Practice Areas & Industries: Greenberg Traurig, LLP

 




Franchise and Distribution Return to Practice Areas & Industries

Group Profile Lawyers in this Group Offices Locations for this Group
 

Practice/Industry Group Overview

Greenberg Traurig attorneys have represented clients in establishing franchise and distribution operations in all 50 U.S. states and internationally. With franchise and distribution-focused transactional, litigation and intellectual property law experience, Greenberg Traurig’s franchise and distribution team has a thorough understanding of both the legal and business aspects of franchising and distribution. Our goal is to establish long-term client relationships defined by reliability, responsiveness and trust. Greenberg Traurig’s diverse practice includes the representation of regional, national and international franchisors, franchisees, manufacturers and distributors in virtually every aspect of franchising and distribution, ranging from individual entrepreneurs to internationally recognized public companies.


 

Services Available

Legal Services

In addition to offering clients practical franchise and distribution-related legal advice, we draw upon our international platform of experienced Greenberg Traurig attorneys who focus on areas of law relevant to franchising and distribution, such as antitrust and trade regulation, tax, finance, government relations, litigation, corporate and securities, environmental, labor and employment, intellectual property, technology, real estate, restructuring and other matters.

We provide training on all areas of franchise law to help clients stay up to date and compliant with the most recent laws and regulations related to their business, including new Federal Trade Commission regulations and the implications to franchise systems. We have worked with franchise regulators in every registration state – experience that helps us to facilitate an expedient and seamless registration process.

Should a client have an issue, our team includes experienced litigators skilled in effectively and efficiently representing franchise and distribution companies in litigation, arbitration, mediation and other alternative dispute resolution procedures.

Transactional

Greenberg Traurig’s transactional Franchise & Distribution Practice primarily involves the representation of franchisors, manufacturers and distribution companies, however we also represent multiple outlet, area development and master franchisees, and franchising joint ventures on a wide variety of franchising, distribution, corporate, real estate, technology, finance, environmental, tax and other matters. We assist clients with virtually every aspect of the development and ongoing operation of a franchise or distribution system. We understand that each franchise and distribution system is unique and that one size does not fit all, therefore, our attorneys custom-tailor a plan based on the client’s business and in a manner that will help the client realize his or her short- and long-term goals.

Our key franchise and distribution formation and support services include:

  • Structuring franchise and distribution programs (e.g., single unit with or without area development rights or master franchise)
     
  • Assisting with expansion into foreign countries through master franchising, area development relationships, joint ventures and other structures
     
  • Preparing franchise disclosure documents, state registration of franchise offers, and counseling on compliance with all elements of disclosure regulation and franchisee recruitment
     
  • Structuring and documenting franchise and distribution systems, including drafting agreements and collateral documents
     
  • Advising on structuring initial franchise fees, royalties and advertising funds
     
  • Advising on compliance with advertising programs and materials and Internet advertising restrictions directed at the offer of franchises and business opportunities
     
  • Advising on branding and franchise development, as well as trademark clearance and prosecution, and intellectual property protection for domestic or international systems
     
  • Advising on the establishment of franchisee or distributor territories and exclusivity
     
  • Counseling clients on franchise and distributorship relationship issues, including terminations, transfers, buy-backs, restructurings and conversions
     
  • Counseling on compliance with federal and state relationship regulations
     
  • Preparing and filing state business opportunity registrations
     
  • Advising on structuring distribution relationships that avoid regulation under state and federal franchise disclosure and business opportunity laws
     
  • Restructuring existing franchise and distribution relationships
     
  • Addressing relationship problems and advising on ways to enhance franchise and distribution relationships
     
  • Developing supply programs for franchisees and distributors
     
  • Advising buyers of area development and master franchises, as well as joint ventures, and negotiating related agreements
     
  • Conducting due diligence on the acquisition or sale of mature franchise or distribution systems

In some instances, our best advice to our clients is to not structure a business as a franchise. Franchising is not appropriate for all businesses. When this situation arises, we work with the client to establish a business format that will allow the client to achieve his or her business goals.

Litigation

Greenberg Traurig’s franchise and distribution litigation team assists franchisors and manufacturers in an array of termination-related disputes, including:

  • Breach of contract
     
  • Fraud
     
  • Trademark and copyright infringement
     
  • Termination-related claims
     
  • Implied covenant of good faith and fair dealing
     
  • Breach of fiduciary duty claims
     
  • Restrictive covenants
     
  • Encroachment
     
  • Transfer issues
     
  • Discrimination claims
     
  • Registration and disclosure violations
     
  • Enforcement of systems standards
     
  • Vicarious liability
     
  • Consumer fraud

We also represent clients in franchise and distribution cases involving a variety of potential claimants, including actions brought by:

  • Single franchisees or distributors
     
  • Groups of franchisees or distributors
     
  • Franchisee or distributor associations
     
  • Franchisee trusts
     
  • Suppliers to the franchise system
     
  • Area franchisees/area developers

Our attorneys are experienced in handling trials and appeals in state and federal courts.

Trademarks and Other Intellectual Property

Our lawyers concentrate their practice in trademarks, patent, copyright and trade secret law, including computer software, licensing, advertising, the development of a competitive brand image, labeling, trade dress, trade secrets, the licensing of collateral products, trademarks, service marks, names, likenesses and logos – the full range of matters associated with intellectual property and technology law. We provide clients with the capabilities and reach of one of the largest international trademark prosecution, portfolio management and counseling practices in the United States. Our team offers clients a wide range of services in virtually every aspect of developing, maintaining, enforcing and growing a worldwide brand, including: counseling on the selection, use and protection of trademarks and service marks, filing and prosecuting applications for registration of marks, advice on unfair competition and infringement matters relating to trademarks and trade dress, representation in opposition and cancellation proceedings before the Trademark Trial and Appeal Board and in infringement litigation in federal and state courts, domain name protection and enforcement, copyright counseling and protection, and Internet-related counseling and protection.

