Practice Areas & Industries: Greenberg Traurig, LLP

 




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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...

China Seeks to Protect Personal Internet Information
George Qi,Dawn (Dan) Zhang, July 24, 2013
The widespread use of the Internet has given people access to information on a level never experienced before, while also resulting in growing attention and concerns over information security issues. In order to protect personal information that may be used or disclosed inappropriately via the...

CFDA Reform - A New Food and Drug Regulator in China
Dawn (Dan) Zhang, July 23, 2013
To deepen government reform and improve government efficiency and transparency, the State Council of the People's Republic of China recently released the Plan for Government Institutional Reform and Function Change (the Restructuring Plan), which was approved by the People’s Congress at its...

Delaware Court of Chancery Upholds Facial Validity of Exclusive Forum Bylaws Adopted Unilaterally
Clifford E. Neimeth, July 23, 2013
In a much anticipated decision, the Delaware Court of Chancery (Chancellor Strine) in Boilermakers Local 154 Retirement Fund v. Chevron Corporation and IClub Investment Partnership v. FedEx Corporation significantly "advanced the ball" in an effort to combat the cost-inefficiencies,...

Registered Patients Groups May Thrive in China
Dawn (Dan) Zhang, July 23, 2013
In China, many patients suffering from the same disease are spontaneously forming self-help associations to share information on the effective medical treatments for such disease. Similar to the patients’ group in the United States, those associations also help communicate among patients...

Employment Non-Discrimination Act Clears Senate Committee
Natalia S. Ballinger,Jeannette M. Brook, July 22, 2013
On the heels of the Supreme Court’s invalidation of the Defense of Marriage Act, the Senate Committee on Health, Education, Labor and Pensions approved the Employment Non-Discrimination Act (the ENDA) by a 15—7 vote on July 10th, 2013. Under the terms of the bill, employers would be...

Florida's New Fast Track Foreclosure Law Creates Additional Requirements for Lenders and Mortgage Servicers
Cory W. Eichhorn,Michele L. Stocker, July 19, 2013
According to the Florida House of Representatives, the State of Florida has been negatively impacted by the national foreclosure crisis, and, as a result, Governor Rick Scott and the Florida Legislature want to minimize the impact upon the judicial branch both in terms of funding and caseload. It...

UK Trade Secrets Law - Ex-employee Bites Back in Mosquito Net Case
Luke Dixon,Stephen C. Tupper, July 19, 2013
The UK Supreme Court (the Court) has upheld the Court of Appeal's earlier decision that an employee of one of the defendants was not liable for misuse of the claimant's confidential information.

Comments to OCC and FDIC Deposit Advance Proposed Guidance -- Opponents Outnumber Proponents
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, July 18, 2013
The Office of the Comptroller of the Currency (OCC) and Federal Deposit Insurance Corporation (FDIC) each published a proposed guidance on deposit advance products on April 30th, 2013. Deposit advance products are small dollar, short-term loans offered by a bank to its deposit account customers...

New York State Governor Establishes Commission to Investigate Public Corruption
Mark F. Glaser,Joshua L. Oppenheimer, July 18, 2013
On July 2nd, in response to a series of scandals involving public officials, Governor Andrew Cuomo issued an executive order establishing the Commission to Investigate Public Corruption. The Commission has been charged with a broad mission of investigating what the Governor described as...

Treasury and IRS Postpone the Effective Dates of Several Key FATCA Provisions
Yoram Keinan, July 18, 2013
Today, July 12th, the IRS issued Notice 2013-43, which postpones the effective dates of several key FATCA provisions. This Notice provides: (i) revised timelines for implementation of FATCA; and (ii) additional guidance concerning the treatment of financial institutions located in jurisdictions...

Obama Administration Announces Delays For the Reporting and Penalty Requirements for Employers
James Nelson,Nancy E. Taylor,Danielle F. White, July 15, 2013
On Tuesday, July 2, 2013, the Obama Administration announced a one-year delay in applications of penalties associated with the employer shared responsibility requirements established under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, and the Health Care and Education...

