The U.S. District Court for the Northern District of Illinois is the latest court to require a company to pay millions of dollars in fees to adjudicate mass arbitrations. Judge Harry D. Leinenweber compelled Samsung Electronics America, Inc., and Samsung Electronics, Co., Ltd. to arbitrate according to Samsung’s Terms & Conditions and ordered Samsung to pay over $4 million in initial fees to the American Arbitration Association before the merits of any individual claims are considered.

Few things are as American as apple pie, baseball, or creating a corporate subsidiary to limit liability and risk. Just as pies and baseball are governed by recipes and rules, respectively, establishing or piercing a corporate veil works much the same.  

On June 29, 2023, the Supreme Court issued its landmark decision in two cases challenging universities’ consideration of race as a factor in student admissions: Students for Fair Admissions v. President and Fellows of Harvard College; and Students for Fair Admissions v. University of North Carolina.

On June 23, the U.S. Supreme Court held that federal district courts must stay all proceedings pending appellate review of an order denying a motion to compel arbitration.

In a recent ruling, the National Labor Relations Board found an employer violated the National Labor Relations Act when it offered furloughed employees a severance agreement that included overbroad nondisparagement and confidentiality provisions.

The Centers for Medicare and Medicaid Services has codified regulatory changes to its Medicare Advantage Risk Adjustment Data Validation audit program of risk adjustments submitted by Medicare Advantage Organizations. Most significantly, CMS will begin applying contract-level extrapolation to its RADV audit findings beginning with audits of calendar year 2018, which will significantly increase MAO exposure based upon alleged overpayment findings.

The U.S. Department of Justice obtained more than $2.2 billion in civil False Claims Act judgments and settlements in fiscal year 2022, the lowest such annual total since 2008 and a significant drop from a jump in FCA recoveries in the prior year. But the DOJ’s announcement of its FY 2022 FYA recoveries also discloses that the DOJ is increasingly bringing FCA cases on its own, and the total number of settlements and judgments in FCA matters increased to near-record highs in FY 2022, signaling a robust enforcement climate ahead.

The new Consolidated Appropriations Act, 2023 includes the Merger Filing Fee Modernization Act of 2022, which amends the amounts and tiers for Hart-Scott-Rodino Antitrust Improvements Act of 1976 filing fees as discussed in a prior Update. It also includes two important amendments to antitrust laws.

After more than a year of delays and revisions, the long awaited Ban on Non-Compete Agreements Amendment Act of 2020 (the Act) took effect beginning October 1, 2022, following the passage of the Non-Compete Clarification Amendment Act of 2022.

Seasoned trial attorneys Alan Howard and Ed Baum explore how the courts and attorneys are adapting to the still-evolving “new normal” of jury trials conducted under pandemic-driven constraints, and the future for remotely conducted proceedings post-pandemic.

National Security Presidential Memorandum-33 and implementation guidance from the National Science and Technology Council direct federal agencies to standardize and enhance disclosure and security requirements that apply to federally funded research and development.

The U.S. Supreme Court, in a May 23 decision, ruled that the federal policy favoring arbitration does not authorize federal courts to impose a prejudice requirement when evaluating whether a party has waived its right to arbitration by litigating in court.

On April 5, 2022, the U.S. Court of Appeals for the Ninth Circuit refined the standard for enforcing terms of service presented on websites via hyperlinks.

The U.S. Supreme Court ruled that federal courts cannot enforce or vacate arbitration awards under Sections 9 and 10 of the Federal Arbitration Act.

Mayor Muriel Bowser signed the District of Columbia’s Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) (the Act) on January 11, 2021.

A New Jersey based nonprofit organization, Save Long Beach Island, and its president sued in the U.S. District Court for the District of Columbia in January 2022.

A Colorado state court recently joined a growing chorus of courts across the country rejecting insurance companies’ arguments that there is no coverage for COVID-19-related losses and costs under commercial property insurance policies because COVID-19 cannot cause “physical loss or damage” to property as a matter of law.

The U.S. Department of Justice recently entered into settlement agreements with Hy-Vee and Rite Aid in response to the DOJ’s concern that the companies’ vaccine registration websites were not accessible to individuals with vision impairments and other disabilities.

When are communications with counsel that are for both legal advice and business purposes protected by the attorney-client privilege?