Critical Documentation

After developing the franchise or distribution model, our attorneys begin drafting the necessary documentation, which for franchise programs includes the Franchise Disclosure Document, franchise agreement and area development addendum, if required. For distribution programs, we begin drafting the necessary documentation, which includes distribution, external sales representative, independent contractor and/or employment agreements. We also prepare all other ancillary documents, such as nondisclosure and non-competition agreements, confidentiality agreements and personal guaranties. Our attorneys strive to create agreements that not only provide franchisors and manufacturers with the flexibility, control and protection they need, but that are commercially reasonable and marketable. Lawyers with specific experience may work with us to prepare ancillary documents, such as real estate leases and subleases, collateral assignments of leases, equipment leases, construction agreements, deposit and commitment agreements, Internet policy and procedure agreements, and software and trademark licenses.

Franchise Sales Training

Once all of the documentation is prepared for a franchise program, we offer to conduct a training seminar for the client’s franchise sales staff to familiarize the franchisor with the many intricacies and issues that arise in connection with the offer and sale of franchises. The seminar highlights the legal boundaries of permissible versus illegal franchise marketing activities. In addition, our attorneys provide practical advice regarding franchise sales methods and record keeping practices, as well as ongoing consulting services with respect to various franchise issues as they arise.

Registrations

Many states have franchise registration or business opportunity exemption requirements that a franchisor must satisfy before it may offer to sell a franchise in those states. We prepare and submit the necessary registration and exemption applications, and work directly with state regulatory agencies to obtain an effective franchise registration or business opportunity exemption as quickly as possible. Over the years, we have worked with franchise regulators in every state that requires registration. Our attorneys have developed excellent working relationships with state regulators, which often helps us to facilitate an expedient and seamless registration process. Prior to receiving an effective registration or exemption, we work with our clients to ensure compliance with advertising restrictions (Internet, programs and materials) directed at the offer of franchises and business opportunities. In addition, we prepare annual registration renewals and post-effective amendments on an as-needed basis.

Continuing Guidance and Support

Once the franchise or distribution system is operational, we provide continuing guidance and support pertaining to a variety of issues that invariably arise in the franchise or distribution context. We advise our clients on the requirements and prohibitions of state relationship laws, which regulate the ongoing relationship between a franchisor and franchisee and a manufacturer and distributor. Relationship laws typically govern issues such as terminations, renewals and transfers. We dedicate a significant amount of time and resources to ensuring that we are current on the latest franchise and distribution trends and developments. We follow legal developments affecting the franchise industry or distribution relationships and continuously review our documents to ensure that they are up to date. We also maintain contact with our clients, notifying them of any recent developments that may be of interest.

Representation of Noncompliant Franchisors

Occasionally, companies seek our advice after encountering legal problems stemming from the failure to comply with state and federal franchise regulations. The penalties for violating state and federal franchise laws can be substantial. Often, these companies simply were unaware that their business format, or the opportunity they were selling, actually constituted the sale of a franchise. In those circumstances, we rely on our strong working relationships with state regulatory agencies to bring these franchise systems into compliance with minimal negative consequences.

International Franchising and Distribution

Our wide-ranging Franchise & Distribution Practice helps clients expand worldwide and includes not only U.S.-based clients seeking to expand abroad, but also foreign clients seeking to expand into the United States and other cross-border markets – and in some cases within their own countries. Whatever the scenario, trans-national franchise and distribution relationships differ in important respects from domestic arrangements. We have extensive experience in structuring, negotiating and documenting international master franchise and area development relationships, joint ventures and other distribution relationships around the globe.

U.S. authorities have become increasingly active in Foreign Corrupt Practices Act (FCPA) enforcement. We are able to assist both large and small U.S. and multinational franchise, manufacturing and distribution companies with:

  • Internal investigations of questionable activities or undergoing regulatory investigations
     
  • Due diligence advice (and conduct due diligence) relating to international franchise and distribution transactions and business operations
     
  • The construction and implementation of anticorruption policies and procedures consistent with best practices
     
  • Interacting with DOJ, SEC and foreign regulators to help mitigate potential FCPA exposure and negotiating the best resolution to such matters

Franchise and Distribution Mergers & Acquisitions

Greenberg Traurig’s multi-disciplinary approach has proven invaluable to clients of all sizes and in an array of industries by bringing together attorneys from the firm’s Franchise & Distribution and Mergers & Acquisitions Practices. We come to the table with extensive hands-on experience with M&A transactions involving franchise, manufacturing and distribution companies.

Understanding the franchise regulations and issues involving a franchisor’s or manufacturer’s short- and long-term relationships with its franchisees or distributors are critical to all aspects of the franchisor’s or distributor’s business. They are also critical to all aspects of the purchase or sale of the franchisor or manufacturer. Our understanding of how the franchise or distribution aspects of the business impact each provision in the acquisition agreement makes Greenberg Traurig uniquely suited to represent buyers and sellers of franchise, manufacturer and distribution companies.

Antitrust and Trade Regulation

Antitrust and trade regulation law, both domestic and foreign, inevitably and often impacts franchise and distribution relationships, with many antitrust principles applying specifically to the relationship between manufacturer and distributor, franchisor and franchisee, and seller and buyer. Our antitrust lawyers are involved regularly in counseling clients on the antitrust aspects of distribution arrangements and in litigating those issues.


 
 
Articles Authored by Lawyers at this office:

FTB Unable to Assess Enhanced Promoter Penalties Prior to 2004
Jeremiah Coder,G. Michelle Ferreira,Bradley R. Marsh, December 11, 2013
In a sharp rebuke, the California Court of Appeals recently rejected an interpretation by the Franchise Tax Board (FTB) that it could apply a 2003 law that increased the penalty for promoting an abusive tax shelter to periods prior to the effective date of the law. The decision involved California...