SEC Lifts Ban on General Solicitation in Certain Private Securities Transactions; Disqualifies 'Bad Actors' from Rule 506 Offerings
Steven T. Anapoell,Spencer G. Feldman,Jean E. Harris,Barbara A. Jones,Ira N. Rosner, July 15, 2013
On July 10, 2013, the Securities and Exchange Commission (SEC) adopted rule amendments that eliminate the 80-year old prohibition on general solicitation and general advertising in Rule 506 and Rule 144A transactions under the Securities Act of 1933, as amended (Securities Act), and prohibit...

Vermiculite Regulation Update
Daniel J. Ansell,Stephen C. Jones,Paul R. McIntyre,Steven C. Russo, July 15, 2013
New York City building owners and tenants are required, prior to any significant demolition or alteration work, to perform environmental testing to determine if “asbestos-containing material” or “ACM” (defined as material containing more than 1% asbestos) is present at the...

U.S. District Court Vacates SEC Rule on Extractive Industries Disclosure Requirements; Issuers Await Decision on Conflict Minerals Rule
Barbara A. Jones, July 09, 2013
Rule 13q-1 under the Securities Exchange Act of 1934 (the Exchange Act), adopted by the Securities and Exchange Commission (the Commission) in August 2012 as part of the Dodd-Frank mandate, was vacated by the U.S. District Court for the District of Columbia on July 2nd, 2013. The rule imposes...

Employer Mandate Delay
James Nelson,Nancy E. Taylor,Danielle F. White, July 05, 2013
On Tuesday, July 2nd, 2013, the Obama Administration announced a one-year delay in applications of penalties associated with the employer shared responsibility requirements established under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, and the Health Care and Education...

Update on the 83rd Texas Legislature
April Beggs,Thomas J. Bond,Elizabeth Hadley,Demetrius G. McDaniel, July 05, 2013
The Texas Government Law and Policy section is pleased to provide you with an overview of the major issues of the 83rd Texas Legislature and First Called Special Session. The Texas Legislature meets biannually for 140 days in odd-numbered years. The 83rd Legislative session began on Tuesday,...

In a Pro-Employee World, U.S. Supreme Court Rulings Offer Employers Hope
Robert H. Bernstein,Colleen Karroll Giusto,Michael J. Slocum, July 04, 2013
In a pair of important opinions released last week, both of which are helpful to employers, the U.S. Supreme Court raised the bar for employees asserting claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. In University of Texas Southwestern Medical Center v. Nassar, 570 U.S....

SBA Removes Limits on Contracts Eligible for Set-Aside for Woman-Owned Small Businesses
Ryan C. Bradel,John G. Stafford, July 04, 2013
Last month, the Small Business Administration (SBA) enacted rules that removed all dollar limits on government contracts eligible to be set-aside under the Woman-Owned Small Businesses (WOSB) program. Prior to the enactment of the rule, only smaller contracts—manufacturing contracts not...

U.S. Supreme Court Strikes Down Portion of DOMA as Unconstitutional: The Impact of the Decision on Employee Benefit Plans
Ian A. Herbert, July 04, 2013
On June 26th, the U.S. Supreme Court issued its ruling in United States v. Windsor. In a 5-4 decision, the Court concluded that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional as applied to lawful marriages. This decision has an extremely widespread impact, as it affects more...

Supreme Court Decision Limits Ability of Government Agencies to Impose 'Extortionate' Permit Conditions on Landowners
Kerri L. Barsh,Jerry Stouck, July 01, 2013
On June 25th, the U.S. Supreme Court issued an important Takings Clause decision with far-reaching implications for real estate developers and others who rely on federal or state permits. In Koontz v. St. Johns River Water Management District, the Court extended the doctrine of...

