Updates

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.

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.

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.

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.

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.

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

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 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 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 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 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.

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 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.

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.

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.

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.

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 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 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 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.

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.

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

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").

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.

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.

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.

On February 12, 2013, President Obama signed an Executive Order (the Order) intended to enhance the cybersecurity of the country's critical infrastructure. According to the Order, "[t]he cyber threat to critical infrastructure continues to grow and represents one of the most serious national security challenges we must confront."

A recent Washington Supreme Court case, Gandee v. LDL Freedom Enterprises, Inc., No. 87674-6 (Feb. 7, 2013), provides important insights into how Washington courts approach the enforceability of arbitration agreements in the wake of the U.S. Supreme Court’s seminal decision in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011).

The first published California Environmental Quality Act case of 2013, Save Cuyama Valley v. County of Santa Barbara, strongly endorsed a lead agency’s authority to use its own, project-specific significance thresholds in an environmental impact report.

The Federal Trade Commission (FTC) recently announced that the reporting thresholds under Section 8 of the Clayton Act, known as the Hart-Scott-Rodino (H‑S‑R) Antitrust Improvements Act of 1976 (the Act), will be increased.

On February 1, 2013, the Centers for Medicare and Medicaid Services (CMS) published the long-awaited final regulations implementing the Physician Payment Sunshine Act (Act or Sunshine Act). The Sunshine Act requires drug, medical device, biological and medical supply manufacturers to track and report, for publication by CMS, payments made to physicians and teaching hospitals.

The Affordable Care Act added the so-called “Play or Pay” mandate or “Employer Shared Responsibility” provisions to the Internal Revenue Code (the Code).  Starting in 2014, certain employers may be subject to a penalty tax, or “Employer Shared Responsibility Payment,” if (1) they fail to offer the opportunity to enroll in an employer-sponsored health plan that offers “minimum essential coverage” (MEC) to substantially all full-time employees (and certain dependents); or (2) MEC is offered but it is unaffordable or does not provide the required minimum value; and (3) at least one of the employer’s full-time employees receives a premium tax credit or cost-sharing reduction for purchasing health insurance through an Exchange.

On February 4, 2013, a Ninth Circuit panel held that the Bureau of Land Management (BLM) did not violate the National Environmental Policy Act (NEPA), Federal Land Policy and Management Act (FLPMA), or its own mining regulations (43 C.F.R. §§ 3809 et seq.) by allowing a mine operator to resume mining on federal lands under a 20-year old mining plan of operations after a 17-year hiatus.

The California Supreme Court recently issued a landmark ruling in Apple Inc. v. Superior Court (formerly Krescent v. Apple Inc. in trial court proceedings), a case with wide-reaching implications for consumer privacy in e-commerce. The issue before the Court was whether California’s Song-Beverly Credit Card Act (the Act), which generally prohibits retailers from collecting or requesting personal identification information (PII) as a condition of accepting credit card payments, should apply to online retailers.

As more countries join the Madrid Protocol System for the International Registration of Marks (Madrid System), trademark owners should be sure to take full advantage of this trademark registration option.  There are now 89 members of the Madrid System.  Significantly lower application and maintenance costs, as well as streamlined portfolio management options, are just a few of the reasons why the Madrid System is advantageous for trademark owners.

Federal law and most states only require one party to a phone call to consent to recording it, which means the person recording the call doesn’t need anyone else’s permission; however, a minority of states, including California, require all parties to a call to provide consent.  While you might think you are safe if you do the recording in a one-party consent state, like Georgia, California’s highest court has made clear that California law will apply no matter where you are located if you do business in California and record a call with a California client.  Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006).

On Thursday, January 10, 2013, Consumer Financial Protection Bureau (the "CFPB") issued a final rule that amends Regulation Z to implement certain amendments to the Truth in Lending Act ("TILA") made by Sections 1461 and 1462 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

The Affordable Care Act requires employers to provide written notice of coverage options available through an Exchange (the Exchange Notice) to each employee by March 1, 2013 and to each new employee thereafter on his or her date of hire.

In the waning days of 2012, the National Labor Relations Board (NLRB) issued several game-changing decisions that are important to all private sector employers—both union and nonunion.

Final implementing regulations for many provisions of the HITECH Act (Health Insurance Technology for Economic and Clinical Health Act) were issued by the Department of Health and Human Services recently, and will appear in the Federal Register on January 25, 2013. Informally referred to as the Omnibus Rule, the regulations address a number of changes to the HIPAA Privacy Rule, HIPAA Security Rule, HIPAA breach notification rule, HIPAA privacy and security enforcement provisions, Business Associate definition and agreement requirements, and the interaction between HIPAA and the Genetic Information Nondiscrimination Act. 

On Friday, January 18, 2013, the Board of Governors of the Federal Reserve System (the “Fed”), the Consumer Financial Protection Bureau (the "CFPB"), the Federal Deposit Insurance Corporation (the “FDIC”), the Federal Housing Finance Agency (the “FHFA”), the National Credit Union Administration (the “NCUA”), and the Office of the Comptroller of the Currency (the “OCC”) issued a final rule that establishes new appraisal requirements for "higher-priced mortgage loans."

On January 22, 2013, the U.S. Supreme Court issued a unanimous decision in Sebelius v. Auburn Regional Medical Center, 568 U.S. _____ (2013), holding that hospitals cannot appeal Medicare inpatient reimbursement determinations to the Provider Reimbursement Review Board if it has been more than three years since the issuance of  a Notice of Program Reimbursement from a Medicare fiscal intermediary.

On January 8, 2013, the Supreme Court of the State of New York conducted a hearing in a criminal case that may cause concern among software developers whose software could be used for illegal activities.

To kick off 2013, the Internal Revenue Service (IRS) issued Revenue Procedure 2013-12 updating the Employee Plans Compliance Resolution System (EPCRS), the voluntary compliance program for employer-sponsored retirement plans.  Changes become effective on April 1, 2013, but plan sponsors may elect to use the revised program as soon as the IRS releases the newly created Forms 8950 and 8951. 

Companies that accept online credit card payments should be keeping an ear very close to the ground for the California Supreme Court’s decision in Apple v. Superior Court (Krescent), expected within the next few weeks.  Depending on how the court rules, the case has the potential to spawn a flood of class actions against online retailers and change the way web payments are processed.

On Thursday, January 10, 2013, the Consumer Financial Protection Bureau ("CFPB") issued a final rule amending Regulation Z pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). Regulation Z, which implements the Truth in Lending Act, prohibits a creditor from making a higher-priced mortgage loan without regard to the consumer’s ability to repay the loan.

The Federal Acquisition Regulatory Council recently issued a final rule that implements Executive Order 13495 (Jan. 30, 2009) for nondisplacement of qualified workers employed under contracts covered by the Service Contract Act, 41 U.S.C. § 6701, et seq. See 77 Fed. Reg. 75766 (Dec. 21, 2012). This final rule, effective January 18, 2013, adds new provisions at Federal Acquisition Regulation (FAR) Subpart 22.12 and a contract clause at FAR 52.222-17.

On January 2, 2013, President Obama signed into law the American Taxpayer Relief Act of 2012 (the Act). Among other provisions, the Act provides that the 100% exclusion from gross income of certain capital gains from sales of qualified small business stock will apply to investments made after September 27, 2010 and before January 1, 2014, including investments made in 2012 that were not eligible for the exclusion prior to the passage of the Act.

On Thursday, January 3, 2013, the Office of the Comptroller of the Currency (the "OCC") provided guidance regarding requests for a transition period pursuant to Section 716 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

On January 4, 2013, the Food and Drug Administration (FDA) issued two long-awaited proposed rules implementing important aspects of the 2011 Food Safety Modernization Act (FSMA). These rules are intended to help prevent foodborne illnesses by ensuring stricter and more effective preventive and protective measures in key areas of the food supply chain. On January 9, 2013, the FDA issued fact sheets providing summaries, background and highlights of the proposed rules.

Prior to the termination of her employment, Sakile Chenzira worked for more than a decade as a customer service representative at the Cincinnati Children's Hospital Medical Center (the Hospital).  In December 2010, the Hospital fired Chenzira because she refused to be vaccinated against the flu.

