Practice Areas & Industries: Duane Morris LLP


Employee Benefits and Executive Compensation Return to Practice Areas & Industries

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Practice/Industry Group Overview

How does an employer create and maintain effective employee benefits and compensation programs? The process requires the delicate balancing of employee needs, company culture, cost, competitive pressures, and administrative and regulatory complexity. Instead of offering "one size fits all" services, the members of Duane Morris' Employee Benefits and Executive Compensation (EBEC) Group recognize that creative thinking, planning, and a thorough understanding of the client's unique needs are an essential prerequisite to offering legal services that are in line with each client's expectations.

Our attorneys provide clients with the full range of employee benefits legal services. From qualified retirement plans to sophisticated equity compensation arrangements and from executive employment agreements to broad-based health and welfare plans, the members of the EBEC Practice combine practical experience with high-quality and efficient service that leads to practical solutions.

Range of Services

Qualified Retirement Plans

Our attorneys offer in-depth experience in the design, administration and ongoing compliance with respect to qualified plans. We have experience representing plans in a general counsel capacity, including contracting for services, fiduciary counseling, developing administrative policies and advising fund administrators and trustees. Our attorneys offer assistance with plan administration and management, including day-to-day support for in-house benefits personnel regarding plan transactions (e.g., distributions, loans, withdrawals, investment changes, and QDRO administration), participant communications, participant claims and inquiries and contractual relationships with plan service providers. The following types of qualified plans are supported:

  • 401(k) and other defined contribution plans
  • defined benefit plans, including cash balance and other hybrids
  • ESOPs
  • multi-employer plans

Nonqualified Deferred Compensation

Our attorneys design and draft NQDC plans and counsel clients on all aspects of their plans, including compliance with Internal Revenue Code section 409A. Our attorneys are currently providing guidance to clients on NQDC plans and the issue of pre-409A grandfathered deferrals and transition into Code section 409A-compliant plans.

Executive Compensation

Our attorneys design, draft and counsel clients on the tax and design implications of executive compensation plans, as well as related federal and state securities law, employment law and accounting considerations.

The EBEC Practice has assisted numerous clients in establishing option plans and other equity compensation arrangements, as well as providing guidance on rabbi trusts and other devices to provide security for nonqualified plans. Recent transactions include:

  • negotiating retention, severance and employment agreements
  • calculating "golden parachute" liabilities
  • creating an equity program for the U.S. executives of a foreign corporate parent
  • globalizing the equity incentive plan of a multinational company
  • creating SERPs and phantom plans for mid-level executives where equity is not available
  • creating nonqualified programs for executives of nonprofit organizations
  • designing an equalization program for transferring executives among foreign and U.S. affiliates

Welfare Benefit Plans

With increasing federal regulation of health benefits and rapid changes in the healthcare industry, compliance is becoming increasingly complex. Our attorneys act in a general counsel capacity and provide advice on the impact of many laws affecting welfare benefit plans, including, but not limited to HIPAA, COBRA, FMLA, ADA, ADEA and USERRA. We are often called upon to analyze existing programs to improve them and make them more efficient. We counsel employers and plan administrators in a wide offering of benefit plans, including:

  • health, life and fringe benefit plans
  • cafeteria plans/medical expense reimbursement plans
  • dependent care expense reimbursement plans
  • adoption assistance plans
  • education assistance plans
  • VEBAs
  • multi-employer health and welfare programs

Fiduciary Counseling

Our attorneys counsel plan trustees and administrators, business owners and executives regarding their fiduciary responsibilities in a broad spectrum of areas, including:

  • ERISA fiduciary status
  • ESOP trustees
  • prohibited transactions
  • advisory fees
  • investment of plan assets in nontraditional ventures

Corporate Transactions

Our attorneys are sensitive to the related benefits and compensation issues that impact transactional matters. When appropriate, we interface with our corporate, tax and finance attorneys to provide a complete range of services.

Financial Products

We provide advice to entities, such as insurance companies, that create and market financial products to employers and high net worth individuals. These include:

  • insurance company retirement plan products
  • new mutual fund trading platforms
  • fund-of-funds arrangement with a QPAM to limit potential fiduciary exposure
  • special tax sheltered annuity programs

We also work with employers to review and prepare financial products for their employees. These include:

  • split-dollar and other insurance arrangements
  • funded welfare programs
  • rabbi trusts and other methods of funding nonqualified plan accruals

Employee Communications

Frequently, litigation in the employee benefits area is based on faulty or incomplete communications of the salient provisions of retirement and welfare plans. Further, the government is requiring the communication of broader and more detailed information in connection with these plans and programs. Our attorneys have considerable experience preparing and reviewing communications materials, ranging from summary plan descriptions to COBRA and other notices to specialized materials for executives. We often create information packages that are both comprehensive and comprehensible.


Benefits-related litigation is one of the fastest growing sectors in the federal court system. Our attorneys work with employment and litigation attorneys to represent companies and individuals involved in benefits-related disputes. Often, these simply involve the application of the claims procedures set forth in retirement and welfare plans. However, with increasing regularity, we find these matters moving through the court system or to another dispute resolution process.

Our EBEC attorneys work with litigators in our Employment and Trial Practice Groups to provide practical advice on both the technical and procedural aspects of benefits-based litigation. This enables us to take advantage of the strengths of our individual attorneys in these representations. Examples of litigation projects include:

  • legal compliance reviews of plan documents and operations
  • representing plan administrators and financial advisors in fiduciary breach actions
  • representing liquidating employee benefit trusts
  • preventing the cloning of trade association programs
  • preparation of amicus briefs in benefits cases of national importance
  • advising clients on the ownership of stock associated with the demutualization of insurance companies
  • representing insurers in connection with covered claims on large fiduciary policies


Services Available

Articles Authored by Lawyers at this office:

Another Private Equity Filing Deadline Approaches: Do You Know Where Your BE-10s Are?
Piero Carbone,Richard P. Jaffe,Brian P. Kerwin,Thomas R. Schmuhl, May 25, 2015
For those who have not heard, another filing requirement of the U.S. government will require action by participants in the private equity industry. Form BE-10 is a mandatory filing required by the International Investment and Trade in Services Survey Act as part of the 2014 Benchmark Survey of U.S....

Philadelphia Sick Leave Law on Promoting Healthy Families and Workplaces Goes into Effect
, May 25, 2015
Philadelphia's mandatory sick leave ordinance, "Promoting Healthy Families and Workplaces," goes into effect on May 13, 2015. In connection with its enactment, the City of Philadelphia has now issued a mandatory poster.

Recent IRS and Congressional Focus on Micro-Captives
Jocelyn Margolin Borowsky,Hugh T. McCormick, May 15, 2015
Captive insurance companies have been used for risk management purposes since the 1960s, when industrial corporations found insurance for their risks either challenging to find in the marketplace, or expensive. One solution was to form wholly-owned and controlled insurance companies (hence the term...

California Court of Appeal Ruling Provides Further Guidance for Dealing with Trade Secret Claims Brought in Bad Faith
Karineh Khachatourian,Daniel T. McCloskey, May 11, 2015
On April 28, 2015, the California Court of Appeal issued its decision in Cypress Semiconductor Corporation v. Maxim Integrated Products, Inc., et al., affirming the trial court's finding that plaintiff Cypress Semiconductor Corporation brought its trade secret claim in bad faith and awarding...