On New Year’s Day 2021, Congress passed the Anti-Money Laundering Act of 2020 (AMLA 2020). As we reported last April, the AMLA 2020 included sweeping reforms aimed at strengthening protections against money laundering, terrorism financing, and other illegal activities. In July, we examined the expansive new beneficial ownership reporting requirements added to the Corporate Transparency Act. In this second substantive installment of our multipart series on the AMLA 2020, we examine the changes made to the Bank Secrecy Act (BSA) whistleblower provisions.

This first substantive installment in our multipart series addresses arguably the most significant implication of AMLA 2020: a new and expansive requirement to disclose corporate beneficial ownership, set out by the Corporate Transparency Act.

Co-hosts Alan Howard and Ed Baum speak with Karen Lisko regarding developments with remote and hybrid trial settings as court systems emerge from the pandemic.

Co-hosts Ed Baum and Alan Howard are joined by Karen Lisko in a conversation about adaption and evolution in trial techniques for a virtual or hybrid trial.

Co-hosts Alan Howard and Ed Baum speak with Karen Lisko about how jurors’ remote or virtual trial settings may change how jurors receive and perceive evidence.

Co-hosts Ed Baum and Alan Howard speak with Maricopa County Chief Civil Judge Pamela Gates to discuss studies of and adaptations for remote jury trials.

Co-hosts Alan Howard and Ed Baum are joined by litigation consultant Karen Lisko, Ph.D. to survey the range of ongoing adaptations to “normal” jury trial practice and discusses the practical implications and choices for clients engaged in ongoing litigation.

The deluge of lawsuits brought under the Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14 et seq. over the past several years has presented a challenge to companies operating in Illinois.

On New Year’s Day 2021, Congress overrode a presidential veto to pass the Anti-Money Laundering Act of 2020 (AMLA 2020), which amends and modernizes the Bank Secrecy Act (BSA).

Last week, the Federal Trade Commission (FTC) approved its Commission Report on Hearings on Competition and Consumer Protection in the 21st Century.

Streaming is a widespread form of entertainment for millions of Americans and its popularity has soared during the pandemic. However, according to a study by the U.S. Chamber of Commerce and the Global Innovation Policy Center from June of 2019, “global online piracy costs the U.S. economy at least $29.2 billion in lost revenue each year.”

Since the start of the pandemic, hundreds of businesses of all sizes have been forced to file lawsuits against their property insurers for failing to honor their contractual obligations to provide business interruption, extra expense, civil authority, and other coverage for the substantial losses caused by the COVID-19 pandemic.

In United States ex rel. Wollman v. Massachusetts Gen. Hosp., Inc., No. CV 15-11890-ADB, 2020 WL 4352915 (D. Mass. July 29, 2020), yet another district court agreed with the U.S. Court of Appeals for the D.C. Circuit’s decision in In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 2014), holding that, although the defendants waived it here, attorney-client privilege applies to internal investigations.

Hundreds of COVID-19-related class action claims have been filed in state and federal courts throughout the country.

Due to the COVID-19 pandemic, institutions of higher education are facing significant revenue challenges and incurring extra expenses for which their insurance programs should provide relief.

This update provides some recent lessons learned with remote depositions that apply to both those who take and defend remote depositions.

In 1964, futurist Arthur C. Clarke predicted that in fifty years, people “will no longer commute—they will communicate.”

This update was republished in Thomson Reuters Westlaw, July 16, 2020. 

In its June 10, 2020 opinion in Nguyen v. Endologix, the U.S. Court of Appeals for the Ninth Circuit applied the plausibility standard to a plaintiff’s securities fraud claims and affirmed the district court’s dismissal, with prejudice, of the purported class action complaint.

The U.S. Department of Justice on June 1, 2020, released another update to its “Evaluation of Corporate Compliance Programs” (the 2020 Update).

Over the last two weeks, the American Bar Association offered a virtual version of what would have been its 68th Antitrust Law Spring Meeting, presenting a select number of panels online. Several of the virtual sessions addressed the efforts of federal and state antitrust enforcement agencies.

In this podcast Perkins Coie litigators Alan Howard and Ed Baum talk with Mediator David Geronemus, of JAMS in New York, about his experience and advice for conducting virtual mediation sessions.