On Friday, December 21, 2012, the Securities and Exchange Commission (the "SEC") adopted amendments to Exchange Act Rule 17Ad-17 to implement the requirements of Section 929W of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

On December 19, 2012, the Federal Trade Commission (FTC) finalized amendments to the Children's Online Privacy Protection Rule (the Rule), which applies to operators of commercial websites or online services that (1) are directed to children under the age of 13 or (2) have actual knowledge that they are collecting personal information from a child under the age of 13. 

While CEQA reform became a hot topic for a few days near the end of the 2012 legislative session — but then foundered — the appellate courts continued to issue CEQA decisions at a rapid clip. As is common in a challenging economy, the courts were generally less receptive to CEQA claims than they are in boom times. Eleven decisions on environmental impact reports were issued during the year.

On December 19, 2012, the Bureau of Safety and Environmental Enforcement (BSEE) issued a draft Policy Statement that is intended to ensure a positive safety culture in those entities, including previously unregulated service companies, operating in federal waters.

On January 1, 2013, all employers with employees in California who are paid by commission will be required to have written contracts with those employees.  This law is a significant departure from the previous law, which only required employers based outside of California to have written contracts with their commissioned employees.

On Thursday, December 13, 2012, the Commodity Futures Trading Commission ("CFTC") announced that it is adopting regulations to establish a clearing requirement under Section 2(h)(1)(A) of the Commodity Exchange Act, enacted under Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

A federal bankruptcy court judge has held that Washington Mutual, Inc. (WMI), a parent holding company that owned bank subsidiaries conducting business in Oregon, did not have nexus in Oregon by virtue of its ownership of the banks, the ownership of intangibles used by the banks in Oregon for no fee and the receipt of dividends from the banks.

Mobile point-of-sale payment terminals have experienced explosive growth over the past year.  Unlike a traditional point-of-sale terminal, a mobile terminal communicates wirelessly when processing payment cards.  There are different types of solutions in the market, but one popular type is an application within a mobile device, like a smartphone or tablet, that uses a hardware attachment to swipe payment cards. 

Just as the end of the year can be a good time to make charitable donations, it can also be a good time to make political contributions for those who give frequently in federal elections.  The federal campaign finance laws cap the total amount that an individual may give to all federal candidates and committees combined during a two-year period.

On December 6, 2012, the California attorney general filed suit against Delta Airlines for failing to provide mobile application users with adequate notice of its privacy practices.

On March 16, 2013, the America Invents Act (AIA) changes U.S. patent law from a first-to-invent system to a first-inventor-to-file system, which moves U.S. patent law into closer harmony with most industrialized nations throughout the world. Among other practical consequences, this change will (1) expand the scope of what constitutes prior art and (2) phase out interference proceedings used to resolve disputes regarding who first invented a technology.

The U.S. Department of the Treasury and the Internal Revenue Service (IRS) recently issued much-anticipated final regulations under Section 4191 of the Internal Revenue Code (Code), which imposes a 2.3% tax on sales of any “taxable medical device” by a manufacturer, producer or importer (collectively referred to as “manufacturers”). The IRS simultaneously issued Notice 2012-77, providing interim guidance to manufacturers while it continues to study certain issues that are not addressed by the final regulations.

On November 29, 2012, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued a report raising concerns about the Centers for Medicare and Medicaid Services’ (CMS) oversight of the Medicare electronic health record (EHR) incentive program.  The report was based on a review of healthcare professionals’ and hospitals’ meaningful use of certified EHR technology (i.e., the computerized systems that store health-related patient information) from May to December 2011.

On Wednesday, November 28, 2012, the Commodity Futures Trading Commission (the "CFTC") requested public comment on a request from the Chicago Mercantile Exchange Inc. ("CME") for approval of Rule 1001 submitted pursuant to section 40.5 of the CFTC’s regulations.

On December 3, 2012, in United States v. Caronia, a three-judge panel of the Second Circuit reversed a drug salesperson’s conviction for conspiracy to introduce a misbranded drug into interstate commerce, a misdemeanor violation of the federal Food, Drug and Cosmetic Act (FDCA). A majority of the court held on First Amendment grounds that the misbranding provisions of the FDCA do not “prohibit[] and criminaliz[e] the truthful off-label promotion of FDA-approved prescription drugs.”

In a ruling that will impact certain aspects of how companies handle their SMS/text message promotional programs, on November 29, 2012, the Federal Communications Commission released a Declaratory Ruling regarding the Telephone Consumer Protection Act (TCPA) pursuant to a request by SoundBite Communications, Inc.

On November 20, 2012, the U.S. Court of Appeals for the Federal Circuit issued a decision in Ritz Camera & Image, LLC v. SanDisk Corp., No. 2012-1183, 2012 WL 5862779 (Fed. Cir. Nov. 20, 2012). They affirmed that direct purchasers of patented products have standing to pursue a Walker Process antitrust claim against the patent holder, even where the direct purchaser cannot be sued for patent infringement and otherwise lacks the ability to bring an action for declaratory judgment.

On Friday, November 9, 2012, the Board of Governors of the Federal Reserve System (the "Fed"), the Federal Deposit Insurance Corporation (the "FDIC"), and the Office of the Comptroller of the Currency (the "OCC") issued a joint press release concerning the three notices of proposed rulemaking issued in June that would revise and replace the current regulatory capital rules.

For the first time, online retail sales exceeded $1 billion on Black Friday and reached nearly $1.5 billion on Cyber Monday this year.  Analysts expect this increase in e-commerce to continue, and Forrester Research estimates that online sales this holiday season will exceed $68.4 billion—a 15 percent increase over 2011. 

Public companies preparing for the upcoming 2013 proxy season will need to keep in mind a number of new developments related to executive compensation.

On November 6, 2012, Washington state voters passed Initiative 502 (I-502), making it legal under state law for people in Washington to consume marijuana for recreational use. The intent of I-502 is to make the production and sale of marijuana a “tightly regulated, state-licensed system similar to that for controlling hard alcohol.”

On November 9, 2012, the U.S. Supreme Court agreed to consider the enforceability of a class action waiver clause in agreements between American Express and merchants that accepted its cards. The merchants filed a proposed class action suit against Amex, alleging that its “Honor All Cards” policy—which required stores to accept Amex’s charge cards as well as its credit cards—violated federal antitrust law.

On November 14, 2012, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) issued their long-anticipated Resource Guide regarding the agencies’ enforcement of the Foreign Corrupt Practices Act (FCPA).

The Patient Protection and Affordable Care Act of 2010 (Affordable Care Act) institutes a new 3.8 percent Medicare surtax on net investment income effective January 1, 2013.

In Preserve Wild Santee v. City of Santee, the court immersed itself in an EIR’s evaluation of the impacts of a large residential project proposing 1,395 homes and 1,400 acres of open space preserve.

How often do we hear project proponents ask whether there is a way to shortcut the CEQA timeline or head off litigation?  It's not an unusual question given that some proposals draw fire no matter how much energy goes into the environmental disclosure and mitigation process.

On Tuesday, October 23, 2012, the Commodity Futures Trading Commission (the "CFTC") proposed new regulations and amendments to existing regulations pursuant to Sections 4d(a)(2) and Section 4d(f) of the Commodity Exchange Act (the "CEA"), as amended by Section 724(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

Many businesses throughout the United States—and possibly worldwide—may experience the effects of the devastating hurricane that hit the Eastern United States on October 29 and 30, 2012.  Early estimation indicates that the storm caused upwards of $20 billion in property damage and another $10 billion to $30 billion in lost business. 

In Center for Biological Diversity v. U.S. Bureau of Land Management, decided by the Ninth Circuit on October 22, 2012, the court overturned a Biological Opinion issued by the U.S. Fish & Wildlife Service for the Ruby Pipeline Project, a proposed natural gas pipeline that would extend nearly 700 miles from Wyoming to Oregon, encompassing almost 2,300 acres of federal land and crossing 209 rivers and streams.

On Wednesday, October 17, 2012, the Securities and Exchange Commission (the "SEC") voted unanimously to propose capital, margin, and segregation requirements for security-based swap dealers and major security-based swap participants.

The Washington Supreme Court has just issued its unanimous decision in the Washington State Nurses Association case.  The court concluded that when a full-time employee (working 40 hours a week) works through a paid rest break, the employee is entitled to overtime pay on top of his or her regular pay.

Whether “Corporate Social Responsibility” (CSR) is a new phrase to your company or is something you have observed and worked on for years, these are perilous times indeed for companies with large, complex, global supply chains.