City of Philadelphia Requests Proposals to Implement Online Auction for Sale and Assignment of Delinquent Real Estate Tax Liens
Louise S. Melchor,Brett L. Messinger, May 11, 2015
The City of Philadelphia recently announced a request for proposals to implement an online auction for the sale and assignment of some of the city's delinquent real estate tax liens. The auction will allow third parties to bid on the tax liens, with the successful bidder assigned the lien from the...

OFAC Releases Guidance Concerning Travel Between the United States and Cuba
Brian S. Goldstein, May 11, 2015
On May 5, 2015, the Office of Foreign Assets Control (OFAC) published a guidance document regarding travel between Cuba and the United States. Persons subject to the jurisdiction of the United States who are traveling to and from Cuba from the United States—either under a general license for...

Possible Shift of Perspectives on Breadth of NEPA Review; CEQ's Draft Greenhouse Gas Guidance
Sheila Slocum Hollis,Dennis J. Hough, May 11, 2015
Pursuant to the National Environmental Policy Act (NEPA),[1] and the corresponding NEPA regulations issued by the Council on Environmental Quality (CEQ)[2] and the respective reviewing agencies, federal agencies are required to consider the environmental impacts of proposed federal...

Winning Streak Continues in ITC Trade Secret Theft Investigations
Michael G. McManus, May 11, 2015
Section 337—the unfair trade practice remedy administered by the International Trade Commission (ITC or the "Commission")—has most often been used to counter importation of goods that infringe U.S. patents. A recent case, however, reinforces the concept that Section 337 can...

California Transparency in Supply Chains Act -- SB 657 Enforcement by California Attorney General
, April 30, 2015
We reported in a prior Duane Morris Alert that the California Transparency in Supply Chains Act (the Act) requires large retail sellers and manufacturers doing business in California to publicly disclose their efforts to eradicate forced labor from their direct supply chains. The law pushes such...

California Federal Court Dismisses Trade Secret and Other Tort Claims
Karineh Khachatourian,Daniel T. McCloskey, April 28, 2015
On April 13, 2015, the Northern District of California rejected claims in a complaint by online real estate community and web application company plaintiff Top Agent Network, Inc. (TAN) that alleged online real estate marketplace, Zillow, Inc., improperly used and disclosed information about TAN's...

SEC Adopts "Regulation A+" Rules
Darrick M. Mix,Howell J. Reeves,Barry Steinman,Sandra G. Stoneman, April 27, 2015
On March 25, 2015, the U.S. Securities and Exchange Commission (SEC) adopted final rules amending Regulation A under the Securities Act of 1933.[1] Regulation A, as amended (which is referred to as "Regulation A+"), is designed to increase access to capital for nonpublic companies and...

EEOC Proposed Rule Would Amend Regulations and Interpretive Guidance Implementing Title I of ADA Related to Employer Wellness Programs
, April 22, 2015
On April 16, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule amending the regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs. The proposed rule provides guidance on the...

FERC Sets Ginna Nuclear Facility Agreement for Hearing
Dennis J. Hough,Stephen L. Teichler, April 22, 2015
The Federal Energy Regulatory Commission (FERC or Commission) continues to look askance at utility requests for guaranteed income streams for their generation resources. Most recently, R.E. Ginna Nuclear Power Plant, LLC (Ginna) received a lukewarm reception to its request to establish a rate...

Highlights from the NAIC Spring Annual Meeting on PBR and Captive Insurance Companies
Cameron F. MacRae,Hugh T. McCormick,K. Oliver Rust, April 22, 2015
Beginning in 2013, we have issued a series of Alerts on the controversy regarding the use of captive insurance companies to finance reserves for certain type of life insurance policies (so-called "XXX or AXXX reserves," which are widely believed to exceed reserves that are actually needed...

New York City Council Passes Bill Prohibiting Employers from Requesting or Using Consumer Credit History in Employment Decisions
, April 22, 2015
On April 16, 2015, the New York City Council passed a bill (Intro. No. 261-A, 2014) that would amend the New York City Human Rights Law to prohibit employers from requesting or using an individual's consumer credit history in making employment decisions. The prohibition applies to all employment...

Tweet All About It: U.S. Bankruptcy Court Rules Business Social Media Accounts Are Property of Debtor LLC's Bankruptcy Estate, Not Individual LLC Members
Rosanne Ciambrone,Rudolph J. Di Massa,Ron Oliner,Lauren Lonergan Taylor, April 22, 2015
In a case of first impression in Texas, the United States Bankruptcy Court for the Southern District of Texas held that the former majority member of a chapter 11 LLC debtor had to relinquish control of the LLC's Facebook page and Twitter account because they were property of the LLC's bankruptcy...

OFAC Publishes Amendments to the Syrian Sanctions Regulations
Brian S. Goldstein, April 17, 2015
On April 13, 2015, the Office of Foreign Assets Control (OFAC) published in the Federal Register amendments to the Syrian Sanctions Regulations. Specifically, OFAC, by a new General License, has authorized "certain activities relating to publishing, not already exempt from regulation, that...

President Obama Signs Executive Order to Block Property of Those Engaging in Malicious Cyber-Enabled Activities
Brian S. Goldstein,Sandra A. Jeskie, April 15, 2015
In response to the "increasing prevalence and severity of malicious cyber-enabled activities" originating from outside the United States (in whole or in part), President Obama, determining that such activity constitutes an unusual and extraordinary threat to the United States, signed an...

FDA Issues New Documents Governing Drug Compounding
Patrick C. Gallagher,Rachael G. Pontikes,Alison T. Rosenblum, April 14, 2015
The first few months of 2015 have proven very active for the U.S. Food and Drug Administration (FDA) and its regulation of pharmaceutical compounding. On February 13, 2015, FDA announced the release of five new documents related to drug compounding and repackaging. The documents provide further...

National Labor Relations Board General Counsel Issues Guidance on Rules of Conduct
, April 14, 2015
On March 18, 2015, the General Counsel (GC) of the National Labor Relations Board ("Board") issued Memorandum GC 15-04 to the Regional Offices of the Board with respect to the application of the National Labor Relations Act (the "Act") to conduct and other rules issued by...

New Jersey Trial Court Grants Summary Judgment in Accutane Mass Tort Cases
James J. Ferrelli, April 14, 2015
In an opinion issued on April 2, 2015, the Honorable Nelson C. Johnson, JSC, granted the motion of defendants Hoffmann-LaRoche, Inc. and Roche Laboratories, Inc. for summary judgment in the In re Accutane Multicounty (mass tort) Litigation (MCL) on the grounds that the defendants' post-April 2002...

SEC Declares Open Season on Employee Agreements
, April 14, 2015
On April 1, 2015, the United States Securities and Exchange Commission (SEC) announced an enforcement action¿the first of its kind¿against KBR, Inc., for requiring employees involved in internal investigations to maintain confidentiality, which is in violation of the SEC's whistleblower rules.

CMS Updates 5 Star Ratings System for Nursing Homes with New Measures
Ari J. Markenson, April 07, 2015
As of February 20, 2015, the Centers for Medicare & Medicaid Services (CMS) has revised its 5 Star Rating System for nursing homes. The changes to the system involve adding two new nursing home quality measures for antipsychotic use into the Quality Measure Rating, Increasing the number of...