New Provisions of the Mexican Federal Tax Code
Diana S. Davis,Felipe Garcia Estrada, December 11, 2013
This GT Alert provides a general overview of the recently enacted provisions of the Tax Code which will become effective as of January 1, 2014. The impact of these obligations on Mexican taxpayers’ compliance is summarized below.

A Brief Recap of Recent Regulatory Actions Regarding Short-Term, Small-Dollar Lending
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, December 09, 2013
Providers of short-term, small-dollar loans, including deposit advance products and payday loans, have increasingly come under attack in recent months by Federal and State regulators. These attacks have been both collateral and direct and they appear to be close to reaching a dramatic crescendo. A...

Sub-Saharan Africa's Performance in this Year's Corruption Perception Index
Matthew J. Cannon,D. Porpoise Evans,Alais L. M. Griffin,Benjamin B. Tymann, December 09, 2013
The Corruption Perceptions Index (CPI), published annually by Transparency International, scores 177 countries and territories on their perceived level of public sector corruption using a scale from 0 (highly corrupt) to 100 (very clean). This highly-respected annual perception ranking draws its...

OCC and FDIC Issue Guidance Regarding Deposit Advance Products
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 29, 2013
On November 21st, the Office of the Comptroller of Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) separately issued guidance on deposit advance loans.4 The guidance establishes numerous expectations for institutions that offer such products. It covers matters such as consumer...

On Party Line Vote, House Financial Services Committee Passes Six Bills Aimed at Restructuring the CFPB
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 29, 2013
On November 21st, the House Financial Services Committee passed six bills aimed at bringing oversight, accountability and transparency to the CFPB. Committee Chairman Jeb Hensarling (R-TX) called the bills “common-sense bills that bring a modicum of accountability and transparency to the...

CFPB Takes Action against Mortgage Insurer for Alleged Kickbacks
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 26, 2013
On November 15th, the CFPB filed a complaint and a proposed consent order against Republic Mortgage Insurance Corporation, a private mortgage insurance company (RMIC). The complaint alleges that RMIC violated Section 8 of the Real Estate Settlement Procedures Act by paying illegal kickbacks to...

Lending to Video Gaming Terminal Operators and Manufacturers in Illinois
Christopher M. Chubb,Frederick C. Fisher,Martha A. Sabol,Edward R. Winkofsky, November 26, 2013
Recent developments relating to the implementation of the Illinois Video Gaming Act (230 ILCS 40) (the “Act”) have led to an increased need for debt financing among video gaming terminal (“VGT”) manufacturers and terminal operators in the state. This Client Advisory...

Pricing Practices - Latest UK Developments
Lisa Navarro,Lisa Navarro,Irving Scher,Irving Scher, November 22, 2013
The topic of resale price maintenance, and the line between legitimate and illegitimate management of the pricing of products placed on the market, is one which will always challenge companies involved in distribution relationships. As this article demonstrates, any companies that think that...

U.S. Antitrust Agencies Issue Model Waiver of Confidentiality
Mary K. Marks, November 22, 2013
On September 25, 2013, the Federal Trade Commission (FTC) and Department of Justice (DOJ) announced the issuance of a joint model waiver of confidentiality for individuals and companies to use in merger and civil non-merger matters involving concurrent review by the DOJ or FTC and non-U.S....

2013 California Employment Law Legislative Update: Things You Need to Know for 2014
Angela Diesch,Jennifer Holly,James M. Nelson, November 21, 2013
At Greenberg Traurig, we live our model “built for change” and apply it for the benefit of the businesses we serve. Our California Labor and Employment Practice appreciates that although California presents opportunity, it also presents a different set of employment risk propositions....

Applying Aspen Skiing, Tenth Circuit Finds Microsoft Not Liable For Terminating Dealings with a Competitor
Ryan F. Harsch,Irving Scher, November 21, 2013
In Novell, Inc. v. Microsoft Corp., the Tenth Circuit affirmed the district court’s post-trial judgment that Microsoft was not liable under Section 2 of the Sherman Act (Section 2) for monopolization of the market for PC operating systems. In doing so, the court reaffirmed that in order to...

Appreciability Analysis: Does the Future of an EC Law Doctrine Hang in the Balance?
Hans Urlus,Emilie van Hasselt, November 21, 2013
Traditionally, EU competition law had two separate tests for determining whether an agreement is anti-competitive—the object test (the agreement’s purpose) and the effects test (its actual effect on competition). Thus, an agreement would be prohibited as anti-competitive either because...

Assistant Attorney General Baer Reports on Recent Developments in DOJ Remedies and Enforcement Policies
Gregory J. Casas, November 21, 2013
On September 25th, Bill Baer, Asst. Attorney General in charge of the Antitrust Division of the Department of Justice (DOJ), spoke at the Georgetown Law 7th Annual Global Antitrust Enforcement Symposium on recent developments in the DOJ's enforcement policy. The speech provided practitioners and...

EU Merger Control and Minority Shareholdings: Time to Plug the Enforcement Gap?
Simon Harms,Irving Scher, November 21, 2013
First created in 1989, the European Union (EU) merger control regime has now been around for the better part of a quarter of a century and is a well-established fact of life for businesses involved in large-scale M&A transactions. During that time, the European Commission (the Commission) has...

FINRA's New 'New' Discovery Guide:  E-Discovery, Affirmations and Product Cases
Michael E. Pastore,Scott E. Rahn, November 21, 2013
On Sept. 16, 2013, the SEC approved amendments to the Financial Industry Regulatory Authority, Inc. (FINRA) Dispute Resolution Discovery Guide (Discovery Guide), which will become effective on Dec. 2, 2013 for all customer cases filed on or after the effective date. FINRA petitioned the Securities...