This is an alert to our clients regarding fraudulent offers of business filing services.  Scammers are using criminal tactics to solicit information about your corporation, partnership, limited liability company and other business entities by offering to file documents with the secretary of state on your behalf. 

The IRS has announced the Year 2013 cost-of-living adjustments for various provisions affecting employee benefit plans.

On Tuesday, October 16, 2012, the Commodity Futures Trading Commission approved a final rule that amends certain current regulations in order to implement aspects of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act).

On October 5, 2012, the Sixth Circuit reversed an $82.6 million award in a False Claims Act (FCA) lawsuit against Fresenius Medical Care Holdings (Fresenius) and granted partial summary judgment in favor of the defendants.

In early 2010, the IRS surprised the benefits community by stating in Notice 2010-6 that deferred compensation arrangements that condition payment on employee action (such as the execution of a release, noncompetition agreement or nonsolicitation agreement) violate the deferred compensation tax rules of Code Section 409A if the employee can accelerate or delay the year of payment.

On Tuesday, October 9, 2012, the Federal Reserve Board, the Office of the Comptroller of the Currency, and the Federal Deposit Insurance Corporation (collectively, the "Regulators") each published final rules with stress testing requirements for certain covered institutions.

On Tuesday, September 25, 2012, the New York Stock Exchange ("NYSE") and the NASDAQ Stock Marker ("Nasdaq") filed proposed amendments to their listing standards to reflect the requirements of Rule 10C-1 under the Securities Exchange Act of 1934 (the "Exchange Act"). 

On September 28, 2012, President Barack Obama signed bipartisan legislation extending the EB-5 Regional Center Program for an additional three years.  The new sunset date for the program is September 30, 2015.

In a move intended to ease the uncertainty surrounding the future role of LIBOR (the London Interbank Offered Rate), on September 28, 2012, Martin Wheatley of the United Kingdom’s Financial Services Authority (the FSA) offered a path to overhauling the benchmark interest rate.  

When a company with a controlling stockholder seeks to sell itself to a third party, the rights of the controlling stockholder and its obligations to minority stockholders are not always clear, tempting plaintiffs to test the boundaries of the controlling stockholder’s duties. 

On Monday, September 24, 2012, the Federal Reserve Board (the "Fed"), the Federal Deposit Insurance Corporation (the "FDIC"), and the Office of the Comptroller of the Currency (the "OCC") announced the availability of a regulatory capital estimation tool to help community banking organizations and other interested parties evaluate recently published regulatory capital proposals.

On September 25, 2012, President Obama signed a groundbreaking Executive Order designed to strengthen protections against trafficking in persons in federal contracting.

On September 20, 2012, the Federal Energy Regulatory Commission (FERC) issued an order conditionally accepting a proposal by Southwest Power Pool, Inc. (SPP) to begin systematic and automated curtailments of Non-Dispatchable Resources, including electric generation from wind and solar resources, during periods of congestion.  

Retailers and others in the chain of distribution can and should take steps to reduce their exposure to product liability claims.

On Wednesday, August 29, 2012, the Securities and Exchange Commission (the "SEC") proposed amendments to Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933 pursuant to Section 201(a) of the Jumpstart Our Business Startups Act.

Retail property owners and retailers alike are always looking for ways to increase their revenues in a cost-effective manner, especially during the holiday season when a large percentage of a retailer's profits are typically earned. 

This Client Update was republished in Retail Law Strategist - Volume 12, Issue 4, Winter 2012

When authorizing an “incidental take” of listed species, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service have long struggled with methods for establishing numerical take limits for some species where take levels are not readily measured.  The confusion over when a surrogate approach might be appropriate, and how such an approach should be applied, has led to the call for administrative reform.

The Federal Trade Commission (“FTC”) recently announced and asked for comments on proposed changes to the premerger notification rules under the Hart-Scott-Rodino Act (“HSR Act”).  The proposed rules would require pharmaceutical companies to report to the FTC and the Department of Justice ("DOJ") acquisitions of exclusive patent licenses in which the licensor retains the right to manufacture patented products for the licensee. 

The SEC recently issued long-awaited proposed rules to remove existing general solicitation and advertising prohibitions for private offerings and sales of securities under Rule 506 and Rule 144A under the Securities Act of 1933, as amended.  These proposed rules implement Section 201(a) of the Jumpstart Our Business Startups Act (JOBS Act) enacted earlier this year.  The SEC's proposed amendments leave intact the existing ability of a company to conduct a Rule 506 offering (under Rule 506(b)) without engaging in general solicitation or advertising.

The Securities and Exchange Commission recently adopted final disclosure and reporting rules as mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act requiring certain public companies to disclose on a new Form SD their use of conflict minerals originating in the Democratic Republic of the Congo (the DRC) or an adjoining country.

On August 1, 2012, the China International Economic and Trade Arbitration Commission ("CIETAC") issued an announcement suspending its Shanghai and Shenzhen subcommissions. Subsequently, the Shanghai and Shenzhen subcommissions jointly declared their independence of CIETAC and further stated that the CIETAC announcement did not bind them.

Earlier this month, the State Intellectual Property Office (“SIPO”) of the People’s Republic of China released a proposed amendment to the Chinese Patent Law and is now accepting comments.  The proposed amendment will be the fourth amendment to the Chinese Patent Law since its initial adoption in 1984. Click here to view the comments submitted by the ABA.

On August 21, 2012, the U.S. District Court for the Eastern District of New York held that poker is a game of skill and thus running a poker game or business is not subject to federal prosecution under the federal Illegal Gambling Business Act ("IGBA").  Following on the heels of the Justice Department's September 20, 2011 ruling that the Wire Act (which prohibits using wire-line communications to place or receive bets) only applied to sports betting, last week's ruling may be another step toward legalizing online poker.

On Tuesday, August 21, 2012, the Commodity Futures Trading Commission (the "CFTC") ' approved a proposed order that would exempt certain specified transactions of Regional Transmission Organizations ("RTOs") and Independent System Operators ("ISOs") from certain provisions of the Commodity Exchange Act (the "CEA"), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"), and CFTC regulations.

On August 15, 2012, the Bureau of Safety and Environmental Enforcement ("BSEE") took two significant actions that further entrench its claim to extend its jurisdiction over service companies conducting oil and gas support activities on the Outer Continental Shelf ("OCS").

Seattle's new "Sick and Safe Time" law goes into effect September 1, 2012.  It requires virtually all employers to provide a minimum amount of paid leave to employees who work in the City of Seattle, even occasionally.  The fact that the employer itself may be located outside the city does not matter—only the location where the employee works is relevant. 

On August 13, 2012, the Ninth Circuit ruled in Grand Canyon Trust v. U.S. Bureau of Reclamation that the Bureau's preparation of statutorily mandated Annual Operating Plans for the Glen Canyon Dam in Arizona did not trigger the requirements of the National Environmental Policy Act or the Endangered Species Act.

On Thursday, August 16, 2012, the Commodity Futures Trading Commission (the "CFTC") issued a proposed rule to exempt swaps between certain affiliated entities within a corporate group from the clearing requirement of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

On Tuesday, August 7, 2012, the Commodity Futures Trading Commission (the "CFTC") proposed regulations to establish a clearing requirement under new Section 2(h)(1)(A) of the Commodity Exchange Act (the "CEA"), enacted under Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). 

In the holiday rush, it's easy to overlook wage-hour issues.  This Wrapping Paper discusses common ones to which you should be alerted.

On August 9, 2012, the California Supreme Court granted corporate policyholders the right to fully access and to recover from insurance policies spanning multiple policy periods for claims involving damage that progressed over those periods.  In California v. Continental Insurance Co., No S170560 (Cal. Aug. 9, 2012), the state’s highest court approved an “all-sums-allocation-with-stacking” rule permitting a policyholder to obtain coverage from the sum total of insurance that the policyholder purchased throughout the years or decades that damage continued. 

Determining whether a worker is an independent contractor or an employee is important for a number of reasons, including:  employee benefits, wage-and-hour laws, discrimination laws, payroll taxes and liability to third parties.  Historically, a number of different tests have been applied to distinguish between employees and independent contractors.  Recently the Washington Supreme Court held that the “economic realities” test used under the federal Fair Labor Standards Act also applies to cases brought under the Washington Minimum Wage Act.

The National Labor Relations Act ('the Act') is the federal law designed to protect employees engaged in union and other concerted activities.  But these protections do not just apply to unionized employees - they extend to virtually all private sector employees, unionized or not.  One of the rights the Act protects is an employee's right to discuss matters of common interest such as wages and working conditions.  An employer therefore commits an unfair labor practice if it prohibits or interferes with those discussions.

