawsuits targeting affiliate advertising programs.  The most recent targets are fake news websites that promote weight loss products.  To learn more, please click here to read the Alert published by the Retail Team on May 5, 2011.

Arbitration Clauses May Waive Class Proceedings

The U.S. Supreme Court recently ruled that the Federal Arbitration Act does not allow state law to invalidate class action waivers in arbitration agreements on the basis of unconscionability.  While AT&T Mobility v. Concepcion involved consumer claims, the language of the ruling will bolster enforceability of class action waivers in employment related arbitration agreements.  To read more about the ruling, click here for the Alert published by the Labor & Employment Client Service Group on May 18, 2011.

First-of-its-kind SEC Deferred Prosecution Agreement May Mark a New Era of FCPA Enforcement

On May 17, 2011, the SEC announced its first use of a Deferred Prosecution Agreement as a means to settle an enforcement action against a company.  The agreement was used to resolve an investigation of payments to foreign officials alleged to have violated the Foreign Corrupt Practices Act.  Criminal prosecutors have long used such agreements but the SEC’s Division of Enforcement only recently has signaled a willingness to use this method to resolve cases.  To learn more about the implications of the SEC’s use of the agreement, please click here to read the Alert published by the White Collar Defense and Investigations and Securities Litigation and Enforcement Client Service Groups and the Global Anti-Corruption/Foreign Corrupt Practices Act Team on May 19, 2011.

Former In-House Lawyer Acquitted of Federal Charges; Prosecution Still Provides Cautionary Tale

In a case that had alarmed corporate counsel, a federal judge acquitted Lauren Stevens, a former in-house lawyer for GlaxoSmithKline, of criminal charges that she had obstructed a federal investigation and made false statements to FDA investigators.  In-house lawyers, as well as outside counsel who handle government investigations on behalf of corporate clients, should take note of the points central to the Judge’s ruling.  To learn more, please click here to read the Alert published by the White Collar Defense and Investigations Client Service Group on May 13, 2011.

FTC Brings String of Lawsuits Against the Use of “Advertorials” and Affiliate Advertising

The FTC recently filed suit against 10 operators of advertorial websites that promote acai berry weight loss products.  The websites are affiliate advertisers that earn commissions by steering consumers to a seller’s website where the consumer can purchase the products promoted on the affiliate’s site.  To learn more about the string of lawsuits, please click here to read the Alert published by the Consumer Protection Group on May 2, 2011.

Avoiding Legal Traps When Offering “Groupon” or “Living Social”-like Discounted Certificates

Many retailers and service providers are interested in building up new business by offering a deeply-discounted “Groupon” or “Living Social”-like promotional certificate program.  To avoid the legal problems that can arise because the discounted certificates almost always have a short expiration date, please click here to read the Alert published by the Financial Institutions Group & Retail Team on May 3, 2011.

AEO Global Recognition – Trend in Global Trade Security and Facilitation, and the China Link

As one of the two pillars of the World Custom’s Organization’s Framework of Standards to Secure and Facilitate Global Trade, the Authorized Economic Operator program seeks to “reward” compliant businesses with simplified customs procedures and controls, as well as guarantee the safety and facilitation of global trade.  To read more about the AEO program, please click here for the Asia Trade Alert published May 26, 2011 by the International Trade group.

The 2010 health care reform legislation included an obligation for employers to inform employees of the cost of their health coverage.   The IRS has now issued Notice 2011-28, which provides interim guidance for employers on W-2 reporting  of the cost of coverage.  For more information, please click here to read the Alert regarding the Notice published by the Employee Benefits & Executive Compensation Client Service Group on April 5, 2011.

Form I-9:  Changes to Accepted Documentation

As of May 16, 2011, the documents employees present to employers for I-9 verification are subject to new regulations.  The U.S. Citizenship and Immigration Services of the Department of Homeland Security has issued a final rule concerning the list of acceptable documentation.  To learn more about the changes in acceptable documentation, please click here to read the Alert published by the Labor & Employment Client Service Group on April 27, 2011. 