Final Rules Adopted, Making More Pharmaceutical Patent Transfers Subject to the HSR Act: Increased Review Raises Importance of Valuation
Mary K. Marks, November 21, 2013
On November 6, 2013, the Federal Trade Commission (FTC) in consultation with the U.S. Department of Justice issued final amendments to the premerger notification rules regarding when a transfer of rights to a pharmaceutical patent is reportable under the Hart-Scott-Rodino (HSR) Act. The commission...

Follow-On Private Antitrust Damage Suits In the EU: The Netherlands Experience
Hans Urlus,Emilie van Hasselt, November 21, 2013
In the European Union (EU), unlike the United States, the availability of private antitrust actions has been extremely limited to date. Although the number of such actions has increased over the past decade, the institution of private damages antitrust actions remains underdeveloped. In the EU, the...

Heartburn for Drug Manufacturers: 'Reverse Payment' That Did Not Include a Monetary Payment Held Actionable Under the Antitrust Laws
John J. Elliott,Irving Scher, November 21, 2013
On July 17, 2013, the Supreme Court of the United States resolved a decade of conflicting circuit court decisions in FTC v. Actavis, Inc., ruling that "reverse-payment" settlements of Hatch-Waxman Act patent infringement lawsuits "can sometimes violate the antitrust laws," and...

Six Enforcement Actions Brought Challenging Environmental Product Claims Allegedly Failing To Comply With the FTC's 'Green' Guides
Irving Scher, November 21, 2013
On October 29th, the Federal Trade Commission (FTC) announced six enforcement actions, including one that imposed a $450,000 civil penalty. All six actions challenged allegedly unsupported “green” claims relating to the biodegradability of certain products.

FDA Guidance for Industry and FDA Staff: Mobile Medical Applications
Chad D. Ehrenkranz,Nancy E. Taylor, November 19, 2013
On September 25, 2013, the Food and Drug Administration (the "FDA") released final guidance on the regulatory requirements regarding the introduction of mobile medical applications into the marketplace (the "Final Guidance"). The purpose of the Final Guidance and its Appendices...

CFPB Issues Advanced Notice of Proposed Rulemaking for the Debt Collection Industry
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 15, 2013
On November 6th, the Consumer Financial Bureau (the “CFPB” or the “Bureau”) kicked off its process for issuing long-awaited rules that will govern the practices of the debt collection industry. Section 1089 of the Dodd-Frank Act amended the Fair Debt Collection Practices...

CFPB Trial Disclosure Program Now Effective
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 15, 2013
On October 29th, the CFPB’s Notice of Policy regarding its Trial Disclosure Program was published in the Federal Register, thus making the Policy effective. Section 1032(e) of the Dodd-Frank Act permits consumer financial service providers to “conduct a trial program that is limited in...

Fifth Circuit Holds That Stern Eliminates Bankruptcy Court's Power to Decide Non-Core Actions by Consent
Mark D. Bloom,G. Ray Warner, November 15, 2013
In a decision that demonstrates the potentially broad impact of the forthcoming Supreme Court decision in Bellingham, the Fifth Circuit held that bankruptcy judges may not “determine” non-core matters even where the parties consent. BP RE, L.P. v. RML Waxahachie Dodge, L.L.C. (In re BP...

New Tax in Mexico applicable to the Energy Sector
Nicolas Borda,Felipe Garcia Estrada, November 13, 2013
This GT Alert provides a general overview of the main tax amendments in the energy sector, specifically the amendments of the special tax on Production and Services Law (LIEPS) and of the Income Tax Law (LISR), approved by the Mexican Congress in November 2013, as part of the tax reform proposal...

Proofs of Claim: Attorney Signatures and the Risk of Loss of Privileges
Howard J. Steinberg, November 13, 2013
Preparing a proof of claim is a relatively easy task. As one court has noted, the proof of claim form is not elaborately detailed and may take only five minutes to complete. This simple task can result in extremely adverse consequences for a creditor and its counsel, if counsel, as opposed to...

New HSR Rules Will Require More Filings for Pharmaceutical Patent Transfers: Increased Review Raises Importance of Valuation
Mary K. Marks, November 11, 2013
Amendments to the Rules under the Hart-Scott-Rodino (HSR) Act have been adopted that will require compliance with the Act’s reporting and waiting period requirements for certain acquisitions of exclusive pharmaceutical patent licenses that historically have not been reportable because the...

New York City Proposes Expansion of Actions Exempt from CEQR
Steven C. Russo, November 11, 2013
The New York State Environmental Quality Review Act (SEQRA) requires actions that may have a significant adverse environmental impact to undergo review. The City Environmental Quality Review (CEQR) contains the City of New York’s procedures for complying with SEQRA. The State statute lists...

The Federal Trade Commission Again Targets 'Made-In-USA' Claims
Irving Scher, November 11, 2013
After a more than 10 year hiatus, the Federal Trade Commission (FTC) has again brought an enforcement action under its 1997 Policy Statement on “Made in USA” claims. The Policy Statement prohibits advertising a product as “Made in USA” (or equivalent statements) unless...

Senators Request Justification for the CFPB’s Indirect Auto Lending Bulletin
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 07, 2013
On October 30th, a bipartisan group of 22 Senators sent a letter to the CFPB challenging the basis for the Bureau’s Bulletin 2013-02 entitled “Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act.”

Time for a Privacy Policy Tune-Up? California Adds Requirements for Operators of Websites, Apps & Online Services
Ed Chansky, November 07, 2013
Once again California has taken the lead in enacting new laws requiring specific disclosures in online privacy policies. While the laws technically apply only in California, the practical reality is that any nationwide online service will need to comply. Compliance will require many website...