Lawyer in Vietnam Oliver Massmann SEAPORT DEVELOPMENT - Vietnam’s new Master Plan for seaport system development 2020-2030
Oliver Massmann, April 07, 2015
Vinamarine has been assigned by Vietnam’s Government to prepare a new Master Plan for ports for the period 2020-2030. Three reports have been produced so far and, after completion, the plan will be subject to Prime Minister’s approval and then promulgated. The master plan focuses on...

Coming Soon: New E-Bidding System and Regulations in Vietnam to Boost Public Procurement
Manfred Otto, April 06, 2015
Contractors will soon be able to benefit from electronic bidding in Vietnam. The Vietnamese Government has issued the new Law on Bidding promising great changes to the bidding process for public investment projects, including public-private partnership (PPP) projects. The Ministry of Planning (MPI)...

Consider These Tips in Maximizing Your Charitable Tax Deduction
Tracey Kuehn,Steven M. Packer, April 06, 2015
As the tax deadline approaches, you may wish to consider whether you have incurred out-of-pocket expenses while serving as a volunteer on behalf of a charitable organization. If so, your expenses may be tax deductible provided they are properly substantiated. It is prudent to have your...

Lawyer In Vietnam Oliver Massmann Vietnamese Taxation of Foreign Agents and Distributors
Oliver Massmann, April 06, 2015
A foreign organization or individual conducting profit-generating business in Vietnam is subject to Vietnamese tax. However, whether the sale of goods in Vietnam through local agents or distributors by foreign organizations and individuals is subject to Vietnamese tax is still questionable. The tax...

The Need for Speed Online: Don’t Just Sit There!
Eric J. Sinrod, April 06, 2015
Do you ever get up in the morning, feeling sluggish and just not up to the tasks that await you? For most of us, the answer is yes, at least once in a while.

United Kingdom Budget 2015: Key Points
Jenny Wheater, April 06, 2015
The UK Chancellor of Exchequer, George Osborne, delivered his 2015 Budget Speech to the House of Commons on 18 March 2015. This Alert highlights the key announcements made. Some of them were expected since they derive from draft legislation released in December. Others are new and their full...

Video Gaming Bill Reintroduced in Pennsylvania
Adam Berger,Frank A. DiGiacomo,Eric D. Frank,Christopher L. Soriano, April 06, 2015
Pennsylvania House Bill 808, introduced this week, would authorize video gaming machines for video poker, bingo, keno and other games in establishments with valid liquor licenses, such as restaurants, bars, taverns, hotels or clubs, in Pennsylvania. In addition to providing an overview of the...

Potential Implications of the Indian Government Tax Dispute with Cairn Energy
, April 02, 2015
Earlier this month, Cairn Energy filed a notice for settlement of disputes with the Indian government under the Agreement for Promotion and Protection of Investments between the UK and India. The dispute stems from a tax demand of $1.6 billion raised by the Indian Income Tax Department on Cairn...

Proposed New Regulatory Landscape for Proprietary Trading Firms
, April 02, 2015
As the result of a recent series of proposed new and amended rules and regulations, firms whose business is proprietary trading in the financial markets - such as so-called "high frequency traders" (HFT) - may become subject to an entirely new substantive regulatory landscape, including...

UK Finance Act 2015 -- Royal Assent Received
, April 02, 2015
Following the draft clauses of December 2014, a final version of the UK Finance Bill 2015 was published on 24 March 2015. Since there is a general election in the UK this May, the Bill received Royal Assent on 26 March to become the Finance Act 2015. A further finance bill is likely after the...

Supreme Court Reinstates Pregnancy Discrimination Claim Against UPS
, April 01, 2015
The U.S. Supreme Court on March 25, 2015, vacated a Fourth Circuit Court of Appeals decision and revived a pregnancy discrimination lawsuit brought against United Parcel Service (UPS).

Bill Restricting Casino Gaming Operations in Pennsylvania Goes to Committee
Adam Berger, March 30, 2015
Last week, a Pennsylvania bill, which would restrict the hours of operation of Pennsylvania casinos, was referred to the House Committee on Gaming Oversight. Specifically, House Bill Number 165 would require casinos in the Commonwealth to close between the hours of 2 a.m. and 6 a.m. In a memorandum...

Drug Quality and Security Act Does Not Apply to Veterinary Compounding
Patrick C. Gallagher,Rachael G. Pontikes,Alison T. Rosenblum, March 30, 2015
While the Drug Quality and Security Act (DQSA) provided a new regulatory framework for compounded medications for use in human medicine, it does not apply to veterinary compounded medications. There has been some confusion in the industry, but veterinary compounded medications are still regulated...

Easing Of Restrictions On Travel To Cuba Goes Into Effect
Jose A. Aquino, March 30, 2015
On December 17, 2014, the Obama Administration announced new regulations governing travel to and trade with Cuba. Today, the U.S. Department of the Treasury and the U.S. Department of Commerce published in the Federal Register the revised Cuban Assets Control Regulations and Export Administration...

Keeping Our Tech Love Alive
Eric J. Sinrod, March 30, 2015
We live in a world in which we are bombarded with information data from many sources, and so much around us on the tech landscape is transparent. How, then, do we keep our tech love alive?

Lawyer in Vietnam Oliver Massmann Labor Law
Oliver Massmann, March 30, 2015
The Vietnamese labor law is oriented employee-friendly to the greatest extent and in most cases is interpreted to the disadvantage of the employer. It has an effect particularly in labor law-related disputes which are in most cases decided in favor of the employee. The employment contract has to be...

Lawyer in Vietnam Oliver Massmann Negotiations on the Free Trade Agreement between Vietnam and the European Union: At this Rate Vietnam Will Kill the Goose that Lays the Golden Eggs Vietnam Needs a Sound Strategy
Oliver Massmann, March 30, 2015
Since the mid 1990s, Vietnam is engaged in international trade. The US embargo on Vietnam was lifted in 1994 and Vietnam joined the Association of South East Asian Nations (ASEAN) and subscribed to the ASEAN Free Trade Area (AFTA), including the Common Effective Preferential Tariff (CEPF)...

Lawyer in Vietnam Oliver Massmann Pharmaceutical Market
Oliver Massmann, March 30, 2015
Vietnam’s healthcare system is currently in general on the move due to the economic growth and the rapid development.

Lawyer in Vietnam Oliver Massmann Renewable Energy
Oliver Massmann, March 30, 2015
In accordance with the growth of Vietnam’s economy and population, the country is thirsting for energy. Vietnam’s energy requirement increases by approx. 15% per annum. In 2008, the growth of the Gross National Product has almost doubled. It is expected that a further increase by at...

OIG - Medicare Hospices Have Financial Incentives to Provide Care in Assisted Living Facilities
Ari J. Markenson, March 30, 2015
On January 14, 2015, the U.S. DHHS Inspector General’s Office (the “OIG”) released a report (OEI-02-14-00070) entitled “Medicare Hospices Have Financial Incentives to Provide Care in Assisted Living Facilities.”

Representative Litigation: “Mootness” Fee Awards
Richard L. Renck, March 30, 2015
It is a nearly universal truth that counsel representing stockholder-plaintiffs in class or derivative litigation against (or on behalf of) Delaware entities will seek an award of fees and costs where their efforts have produced a benefit on behalf of the company or the class they represent. This...

The Illinois Duty to Defend: Litigation Insurance against Groundless Suits Even When Extrinsic Facts Known to Both Insurer and Insured Would Otherwise Abrogate Coverage
Mark A. Bradford, March 30, 2015
On January 13, 2015, the Illinois Appellate Court issued its opinion in Illinois Tool Works, Inc. v. Travelers Casualty and Surety Co., 2015 IL App. (1st) 132350 (1st Dist. 2015), wherein the court held the insurer had a duty to defend its insured against numerous vaguely pleaded toxic tort...