CFPB Examines Impact of Overdraft Practices on Consumers
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, June 26, 2013
On June 11, 2013, the CFPB released its “CFPB Study of Overdraft Programs” (the Report). The Report was based upon (i) responses the CFPB received to a request for information published in the Federal Register in February 2012, and (ii) aggregate, institution-level information data and...

CFPB Proposes New Redress System for Victims of Unlawful Activities
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, June 26, 2013
Under Section 1055(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the CFPB may obtain various types of monetary relief, such as restitution, refunds and damages, in both judicial and administrative proceedings. The CFPB collectively refers to such relief as...

Energy Disclosures for California Nonresidential Buildings
Gregg D. Bernhard,Rick Merrill, June 26, 2013
Starting July 1, 2013, new energy use disclosure requirements will require an owner of nonresidential California buildings1 to disclose its building’s most recent 12 months of energy usage prior to any sale, lease or financing of the entire building. As the energy disclosure applies only to...

Practical Implications of Supreme Court's American Express Decision Confirming That Arbitration Agreements with Class Action Waivers are Enforceable
Robert J. Herrington, June 24, 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 federal antitrust law (the so-called...

An ICSID First: Claimant Allowed to Seek Enforcement of Arbitral Award While Respondent State's Annulment Application is Pending
Kevin E. Stern, June 20, 2013
In a first for ICSID, an ad hoc annulment committee has denied a respondent state’s request to stay enforcement of an arbitral award while the respondent’s application to annul the award remains pending.

U.S. Supreme Court Rules That ‘Reverse Payments’ in Hatch-Waxman Litigation Settlement Agreements Must Be Scrutinized Under Antitrust Laws
Jennifer R. Moore,Richard C. Pettus,Irving Scher, June 20, 2013
On June 17, 2013, the Supreme Court of the United States issued a 5-3 decision in FTC v. Actavis. The Court reversed an 11th Circuit decision dismissing a Federal Trade Commission (FTC) antitrust suit against Solvay Pharmaceuticals, the owner of the patent covering brand-name drug AndroGel®,...

CFPB Amends TILA and ECOA Examination Manuals to Cover New Rules
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, June 18, 2013
On June 4th, the CFPB updated its TILA and ECOA examination manuals to encompass rules it issued this past January governing appraisals, escrow accounts, and compensation and qualifications for loan originators. The new sections seek to enhance banks and mortgage lenders’ understanding about...

CFPB Releases Small Entity Compliance Guides for Loan Originator and Mortgage Servicing Rules
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, June 18, 2013
On June 7th, the CFPB published small entity compliance guides for its loan originator and mortgage servicing rules. The CFPB cautioned that the guides are not a substitute for the underlying rules but merely provide a user-friendly overview to assist those entities with limited resources in...

FDCPA Revisions on the Horizon?
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, June 18, 2013
On June 4th, Senator Sherrod Brown of Ohio (D) sent a letter to Director Cordray urging the CFPB to “take prompt action to correct the innumerable consumer abuses from both creditors and third-party actors in the industry.” Senator Brown specifically advocated that the CFPB consider the...

Restrictions Under Dutch Tough Cookie Regulation to be Alleviated
Sanne Mulder,Emilie van Hasselt, June 18, 2013
In June of 2012, the Netherlands implemented strict regulations in its Telecommunications Act (TA), to limit the use of cookies by requiring that website holders obtain prior consent for their use of cookies in furtherance to the EU ePrivacy Directive. This regulation provides for a stricter regime...

Two Significant Pieces of Insurance Legislation Passed During the 83rd Texas Legislative Session and How They Will Impact Businesses in Texas
Thomas J. Bond,Elizabeth Hadley,Barry Senterfitt, June 18, 2013
Two pieces of insurance legislation, passed during the 83rd Texas Legislative Session, are of great significance to businesses in Texas. SB 1332 relates to classifying business as small and large employers for health insurance purposes, and SB 734 relates to the creation of captive insurance...