CFPB Releases Guide for “Managing Someone Else’s Money”
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 06, 2013
On October 29th, the CFPB’s Office of Older Americans published a series of four guidance booklets to help financial caregivers understand how to fulfill their responsibilities, how to avoid scams and financial exploitation, and where to go for help.

Cordray Speaks to Mortgage Bankers Association to Tout and Defend the Qualified Mortgage Rule
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 06, 2013
On October 28th, CFPB Director Richard Cordray spoke at the Mortgage Bankers Association Annual Convention in Washington, D.C. Cordray’s speech touted the CFPB’s “open, inclusive, [and] transparent decision making” in crafting its Qualified Mortgage or Ability-to-Repay rule.

Federal Financial Regulators Issue Diversity Policy Statement
Robert E. Bostrom,Peter L. Cockrell,Gil Rudolph,J. Scott Sheehan, November 05, 2013
On October 23rd, the OCC, the Federal Reserve Board, the FDIC, the NCUA, the SEC, and the CFPB issued a proposal for joint standards to assess the diversity policies and practices of their respective regulated entities. Section 342 of the Dodd-Frank Act requires each of these agencies to develop...

CFPB Deputy Director Discusses Future Plans for Supervision Office
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, October 31, 2013
In a wide-ranging interview with American Banker, Steven Antonakes, the CFPB’s Deputy Director, discussed the CFPB’s plans for the future of its Office of Supervision.

CFPB Issues Interim Final Rule and Bulletin Clarifying Mortgage Servicing Requirements
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, October 31, 2013
On October 15th, the CFPB issued an Interim Final Rule and CFPB Bulletin 2013-12. Both provide clarification regarding certain aspects of the CFPB’s recently published Mortgage Servicing Rule (MSR). The Bulletin provides guidance regarding: (1) policies and procedures for successors in...

Implications of the Elimination of the Restriction on General Solicitation for Cross-Border Equity Offerings Under Rule 144A by Foreign Private Issuers
Barbara A. Jones,Ira N. Rosner,Federico Salinas, October 29, 2013
On 11 July 2013, we published a client Alert on the amendments (Amendments), by the U.S. Securities and Exchange Commission (SEC) to Rule 506 and Rule 144A under the Securities Act of 1933, as amended (Securities Act), to permit general solicitation of investors in certain private securities...

Recent FERC Regulated Pipeline Decisions
Kenneth M. Minesinger,Howard L. Nelson, October 24, 2013
On October 17, 2013, the Commission issued two orders of significance to the natural gas industry. First, in Opinion No. 528, 145 FERC ¶ 61,040 (Oct. 17, 2013), the Commission issued its Opinion and Order on the Initial Decision in El Paso Natural Gas Company’s (EPNG) rate case. Among...

New Developments in International Standards on Environmental, Occupation Safety, Compliance and Anti-Bribery Management Systems
Christopher L. Bell, October 23, 2013
The International Organization for Standardization (ISO) is creating or revising international standards on a number of topics important to companies operating in the U.S. and abroad, including environmental, occupational safety, compliance and anti-bribery management systems. ISO has also just...

CFPB Issues HMDA Compliance Bulletin
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, October 18, 2013
In conjunction with the CFPB’s HMDA actions discussed above, the CFPB issued Bulletin 2013-10 on October 9th. The Bulletin sets forth the Bureau’s expectations that lenders will implement compliance programs designed to ensure that they collect and report accurate HMDA data in a timely...

CFPB Removing Enforcement Attorneys from Supervisory Exams
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, October 18, 2013
On October 10th, the CFPB announced that it will discontinue its controversial practice of sending its enforcement attorneys to participate alongside supervision examiners in its examinations of supervised entities. This practice had been a major point of contention between the CFPB and the...

CFPB Takes Action against Financial Institutions for HMDA Violations
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, October 18, 2013
On October 9th, the CFPB ordered both a bank and nonbank mortgage lender to pay fines for violating the Home Mortgage Disclosure Act (HMDA). The CFPB entered consent orders with Mortgage Master, Inc. and Washington Federal, requiring them to pay to pay civil penalties of $425,000 and $34,000,...

FINRA Tells Arbitrators it Considers Expungement Relief 'Extraordinary'
Andy Clark,Terry R. Weiss, October 17, 2013
On October 14th, FINRA Dispute Resolution sent a cautionary mandatory Notice to all FINRA arbitrators who might consider broker expungement requests. According to the Notice, available online, the grounds listed in Rule 2080 for expungement of negative information from the Central Registration...

PIABA Calls Press Conference to Pressure for Further Restrictions on Broker Expungement
Andy Clark,Terry R. Weiss, October 17, 2013
In the midst of its annual meeting in Orlando, Florida, the Public Investors Arbitration Bar Association (PIABA) called a press conference to seek further restrictions in the recently-amended FINRA rules governing expungement of broker data in the FINRA and State managed broker database, the...

New York City Extends Human Rights Law to Pregnant Women with 'Pregnant Workers Fairness Act'
Robert H. Bernstein,Jerrold F. Goldberg,Zachary N. Klein,Michael J. Slocum, October 15, 2013
The New York City Council, citing concerns “that pregnant women are vulnerable to discrimination in the workplace,” recently passed a bill amending the City’s Human Rights Law (HRL) to expressly provide for “reasonable accommodation” protections to pregnant employees...

OFT Investigates Pricing Restrictions in Sale of Mobility Scooters and Sports Bras
Lisa Navarro, October 15, 2013
In September 2013, the Office of Fair Trading ("OFT") issued statements of objection ("SO") in two separate resale price maintenance cases. The first relates to the sale of sports bras, and the second to mobility scooters. Distinct products, sold in different ways, but both have...