US Agriculture Coalition for Cuba Takes Off With the Goal of Normalizing Relations Between the United States and Cuba
Jose A. Aquino, March 30, 2015
On December 17, 2014, President Barack Obama announced that the United States would restore diplomatic relations with Cuba and reverse a more than 50-year policy of isolation. President Obama’s move to establish relations and ease sanctions against Cuba stirred the interest of U.S. business....

Where Has All the Privacy Gone?
Eric J. Sinrod, March 30, 2015
When it comes to privacy, a lyric from a Joni Mitchell song seems apt: “You don’t know what you’ve got till it’s gone.” Indeed, as technology has moved forward, it seems that practically every semblance of privacy has disappeared.

U.S. Supreme Court Holds Federal Agencies Can Issue New Interpretations Without Engaging in the Formal Rulemaking Process
, March 27, 2015
The U.S. Supreme Court ruled unanimously on March 9, 2015, that a federal agency is not required to partake in the formal rulemaking process, which consists of providing public notice and an opportunity for comment, when it "wishes to issue a new interpretation of a regulation that deviates...

Electricity Policy Shifts Are Gaining Momentum in New York
Dennis J. Hough,Stephen L. Teichler, March 26, 2015
In what is likely to be a harbinger of changes to status quo retail electricity markets, services and grid planning, the New York State Public Service Commission (New York PSC) adopted a new policy framework that would significantly influence the development of the electricity industry for years to...

Global Immigration Alerts
, March 26, 2015
This Alert highlights recent developments in global immigration and employment law in Canada, Egypt, Germany, Hong Kong, India, Israel, Malaysia, Romania, Singapore, Turkey, United Kingdom and Vietnam.

9th Circuit Resisting Efforts to Dilute CDA Section 230 ISP Immunity?
Eric J. Sinrod, March 25, 2015
Section 230 of the Communications Decency Act (CDA) generally affords immunity for Internet Service Providers (ISPs) with respect to content posted by users on their websites. There have been various efforts by plaintiffs in lawsuits to chip away at this immunity, most of which have failed. Now...

Anti-Money Laundering Remains at Forefront of Compliance in Nevada Gaming Industry
Jennifer Roberts, March 25, 2015
There is a lot of talk in the Nevada gaming industry about anti-money laundering efforts. In 1970, Congress passed the Bank Secrecy Act, which required banks to report large cash transactions in order to help find drug trafficking and tax evaders. The Bank Secrecy Act is enforced by FinCEN, the...

Arbitration Award Stands Despite Apparent Error of Law
Stanley A. Martin, March 25, 2015
A federal appellate court has reminded the business community that a mistake of law by an arbitration panel will not ordinarily be grounds to overturn the award. The arbitration concerned a terminated financial services consultant, who filed for arbitration almost two years after the termination....

Attacks on Prevailing Wage Laws - Where’s the Tipping Point?
Stanley A. Martin, March 25, 2015
News reports this week cover legislative action in four different states to reduce the scope of prevailing wage laws on public projects. Whatever your opinion on prevailing wage laws - love them, hate them, or somewhere in the middle - the effort to reduce the reach of those laws appears to be...

CMS Advises That Payment Codes on Home Health Claims Will Be Matched Against OASIS
Ari J. Markenson, March 25, 2015
CMS recently issued Transmittal SE1504 entitled “Payment Codes on Home Health Claims Will Be Matched Against Patient Assessments”.

Civil RICO Actions on the Rise to Combat Healthcare Insurance Fraud
James J. J. Ferrelli, March 25, 2015
Over the past several years, insurance carriers have aggressively pursued civil suits against doctors and other medical providers in an effort to fight healthcare insurance fraud. Besides theories of liability based upon common law claims such as fraud and unjust enrichment, insurers have more...

Consultants’ Communications Privileged from Discovery
Philip H. Lebowitz, March 25, 2015
In healthcare, companies often hire consultants to review billing and coding, privacy and security and a host of other technical issues that regular staff does not have the time or expertise to pursue. A recent discovery ruling in federal court in the Eastern District of Pennsylvania holds that...

Contract Disputes Act Deadline for Contracting Officer Decision - Can’t Keep Extending
Stanley A. Martin, March 25, 2015
The government when faced with a complex contractor claim may extend the deadline for the Contracting Officer’s response to a date beyond the original CDA 60-day period. What happens when the CO seeks to extend the deadline a second time? The Court of Federal Claims confirmed that the CO does...

Contractors Must Provide Sufficient Notice Of The Basis And Amount Of A CDA Claim
Michael J. Schrier, March 25, 2015
The U.S. Court of Appeals for the Federal Circuit recently decided the case of K-Con Building Systems, Inc. v. United States, No. 2014-5062 (Fed. Cir. Feb. 12, 2015). While this construction case reaffirms some relatively unremarkable concepts of liquidated damages and changes, it does provide some...

Golden Rules of Fiscal Law: Purpose, Time & Amount
Michael E. Barnicle, March 25, 2015
This week, the VA Inspector General reported that the certain government officials illegally used funds to develop a claims processing system that were intended to be used for medical support and compliance. This is what is called a “fiscal law” problem.

Lawyer in Vietnam Oliver Massmann Energy Sector
Oliver Massmann, March 25, 2015
Vietnam’s rapid development led at the same time to a continuous increase of energy requirement, both in the private sector and in the industry. Since then, the consumption of electricity has been rising by 15% per annum and, as a result, has considerably exceeded the economic growth rate....

Lawyer in Vietnam Oliver Massmann Online Gaming and Gambling in Vietnam
Oliver Massmann, March 25, 2015
Technically, “online gaming” [business] in Vietnam may cover: (i) “online game”, a game played over some form of computer network;[1] or (ii) “online gambling”, a term for gambling using the Internet.

Lawyer in Vietnam Oliver Massmann Public Procurement in the Energy Sector
Oliver Massmann, March 25, 2015
The Law on Foreign Investment in Vietnam permits business to be conducted in Vietnam through any of these entities.

Lawyer in Vietnam Oliver Massmann Transformation of the Financial Market Management
Oliver Massmann, March 25, 2015
Vietnam is one of the most dynamic markets of Asia. Since the financial institutions and authorities are a part of the general economic system, they are not only strongly involved in the changes, but also have a more solid financial basis for the competitiveness of the country. The financial sector...

Pennsylvania Considering Video Gaming Machines Again?
Frank A. DiGiacomo, March 25, 2015
On February 12, 2014, the Pennsylvania House of Representatives’ Gaming Oversight Committee held a hearing to receive testimony regarding the prospects of legalizing electronic gaming devices, i.e video gaming machines, in the Commonwealth. The hearing focused on gaming along the lines of...

Prevailing Wage Violation Invites Unsuccessful Bidder’s Tort Claim
Robert C. Hendrickson, March 25, 2015
Failing to pay prevailing wages on a public works project can have consequences beyond labor code penalties and claims for unpaid wages. Contractors who “unlawfully deflate their labor costs” by intentionally violating prevailing wage laws in order to win contracts are also subject to...

Smartphones Can Do Anything, Right?
Eric J. Sinrod, March 25, 2015
Once upon a time, frankly not that long ago, a telephone was something that was tethered by a wire to a phone jack and that enabled people to make telephone calls - nothing more. A home had one phone line, and perhaps multiple phones for that line.

