Updates

Many businesses in Oklahoma have been impacted by the devastating tornado that hit that state on May 20, 2013.  Early estimates indicate the tornado caused upwards of $2 billion in damage.  Numerous national and local businesses and other entities, ranging from retailers to schools and hospitals, reported significant damage and an interruption in their business operations due to the tornado.

On Thursday, May 16, 2013, the Consumer Financial Protection Bureau (the "CFPB") adopted clarifying and technical amendments to its Escrow Requirements Under the Truth in Lending Act final rule issued on January 10, 2013.

On March 26, 2013, the U.S. Department of Justice (DOJ) issued a rare negative business review letter declining to approve a plan by Intellectual Property Exchange International Inc. (IPXI) to offer a financial exchange for licensing and trading intellectual property rights.

The Bureau of Land Management has issued a revised proposed rule for regulating hydraulic fracturing—or “fracking.”  On May 16, 2013, BLM issued a Supplemental Notice of Proposed Rulemaking revising its original regulatory proposal from a year ago.

In a self-described “unexpected” ruling for the defendants in the consolidated LIBOR proceedings, Judge Naomi Reice Buchwald has dismissed the private plaintiffs’ antitrust and Racketeer Influenced and Corrupt Organizations Act (RICO) claims and significantly narrowed the scope of the Commodity and Exchange Act (CEA) claim.

On May 10, 2013, the U.S. Court of Appeals for the Federal Circuit released its much-awaited en banc decision in CLS Bank International v. Alice Corp.  A majority of the court affirmed a district court's holding that Alice's claims are not directed to patent-eligible subject matter under 35 USC § 101.

On Wednesday, May 1, 2013, the Securities and Exchange Commission (the "SEC") proposed rules and interpretive guidance for parties to cross-border security-based swap transactions.

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit vacated the rule adopted by the National Labor Relations Board (the Board) that required most private sector employers to display on their properties and websites a large poster notifying employees of their rights under the National Labor Relations Act (the Act) and that failure to do so would be an unfair labor practice. 

The California Legislature adopted Section 25402.10 of the California Public Resources Code in 2007.

The California Supreme Court has unanimously upheld a local ban on medical marijuana dispensaries, holding that the ban was not preempted by state statutes governing medical marijuana.

On Thursday, April 25, 2013, the Office of the Comptroller of the Currency (the "OCC") and the Federal Deposit Insurance Corporation (the "FDIC") proposed guidance and the Board of Governors of the Federal Reserve System (the "Fed") issued a statement related to deposit advance products.

In addressing an important legal issue of first impression, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the U.S. Environmental Protection Agency’s “veto” authority under Section 404(c) of the federal Clean Water Act (CWA) allowed it to revoke a fill permit from the U.S. Army Corps of Engineers, even after the permit had been issued to the project applicant.

According to the author’s April 23, 2013 press release, the amended version of Senate Bill 731 is a “comprehensive reform” of CEQA, “modernizing the law to aid California’s economic growth.”  But a close review shows that the bill would actually impose a new set of burdensome procedural requirements on CEQA lead agencies and project applicants.

The Federal Election Commission (FEC) this week became the latest government agency to grapple with the impact of the Defense of Marriage Act (DOMA) on the federal rights of legally married same-sex couples.  At issue was whether same-sex spouses, like other married couples, may make joint political contributions.

The Illinois Supreme Court has issued new court rules that become effective on May 1, 2013, modifying the evidentiary requirements for obtaining foreclosure judgments, among other things.  The rules are the result of the work of a special committee appointed by the court to study, address and unify the procedures used throughout the state in mortgage foreclosure proceedings.

Recently, we published a Client Update explaining how the Play-or-Pay mandate, or Employer Shared Responsibility provision, under the Affordable Care Act (ACA) generally works.

On April 16, 2013, the U.S. Supreme Court concluded, in a 5-4 decision, that when the individual plaintiff in a "collective action" under the Fair Labor Standards Act (FLSA) resolves her own claims before certification, the case is moot and must be dismissed.  Genesis Healthcare Corp v. Symczyk, No. 11-1059 (U.S. 2013).

On Wednesday, April 10, 2013, the Commodity Futures Trading Commission (the "CFTC") and the Securities and Exchange Commission (the "SEC") jointly issued final rules and guidelines that will require certain regulated entities to establish programs to address risks of identity theft.

On March 31, 2013, a magistrate judge with the U.S. District Court for the Northern District of California ruled that the U.S. Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) in issuing several oil and gas leases without first adequately analyzing the impacts of horizontal drilling and multistage hydraulic fracturing (fracking).