Responsible fiduciaries of ERISA defined contribution or defined benefit plans should have received fee disclosures from each of a plan's covered service providers by July 1, 2012, as required pursuant to the Department of Labor's final regulations under ERISA Section 408(b)(2) (the "408(b)(2) regulations").

On Monday, July 23, 2012, U.S. Senators Charles Grassley (R-IA) and Jack Reed (D-RI) introduced S.3416, the Stronger Enforcement of Civil Penalties Act of 2012.  S.3416 would increase to the statutory limits on the amounts that the Securities and Exchange Commission (the "SEC") may seek to penalize individuals and entities charged with securities law violations in administrative and civil actions.

On July 19, 2012, the U.S. Bureau of Ocean Energy Management ("BOEM") and the Federal Energy Regulatory Commission ("FERC") issued revised guidelines for the development of marine and hydrokinetic energy ("hydrokinetic") projects, which include wave, tidal and ocean current projects on the Outer Continental Shelf ("OCS"). 

On Wednesday, July 18, 2012, the Financial Stability Oversight Council (the "FSOC") voted unanimously to designate eight financial market utilities ("FMUs") as systemically important under Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").  This action is the first such designation made by the FSOC.

On July 17, 2012, the Ninth Circuit ruled in Natural Resources Defense Council v. Salazar that the U.S. Bureau of Reclamation’s renewal of water delivery contracts with senior priority water rights holders was not “agency action” under Section 7 of the Endangered Species Act (“ESA”).  The court ruled that since the Bureau lacked discretion over whether to approve the renewals, there was no duty to consult with the U.S. Fish & Wildlife Service regarding the potential impacts on the delta smelt, an endangered fish species.

On Tuesday, July 10, 2012, the Commodity Futures Trading Commission ("CFTC") voted to adopt a final rule and approve a proposed rule regarding exceptions to the swap clearing requirement established in Section 2(h)(1) of the Commodity Exchange Act (the "CEA"), as amended by Section 723 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

On Friday, July 6, 2012, the Securities and Exchange Commission (the "SEC"), and on Tuesday, July 10, 2012, the Commodity Futures Trading Commission (the "CFTC"), approved joint rules and interpretations for key definitions of certain derivative products. The rules and interpretations further define the terms “swap” and “security-based swap” and whether a particular instrument is a “swap” regulated by the CFTC or a “security-based swap” regulated by the SEC.

In the wake of the recent admissions by Barclays Bank PLC that its traders sought to manipulate the London Interbank Offered Rate ("LIBOR"), corporations and other investors are only now beginning to appreciate the magnitude of the scandal and to consider how it might impact their own investments.

A recent decision illustrates the dangers of even a modest wage-hour claim under Washington law.  A $12,000 overtime dispute turned into a bill for over $500,000 before the costs of appeal.  According to the decision, an employee was incorrectly classified as an "administrative" employee exempt from Washington's overtime requirements.  He was awarded $12,000 for his unpaid overtime. 

On June 1, 2012, the Ninth Circuit issued a decision holding that an agency’s decision not to act constituted “agency action” for purposes of consultation under the Endangered Species Act (“ESA”). 

On July 2, 2012, the Department of Justice announced the largest health care fraud settlement in U.S. history: GlaxoSmithKline LLC (“GSK”) will pay $3 billion to resolve criminal and civil allegations of unlawfully promoting prescription drugs, failing to report safety data and engaging in allegedly false price reporting practices. This resolution includes a criminal fine and forfeiture totaling $1 billion and $2 billion in civil payments.

The U.S. Supreme Court's decision on the health care reform law has been subject to a lot of analysis already, but the bottom line is that all of the health care reform provisions that apply to group health plans and insurers that sell coverage to group health plans have been left standing and employers must make sure that their health plans comply.

On June 22, 2012, the Federal Energy Regulatory Commission (Commission) issued a Notice of Proposed Rulemaking (NOPR) in which it proposes to approve revised rules of the North American Electric Reliability Corporation (NERC), including a revised definition of the “bulk electric system.”  The revised definition would eliminate regional discretion over whether to treat facilities as part of the "bulk electric system” and instead would establish a bright-line threshold that includes all facilities operated at or above 100 kV.  The revised rules also would provide further clarity by identifying specific categories of facilities that will be treated as included in, and others that will be treated as excluded from, the redefined bulk electric system.

The SEC Adopts Swap Clearing Agency Rules.

In National Federation of Independent Business v. Sebelius, a divided U.S. Supreme Court upheld the vast bulk of the Patient Protection and Affordable Care Act (“ACA” or the “Act”) against a number of challenges.

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.’”

On June 19, 2012, in Association of Irritated Residents v. California Air Resources Board, the court of appeal in San Francisco upheld the Climate Change Scoping Plan adopted by the Air Board in December 2008.  The court rejected claims by environmental groups that the plan violated the Global Warming Solutions Act of 2006, commonly known as AB 32.

The U.S. Supreme Court extended Apprendi to criminal fines when it reversed a several million dollar fine imposed on Southern Union Co., a natural gas distributor, for unlawfully storing liquid mercury at a facility in Rhode Island in violation of the Resource Conservation and Recovery Act of 1976 (“RCRA”). RCRA, among other things, requires (with certain exceptions) that owners and operators of facilities that treat, store, or dispose of hazardous waste obtain permits. Criminal liability may be imposed under RCRA for knowing violations of the statute. 42 U.S.C.§ 6928(d). The statute authorizes criminal penalties of up to $50,000 “for each day of violation.” Id.  The Supreme Court found that the judge-imposed fine violated the company's right to a jury trial because a jury did not make the factual findings required to impose a fine in excess of the statutory minimum.  After the Southern Union ruling, facts that increase a statutory fine must be proven to a jury beyond a reasonable doubt.

The America Invents Act (AIA) changed the landscape in the United States for those seeking to challenge the validity of an issued patent outside of litigation.  On September 16, 2012 Inter Partes review (IPR) will replace the current Inter Partes reexamination (IPX) procedures.

Final Rules relating to these and other AIA procedures will be issued by the USPTO by August 16, 2012 and thus although planning should start now, flexibility will be important during the transition.

A comparison of each procedure and a detailed comparison of the impending changes is included in this update.

Click Here for Inter Partes Comparison

In Massachusetts v. EPA, 547 U.S. 497 (2007), the Supreme Court ruled that greenhouse gases (“GHG”) were "pollutants" under the Clean Air Act (“CAA”).  The Court directed the Environmental Protection Agency (“EPA”) to decide whether GHG emissions could "reasonably be anticipated to endanger public health and welfare" so as to trigger an obligation under the CAA to set motor vehicle emission standards for them.

On Friday, June 15, 2012, the Commodity Futures Trading Commission (the "CFTC") proposed regulations pursuant to Title VII of the Dodd-Frank Act Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). The proposed regulations would clarify that each swap dealer ("SD"), major swap participant ("MSP"), and other CFTC registrant with whom an associated person ("AP") is associated is required to supervise the AP and is jointly and severally responsible for the activities of the AP with respect to customers common to it and another SD, MSP or another CFTC registrant.

In a recent client update, we discussed proposed legislation, entitled the Comprehensive Contingency Contracting Reform Act of 2012, that would provide for the automatic suspension of a contractor in a variety of situations, including when the federal government merely alleges fraud against a contractor in a civil or criminal proceeding related to a federal contract.  We noted that the proposed legislation was roundly criticized by representatives of the affected agencies:  the Department of Defense, the Department of State, and the U.S. Agency for International Development.  See "Shift to 'Automatic' Ineligibility Determinations Poses Increased Risk to Federal Contractors".

Now a new bill changes the automatic suspension into an automatic referral to suspension and debarment officials for final decision-making.

Those working in today's in-house law departments or supervising global supply chains and third-party business partners have become sensitive to the significant dangers posed by not complying with the U.S. Foreign Corrupt Practices Act (“FCPA”).  The well-publicized recent events surrounding Wal-Mart's FCPA woes have only raised already-elevated anxiety levels.