UPDATE: Pennsylvania Internet Gaming
Eric D. Frank, March 25, 2015
A second poker-only bill (HB 695) was introduced and referred to the House Gaming Oversight Committee for review.

A New Protected Disclosure Venue Suggests Permanence For Demonstration Project Federal Contractor Employees’ Whistleblower Protections
Michael J. Schrier, March 19, 2015
In 2013, Congress enacted 41 U.S.C. § 4712 to provide whistleblower protections to employees of federal contractors who made disclosures concerning alleged “evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a...

Getting Serious About Cybersecurity
Eric J. Sinrod, March 19, 2015
Hack attacks have been in the news for a while. But the most recent headlines seem to indicate that hackers are far outpacing security efforts to contain them.

HHS Moves to Limit In-Office Ancillary Services Exception
Matthew C. Jones, March 19, 2015
The Department of Health and Human Services (“HHS”) is once again targeting the In-Office Ancillary Services Exception (“IOASE”) to the federal Stark Law, in an attempt to produce cost savings in the U.S. healthcare system. The IOASE provides a limited exception to the Stark...

Kentucky Attorney General: Internet Sweepstakes are Illegal Gambling
Eric D. Frank, March 19, 2015
This past Friday, the Kentucky Attorney General issued an opinion (OAG-15-005) concluding Internet sweepstakes machines meet the definition of illegal lotteries under Kentucky law and computers used at Internet sweepstakes cafes constitute illegal gambling devices.

Kentucky Senate Approves Shared Lottery Games Measure
Eric D. Frank, March 19, 2015
The Kentucky Senate today approved a measure to amend Kentucky’s lottery laws to add “shared lottery games” tying lottery ticket sales and horse races together. Senate Bill 74 permits proceeds from lottery ticket sales to be used to place pari-mutuel wagers by the Kentucky Lottery...

War Memorial Sculptor Wins Appeal in Copyright Litigation with Government
Arvind Jairam, March 19, 2015
An appellate court has affirmed a royalty award to a famous sculptor based on the U.S. government’s unauthorized use of his copyrighted work in a postage stamp. The decision by the Court of Appeals for the Federal Circuit in Gaylord v. United States comes after lengthy litigation that has...

$195 Million Awarded for Failure to Negotiate in Good Faith; PharmAthene, Inc. v. SIGA Technologies, Inc.
David A. Charapp, March 18, 2015
In 2011, I wrote about the PharmAthene, Inc. v. SIGA Technologies, Inc. case, in which the Delaware Chancery Court found that SIGA Technology Inc. failed to negotiate in good faith with PharmAthene, Inc. for the grant of a license to SIGA’s smallpox drug known as ST-246. This case provided an...

Bill Introduced In Senate To End Travel Restrictions To Cuba
Jose A. Aquino, March 18, 2015
On January 29, 2015, a coalition of four Republican and four Democrat senators introduced legislation to restore freedom to travel to Cuba. While President Obama has announced normalization of some relations between the two countries and relaxed travel restrictions to Cuba such that Americans...

FTC Seeks to Thwart ‘Revenge Porn’
Eric J. Sinrod, March 18, 2015
While the Internet provides many obvious advantages to people in this digital age, it can also enable a dark side for those intent on mischievous and criminal online behavior. “Revenge porn” is part of that dark side.

Health System Integration and Antitrust Laws on Collision Course
Philip H. Lebowitz, March 18, 2015
Health systems attempting to fulfill the mandate of integrating hospitals and physicians may find themselves accused of going too far. Although the Affordable Care Act, shared savings, gainsharing and other alternative payment methodologies have made integration of physicians, hospitals and other...

Lawyer in Vietnam Oliver Massmann - New PPP Laws in Vietnam: Moving Closer towards Bankable Projects? Oliver Massmann and Ho Gia Le Hoang
Oliver Massmann, March 18, 2015
Vietnam’s infrastructure development has struggled to keep up with continued economic and population growth. According to the statistics, Vietnam needs about US$170 billion for infrastructure investment in the period from 2011 to 2020 while the State budget is constrained, capital sources...

Mechanic’s Lien Amount Shall Not Include Attorneys’ Fees
Stanley A. Martin, March 18, 2015
The Utah Supreme Court has held that a mechanic’s lien does not include attorneys’ fees incurred by a contractor even when the lien statute allows recovery of reasonable legal fees. The court distinguished between the right to recover attorneys’ fees, and the amounts that could be...

New Jersey State Bar Committee to Review RPC 1.2(d) and Issues Pertaining to Medical Marijuana
James J. J. Ferrelli, March 18, 2015
The New Jersey State Bar Association (“NJSBA”) has established an ad hoc committee to review the ethical issues raised under New Jersey Rule of Professional Conduct 1.2(d) (which prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows is illegal or...

New U.S. Policy Towards Cuba Put In Motion By Construction Of Church
Jose A. Aquino, March 18, 2015
The construction of Cuba’s first Roman Catholic Church since Castro came to power in 1959 may well be the first test of the new U.S. policy towards Cuba. The new church, with an expected capacity to accommodate at least 200 worshipers, is set to be built in Sandino, a small, secluded town in...

President Orders Federally Funded Construction Projects To Plan For Flood Risks From Climate Change
Jose A. Aquino, March 18, 2015
On January 30, 2015, President Barack Obama signed an executive order requiring all federally funded construction projects to take into account flood risks linked to climate change.

Restoration of America’s Wire Act Reintroduced in Congress
Eric D. Frank, March 18, 2015
Representative Jason Chaffetz (R-UT-3) reintroduced the Restoration of America’s Wire Act today in the 114th Congress. The bill is identical to a measure set forth by Rep. Chaffetz in the last session of Congress.

Understanding SwissLeaks: Considerations for Banks, Account Holders and Fiduciaries in Light of Possible Enforcement Action in India
Saionton Basu, March 18, 2015
Last month saw further disclosure of 1,195 account holders in HSBC Private Bank in Geneva, Switzerland, with Indian addresses. Whilst that by itself connotes no manner of wrongdoing, given the information now resides in the public domain, the following potential risks emerge for banks, account...

Vietnam’s New Investment Law Paves the Way for More M&A - No More Investment Certificates!
Giles T. Cooper,Nhan T. Le,Manfred Otto, March 18, 2015
Good news for M&A in Vietnam! Effective 1 July 2015, foreign investors won’t need to undergo lengthy investment certificate procedures when buying stakes in Vietnamese target companies. The change, introduced by the new Investment Law, will hopefully end years of uncertainty and frustration...

Virtual Credit Card Payments
Patricia S. Hofstra, March 18, 2015
On January 30, 2015, several healthcare organizations sent a group letter to CMS protesting the use of virtual credit cards by health plans to pay providers. In a virtual credit card payment (a nonstandard type of electronic funds transfer EFT), a health plan or its payment vendor issues single-use...

ACOs are More Important Than Ever for LTC Facilities
Amy E. McCracken, March 13, 2015
On January 26, 2015, the United States Department of Health & Human Services (HHS) announced its timeline for shifting Medicare reimbursements from volume-based criteria to value-based criteria. HHS has adopted a framework that categorizes health care payments according to how providers receive...