In this podcast Perkins Coie litigators Ed Baum and Alan Howard talk with former Federal Judge Wayne Andersen, a neutral with JAMS in Chicago, about his experience and advice for conducting virtual mediation sessions.

Perkins Coie litigators Alan Howard and Ed Baum talk with former Federal Judge Suzanne Segal, a neutral with Signature Resolution in Los Angeles, about her experience and advice for conducting virtual mediation sessions.

Perkins Coie Litigation attorneys Alan Howard and Ed Baum discuss the viability of conducting virtual mediation sessions during the COVID-19 pandemic and beyond.

This update and the corresponding blog post discuss how litigators and litigants can benefit from the available technology to continue taking and defending depositions while quarantined in their home offices.

The U.S. Supreme Court held this week that willfulness is not a prerequisite for an award of profits for violation of Lanham Act § 43(a), 15 U.S.C. § 1125(a), resolving a longstanding circuit split.

Parties to commercial contracts that may be affected by COVID-19 are now examining their force majeure provisions, as well as all other risk allocation provisions, to determine which party bears the cost of delay or impossibility of performance.

As businesses gear up for the busy holiday shopping season and prepare product lines for the new year, manufacturers and distributors of consumer products must be ready to manage new risks that are likely to appear in the new year. 

On October 7, 2019, the U.S. Supreme Court denied a petition filed by Domino’s Pizza asking the Court to decide whether Title III of the Americans with Disabilities Act (ADA) applies to websites and mobile apps.

The American Bar Association’s 67th Antitrust Law spring meeting held earlier this month featured several sessions addressing the efforts of federal and state antitrust enforcement agencies, including a number of discussions with representatives from those agencies.

The U.K. Modern Slavery Act of 2015, which was modeled after the California Transparency in Supply Chains Act, requires companies falling under its jurisdictional hook (and there are many) to honestly and completely disclose their efforts to eradicate trafficked, slave, indentured, coerced and child (collectively “forced”) labor from their supply chains.

The U.S. Supreme Court’s decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. __ (2019), issued March 4, 2019, resolves a longstanding circuit split regarding whether the Copyright Act of 1976 allows a copyright owner to file an infringement suit as soon as a copyright application has been filed or instead requires the owner to wait to initiate suit until the U.S. Copyright Office has acted on the application. 

The U.S. Court of Appeals for the Ninth Circuit issued a decision on January 15, 2019 in a closely followed web accessibility case, Robles v. Domino’s Pizza, LLC, reaffirming Ninth Circuit precedent holding that companies whose online activities share a nexus with physical places of public accommodation may be held liable under the Americans with Disabilities Act for failing to make their websites and apps accessible to persons with disabilities.

The press has widely reported on Paul Manafort’s attorneys’ failed attempt to redact sensitive information in a recent legal filing, allowing the press to uncover and publish the very information the attorneys intended to redact.

The U.S. Court of Appeals for the Ninth Circuit recently reminded litigants that a plaintiff’s bankruptcy can benefit a defendant by providing an alternative settlement path.

A federal jury last week returned a $473.5 million verdict against the world’s largest pork producer for nuisances caused by three industrial-scale hog farms.

The U.S. Supreme Court this week overruled longstanding precedent to hold that public-sector unions may no longer extract agency fees from nonconsenting employees who have opted not to join a union.

In Epic Systems Corp. v. Lewis, __ U.S. __ (2018), the United States Supreme Court upheld an employment contract provision that requires employees to individually arbitrate any disputes with the employer.

We offer some key takeaways from ABA's Antitrust Law Spring Meeting, including the impact of leadership changes at the federal agencies, recent enforcement activities and signals regarding future priorities.

Last Friday, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued its long-awaited decision in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. Mar. 16, 2018).

Oregon is one of 35 states where the legislature has successfully enacted a statute capping the amount of noneconomic damages, commonly known as “emotional distress,” that juries can award. With the issuance of two recent opinions from the Oregon Court of Appeals, however, Oregon now joins six other states with courts that have ruled such caps are unconstitutional.

From fashion clothing in the mail to gym memberships to monthly mobile app subscriptions, the subscription-based business model is everywhere and here to stay.

This update has been republished in California Lawyer on 12.04.2014, "Auto-Renewal Update."