Two new criminal laws underscore the value of trade secrets as a critical asset to a corporation.  These new laws, the Trade Secrets Clarification Act (TSCA) and the Foreign and Economic Espionage Penalty Enhancement Act (FEEPEA), have increased the criminal penalties for stealing trade secrets, including fines in excess of $10 million.

This is the latest opinion in the ongoing litigation arising out of a massive data breach suffered by Hannaford Bros. grocery stores. In re Hannaford Bros. Privacy Litigation, __F. Supp. 2d __, Case No. 2:08-MD-1954-DBH, 2013 WL 1182733 (D. Me. Mar. 20, 2013).

On Thursday, March 28, 2013, the Commodity Futures Trading Commission (the "CFTC") approved a final order that exempts certain non-financial energy derivative transactions between and amongst government-owned electric utilities and cooperatively-owned electric utilities from most of the requirements of the Commodity Exchange Act (the "CEA") and the CFTC's regulations, subject to certain anti-fraud, anti-manipulation, and record inspection conditions.

In an effort to reduce the occurrence of accidents, injuries and spills during oil and gas activities on the Outer Continental Shelf (OCS), the Bureau of Safety and Environmental Enforcement (BSEE) of the U.S. Department of the Interior announced a final rule on April 5, 2013 that will add new requirements for Safety and Environmental Management Systems (SEMS).

An environmental group argued that rain water washing over utility poles and carrying wood preservatives used to treat the poles into Bay Area waterways violated the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA).

On April 3, 2013, the New York Times published an article about commercial databases that contain reports from retail employers about employees who were accused of stealing from their workplaces.

For the first time in the more than 50-year history of the statute, a federal appeals court has applied the Wartime Suspension of Limitations Act (WSLA), 18 U.S.C. § 3287, to a civil False Claims Act (FCA) case.

In an opinion published on March 28, 2013, a California court of appeal answered three questions under the California Environmental Quality Act that the published decisions have not yet addressed.

On March 27, 2013, the U.S. Supreme Court issued its decision in Comcast Corp. v. Behrend, 569 U.S. ___, No. 11-864, 2013 WL 1222646 (Mar. 27, 2013).

Portland has become just the fourth U.S. city to require that employers provide sick leave. The Portland ordinance goes into effect January 1, 2014. Following is a brief summary of the ordinance. As the effective date approaches, we will provide updates dealing with the many traps and reporting difficulties created by the ordinance.

To address a perceived gap in regulatory treatment of increasingly popular virtual currencies, including Bitcoin, the U.S. Department of the Treasury Financial Crimes Enforcement Network (FinCEN) released new guidance on March 18, 2013.

The U.S. Supreme Court has reversed a 2010 Ninth Circuit Court of Appeals decision and reaffirmed that a federal Clean Water Act National Pollutant Discharge Elimination System (NPDES) point source discharge permit is not required under Environmental Protection Agency (EPA) regulations for stormwater runoff discharges to streams or other waters from logging road ditches, culverts or other channels.

The U.S. Court of Appeals for the Fifth Circuit recently issued two decisions that affect a borrower’s ability to confirm a bankruptcy plan, Western Real Estate Equities, L.L.C. v. Village at Camp Bowie I, L.P. (In re Village at Camp Bowie I, L.P.) and Wells Fargo Bank National Association v. Texas Grand Prairie Hotel Realty, L.L.C. (In re Texas Grand Prairie Hotel Realty, L.LC.).

The U.S. Supreme Court unanimously ruled in Standard Fire Insurance Co. v. Knowles, 568 U.S. __, No. 11-1450, 2013 WL 1104735 (Mar. 19, 2013), that plaintiffs attempting to bring a class action lawsuit cannot escape federal jurisdiction by agreeing to seek less than $5 million in damages.

Supply chain compliance is on the government’s enforcement radar like never before. If the recent Executive Order on Trafficking in Government Contracts and final SEC Conflict Minerals Rules were not notice enough, the Department of Justice’s (DOJ’s) February 20, 2013 announcement of headline-grabbing charges against the two largest domestic honey processing companies eliminates any doubt that companies must carefully examine the effectiveness of their existing supply chain compliance programs.

The Centers for Medicare & Medicaid Services (CMS) released a ruling and an interim rule that, effective immediately, will allow hospitals to rebill certain inpatient hospital services as outpatient services for one year after the date of service.