How the U.S. Government Shutdown Affects Employers and their Foreign National Workforce
Pamela J. Mak,Rebecca B. Schechter, October 08, 2013
As we head into week two with no end in sight to the congressional impasse, the effects of the federal government’s shutdown continue to take a toll on private industry. For employers, it is important for hiring leaders and human resources professionals to take note of how the non-operation...

CFPB Issues Report on CARD Act; Identifies Six 'Risky' Card Issuer Practices that May Warrant Scrutiny
Robert E. Bostrom,Brett M. Kitt,Gil Rudolph, October 07, 2013
On October 2, 2013, the Consumer Financial Protection Bureau (CFPB) published a report that both evaluates the impact of recent credit card legislation and identifies several “risky” card issuer practices that may draw future CFPB scrutiny.

Antitrust Agencies Announce Contingency Plans for Shutdown: HSR Filings Should Be Submitted But Investigations May Be Limited
Andrew G. Berg,Mary K. Marks, October 04, 2013
The FTC and DOJ have implemented contingency plans for their operations during the “lapse in appropriations,” which began as we entered the new 2014 fiscal year on October 1, 2013. According to the agencies’ plans, they may only incur obligations (other than those funded from...

Ninth Circuit Holds that a Properly Structured Voluntary Rental Program Offering Does Not Convert Hotel Condominium Units into Securities
Richard F. Davis, September 30, 2013
In a case involving the offering of 450 condominium hotel units and a rental program at the Hard Rock Hotel in San Diego, California, the Ninth Circuit Federal Court of Appeals found in favor of the sponsor and upheld the real estate purchase and sale agreements as just that, a real estate contract...

DOL Publishes Final Rule Eliminating Exemption to FLSA's Minimum Wage and Overtime Provisions for Home-Healthcare Workers
Brett T. Lane,David Long-Daniels, September 27, 2013
On September 17, 2013, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) released its long-awaited final rule on the application of the Fair Labor Standards Act (FLSA) to domestic service workers. The final rule, set to become effective January 1, 2015, makes significant...

Recent Court Ruling Restricts Automatic Telephone Dialing System Calls to Cellphones
Mitchell F. Brecher, September 27, 2013
A recent federal appeals court decision will significantly enhance consumers’ ability to protect themselves from unwanted calls initiated by automatic telephone dialing systems to their cell phones. On August 22, 2013, the United States Court of Appeals for the Third Circuit issued a ruling...

Are You Compliant? New Public Records Act Impacts Government Contractors in Florida
Glenn Burhans,Bridget Kellogg Smitha, September 25, 2013
Private entities contracting with governmental agencies should be aware of the newly enacted Section 119.0701, Florida Statutes, which affects the entities’ contractual obligations concerning the maintenance of, and provision of access to, public records. Florida has very broad public...

'Skin in the Game' Credit Risk Retention Rules Re-Proposed
Robert E. Bostrom,Carl A. Fornaris,Lindsay K. Lefteroff,Mark I. Michigan,Gil Rudolph, September 16, 2013
On August 28, 2013, six federal financial services agencies issued a notice revising a proposed rule to implement Section 941 of the Dodd-Frank Act, which requires sponsors of securitization transactions to retain at least five percent credit risk in such transactions. By requiring securitizers to...

The Draft EU Data Protection Regulation: Where Are We Now, And Where Are We Going?
Luke Dixon, September 16, 2013
Recent news on both sides of the Atlantic has included considerable commentary on the issues of data privacy and international data flows. With an important vote on the issue due to take place in the EU Parliament next month, now seems like a good time to bring readers up to date with progress on...

Mexico Tax Reform Bill 2014
Diana S. Davis,Felipe Garcia Estrada, September 12, 2013
The following GT Alert provides a general overview of the Tax Reform Bill that the President of Mexico submitted to the Mexican Congress.

U.S. ITC Public Hearing on Digital Trade in Moffett Field, California on September 25th -- Requests to Attend Due September 12, 2013
Philippe M. Bruno, September 12, 2013
On September 25th the U.S. International Trade Commission (USITC) will hold a public hearing on digital trade at the NASA Ames Conference Center in Moffett Field, California. The hearing is being held in conjunction with the USITC investigations on Digital Trade in the U.S. and Global Economies.

GAO Report to Congress Calls For Increasing The Consistency of Requirements Upon Medicare Contractors Performing Post-Payment Review of Fee-For-Service Claims
Tracy J. Mabry, September 10, 2013
On August 22, 2013, the United States Government Accountability Office (GAO) publicly released its report of July 23, 2013 to Congress on “MEDICARE PROGRAM INTEGRITY: Increasing Consistency of Contractor Requirements May Improve Administrative Efficiency”. The GAO’s findings and...

The HIPAA Omnibus Rule: Covered Entity Liability for Business Associate Actions
Tricia A. Asaro, September 10, 2013
In January of this year, the U.S. Department of Health and Human Services (HHS) issued new Omnibus regulations that strengthen the privacy and security protections established under the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic...

Bilateral Investment Treaties - The Dutch Gold Standard
Aravind Ramanna,Peter van Langeveld, September 09, 2013
Offshore tax structures are off the corporate agenda. The Netherlands offers an attractive safe haven alternative with realistic tax rates and a real economy for optimizing corporate tax planning policies without being tainted by a tax haven status that some traditional choices such as Luxembourg,...

Facebook Functionality Now Fair Game for Promotion Marketers
Ed Chansky, September 09, 2013
On August 27, 2013, Facebook updated its Promotions Guidelines. The biggest change allows marketers to use native Facebook functionality (posts, likes, comments, etc.) to generate entries into Sweepstakes and contests. This is a 180-degree reversal from the prior guidelines. The change opens up...