Antipsychotic Drug Use Can Lower Nursing Home's Five-Star Rating
Amy E. McCracken, March 13, 2015
The Centers for Medicare & Medicaid Services (CMS) is continuing its efforts to reduce the national prevalence of antipsychotic drug use in long-stay nursing home residents. Its initial goal of a 15.1% reduction in antipsychotic drug use was met, so CMS now seeks to reduce antipsychotic drugs...

California Guidance on Complex Duty to Defend Disputes over Additional Insured Status
Max H. Stern, March 13, 2015
In McMillin Companies, LLC v. American Safety Indemnity Co. (4th Dist. Div. 1, No. D063586, January 22, 2015 (published in relevant part)), the California Court of Appeal for the Fourth District has provided some meaningful guidance on how a trial court should handle issues that regularly come up...

Can you receive a term of life imprisonment for forcing someone to accompany you to a different room in their own house?: Justice Scalia and a unanimous Supreme Court say “yes” in Whitfield v. United States of America, (though to be fair, I should note that Mr. Whitfield had just tried to rob a bank).
Eric R. Breslin, March 13, 2015
18 U.S.C. 2113 (e) has a long and venerable history, even by the storied standards of the federal criminal code. It was originally enacted in 1934 in response to "an outbreak of bank robberies committed by John Dillinger and others" Carter v. United States of America, 530 U.S. 255, 280...

Defense to Government Position is Not a Claim Subject to Contract Disputes Act
Stanley A. Martin, March 13, 2015
The government claims a contractor's work is defective. The contractor says in defense that problems are due to design deficiencies and not construction errors. Is the contractor's position a "claim" subject to the Contract Disputes Act (CDA)? The U.S. Federal Court of Claims says no.

Disaster of Domestic Arbitration Verdict Annulment In Vietnam - How to Avoid? Oliver Massmann - Ho Gia Le Hoang
Oliver Massmann, March 13, 2015
Recently, the media of Vietnam paid much attention to Vinalines case, the largest shipping corporation in Vietnam who lost an arbitration case brought to the Vietnam International Arbitration Center (VIAC). However, Vinalines then asked the court in Hanoi, Vietnam for annulment of VIAC’s...

Fees and Costs Awarded to False Claims Act Defendant
Seth A. Goldberg, March 13, 2015
A recent decision in the U.S. District Court for the Southern District of New York provides fair warning to qui tam relators who assert erroneous claims under the False Claims Act ("FCA") that they could be hit with legal fees and expenses pursuant to 31 U.S.C. § 3730, which permits...

Health Care Workers May Think Twice Before Becoming a Relator
Amy E. McCracken, March 13, 2015
The Federal False Claims Act (and many similar state false claims acts) allow an individual-called a "relator"-to file a lawsuit on behalf of the United States Government. If successful, the relator stands to collect a portion of the amount collected. Since the False Claims Act provides...

Insurance Coverage for Damaged NYC Tower Crane
Stanley A. Martin, March 13, 2015
Readers will recall photos of a tower crane damaged by Hurricane Sandy. Construction of the NYC high-rise building known as One57 was underway when the crane was lashed by hurricane-force winds. The crane jib was apparently blown backwards, and ended up dangling over the counterweight almost 1,000...

It’s 2015: The Future Is Here for Legal Tech
Eric J. Sinrod, March 13, 2015
It may be hard to believe, but we already have closed the books on 2014, and we now have started making our legal way into 2015. The year 2015 at first blush sounds futuristic, and in many ways we really are living in the legal tech future we could have barely imagined not that many years ago.

Long-Awaited Work Authorization Rule for H-4 Spouses Published February 24, 2015: First Day to File Applications Is May 26, 2015
, March 13, 2015
On February 24, 2015, U.S. Citizenship and Immigration Services (USCIS) announced that, effective May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status are eligible to apply for work authorization.

Mayo Lawsuit Against Former Exec Raises Numerous Health Care and Business Litigation Issues
Elinor H. Murarova, March 13, 2015
A recent settlement between Mayo Collaborative Services d/b/a Mayo Medical Laboratories ("MML") and Mayo Clinic (together with MML, "Mayo") and a former Mayo executive, Dr. Franklin Cockerill, reveals the potential legal issues that may arise when health care executives seek new...

NJ Congressmen Introduce Federal Sports Betting Legislation
Christopher L. Soriano, March 13, 2015
In another effort to allow New Jersey’s casinos and racetracks to offer sports betting, two New Jersey Representatives have introduced two bills in Congress that would modify PASPA.

New CMS Payment Policy Will Negatively impact Healthcare Investors
C. Mitchell Goldman, March 13, 2015
I have been concerned about the difficulty of projecting revenue and determining valuations for new and existing healthcare companies based on risk based reimbursement models. My fears have not been allayed. Rather, they have been confirmed.

Pennsylvania Could Enact Medical Marijuana Legislation In 2015
Seth A. Goldberg, March 13, 2015
On January 26, 2015, in a bipartisan effort, Pennsylvania senators Mike Folmer (R) and Daylin Leach (D) reintroduced to the General Assembly of Pennsylvania a bill (Senate Bill No. 3) providing for the medical use of cannabis in the Commonwealth of Pennsylvania. Senate Bill No. 3 comprises a...

Real Estate Tax Exemption Issue Muddied Again
Philip H. Lebowitz, March 13, 2015
On December 23, 2014, the Commonwealth Court of Pennsylvania logged another frustrating mile down the confused and confusing road of property tax exemption for purely public charities. In Fayette Resources, Inc. v. Fayette County Board of Assessment Appeals, the Court overturned a lower court...

The Assignment of Pennsylvania Statutory Bad Faith Claims: The Supreme Court Rules in Allstate Property and Casualty Ins. Co. v. Wolfe
Charlotte E. Thomas, March 13, 2015
The Pennsylvania Supreme Court recently clarified in Allstate Property and Casualty Ins. Co. v. Wolfe, No. 39 MAP 2014, 2014 WL 7088147 (Pa. Dec. 15, 2014) that statutory bad faith claims brought against insurers under 42 Pa. Cons. Stat. § 8371 can be assigned by insureds to injured...

Top Three Problems with Text Messaging in Health Care Settings
Amy E. McCracken, March 13, 2015
1. Since most text messaging is not a secure form of communication, it raises HIPAA concerns if any protected health information is included in the text message. There is the possibility of a data breach in the transmission of the text message, as well as in the event of a lost or stolen phone.

Updates to OSHA's Recordkeeping Rule
Jose A. Aquino, March 13, 2015
Under the Occupational Safety and Health Administration's (OSHA) Recordkeeping regulation (29 CFR 1904) covered employers are required to prepare and maintain records of serious occupational injuries and illnesses. Revisions to the OSHA reporting requirements went into effect on January 1, 2015....

Pennsylvania House Gaming Oversight Committee Introduces Bill That Would Allow Existing Casinos to Offer Internet Gaming
Adam Berger,Frank A. DiGiacomo,Eric D. Frank,Christopher L. Soriano, March 04, 2015
On February 25, 2015, John Payne, Chairman of the Pennsylvania House Gaming Oversight Committee, introduced a bill that would allow existing Pennsylvania casinos to offer Internet gaming to patrons in Pennsylvania. The Pennsylvania Gaming Control Board (PGCB), which currently regulates casino...

DOL Issues FMLA Final Rule Recognizing Same-Sex Marriages and Establishing "Place of Celebration" as New Rule for Defining Spouse
, March 03, 2015
The United States Department of Labor (DOL) announced that on February 25, 2015, it will issue a Final Rule revising the regulations to the Family and Medical Leave Act (FMLA) to provide that the term "spouse" means a husband or wife and "refers to the other person with whom an...