Florida Passes Campaign Finance Reform Law
Hayden R. Dempsey, June 13, 2013
The bill (Chapter 2013-37, L.O.F.) is an omnibus campaign finance bill that makes the following substantive changes:

EEOC Offers Guidance on ADA Workplace Accommodations
Julia Riedel Emfinger,Tiffany S. Fordyce,Michael D. Karpeles, June 12, 2013
On May 15, 2013, the Equal Employment Opportunity Commission (EEOC) issued revised guidance for employers with respect to employees with epilepsy, cancer, diabetes, and intellectual disabilities. The guidance is contained in the EEOC publication “Disability Discrimination: The Questions and...

New York State Adopts Restrictions on Executive Compensation and Administrative Expenditures by Service Providers
Harold N. Iselin,David W. Oppenheim, June 10, 2013
In January 2012, New York’s Governor unveiled a proposal to limit the State’s reimbursement to not-for-profit and for-profit service providers for the administrative costs and the compensation paid to executives. Approximately 16 months later, 13 State agencies announced final adoption...

Colorado Supreme Court Issues Decision Regarding State Education Funding System
Geoffrey N. Blue, June 06, 2013
On May 28, 2013, the Colorado Supreme Court issued an extremely consequential decision upholding Colorado’s education funding system in the case of State v. Lobato. The Lobato case arose because a number of students brought an action for declaratory and injunctive relief against the state...

New Ninth Circuit Decision Holds that Consumers Suffer Economic Injury and Have Standing to Sue Under the UCL and CLRA in 'Sale Price' Advertising Cases
Gregory A. Nylen, June 06, 2013
In 2004, California voters passed Proposition 64, which restricted standing for individuals alleging claims under the state’s Unfair Competition Law (UCL) and False Advertising Law (FAL). Specifically, Prop 64 required plaintiffs to plead and prove that they have “suffered injury in...

The CFPB Brings Landmark Enforcement Action for Abusive Acts or Practices
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, June 06, 2013
On May 30, 2013, the Consumer Financial Protection Bureau (CFPB) filed a six count Complaint and proposed Stipulated Final Judgment and Order (the Judgment) against American Debt Settlement Solutions, Inc. (ADSS), a debt relief provider and Michael DiPanni (DiPanni), its owner and manager of daily...

Georgia Court Sets High Bar to Vacate Arbitration Award for Manifest Disregard of Law
Andy Clark,Terry R. Weiss, June 03, 2013
The Georgia Arbitration Code (GAC) is unusual among arbitration statutes in that it explicitly provides that the arbitrator’s “manifest disregard of the law” is grounds for vacatur of an arbitration award. That amendment was added in 2002, and there have been few cases construing...

Senate Passes Bill that Would Allow Tribes to Collect Sales and Use Taxes on Internet Sales
Marvin A. Kirsner,Harriet McConnell, June 03, 2013
The Internet sales tax bill that was recently passed by the Senate includes a provision that would allow tribal governments to require online retailers to collect sales tax on sales to residents of the tribe’s reservation. The same bill would require businesses on Indian reservations to...

CFPB Clarifies Escrows Final Rule
, May 28, 2013
The CFPB issued a final rule amending the 2013 Escrows Final Rule that was previously issued in January 2013.

CFPB Recaps Efforts Directed Toward Assisting Older Americans
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, May 28, 2013
Gail Hillebrand, the CFPB’s Associate Director of its Consumer Education and Engagement Division, testified before the House Committee on Energy and Commerce, Subcommittee on Commerce, Manufacturing, and Trade. Ms. Hillebrand’s testimony consisted of a review of the recent efforts of...

CFPB Settles Enforcement Regarding Real Estate Kickbacks
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, May 28, 2013
The CFPB recently settled an enforcement action against a homebuilder who had allegedly received illegal referral fees through affiliated business arrangements in violation of the Real Estate Settlement Procedures Act.