On Thursday, March 14, 2013, the Consumer Financial Protection Bureau (the "CFPB") proposed, pursuant to Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act, a rule that would identify a market for student loan servicing, and define certain nonbank student loan servicers as "larger participants," thereby allowing the CFPB to oversee their activity for compliance with federal consumer financial laws.

The Supreme Judicial Court of Massachusetts recently held that collecting a consumer's ZIP code at the point of sale may violate Massachusetts General Laws Chapter 93, Section 105(a) (Section 105(a)), which restricts the ability of retailers to collect personal identification information (PII) from consumers in connection with a credit card transaction.

On March 15, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that the Commodity Futures Trading Commission (CFTC) has exclusive jurisdiction over natural gas futures contracts and that the Federal Energy Regulatory Commission (FERC) had exceeded its authority when it fined Brian Hunter, a trader for hedge fund Amaranth, $30 million for allegedly manipulating natural gas futures contracts.

A federal judge in the Northern District of California recently added to the growing list of cases rejecting attempts to recover damages resulting from data breaches.  In In re LinkedIn User Privacy Litigation, Case no. 5:12-CV-03088 EJD (March 6, 2013), the court dismissed a lawsuit brought by LinkedIn users who were upset over the June 2012 posting of 6.5 million stolen LinkedIn user passwords.

On Wednesday, March 6, 2013, the Commodity Futures Trading Commission (the "CFTC") approved the request from the Chicago Mercantile Exchange Inc. (the "CME") for the CME to adopt new Chapter 10 and new Rule 1001 in the CME’s rulebook.

Charles Duross, deputy chief of the Department of Justice’s (DOJ) Criminal Division, Fraud Section, offered white collar crime practitioners rare insight into the DOJ’s and the Security and Exchange Commission’s (SEC) recently released Resource Guide to the U.S. Foreign Corrupt Practices Act at the American Bar Association’s (ABA) 27^th Annual National Institute on White Collar Crime, held in Las Vegas from March 6 to 8, 2013.

Last Friday, March 8th, the Department of Homeland Security, U.S. Citizenship and Immigration Services, adopted a new I-9 Form that must be used by all employers (and some other entities), starting no later than May 8, 2013—two months after the new requirement was published in the Federal Register.  A copy of the announcement can be found here.

On Friday, March 1, 2013, the Securities and Exchange Commission (the "SEC") issued a release requesting data and other information, in particular quantitative data and economic analysis, relating to the benefits and costs that could result from various alternative approaches regarding the standards of conduct and other obligations of broker-dealers and investment advisers.

On March 5, 2013, the Council on Environmental Quality (CEQ) released two handbooks that are intended to help agencies and practitioners coordinate environmental reviews under the National Environmental Policy Act (NEPA) with overlapping review requirements under the National Historic Preservation Act (NHPA) and the California Environmental Quality Act (CEQA).

On Tuesday, on remand from the U.S. Supreme Court, the Ninth Circuit held that the certification requirements set forth by the U.S. Supreme Court for a multimillion plaintiff gender discrimination class action in Dukes v. Wal-Mart Stores, 131 S. Ct. 2541 (2011), applied equally to a 200-person class of newspaper employees with wage and hour claims.     

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.

A recent appellate decision requires strict adherence to disclosure requirements before third-party releases contained in a Chapter 11 plan may be approved.

The Internet Corporation for Assigned Names and Numbers (ICANN), which is charged with enabling and securing the Internet, has been hard at work on a significant expansion project.

In a closely watched decision, a unanimous U.S. Supreme Court has reversed an 11th Circuit decision that invoked the state action doctrine to prevent the Federal Trade Commission (FTC) from challenging a state hospital authorities’ proposed acquisition of a competing hospital.

A recent $8.1 million verdict in a trademark and trade dress infringement action is an emphatic reminder that businesses of all sizes should protect their trade dress as well as their trademarks. 

On Thursday, February 26, 2013, the Federal Reserve Board (the "Fed") introduced a proposed rule pursuant to Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

The annual “SEC Speaks” conference, in which Securities and Exchange Commission (SEC) representatives review the agency’s efforts over the past year and preview the year to come, was held on February 22-23, 2013.  A back-to-basics “investor protection” theme emerged from this year’s conference, as the SEC reposts in the wake of Chairman Mary Schapiro and Enforcement Director Robert Khuzami departing.

In response to a business community campaign calling for broad CEQA reform, Senate President Pro, California State Senator Tempore Darrell Steinberg, released his highly anticipated CEQA “modernization” bill.

This Update was also published on Law360.

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.