Employers and other defendants recently suffered a setback in the Eleventh Circuit, which reversed itself and will now require a “totality of the circumstances analysis” to determine whether a debtor/plaintiff should be precluded from pursuing litigation that was not disclosed in their bankruptcy documents in a timely manner. 

On May 30, 2017, the U.S. Supreme Court handed down yet another personal jurisdiction opinion emphasizing clear rules as to when out-of-state defendants may be haled into court.

3-D printing has enabled a variety of new manufacturing processes that will blur fundamental distinctions in the law of product liability, potentially exposing companies to liability they did not anticipate.

Earlier this month, the Electronic Transactions Association (ETA) hosted its annual TRANSACT conference to connect and educate the various branches of the payments industry.

In our second installment covering the ABA's 65th Antitrust Law Spring Meeting, we provide some key takeaways from the sessions, specifically focusing on issues in mergers and acquisitions.

The American Bar Association’s 65th Antitrust Law Spring Meeting held at the end of March included a number of sessions with representatives from federal and state antitrust enforcement agencies.

Former Deputy Attorney General Sally Yates issued a memorandum (the Yates Memo) in September 2015 setting forth guidance on how the U.S. Department of Justice would handle future corporate investigations and, to the extent practicable, pending ones.

In Texas, some victims of workplace sexual assault may pursue common law assault claims against their employers, following a recent Supreme Court of Texas ruling.

What does the nomination of Judge Neil Gorsuch for the U.S. Supreme Court mean for product liability litigation?

This update was republished in Law360 on 02.08.2017, "Justice Gorsuch And Product Liability Litigation."

The Federal Trade Commission filed suit last week in federal court against Qualcomm, Inc., following its investigation launched in September 2014.

In a 4-3 decision, the California Supreme Court ruled that attorney invoices submitted to public agencies are not categorically exempt from disclosure under the California Public Records Act.

With the 2016 holiday shopping season in full swing, the risk of litigation heightens for retailers. We created our own version of a “holiday list” to identify the top-10 risk areas where retailers may be vulnerable to claims and lawsuits. 

On December 1, 2016, the Supreme Court of California held that the duty of employers and premises owners to exercise ordinary care in their use of asbestos in their businesses includes a duty to take reasonable care to prevent secondary (take-home) asbestos exposure to members of a worker’s household.

Last week, the U.S. Department of Labor’s pending regulation raising the minimum salary levels for “exempt” white collar employees was blocked by a federal district court judge in the Eastern District of Texas.

The U.S. Department of Justice’s Antitrust Division and the Federal Trade Commission jointly issued their Antitrust Guidance for Human Resources Professionals on October 20, 2016.

Perkins Coie previously published an alert regarding California legislation (SB 1186), which required disclosures in commercial leases as to whether the property being leased had been inspected by a Certified Access Specialist (CASp). On September 16, 2016, new legislation (AB 2093) was enacted to encourage parties to acknowledge accessibility issues and address any necessary remediations during lease negotiations.

In a precedent-setting opinion, the U.S. Court of Appeals for the Ninth Circuit in Aerotec International, Inc. v. Honeywell International, Inc., affirmed the summary dismissal of a garden variety of antitrust claims brought by Aerotec.

The Antitrust Division of the U.S. Department of Justice is vigorously pursuing civil and criminal actions against individuals—and not simply the companies they run. 

This update was also published in China Business Review on 03.17.2017, "Antitrust Division Focuses Enforcement Efforts on Individuals Behind International Cartels."

The Federal Trade Commission recently sued 1-800 Contacts, Inc., the largest contact lens retailer in the United States, charging it with restraining competition in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45.

Patent settlement agreements were traditionally deemed outside the purview of antitrust scrutiny unless the patent holder’s conduct fell outside the legitimate scope of the patent’s exclusionary power.

Two new statutes, signed into law by Arizona Governor Doug Ducey this legislative session, attempt to set new standards on defining the employment relationship and how wages are regulated.

The U.S. Supreme Court ruled that the exception to bankruptcy discharge for debts incurred through actual fraud applies to debts imposed for fraudulent transfer liability.

The American Bar Association held its 64th annual Antitrust Law Spring Meeting April 5–8, 2016, in Washington, D.C.  Over 3,000 practitioners, enforcers, economists and academics from around the world came together to discuss and share views on the hottest antitrust topics of the day.