DOT OIG Report: Weak and Splintered Management of DBE Program Leaves It “Exposed to Billions of Dollars in Fraud, Waste and Abuse”
Jack S. Gearan,Benjamin B. Tymann, May 24, 2013
The Office of the Inspector General (OIG) of the U.S. Department of Transportation (DOT) has issued a stinging report that is highly critical of DOT’s management of the multibillion-dollar Disadvantaged Business Enterprise (DBE) program. This report, the culmination of an 18-month OIG inquiry...

IRS Issues Final Regulations on Deemed Asset Sale Elections Under Code Section 336(e)
Harry J. Friedman,Noam Lipshitz, May 24, 2013
On May 10, 2013, the U.S. Treasury Department and Internal Revenue Service (IRS) issued final Treasury regulations under Section 336(e) of the Internal Revenue Code of 1986, as amended (the Code). Section 336(e) of the Code grants the IRS authority to issue regulations providing for the treatment...

NIST Establishes New, Comprehensive Cybersecurity Guidelines for Federal Agencies and Commercial Companies
Ryan C. Bradel,Jacob B. Pankowski, May 22, 2013
The agency tasked with establishing cybersecurity standards and guidelines for all federal agencies—the National Institute of Standards and Technology (NIST)—published a major update to its standards late last month, titled NIST Special Publication 800-53 “Security and Privacy...

CFPB Makes First Preemption Determinations on State Unclaimed Property Laws Relating to Gift Cards
Jonathan I. Lessner,Marc J. Musyl,Gil Rudolph,Sarah Niemiec Seedig, May 20, 2013
Recently, the Consumer Financial Protection Bureau (CFPB) published a final determination as to whether the unclaimed property laws of Maine and Tennessee were inconsistent with, and therefore preempted by, the Electronic Fund Transfers Act, 15 U.S.C. §§ 1693 et seq.(EFTA), as implemented...

Florida Adopts Legislation on Public Private Partnerships Expanding Opportunities for Infrastructure Projects
Paul Berkowitz,Agustin G. Corbella, May 18, 2013
The fiscal challenges faced by Florida in recent years have made the political climate more favorable for the use of Public-Private Partnerships (P3s). Recognizing the successful use by the Florida Department of Transportation of its authority under Section 334.30 to help finance, build and operate...

Constitutional Reform in Telecommunications: Update
Octavio Lecona Morales,Luis Rubio Barnetche, May 17, 2013
This is an update of the client Alert that we distributed earlier related to the bill introduced by the President of Mexico to the Mexican Congress on March 11, 2013, with the intention to amend several provisions of the Mexican Federal Constitution to provide a constitutional framework for the...

What Does the Massachusetts Medical Marijuana Act Mean for Employers?
Terence P. McCourt, May 17, 2013
Massachusetts recently became one of a number of states to legalize the use of marijuana for medical purposes. Regulations issued by the Massachusetts Department of Public Health are effective on May 24, 2013, enabling individuals to register to use medical marijuana. Massachusetts employers should...

CMS Issues Final "Sunshine" Rule, Establishing New Reporting Requirements for Drug and Device Makers and Some GPOs
William B. Eck, May 16, 2013
On February 8, 2013, the Centers for Medicare & Medicaid Services (“CMS”) published a final rule implementing the Affordable Care Act’s “sunshine” provisions. The rule establishes new reporting requirements for payments to physicians by drug and device...

One Step Forward, One Step Back - NY Moves Forward on Its Environmental Self-Audit Policy as EPA Looks to Retreat
Steven C. Russo,Adam B. Silverman, May 16, 2013
New York’s Department of Environmental Conservation (DEC) recently proposed an environmental “audit incentive” policy, which is similar to the United States’ Environmental Protection Agency’s (EPA) long standing self-audit policy. In its draft policy, DEC encourages...

The CIETAC Secession:  What It Means For International Arbitration in China
Kevin E. Stern, May 08, 2013
International arbitration in China before the country’s leading arbitration institution, the Beijing-based China International Economic and Trade Arbitration Commission (CIETAC), may be entering a period of uncertainty and risk as a result of an internal dispute over arbitration rules, which...