Reminder for Plan Administrators to Review Confidentiality Procedures for Qualified Retirement Plans 

Plan administrators of plans that offer employer stock as an investment alternative should review the disclosures provided to plan participants.  Investment in employer stock represents a significant litigation threat for plan fiduciaries.  However, the plan fiduciary may be relieved of liability for participant losses resulting from the decision to invest in employer stock if certain disclosures are provided under ERISA Section 404(c).  To learn more, please click here to read the Alert published by the Employee Benefits & Executive Compensation Client Service Group on April 12, 2011.

Pension Plan Reporting of Foreign Bank and Financial Accounts

Representatives of pension plans with interests in foreign financial accounts may be required to report those accounts to the Internal Revenue Service.  On February 24, 2011 the Treasury Department issued final regulations greatly expanding the reporting requirements for individuals and entities that hold interests in foreign accounts.   To learn more about the regulations, please click here to read the Alert published April 12, 2011 by the Employee Benefits & Executive Compensation Client Service Group.

ITC Invites Public Comments on Using Patent Licensing to Satisfy Section 337′s Domestic Industry Requirement

In an unusual move, the U.S. International Trade Commission has requested public comments on domestic industry issues involving patent licensing.  The Commission’s questions focus on how companies who  license their patents in portfolios can satisfy Section 337′s domestic industry requirement with respect to an individual patent.  To learn more, please click here to read the Bulletin published by the Intellectual Property Client Service Group on April 25, 2011.

Federal Reserve Issues Clarification Regarding Definition of “Credit Card” — Prepaid Cards That Access Lines of Credit are Impacted

On March 18, 2011, the Federal Reserve issued a Supplementary Information and Final Regulation and Commentary clarifying the definition of credit card.  To learn more about how the new Supplementary Information impacts debit and prepaid cards that access a line of credit, please click here to read the Alert published by the Financial Institutions Client Service Group on April 20, 2011.

French Economic Dismissal:  Pre-Dismissal Obligation to Attempt to Relocate Employee Abroad

One of the obligations prior to dismissing an employee for economic grounds in France is to attempt to relocate the employee within the company or group, even abroad.  A French Circular dated March 15, 2011 sets forth in detail the procedure to follow in the event of relocations abroad.  To learn more, please click here for the Briefing published by the Labor & Employee Client Service Group, Paris, on 15 April 2011.

Liberalization of the Paris Commercial Court’s International Chamber

The Paris Commercial Court recently announced that as from January 1, 2011, its international chamber will now accept, in appropriate cases, to hear pleadings and to receive exhibits in foreign languages.  To learn more about this announcement, please click here for the Alert published by the Commercial Litigation Client Service Group, Paris, on 28 April 2011.

DDTC Issues Proposed Rule Regarding Replacement Parts/Components and Defense Articles Incorporated into Dual-Use Items

On March 15, 2011, the Department of State, Directorate of Defense Trade Controls issued a proposed rule to amend the International Traffic in Arms Regulations in two important respects.  First, to create a license exemption to allow for the export of replacment parts and components to support previously licensed defense articles. Second, to eliminate export licensing requirements in a limited number of instances for articles that are incorporated into dual-use items subject to the Export Administration Regulations.  To learn more about the proposed rule, please click here to read the International Regulatory Bulletin No. 481 published April 7, 2011.

MOFCOM Regulations Provide Supplemental Information on New M&A National Security Review

On March 4, the Ministry of Commerce (“MOFCOM”) issued interim regulations on matters relating to the implementation of the security review system for merger with and acquisition of domestic enterprises by foreign investors.  The interim regulations will be effective for a five-month period from 5 March 2011 to 31 August 2011.  To learn more, please click here to read International Regulatory Bulletin No. 482 published April 22, 2011.

Malaysia Fully Implements Strategic Trade Action 2010 from 1 April 2011

Malaysia’s Strategic Trade Act 2010, Regulations and Orders, which aims to control export, transshipment, transit and brokering of strategic items, including arms and related material, that will or may facilitate the design, development and production of Weapons of Mass Destruction and their delivery systems came into force on 1 January 2011.  To learn more about this and other export control developments, please click here to read the April 2011 Asia Trade Alert.