On June 21, 2012 the Federal Energy Regulatory Commission ("FERC") denied requests for rehearing of the North American Electric Reliability Corporation, several Regional Entities, and a group of electric industry trade associations of a March 2011 Order affirming an $80,000 penalty assessed against the Turlock Irrigation District for the violations of several reliability standards resulting from a 2007 power outage.   North American Electric Reliability Corp., 139 FERC ¶ 61,248 (2012).  FERC's June 21 Order also clarified a number of issues related to the assessment of penalties for violations of reliability standards:  (i) load loss; (ii) self-reporting; (iii) size and nature of the registered entity; and (iv) adequacy of the record filed with penalty notices.

In Christopher v. Smithkline Beecham Corp., the Supreme Court held that pharmaceutical sales representatives qualify as “outside salesmen” under the Fair Labor Standards Act (FLSA) and are thus exempt from FLSA’s overtime wage requirements. In doing so, the Court declined to defer to the Department of Labor's (DOL) position on the issue.

On June 13, 2012, the Federal Trade Commission and the Department of Justice published their Hart-Scott-Rodino Annual Report Fiscal Year 2011 for the period from October 1, 2010 to September 30, 2011.  The Annual Report summarizes Federal Trade Commission and Department of Justice actions conducted under the Hart-Scott-Rodino Antitrust Improvements Act, or HSR Act, in fiscal year 2011.  The number of HSR filings in fiscal 2011 increased by 24% over the number of filings in 2010.  And the agencies continue to enforce the HSR Act's notification requirements with respect to acquisitions of company stock by corporate officers and directors, often in an inadvertent "failure to file" situation.

This Update provides key highlights of the Annual Report and offers practical advice.

Overturning a rule announced 15 years ago, the California Supreme Court has issued a landmark decision holding that the requirement that parties first address their complaints at the agency level before litigating those issues in court applies to challenges to agency decisions regarding whether a project is exempt from the California Environmental Quality Act.  If the decision-making agency holds a hearing on the project, future litigants must make sure someone first apprised the agency of the relevant issues before they can bring those claims to court.

On Wednesday, June 6, 2012, the Consumer Financial Protection Bureau (the "CFPB") announced three final rules to implement provisions of Sections 1052, 1053, and 1042 of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act (the "Dodd-Frank Act") and one interim final rule to implement provisions of the Equal Access to Justice Act (the "EAJA").  The three final rules deal with the CFPB’s investigative and adjudicative processes and its interactions with state law enforcement authorities.  The interim final rule implements the EAJA provisions that certain prevailing parties in administrative proceedings can recover attorney fees and expenses.

Earlier this year, Washington state legislators unanimously passed the nation's first criminal law requiring age verification for commercial sexual services advertisements depicting minors. The landmark law's goals are laudable, but its broad reach has some on-line service providers and traditional publishers concerned. For example, on-line service providers that allow users to post content and images on their sites, including on social networking sites, dating sites, discussion forums, blogs and chat rooms, could now face criminal exposure, even if they have absolutely no interest in placing, or permitting the placement of, such ads.

On May 29, 2012, in a case argued by Perkins Coie Bankruptcy attorneys, the U.S. Supreme Court held that a Chapter 11 plan involving the sale of collateral free of liens could be confirmed over a secured creditor’s objection only by allowing the secured creditor to bid its debt (i.e., credit bid) at the sale pursuant to Section 1129(b)(2)(A)(ii) of the Bankruptcy Code.

On Monday, June 4, 2012, the Consumer Financial Protection Bureau (the "CFPB"), the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of the Comptroller of the Currency released a Memorandum of Understanding that clarifies how the agencies will coordinate their supervisory activities, consistent with the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

The Consumer Financial Protection Bureau's ("CFPB") recently issued Advance Notice of Proposed Rulemaking ("ANPR") announced its intention to extend Regulation E ("Reg E") protections to certain general purpose reloadable prepaid cards ("GPR cards"), which protections do not currently apply to GPR cards.  CFPB's stated goals are to (1)  insure consistent minimum standards across similar financial products, (2) allow consumers to easily compare products by insuring disclosure transparency and (3) appropriately allocate fraud and loss risks.  CFPB is soliciting public comments on this topic until July 23, 2012.

The IRS recently issued Notice 2012-40 providing guidance on the $2,500 limit on salary reduction contributions to health flexible spending arrangements (“health FSAs”) under cafeteria plans.  The $2,500 limit is a new requirement that was added by the Patient Protection and Affordable Care Act and many plan sponsors (especially those with non-calendar year plans) have had compliance questions.  The IRS Notice provides clarifications on several important points.

On May 24, 2012, Senator Patrick Leahy (D-Vermont) introduced legislation into the U.S. Senate that would make the EB-5 Regional Center Program permanent.  Senate Bill 3245 is co-sponsored by Senator Chuck Grassley (R-Iowa) and was referred to the Senate Judiciary Committee where it is pending committee action.  Senator Leahy previously secured short-term extensions of the EB-5 Regional Center Program, which is currently set to expire on September 30, 2012.

On May 9, 2012, the Washington State Board of Tax Appeals granted summary judgment to AOL, Inc., holding that AOL's purchases of services permitting its customers to connect with AOL's data center and the Internet were not subject to retail sales tax.  AOL Inc. v. Wash. Dep't of Revenue, No. 11-076 (Wash. B.T.A. May 9, 2012).  The procedural lessons of this case may be as important in Washington tax practice as the substantive case.

In a much-watched case coming out of Florida, on May 15, 2012, the U.S. Court of Appeals for the Eleventh Circuit reinstated a bankruptcy court judgment (which had been reversed by the district court) avoiding liens on assets of debtor-subsidiaries and providing for the lender-beneficiaries' disgorgement of $421 million that had been paid to the lenders.  As a result of the decision, lenders who make loans to troubled borrowers and accept payoffs of loans from troubled borrowers may bear an increased burden in investigating the sources of funds that are used for the payoff and expected to be used for future loan repayments.

The Environmental Protection Agency (“EPA”) is announcing its proposal to revise its Phase I stormwater regulations (40 C.F.R. § 122.26) to make clear that storm water discharges from logging roads are not included in the definition of “storm water discharge associated with industrial activity.”

In April 2012, the Federal Awardee Performance and Integrity Information System ("FAPIIS") database, with the exception of contractor past performance reviews, became available for public review. Observers have expressed concern that some of the information available on FAPIIS, notably documents related to suspension and debarment proceedings, contains sensitive and proprietary information that a company would not want disclosed to the public.

On Monday, May 14, 2012, the Federal Reserve Board (the "Fed"), the Office of the Comptroller of the Currency (the "OCC"), and the Federal Deposit Insurance Corporation (the "FDIC") issued final supervisory guidance regarding stress-testing practices at banking organizations with total consolidated assets of more than $10 billion. The guidance does not implement the stress testing requirements in the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") or in the Fed's capital plan rule that apply to certain companies, as those requirements have been or are being implemented through separate proposals by the respective agencies.

On May 7, 2012, the Justice Department announced that Abbott Laboratories Inc. (“Abbott”) has agreed to pay $1.5 billion to resolve criminal and civil investigations into the company’s promotion of the prescription drug Depakote for uses not approved as safe and effective by the Food and Drug Administration (“FDA”).  The resolution, which is the second-largest settlement ever for a drug company, includes a criminal fine and forfeiture totaling $700 million and civil payments with the federal government and states totaling $800 million.  Whistleblowers will receive $84 million from the federal share of the settlement amount.  With this settlement, the Justice Department has recovered over $10.2 billion in False Claims Act cases and has secured $3.9 billion in criminal fines, forfeitures, disgorgements and restitution relating to violations of the Food, Drug and Cosmetic Act (“FDCA”) since January 2009.

In a decision that represents more good news for employers doing business in California, the California Supreme Court recently held that employees may not recover attorneys' fees for meal and rest period claims.

On May 4, 2012, the Centers for Medicare and Medicaid Services (“CMS”) announced that it will not require applicable manufacturers and group purchasing organizations (“GPOs”) to begin collecting data on relevant payments under the Physician Payment Sunshine Act (“Act” or “Sunshine Act”) until January 1, 2013.  Under the Sunshine Act, data collection was set to begin January 1, 2012.

The threat of a suspension or debarment by a federal procurement agency has long been a federal contractor's worst nightmare because of the risk of exclusion from the federal marketplace, reputational damage and other potential adverse consequences.