DOD Enacts Regulation Requiring a "Proposal Adequacy Checklist"
Ryan C. Bradel, May 07, 2013
Under a recently issued Department of Defense (DOD) regulation, defense contractors may now be required to complete a “proposal adequacy checklist” when submitting proposals in response to a solicitation that requires submission of certified cost or pricing data. The checklist is a...

Florida Legislature Eliminates Personal Liability for Design Professionals
Bill L. Dunker,Robert S. Fine, May 07, 2013
On April 24, 2013, Governor Scott signed Senate Bill 286 which provides clear guidance on the steps necessary to contractually limit personal liability for design professionals such as architects, engineers, interior designers, landscape architects, surveyors and geologists in the performance of...

Making Copies! The Fourth Circuit Defines Taxable Costs Associated With eDiscovery
David Samuel Panzer, May 07, 2013
Can this happen to your client? Your client gets sued, is forced to spend over $100,000 on eDiscovery despite you making all the right objections, you deliver a clean victory on dispositive motions and the District Court awards costs of ... $200. Here is what happened in the Fourth Circuit and what...

CFPB Payday and Deposit Advance Loan White Paper Gives Glimpse into Future Regulations
Justin Angelo,Robert E. Bostrom,Thomas J. McKee,Gil Rudolph,J. Scott Sheehan, May 01, 2013
As part of its ongoing efforts to increase and expand its supervisory role over payday and deposit advance loans, the Consumer Financial Protection Bureau (the CFPB) issued a White Paper on April 24, 2013 entitled “Payday Loans and Deposit Advance Products” (the Report). The Report...

OCC, FDIC and Federal Reserve Board Issue Reports on Deposit Advance Products
Robert E. Bostrom,Gil Rudolph,J. Scott Sheehan, May 01, 2013
On April 25, 2013, the Federal Deposit Insurance Corporation (FDIC) and Office of the Comptroller of the Currency (OCC) issued their Proposed Guidance on Deposit Advance Products. The guidance comes only one day after the CFPB delivered its white paper highlighting the alleged risks of payday...

New York Attorney General to Impose Expansive New Disclosure Requirements on Not-for-Profit Organizations Making Political Expenditures
Mark F. Glaser,Joshua L. Oppenheimer, April 30, 2013
The New York State Attorney General (the AG) has proposed broad new regulations which will require not-for-profit organizations filing with the AG’s Charities Bureau to disclose their financial involvement in “New York Elections.” The proposed regulations were first issued in...

Proposed Restrictive Covenant Law Threatens to Handcuff Employers
Kristine J. Feher, April 30, 2013
Most businesses possess confidential information or trade secrets that need to be safe-guarded, or intellectual property, equipment, or processes that set them apart from their competition. Many companies choose to protect this information using “restrictive covenants” - agreements in...

The Florida Building Commission Clarifies the Application of the Florida Accessibility Code to Multifamily Housing Projects
Robert S. Fine, April 24, 2013
On April 9, 2013, the Florida Building Commission voted to issue a declaratory statement to resolve confusion among building officials regarding the proper application of the 2012 edition of the Florida Accessibility Code for Building Construction, which is published as the Accessibility Volume to...

AIFMD - Effect on U.S. Fund Managers
Arthur Don,Steven M. Felsenstein,Genna Garver, April 22, 2013
New European Union legislation that regulates alternative asset managers who manage or market funds within the EU comes into force on July 22, 2013. The Alternative Investment Fund Managers Directive (AIFMD) will have a significant impact on U.S. fund managers if they actively fundraise in Europe...

Increased Attention to Broker-Dealer Registration in the Private Fund World
Arthur Don,Steven M. Felsenstein,Genna Garver, April 22, 2013
The role of unregistered persons in the sale of interests in privately placed investment funds is an area of great interest for the SEC and the subject of recent enforcement actions. On March 8, 2013, the SEC filed and settled charges against a private fund manager, Ranieri Partners, LLC, one of...