FDA Establishes the Office of Pharmaceutical Quality
, March 03, 2015
In a press conference earlier this year, Dr. Janet Woodcock, head of the U.S. Food and Drug Administration's (FDA) pharmaceutical division, stated that the FDA has been working on "establish[ing] consistent quality standards for all drugs, whether brand name or generic" over the past 10...

FDA Issues Additional Guidances on Implementation of Drug Supply Chain Security Act
, March 03, 2015
The U.S. Food and Drug Administration (FDA) continues to publish draft guidance implementing the Drug Supply Chain Security Act (DSCSA). This Alert highlights key facts on three recent draft Guidance for Industry, which focus on: interoperable exchange of information, annual reporting by wholesale...

New Jersey Supreme Court Adopts Affirmative Defense Under Federal Law to Claims of Supervisory Harassment Under State Law
, March 03, 2015
On February 11, 2015, the New Jersey Supreme Court decided Aguas v. New Jersey and established that New Jersey employers have an affirmative defense to claims of vicarious liability for supervisory harassment arising under the Law Against Discrimination (LAD).

Philadelphia Passes Sick Leave Law
, March 03, 2015
On February 12, 2015, Philadelphia council members voted 14-2 to approve a bill mandating sick leave to eligible Philadelphia employees. Similar bills had been introduced and won passage twice before, in 2011 and 2013, but Mayor Michael Nutter vetoed them both times. This time, Mayor Nutter signed...

UK Finance Bill 2015 -- Draft Clauses Published
Jenny Wheater, March 02, 2015
Draft clauses of the UK Finance Bill 2015 were published on 10 December 2014. They will now be the subject of consultation until 4 February 2015. This Alert provides more details on the most significant measures contained in the draft Finance Bill. It is not intended to be exhaustive but to provide...

FDA Issues Guidance on Registration, Fees and Reporting Requirements for Drug Compounding Outsourcing Facilities
, February 26, 2015
On November 21, 2014, the U.S. Food and Drug Administration (FDA) announced the release of three new guidance documents related to drug compounding outsourcing facilities. These documents include:

California Federal Judge Invalidates Spinal Surgery Patents Due to Lack of Objective Boundaries
, February 25, 2015
On November 19, 2014, a federal district court in California invalidated claims in two spinal surgery patents, finding the claims indefinite under the U.S. Supreme Court's recent Nautilus standard. In Abdou v. Alphatec Spine, the Southern District of California granted summary judgment of...

Delaware Court of Chancery Rules to Invalidate Two Post-Closing Obligations in the Audax Merger
, February 25, 2015
The recent volume of court decisions affecting the merger and acquisition landscape is outpaced only by the recent volume of merger and acquisition deals. These court decisions underscore the significance of properly structuring mergers and new platform and add-on acquisitions alike in order to...

Key Takeaways for Foreign Franchisors in India Upon Delhi High Court's Anti-Arbitration Injunction
Saionton Basu, February 18, 2015
McDonald's has tasted significant success operating under a hybrid-franchise model in India since 1994. A recent spat with its joint venture partner, Vikram Bakshi, has brought to light several issues of which foreign franchisors in India should be aware.

Net Neutrality Revisited
William K. Keane, February 18, 2015
The issue of "net neutrality" has occupied the Federal Communications Commission (FCC or "the Commission") for years. With the FCC poised to adopt a new regulatory regime for broadband providers at its meeting on February 26, FCC Chairman Tom Wheeler recently released the...

OFCCP to Update Sex Discrimination Guidelines
, February 18, 2015
On January 30, 2015, the Office of Federal Contract Compliance Programs (OFCCP) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to rescind and replace the OFCCP's Sex Discrimination Guidelines. These significant proposed regulations would rescind the current Sex...

What's New for Tax Year 2014 (When Filing in 2015)
, February 18, 2015
The following are select tax topics affecting individuals and businesses for tax year 2014. Several issues of significance to individuals and businesses for 2013 remain relevant for 2014 and are noted below. The impact of select new topics below, such as individual and business impacts of the...

“Per Capita” v. “Per Share” Voting in Agreements-Words Matter
Richard L. Renck, February 17, 2015
In Salamone, et al. v. Gorman, No. 343, 2014 (Del. Dec. 9. 2014), the Supreme Court of Delaware writes for nearly 60 pages sorting out contradictory provisions in a voting agreement that was supposed to clearly spell out the rights of various investors and investor groups to elect directors to the...

Another Win for a False Claims Act Defendant
Seth A. Goldberg, February 17, 2015
On January 2, 2015, the U.S. District Court for the Central District of California threw out claims that Walgreens pharmacy violated the federal and California false claims acts on the basis that the plaintiff failed to meet the applicable stringent pleading requirements.

Bank Leumi Agreement with Department of Justice Results in Disclosure of Identities of 1,500 U.S. Account Holders
Jon Grouf,James J. Holman,Hope P. Krebs,Anthony D. Martin,Megan R. Worrell, February 17, 2015
These developments raise many significant issues for U.S. persons with undisclosed accounts at Bank Leumi with respect to potential criminal prosecution, civil examinations and the availability of the Offshore Voluntary Disclosure Program and the Streamlined Programs for residents and nonresidents.

Conditions on Statutory Inspections of Corporate Books and Records
Richard L. Renck, February 17, 2015
In United Technologies Corp. v. Treppel, No. 127, 2014 (Del. Dec. 23, 2014), the Supreme Court of Delaware reiterated the Court of Chancery’s wide discretion in placing reasonable conditions on a shareholder’s right to inspect corporate books and records pursuant to Section 220(c) of...

Delaware Supreme Court Issues Important Revlon Reminder
Richard L. Renck, February 17, 2015
On December 19, 2014, the Supreme Court of Delaware issued an engaging opinion reminding readers of the historical origins of the Revlon doctrine in Delaware corporate jurisprudence and reversing the Court of Chancery’s grant of preliminary injunctive relief because it was based on an...

False Claims Act Defendants May Have Possible Counterclaims Against Whistleblowers
Philip H. Lebowitz, February 17, 2015
Although whistleblowers benefit from strong public policies protecting the means by which they assert and support their False Claims Act (FCA) allegations, a recent decision highlights a possible counterclaim theory that empowers defendants to assert claims against the whistleblower. In U.S. ex...

False Claims and Anti-Kickback Defendants Should Insist on Discovery from the Whistleblower/Relator
Seth A. Goldberg, February 17, 2015
One arrow in the quiver for healthcare providers sued for violations of false claims and anti-kickback statutes is pressing for discovery from the whistleblower/relator, including a deposition of the relator. The failure of the whistleblower to comply with the discovery obligations could result in...

Guidance on Disclosure of Overseas Assets When Preparing to File Income Tax Returns in India
, February 17, 2015
A fair amount of work is under way amongst financial intermediaries in preparing income tax returns for filing in India. Given the renewed sensitivity and scrutiny of overseas assets of those filing income tax returns in India, it is worthwhile to reiterate the items that require mandatory...