Parties commonly enter into agreements tolling the statute of limitations for claims arising under the California Environmental Quality Act (CEQA).  However, the validity of such agreements, which some argue have thwarted the public’s interest in prompt resolution of CEQA disputes, has not been certain.  In Salmon Protection & Watershed Network v. County of Marin, the California Court of Appeal made clear that such agreements are valid and enforceable, at least in certain circumstances.

On Friday, April 27, 2012, the Commodity Futures Trading Commission ("CFTC") issued a final rule to repeal and replace the CFTC's current regulations concerning commodity options.  The CFTC also issued an interim final rule (with a request for additional comment) that incorporates a trade option exemption into the final rules for certain commodity options.

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, the California Court of Appeal for the Second Appellate District ruled that, when supported by substantial evidence, projected future conditions may serve as an appropriate baseline for measuring a project's impacts under the California Environmental Quality Act.

On Wednesday, April 18, 2012, the Securities and Exchange Commission (the "SEC") unanimously adopted a new rule to define a series of terms related to the over-the-counter swaps market. The rules, adopted pursuant to Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"), were written jointly with the Commodity Futures Trading Commission (the "CFTC").

2012 may be the ideal year for Washington residents to make gifts.  The combination of the current Washington State tax laws and the change in the federal transfer tax structure presents a unique opportunity for residents to make large gifts to reduce the impact of the State estate tax.

On Monday, April 16, 2012, the Committee on Payment and Settlement Systems ("CPSS") and the Technical Committee of the International Organization of Securities Commissions ("IOSCO") published the final report on the Principles for Financial Market Infrastructures. The report updates, harmonizes, and strengthens the risk management and related standards applicable to financial market infrastructures ("FMIs"), including systemically important payment systems, central securities depositories, securities settlement systems, central counterparties, and trade repositories.

A small cardiac surgery practice (two owners; currently five physicians) is the latest covered entity to enter into a settlement agreement and Corrective Action Plan (CAP) with the U.S. Department of Health and Human Services, Office for Civil Rights (OCR), to resolve alleged violations of the HIPAA privacy and security regulations.  In announcing the $100,000 settlement OCR Director Leon Rodriguez stated, "OCR expects full compliance no matter the size of a covered entity."

Patent applicants who are dissatisfied with a rejection by the Board of Patent Appeals and Interferences have two options for review. They can appeal directly to the Federal Circuit, which will review the Board’s decision on the record before the U.S. Patent and Trademark Office. Alternatively, 35 U.S.C. § 145 provides that an applicant may “have remedy by civil action against the Director” of the Patent Office in the United States District Court for the District of Columbia. The primary issue in Kappos v. Hyatt was what limitations, if any, exist on an applicant’s right to submit new evidence that was not before the Patent Office in such a district court action.

The new employee poster requirement adopted by the National Labor Relations Board, that was scheduled to take effect on April 30, 2012, has been postponed by the Court of Appeals in Washington, D.C. pending consideration of an appeal from the decision of the lower court upholding the requirement.

In Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, the Supreme Court has unanimously held that generic drug manufacturers may invoke the counterclaim provision of the Hatch-Waxman Act.

On April 13, 2012, the Fish and Wildlife Service ("FWS") issued a proposed rule to extend programmatic eagle take permits for up to 30 years to accommodate the development of renewable energy projects.

In double overtime, the Washington State Legislature ended the 2012 legislative session Wednesday morning, April 11, closing a roughly half-billion dollar shortfall for the two-year budget cycle.

The California Supreme Court has issued its much anticipated decision on meal and rest breaks, Brinker Restaurant Corp. v. Superior Court.

On Thursday, April 5, 2012, President Obama signed the Jumpstart Our Business Startups Act (the "JOBS Act") into law.  The JOBS Act's stated purpose is to spur job creation and economic growth by improving access to capital for emerging growth companies by making some of the most significant changes to the U.S. securities law landscape in over a generation.

In the wake of the recent negative publicity deluge, including a segment on a national newsmagazine show, alleging labor violations including the use of child labor, safety violations and unfair pay practices, late last week Apple released a third-party report detailing problems and proposed solutions at one of its largest suppliers.

On April 4, 2012, President Obama signed into law the Stop Trading on Congressional Knowledge Act.

The Seattle Office for Civil Rights (SOCR) has issued proposed rules implementing the controversial paid sick/safe leave ordinance that the Seattle City Council passed last year.

On March 27, the Environmental Protection Agency (EPA) proposed New Source Performance Standards (NSPS) under Section 111 of the Clean Air Act to limit carbon dioxide emissions from new fossil fuel-fired electric generating plants.

On March 28, 2012, the Bureau of Ocean Energy Management issued a draft Programmatic Environmental Impact Statement to evaluate the potential significant environmental effects of multiple geological and geophysical (G&G) activities on the Atlantic Outer Continental Shelf.

As forecast, on March 27 the U.S. House passed the Senate's amended version of the Jumpstart Our Business Startups Act (the JOBS Act), clearing the way for President Obama to sign the bill into law, which he is expected to do in the coming days.

In Credit Suisse Securities (USA) LLC v. Simmonds, No. 10-1261, ___ U.S. ___, 2012 WL 986812 (Mar. 26, 2012), the U.S. Supreme Court unanimously rejected the Ninth Circuit's 30-year-old rule that tolls the statute of limitations for short-swing profit claims under Section 16(b) of the Securities Exchange Act of 1934 until the insider discloses his transactions, typically in an SEC Form 4.

On Tuesday, March 20, 2012, the Federal Deposit Insurance Company (the “FDIC”) published two Notices of Proposed Rulemaking.  The first would implement section 201(c)(16) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), which permits the FDIC as receiver for a failed “systemically important financial institution,” or “SIFI,” to enforce and prevent termination of the contracts of the institution's subsidiaries or affiliates.

Several class action complaints filed in recent months take a novel approach regarding the requirements for website privacy policies under California's "Shine the Light" law.

On Friday, the United States District Court for the District of Columbia reversed the retroactive veto by the U.S. Environmental Protection Agency of a Clean Water Act section 404 permit, which the Army Corps of Engineers previously issued in 2007 for the Mingo Logan Spruce No. 1 mountaintop coal mine in Logan County, West Virginia.

On Monday February 20, 2012, Perkins Coie LLP Partner George Fogg published a white paper addressing the authority of the Consumer Financial Protection Bureau (the “CFPB”) to regulate certain nonbanks.

On March 19, 2012, the Securities and Exchange Commission announced that in exchange for his substantial cooperation during the agency's enforcement action against AXA Rosenberg Group LLC and its CEO, Barr M. Rosenberg, it would not take enforcement action against an unnamed former AXA Rosenberg senior executive.

In a unanimous decision today, the Supreme Court rejected the Environmental Protection Agency’s (“EPA”) position that compliance orders issued under the Clean Water Act (“CWA”) are not subject to judicial review under the Administrative Procedure Act (“APA”) in Sackett v. EPA, No. 10-1062.

In 2011, the Small Business Association ("SBA"), implemented regulation changes that affected small business contractors.  The SBA, however, did not implement a benefits reporting requirement for certain Section 8(a) participants.

The U.S. Supreme Court unanimously held that claims on methods of determining whether drug dosing levels should be increased or decreased based on levels of a metabolite in a patient’s bloodstream were not patent eligible.

As part of the Obama Administration’s year-old effort to review the regulations implementing the Endangered Species Act (ESA) and improve regulatory efficiency pursuant to the President’s January 18, 2011, Executive Order 13563, the Department of the Interior (DOI) today announced an Advance Notice of Proposed Rulemaking (ANPR) for its landowner incentive programs under the ESA.

BlueCross BlueShield of Tennessee (BCBST) has agreed to pay $1.5 million to the U.S. Department of Health and Human Services (HHS) and enter into a Corrective Action Plan (CAP) to settle alleged violations of the HIPAA privacy and security regulations. The enforcement action arose from the theft of 57 hard drives that contained audio and video recordings of customer service calls and included electronic protected health information (ePHI) of over one million individuals. The settlement resolves HHS’s first enforcement action in connection with the Health Information Technology for Economic and Clinical Health (HITECH) Act Breach Notification Rule.  The CAP also provides insight into the kinds of security measures HHS expects companies in possession of ePHI to have in place.

On February 9, 2012, the Food and Drug Administration ("FDA") released draft biosimilar development approval pathway guidelines.

In the final hours of its regular session, the Washington Legislature enacted the Washington Medicaid Fraud False Claims Act.