On February 18, 2016, the California Supreme Court held that borrowers may bring wrongful foreclosure claims based on challenges to an assignment of the note and deed of trust to a securitized trust.

As of February 1, 2016, employers with employees who work in Tacoma must comply with two new legal requirements.

Massive explosions occurred at a warehouse in Tianjin, China, in August 2015, that left hundreds of people dead or injured and destroyed much of the city’s port facilities. Tianjin is located in the industrial north of China and is a critical transit point for many global industries, including electronics, automotive, aerospace, petrochemicals and manufacturing equipment.

From Washington, D.C. to Washington state, the manner in which government officials and employees create and store business records is making headlines.

Employers should take immediate action to ensure that they are properly classifying their workers in light of new guidance released on July 15, 2015, by the U.S. Department of Labor (DOL).

A simple yet highly effective and increasingly common cyber scam, based on social engineering and playing on fear, the desire to be helpful and other emotions, has caused U.S. companies of all sizes to lose millions of dollars in recent months.

In its long-awaited decision in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, No. 11-1085 (U.S. Feb. 27, 2013), the U.S. Supreme Court held that plaintiffs in a securities-fraud class action do not need to establish the materiality of alleged misrepresentations in seeking class certification.

Earlier today, in a case titled Sell v. Sewell, (No. CV-12-0211-PR), the Arizona Supreme Court ruled that there is no implied private right of action for aiding and abetting securities fraud under the Arizona Securities Act (ASA).  Today’s ruling in Sell overturns the court’s ruling 34 years ago in State v. Superior Court, 599 P.2d 777 (Ariz. 1979), and continues the court’s strong policy of following the U.S. Supreme Court’s interpretations of analogous federal securities statutes.

A Supreme Court decision long-awaited by the class action bar and businesses was a surprise non-event last Thursday when, seven months after hearing oral arguments in First American Financial Corp. v. Edwards, the Supreme Court issued an order dismissing the writ of certiorari in the case as improvidently granted.  The Supreme Court's per curiam order, presented without reasoning, left intact the Ninth Circuit's holding that a plaintiff who pled a statutory violation but not actual damages had standing under Article III of the U.S. Constitution, which requires that a plaintiff has suffered a concrete “injury in fact.”  The Supreme Court's decision means that, at least in the Ninth Circuit “[t]he injury required by Article III can exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’”

The Centers for Medicare and Medicaid Services published proposed regulations today under the Physician Payment Sunshine Act.

The American Bar Association held a Health Care Fraud Conference on May 11-13, 2011 in which high level officials from both the Department of Justice (“DOJ”) and Health and Human Services (“HHS”) described the new tools and tactics the government is utilizing to combat health care fraud. The government's new campaign will increase the amount of scrutiny that hospitals, pharmaceutical manufacturers, medical device companies and individual providers face.

The Department of Health and Human Services (HHS) recently announced that it will seek to exclude Howard Solomon, CEO of pharmaceutical company Forest Laboratories Inc., from participation in federal health programs (such as Medicare and Medicaid) based solely on the corporation’s criminal conviction.

In AT&T Mobility v. Concepcion, No. 09-893, the U.S. Supreme Court validated consumer contracts with arbitration clauses containing class action waivers. This decision may cause companies that do not have arbitration provisions in their consumer contracts to add them in order to limit or avoid class actions.

In Matrixx Initiatives, Inc. v. Siracusano, No. 09-1156 (U.S. Mar. 22, 2011), the U.S. Supreme Court unanimously held that a plaintiff can establish the materiality (for purposes of claims under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5) of adverse events experienced by users of pharmaceutical products without showing that the incidence of harm from those adverse events was statistically significant.

Section 220 of the Delaware corporation law provides that stockholders may inspect a corporation’s books and records for a “proper purpose.”  Normally, plaintiffs file Section 220 actions as an investigatory tool before commencing litigation—the sequence long favored under Delaware law.  Frustrated by abuses occasioned by the opposite approach, in May 2010, Vice Chancellor Leo Strine of the Delaware Chancery Court ruled that “once a plaintiff files a derivative suit, he has made his election,” and cannot thereafter seek books and records in Delaware.  On January 28, 2011, the Delaware Supreme Court reversed.