India Amplifies Compliance Norms for Wealth Tax Purposes
, February 17, 2015
In a recent development, the compliance norms for wealth tax purposes in India have been amplified. Accordingly, overseas assets of persons subject to Indian wealth tax, including:

Is Full-Time Telecommuting a Good or Bad Thing?
Eric J. Sinrod, February 17, 2015
For the longest time, many workers complained about commuting to work. On top of a long work day at the office, they also had to lose time while being stuck in traffic or commuting by other means. Between work and commuting, there was hardly any time in the day to do anything of personal benefit.

Lawyer in Vietnam Oliver Massmann Taxation of Cross Border Services
Oliver Massmann, February 17, 2015
Vietnamese Dong is not free convertible currency, therefore, the payment by a domestic to a foreign entity is governed by rules on foreign exchange control.

More about the Monkey and the Selfie
Mark A. Fischer, February 17, 2015
The New Media Entertainment blog of August 18, 2014 attracted a new blog reader, David Slater. He’s the photographer who had contested...

N.Y. Wage-and-Hour Update: Gov. Cuomo Eliminates the Annual Wage Notice Requirement
, February 17, 2015
On December 29, 2014, New York Governor Andrew M. Cuomo signed a bill eliminating the Wage Theft Prevention Act's requirement that all private New York employers provide written wage rate notices to their employees by February 1 each year. The original law, which took effect on April 9, 2011,...

NLRB Overturns Register Guard and Holds Employee Use of Email on Nonworking Time for Union Organizing Must Presumptively Be Permitted
, February 17, 2015
On December 11, 2014, a divided National Labor Relations Board (the "Board") overturned its 2007 decision in Register Guard and held that employee use of email on nonworking time for Section 7 purposes must presumptively be permitted by employers who have chosen to give employees access...

New Jersey Extends Permit Extension Act Another Year
, February 17, 2015
New Jersey Governor Chris Christie re-extended New Jersey's Permit Extension Act, N.J.S.A. 40:55D-136.1 et seq., for a third time by enacting Assembly Bill 3815. This legislation extends the tolling of the approval period for certain real estate development permits until December 31, 2015, as long...

New York Public Authorities Law Amended To Establish That The Time To File A Notice Of Claim Against The NYC School Construction Authority Is To Commence At "Denial" Of Claim, As Opposed To "Accrual" Of Claim
Jose A. Aquino, February 17, 2015
On December 17, 2014, New York Governor Cuomo signed into law a bill to amend the New York Public Authorities Law, in relation to contractual claims and actions against the New York City School Construction Authority (“SCA”). The amendment adds an additional sentence to §1744(2) of...

OFAC General License No. 5 Allows Certain Activities Prohibited by Executive Order 13685 in Order to Wind Down Operations in Crimea Region of Ukraine
, February 17, 2015
On December 19, 2014, President Obama signed Executive Order 13685, which further limits commercial transactions and blocks the property and interest in property of certain persons associated with the Russian occupation of the Crimea region of Ukraine. The Order announced additional steps that...

Pennsylvania Supreme Court Adopts New Standards for Strict Liability Claims
, February 17, 2015
On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in Tincher v. Omega Flex, Inc. (No. 17 MAP 2013), in which it addresses the proper standard under Pennsylvania law for strict liability claims relating to allegedly defective products. Although the court...

Summary of EU Changes to the Rule on VAT Place of Supply of Services
, February 17, 2015
From 1 January 2015, VAT payable on the supply of digital services (telecommunications, broadcasting and electronic) will be determined by the location of the consumer in all circumstances. This means that VAT on digital services supplied will be paid for in the consumer's country and charged at...

U.S. Business Embraces President’s Plan For A New Course On Cuba
Jose A. Aquino, February 17, 2015
Yesterday, President Obama announced wide-ranging adjustments of US policy towards Cuba including opening an embassy in Havana. The Obama Plan involves a series of measures aimed at increasing trade between the two countries. The basic premise of the plan is to permit certain exports to Cuba, relax...

Waiving Arbitration by Pursuing Litigation
Stanley A. Martin, February 17, 2015
Cases concerning waiver of arbitration rights typically get into the nitty-gritty of what the parties did prior to one of them seeking to change course. The First Circuit Court of Appeal recently decided one such case, concluding that engaging in discovery for some nine months - including...

Latest Developments in Regulation of XXX/AXXX Captives
, February 16, 2015
The National Association of Insurance Commissioners (the "NAIC") is forging ahead with its work on captive insurance companies used by life insurance companies to finance reserves required under current regulations; these reserves are commonly referred to as "XXX reserves" for...

Mumbai Income Tax Appellate Tribunal Rules on Whether Income of Offshore Discretionary Trust Is Subject to Tax in India
, February 16, 2015
The Mumbai Income Tax Appellate Tribunal (ITAT) has recently determined the following issue in the affirmative in the case of Manoj Dhupelia: Should the income of an offshore discretionary trust be subject to tax in India, if no distributions have been made to beneficiaries in India?

New California Anti-Bullying Law Likely to Have Wide-Reaching Impact
, February 16, 2015
Since 2006, California law has required all employers of 50 or more who conduct business in the state to provide at least two hours of interactive training and education regarding sexual harassment to all supervisory employees. That training is required at least once every two years and must be...

New Jersey Supreme Court Rules on Proper Test for Determining Independent Contractor Status
, February 16, 2015
On January 14, 2015, a unanimous New Jersey Supreme Court ruled in the closely watched case of Hargrove v. Sleepy's, LLC (N.J. Sup. Ct. A-70-12) (072742), that the proper test for determining independent contractor status under New Jersey wage-and-hour laws is the ABC test. Among the various tests...

OFAC Publishes Guidance Relating to Provision of Temporary Sanctions Relief (Iran)
, February 16, 2015
On December 9, 2014, the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), published in the Federal Register (Vol. 79, No. 236, pp. 73141¿73143) previously issued guidance relating to the provision of temporary sanctions relief affecting:

Potential Impacts of Foreign Portfolio Investors and the Minimum Alternate Tax in India
, February 16, 2015
A fascinating tale of two relatively new concepts coming head-to-head - Foreign Portfolio Investors (FPIs) and Minimum Alternate Tax (MAT) - is unfolding in India currently.

Tax-Related Identity Theft and Scams Skyrocketing ... Stay Protected
, February 16, 2015
Victims of identity theft and, in particular, tax-related identity theft and tax scams continue to increase at alarming rates. The Internal Revenue Service (IRS) estimates that it erroneously paid more than $5 billion in fraudulent tax refunds to identity thieves in 2013. Tax-related identity theft...

U.S. Supreme Court Decides Time Spent in the Security Screening Process Is Not Compensable Under the FLSA
, February 16, 2015
The U.S. Supreme Court handed down a unanimous opinion on December 9, 2014, in Integrity Staffing Solutions Inc. v. Busk et al., ruling that employees' time spent waiting to undergo and undergoing post-shift security screenings is not compensable under the Fair Labor Standards Act (FLSA).

U.S. Supreme Court Rules for Employer in Retiree Medical Benefits Case
, February 16, 2015
In M&G Polymers USA, LLC v. Tackett, the United States Supreme Court addressed the claims of retirees that certain expired collective bargaining agreements created a right to lifetime contribution-free healthcare benefits for retirees, their surviving spouses and their dependents. Writing for a...

UK Chancellor of the Exchequer Issues Annual Autumn Statement
, February 16, 2015
UK Chancellor of the Exchequer George Osborne delivered his annual Autumn Statement on 3 December 2014. This Alert highlights the key contents of the statement, but the detail of the proposals will become apparent only on the publication of the Finance Bill next week. We will issue another Alert at...