The California Transparency in Supply Chains Act of 2010 went into effect January 1, 2012.  The Act requires retail sellers and manufacturers to disclose what efforts, if any, they are taking to eliminate forced labor and human trafficking from their supply chains.

In Northwest Environmental Advocates v. U.S. Environmental Protection Agency , the U.S. District Court of Oregon recently invalidated the EPA’s decision to approve some of Oregon’s water quality standards with implications for nonpoint sources of pollution from farming, forestry, grazing, and related practices.

The Los Angeles Superior Court has announced that due to deep funding cuts by the state, significant layoffs will be implemented on June 30, 2012, impacting more than 350 court staff and more than 50 courtrooms.

A federal court in Washington, D.C., upheld the new rule adopted by the National Labor Relations Board that requires virtually all private sector employers to post large official notices informing employees of their rights under the National Labor Relations Act.

On February 28, 2012, President Obama issued a Presidential Memorandum for the Secretary of the Interior, directing the Department of the Interior to revise its regulations regarding the evaluation of economic impacts associated with designating critical habitat under the Endangered Species Act.

On Friday February 24, 2012, the Commodity Futures Trading Commission both adopted and proposed new regulations aimed at harmonizing the compliance obligations of investment companies required to register as Commodity Pool Operators ("CPOs") pursuant to the Commodities Exchange Act.  The newly adopted final rules both amend the existing CFTC part 4 regulations and add a new rule regarding CPOs and Commodity Trading Advisors ("CTAs").

In a recent decision by the Delaware Court of Chancery, Auriga Capital Corp. v. Gatz Properties, LLC, C.A. 4390-CS (Del. Ch. Jan. 27, 2012), the court strongly reaffirmed that managers of a limited liability company owe traditional fiduciary duties to the limited liability company and its minority members unless such duties are explicitly reduced or eliminated by the terms of the limited liability company's operating agreement.

On February 24-25, 2012, the U.S. Securities and Exchange Commission ("SEC") and its senior staff presented at the annual "SEC Speaks" conference to comment on major trends from the previous year and to forecast anticipated developments for 2012.

The Foreign Investment Industrial Guidance Catalogue (2011 Revision) issued by the China National Development and Reform Commission and the Ministry of Commerce ("MOFCOM") went into effect in China on January 30, 2012.

After nearly two years of comments, the FCC issued its Report & Order updating its Rules implementing the Telephone Consumer Protection Act pursuant to the January 2010 Notice of Proposed Rulemaking.

On February 22, 2012, the U.S. Supreme Court issued its opinion in Douglas v. Independent Living Center of Southern California, Inc., a case closely watched by health care providers that are persistently subject to substantial cuts to Medicaid reimbursement stemming from state budgetary woes.

On Wednesday February 15, 2012, the Securities and Exchange Commission (the "SEC") announced tightened rules on investment advisory performance fees, raising the net worth requirement for investors who pay performance fees by excluding the value of the investor’s home from the net worth calculation.

On February 15, 2012, the U.S. Department of Labor (DOL) issued a notice proposing regulations to implement amendments to the military leave provisions of the Family and Medical Leave Act (FMLA) made necessary by the passage of the National Defense Authorization Act for Fiscal Year 2010 and to implement the Airline Flight Crew Technical Corrections Act that established new FMLA leave eligibility requirements for airline flight crew members and flight attendants.

On February 16, 2012, the Centers for Medicare & Medicaid Services (“CMS”) published its long-awaited Proposed Rule implementing Section 6402(a) of the Patient Protection and Affordable Care Act (“ACA”).  77 Fed. Reg. 9179 (Feb. 16, 2012), available at http://www.gpo.gov/fdsys/pkg/FR-2012-02-16/pdf/2012-3642.pdf.

On Tuesday February 14, 2012, the Commodity Futures Trading Commission (the "CFTC") proposed regulations that would implement Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection, commonly known as the "Volker Rule."

As indicated in a prior update, on June 22, 2011, the SEC adopted a rule (Rule) defining the term "family office" for purposes of identifying entities eligible for exclusion from registration as an investment adviser under the Investment Advisers Act of 1940 (Advisers Act).  In connection therewith, the staff of the Division of Investment Management (Staff) recently provided responses to select questions regarding the definition of a "family office" under the Rule.  Highlighted below are (i) summaries of the Staff's responses to a few of the more pertinent questions, and (ii) a reminder with respect to a few provisions of the Rule which may cause the unsuspecting family office to inadvertently fall outside of the registration exclusion

The U.S. Patent and Trademark Office issued proposed rules for the implementation of portions of the America Invents Act relating to the post-grant review and inter partes review of patents and to the conduct of trials before the Patent Trial and Appeal Board regarding such review. Comments on the proposed trial rules are due April 9, 2012, and comments on the proposed rules for post-grant review and inter partes review are due April 10, 2012. If finalized, the proposed rules for post-grant review and inter partes review will take effect on September 16, 2012. The Patent Office also issued proposed rules specifically for the review of business method patents.

The U.S. Department of Justice announced on February 6, 2012 that medical device company Smith & Nephew Inc. has agreed to pay over $22 million to settle Foreign Corrupt Practices Act allegations that it paid government-employed doctors in Greece to use its products.

On Tuesday January 31, 2012, the Commodity Futures Trading Commission (the "CFTC") and the Securities and Exchange Commission (the "SEC") delivered to Congress a report on international swap regulation, as required by Section 719(c) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

The European Commission's proposed "Regulation on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data" offers a significantly higher level of legal harmonization and predictability across Europe, but at the price of more stringent requirements and availability of stricter sanctions.

On Thursday, January 19, 2012, Government Accountability Office (the "GAO") released a study on the institutions exempt from the definition of "bank" under Section 2 of the Bank Holding Company Act.

The Federal Trade Commission recently announced that the reporting thresholds under Section 7 of the Clayton Act, known as the Hart‑Scott-Rodino Antitrust Improvements Act of 1976, will be increased.

On January 5, 2012, the U.S. Court of Appeals for the Third Circuit affirmed the decision of the U.S. District Court of the District of New Jersey with respect to 2010 N.J. Laws Chapter 25, which amended New Jersey's unclaimed property statute.

Just as more professionals have started taking advantage of social media to develop and grow their business, the financial services industry is following suit.  However, given the highly regulated nature of this industry, financial services professionals must be aware of special regulatory considerations when utilizing social networking tools.

On Wednesday, January 18, 2012, the Securities and Exchange Commission (the "SEC") published a request for public comment on financial literacy and investor disclosure issues that it is studying as part of a review mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). Section 917 of the Dodd-Frank Act directs the SEC to conduct a study of retail investors’ financial literacy and submit its findings to Congress by July 21, 2012.

Under a new General Services Administration rule, contractors providing information technology supplies, services or systems to GSA will be required to submit an IT Security Plan that describes contractor compliance with federal cybersecurity regulations.

On January 12, 2012, the National Ocean Council released a Draft National Ocean Policy Implementation Plan aimed at implementing the nine Priority Objectives identified by President Obama’s June 2010 Executive Order through more than 50 action items.

NBC, FOX Broadcasting and other defendants reached a multi-million dollar settlement with plaintiffs in multiple California class action lawsuits alleging that American Idol and Deal or No Deal SMS sweepstakes were illegal lotteries.

New legislation affecting the administration of trusts, the obligations of trustees, and the rights of trust beneficiaries was recently signed into law.

On Thursday, January 5, 2012, the Consumer Financial Protection Bureau (the "CFPB") announced the launch of its non-bank supervision program under Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").  The CFPB already began its supervision of banks, thrifts, and credit unions with assets of over $10 billion on July 21, 2011.

Employers that allow dependents to be covered under their health plans need to be aware of health care reform rules that may limit their ability to retroactively remove ineligible dependents from coverage.

The California Supreme Court’s decision in California Redevelopment Association (CRA) v. Matosantos Commercial Corporation (No. S194861) requires redevelopment agencies (RDAs) to wind down immediately.

On Monday, January 9, 2012, the Commodity Futures Trading Commission adopted final rules to implement a framework for the real-time public reporting of swap transaction and pricing data for all swap transactions.

On January 6, 2012, the U.S. District Court for the Central District of California dismissed with prejudice Mehrens v. Redbox Automated Retail, LLC, a putative class action against Redbox alleging that Redbox violated California's Song-Beverly Credit Card Act by requesting ZIP codes and email addresses in connection with credit card transactions.