International Group Structures Are Subject to An Ongoing Review for Optimizing Their Tax Position
Aravind Ramanna,Peter van Langeveld, September 09, 2013
The recent trends show that offshore jurisdictions are off the corporate agenda in view of the increased scrutiny and decreased levels of acceptance from both fiscal and corporate social responsibility perspectives.

New Jersey Law Pulls Back The Curtain On Salary Secrecy in the Workplace
Wendy Johnson Lario, September 09, 2013
Employers in New Jersey are now prohibited from taking any job action against employees who request information about job titles, wages or benefits from other employees or former employees in connection with an actual or potential claim of discrimination.

New Jersey's New Social Media Law Blocks Employers' Prying Eyes
Wendy Johnson Lario, September 09, 2013
An increasing number of Americans are using social media sites, such as Facebook and Twitter, both on and off the job. Some companies, in an effort to protect proprietary information or trade secrets and prevent exposure to legal liabilities, are requiring employees to turn over their usernames or...

OFCCP Publishes Final Rule to Improve Job Opportunities for Veterans and Persons With Disabilities
Johnine P. Barnes,Ryan C. Bradel, September 09, 2013
On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released two final rules updating the Affirmative Action regulations regarding recruiting and hiring of veterans and persons with disabilities, which are mandatory for federal government...

The EU seeks Strengthening of Safe Harbor Rules
Philippe M. Bruno, August 30, 2013
The European Union (EU) has launched a commission to review the U.S. Department of Commerce’s (DOC) Safe Harbor agreement. The review comes in the wake of PRISM, the National Security Agency’s data collection program. Safe Harbor is a voluntary program for U.S.-based companies with...

2013 Amendments to the Delaware General Corporation Law
Diane N. Ibrahim,Kelly A. Terribile, August 29, 2013
Recently, the Delaware legislature adopted and Delaware’s Governor signed into law several substantive amendments to the General Corporation Law of the State of Delaware (the DGCL), 8 Del. C. §§ 101 et seq.

Does My Email Communication Constitute a Binding Agreement?
Israel Rubin,Rachel Sims, August 27, 2013
In an era where the prevalence of email exchanges in the business arena is almost commonplace, clients and attorneys should be aware that a form of identification which could constitute their signature in an email, attesting to the substance of a negotiated settlement, may be considered a binding...

Discovery Verifications May Lead to Corporate Punitive Damages
Mark D. Kemple,Adrienne J. Lawrence,Adam Siegler, August 24, 2013
Litigators defending corporations against punitive damages claims based on employee misconduct should be cautious when permitting employees to execute discovery verifications as an “officer,” “director” or “managing agent,” because they may be held to have...

The Internal Revenue Service Opens the Online FATCA Registration System
Yoram Keinan, August 24, 2013
As expected, on August 19, 2013 the Internal Revenue Service (IRS) launched the web-based, registration system for financial institutions that need to register with the IRS under the Foreign Account Tax Compliance Act (FATCA). Twenty-four-hour access to the online registration system is on the...

FTC Merger Guidance Roundup: Summer 2013
Mary K. Marks, August 22, 2013
The FTC has not taken a vacation from providing merger guidance this summer, and Labor Day is still to come. So far, the Comission has issued guidance regarding the “pull and refile” process, levied fines for Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) violations, challenged...

It May Be Steel, but Its Supply is Elastic: Eleventh Circuit Rejects Market Definition That Fails to Account for Ease of Entry
Scott Martin, August 22, 2013
In a decision undergirded by fundamental principles of economics, burden of proof and common sense, the Eleventh Circuit affirmed the entry of summary judgment dismissing attempted monopolization claims against a producer of untreated hot rolled steel in Gulf States Reorganization Group, Inc. v....

Ninth Circuit Decision Addresses Standards for Claim That Buyer Knowingly Received Unlawfully Discriminatory Prices in Violation of Robinson-Patman Act
Irving Scher, August 22, 2013
On July 19th, the Ninth Circuit Court of Appeals issued a per curiam decision in Gorlick Distribution Centers, LLC v. Allied Exhaust Systems, Inc., a rare Robinson-Patman Act (R-P) court of appeals decision addressing a claim that a purchaser knowingly received unlawfully discriminatory prices...

Practical Implications of Supreme Court's American Express Decision Confirming That Arbitration Agreements with Class Action Waivers are Enforceable
Robert J. Herrington, August 22, 2013
In an important and much anticipated decision, the U.S. Supreme Court rejected plaintiffs’ efforts to avoid arbitration by arguing that individual arbitration would prevent them from having an effective opportunity to vindicate their rights under the federal antitrust laws (the so-called...

Subtracting Plus Factors: First Circuit Finds Recycling Company’s Pleading Plausible Under Twombly Standard
Emily A. Sickelka, August 22, 2013
Admonishing courts to be wary of conflating the Twombly pleading requirements to withstand a motion to dismiss with the standard applicable to a summary judgment motion, the First Circuit held, in its recent Evergreen Partnering decision, that a recycling company’s circumstantial allegations...

Supreme Court Rules That Reverse-Payment Patent Litigation Settlements are Subject to Judicial Review Under the Antitrust Rule of Reason
John J. Elliott, August 22, 2013
On June 17th, the U.S. Supreme Court resolved a decade of conflicting circuit court opinions when it held in Federal Trade Commission v. Actavis, Inc., that “reverse-payment” settlements of Hatch-Waxman Act patent lawsuits “can sometimes violate the antitrust laws,” and for...

The European Commission’s Measures on Actions for Damages Caused by Infringements of the Competition Law Provisions
Francesco Mazzocchi, August 22, 2013
On June 11, 2013, the European Commission (Commission) released a proposal for a directive on actions for damages for infringements of EU and national competition law (the Directive). The Directive was accompanied by a practical guide on the quantification of harm and a recommendation on collective...

China's Patent Re-Examination Board Says Pharmaceutical Salts Not Patentable Over Pure Compounds
Weisun Rao, August 16, 2013
In July 2013, the Patent Re-Examination Board of China’s State Intellectual Property Office invalidated the U.S. biotech company, Gilead Sciences’, Chinese patent covering Tenofovir Disoproxil Fumarate (TDF or PMPA), which is the active ingredient in Gilead Sciences’ drug for...

No Broker-Customer Relationship Absent a Direct Connection to Investment-Related Services Provided by the Brokerage Firm
Jennifer Tomsen,Terry R. Weiss, August 16, 2013
A Utah federal district court is the latest to join the chorus of opinions holding that a would-be arbitration claimant cannot proceed with a FINRA arbitration because the investor was not the brokerage firm’s customer. Orchard Securities LLC v. Pavel. A host of district and appellate...

Congressional Issues Update - Summer 2013
Diane J. Blagman, August 15, 2013
As part of our continuing effort to provide information on Congressional activities, we are pleased to provide the following updates for the House and Senate.

U.S. Medical Oncology Practice Sentenced for Use and Medicare Billing of Cancer Drugs Intended for Foreign Markets
Tracy J. Mabry, August 14, 2013
In a June 28, 2013 news release by the Office of the United States Attorney for the Southern District of California, in San Diego, it was reported that a La Jolla, California medical oncology practice pleaded guilty and was sentenced to pay a $500,000 fine, forfeit $1.2 million in gross proceeds...

Supreme Court Extends PLIVA to Preempt Certain Design Defect Claims Against Generic Manufacturers
Robert P. Charrow, August 13, 2013
In Mutual Pharm. Co., Inc. v. Bartlett, No. 12-142 (U.S. June 24, 2013), the Supreme Court, in a 5-4 decision building on PLIVA, Inc. v. Mensing, 564 U. S. --- (2011), held that the Food, Drug, and Cosmetic Act preempted a state law design defect action against a generic drug manufacturer that...

The Deadline for Compliance with the HIPAA Omnibus Rule is September 23, 2013. Are You Ready?
Eleanor (Miki) A. Kolton, August 13, 2013
The HIPAA Privacy Rule and portions of the HIPAA Security Rule were dramatically amended by an omnibus rule published by the Department of Health and Human Services in January 2013. Highlights of the changes that need to be made by covered entities (CE) and business associates (BA) are:

Illinois Legislature Passes Major Changes to Illinois Employment Laws
Adam Braun,Tiffany S. Fordyce,Michael D. Karpeles, August 08, 2013
When the Illinois General Assembly adjourned the 2013 Spring Session on May 31st, it set the stage for substantial changes to Illinois employment law. The General Assembly sent six employment law related bills to Governor Pat Quinn while leaving one major piece of unfinished business on its agenda....

FDA Defines 'Gluten-Free'
Eleanor (Miki) A. Kolton, August 07, 2013
On August 5, 2013 the Food and Drug Administration (FDA) published a final rule defining the term "gluten-free" for voluntary use in food labeling. Defining the term "gluten-free" is meant to help consumers, especially those living with celiac disease, gain comfort that items...

Insights from the 2013 SIFMA San Francisco Regional Conference
Scott E. Rahn,Jennifer Tomsen, August 07, 2013
After a hiatus of many years, the SIFMA Compliance and Legal Society resurrected its western regional conference, held on August 1, 2013 at the offices of Charles Schwab in San Francisco. The day-long conference was well-attended, with spirited panels on a host of topics, including recent...

New Massachusetts Tax Law Affects Information Technology Providers Effective July 31, 2013
Ronan P. O'Brien,James P. Redding,David G. Thomas, August 05, 2013
Massachusetts passed a new tax law, effective July 31, 2013, imposing a 6.25% sales and use tax on certain information technology services including:

Private Placement of Alternative Investment Funds in the EU: Changing Regulatory Landscape
Wietse de Jong, August 05, 2013
The European Commission’s Alternative Investment Fund Managers Directive (“AIFMD”) was designed to establish a unified framework throughout the EU for regulating previously unregulated Alternative Investment Funds (“AIF”).

California Overhauls Business Tax Incentive Legislation
Marvin A. Kirsner,Norman H. Lane,Bradley R. Marsh, July 31, 2013
California has completely overhauled its tax-related economic incentive laws by repealing nearly all existing incentives, and replacing them with a new sales tax benefit and limited income tax incentives, primarily for the manufacturing sector and for certain other businesses located in enterprise...

Dutch Data Protection Regime to be Enhanced by Proposed Mandatory Data Breach Notifications in Parallel with EU Efforts to Harmonize Notification of Personal Data Breaches
Emilie van Hasselt, July 30, 2013
In June 2013, the Netherlands introduced a legislative proposal to impose mandatory data breach notifications that gives the Dutch Data Protection Authority (DPA) the power to impose substantial fines for failure to comply with the new requirements.

D.C. District Court Upholds SEC's Conflict Minerals Rules, GAO Report Questions Effectiveness on Humanitarian Efforts
Barbara A. Jones, July 26, 2013
On July 23, 2013, the U.S. District Court for the District of Columbia entered summary judgment in favor of the U.S. Securities and Exchange Commission (SEC) in connection with a challenge by the National Association of Manufacturers, The Business Roundtable and the U.S. Chamber of Commerce...

Many Cloud Computing Services Not Subject to New Jersey Sales Tax
Marvin A. Kirsner, July 26, 2013
In a pleasant surprise, the New Jersey Division of Taxation recently issued guidance saying that sales tax is not due on most cloud computing services. New Jersey’s position is contrary to a growing national trend in which many states are taking the position that cloud computing is subject to...