The IRS recently issued Notice 2012-9, which provides clarifications and additional guidance on the new employer obligation, added by the health care reform law, to report on Form W-2 the cost of health coverage provided to employees.

Last Friday, the National Labor Relations Board issued its decision in D.R. Horton, Inc., concluding that private arbitration agreements that require employees to waive their right to pursue class actions are illegal because they interfere with the employees' rights to engage in collective activities protected by federal labor law.

On December 29, 2011, the Bureau of Land Management (BLM) announced the publication of an Advanced Notice of Proposed Rulemaking (ANPR) seeking public comment on BLM's intent to establish an efficient competitive bidding system for wind and solar energy leases on public lands.

2011 proved to be a year of shifting priorities, and CEQA was no exception. As California struggled with balancing its budget and stimulating job growth, project proponents heightened their pleas for CEQA reform to remove obstacles to infill development, renewable energy and economic stimulus projects. While the resulting legislative change was minimal, the judiciary appears to have responded to these growing concerns.

The Securities and Exchange Commission recently finalized its rules to conform the definition of “accredited investor” to the requirements under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

On Wednesday, December 21, 2011, the Securities and Exchange Commission (the "SEC") adopted rules to implement Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

The California Supreme Court has announced that recently enacted legislation disbanding redevelopment agencies is constitutional, while the companion legislation that would have allowed redevelopment agencies to continue to exist if they made "voluntary" payments is unconstitutional.

On Wednesday, December 7, 2011, the Commodity Futures Trading Commission ("CFTC") amended its regulations regarding the investment of customer segregated funds subject to CFTC Regulation 1.25 and funds held in an account subject to CFTC Regulation 30.7.

On December 21, 2011, the National Labor Relations Board (NLRB) announced new rules that will make it significantly easier for unions to win NLRB elections.

As of December 1, 2011, the United States and China have implemented a Patent Prosecution Highway (PPH) to expedite examination of each others’ patent applications. The PPH is available for patent applications filed via the Patent Cooperation Treaty (PCT) and via the Paris Convention.

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

In Sierra Club v. Van Antwerp, decided by the U.S. Court of Appeals for the District of Columbia Circuit, the Army Corps of Engineers approved a permit under the Clean Water Act (the Act) authorizing the fill of approximately 54 acres of wetlands for the construction of a large town center outside of Tampa, Florida.

The Department of Health and Human Services has begun a pilot program of HIPAA privacy and security audits for health care providers and health plans, and the audits will have some very short turnaround times.

On Wednesday, December 7, 2011, the Commodity Futures Trading Commission ("CFTC") issued a Guidebook for Part 20 Reports providing additional guidance and detailed instructions for submitting large swaps trader reports to the Commission.

California's Second District Court of Appeal has addressed provisions of the California Environmental Quality Act (CEQA) checklist questionnaire that appear to require analysis of the effects of environmental hazards on the proposed project.

On December 8, 2011, Federal Chief Information Officer Steven VanRoekel issued a memorandum introducing the Office of Management and Budget's Federal Risk and Authorization Management Program (“FedRAMP”).  FedRAMP is intended to make the government’s migration to cloud computing more cost effective and to ensure the safety, security and reliability of the government’s data.

The National Labor Relations Board (NLRB) continues to find garden-variety employer policies to be unlawful because they restrict or interfere with employee rights protected by federal labor law.

On December 9, the U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) jointly published draft guidance defining the phrase "significant portion of its range" for purposes of listing a species under the Endangered Species Act (Act).  See 76 Fed. Reg. 76987 (Dec. 9, 2011).  The Act protects any species found to be endangered or threatened "throughout all or a significant portion of its range."

Four bills designed to help entrepreneurs raise capital are pending before Congress.  Three of the bills were passed by the U.S. House of Representatives and sent to the Senate in early November with nearly unanimous bipartisan support.  The fourth bill, HR 2167 - Private Company Flexibility and Growth Act, remains before the House of Representatives.

The Bureau of Safety and Environmental Enforcement (BSEE) has now taken action, in a concrete manner, to implement its vision of exercising jurisdiction over service companies.  On October 10, 2011, BSEE issued what it termed as “the initial group” of violations in the form of Incidents of Non-Compliance (INC's) under the federal regulations applicable to operations on Outer Continental Shelf Lands Act leases to service companies Halliburton and Transocean, in addition to BP, for violations arising from or directly related to the Macondo incident.

On December 7, the White House Council on Environmental Quality published draft guidance to improve the efficiency and timeliness of environmental reviews under the National Environmental Policy Act. In the draft guidance, CEQ urges federal agencies to make their NEPA documents shorter, simpler and easier to read.

On Friday, December 2, 2011, the Commodity Futures Trading Commission ("CFTC") announced an interpretation that relates to anti-fraud authority provided in the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

On July 26, 2011, FinCEN issued  the Final Rule. The Final Rule applies regulations regarding money service businesses ("MSBs") to “providers” and “sellers” of "prepaid access."  The Final Rule became effective on September 27, 2011.

The Sixth District Court of Appeal, in Pfeiffer v. Sunnyvale, recently upheld the use of a traffic baseline that included future projects despite an earlier Sixth District case that had raised serious questions about that practice.

The Bureau of Indian Affairs yesterday proposed new regulations that would greatly facilitate renewable energy development on tribal lands.

On Tuesday, November 29, 2011, the Office of the Comptroller of the Currency ("OCC") proposed a rule to remove references to credit ratings from various OCC regulations and related guidance to national banks and federal savings associations in meeting due diligence requirements in assessing credit risk for portfolio investments.

As part of the changes made by health care reform, Section 6051(a)(14) of the Internal Revenue Code requires employers to report on Form W-2 the aggregate cost of employer-sponsored health coverage provided to employees.

On Thursday, November 17, 2011, the Board of Governors of the Federal Reserve System (the "Federal Reserve"), the Consumer Financial Protection Bureau (the "CFPB"), the Federal Deposit Insurance Corporation (the "FDIC"), the National Credit Union Administration (the "NCUA"), and the Office of the Comptroller of the Currency (the "OCC") issued a joint statement that seeks to explains how the total assets of an insured bank, thrift or credit union will be measured for purposes of determining supervisory and enforcement responsibilities under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act'').

In Honchariw v. County of Stanislaus, the California Court of Appeal ruled that the county’s decision to deny a subdivision map for a housing project violated California’s Housing Accountability Act (the Act), also known as the “Anti-NIMBY” law, even though the project did not include any affordable units.

In a recent decision, In re Openlane, the Delaware Chancery Court validated the so-called “sign-and-consent” approval structure in a merger transaction.

International software piracy is a serious economic problem that distorts competition and costs the United States billions of dollars in lost jobs and wages.

Increased store traffic, the shift in management's attention to keeping stock available and the barrage of seasonal employees create an environment ripe for crimes of opportunity such as employee theft.

The Securities and Exchange Commission (the "SEC") recently adopted Rule 13h-1 of the Securities Exchange Act of 1934 (the "Exchange Act") and related Form 13H, establishing new reporting and filing requirements for "large traders" of securities in U.S. markets.

On Tuesday, November 8, 2011, the Commodity Futures Trading Commission (the "CFTC") adopted final regulations to implement certain provisions of Title VII and Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act governing derivatives clearing organization ("DCO") activities.

The winter holiday season poses high sales potential for most retail companies.  Your designers and marketing groups are likely already hard at work developing products and advertising campaigns to take advantage of the season and its opportunities.  But this is also a good time to remind yourself and your design and marketing personnel to ensure that your products and advertising do not infringe on someone else's intellectual property.

The Washington Court of Appeals has just released its decision in Pellino v. Brink's Inc., concerning Washington's meal and rest breaks requirements.

On Wednesday, October 26, 2011, and Monday, October 31, 2011, the Securities and Exchange Commission (the "SEC") and the Commodity Futures Trading Commission (the "CFTC") approved a new joint rule requiring certain advisers to hedge funds and other private funds to report information for use by the Financial Stability Oversight Council in monitoring risks to the U.S. financial system.

California, standing alone, has the eighth largest economy in the world, with a gross state product of nearly $2 trillion in 2010. It is no surprise that the state is an irresistible market for many leading (and emerging) companies with significant workforce populations. But California is also one of the most perilous jurisdictions for employers, featuring a harsh, unforgiving and sometimes unexpectedly quirky regulatory environment, all enforced by a large population of zealous plaintiffs’ lawyers. Doing business in California can be perilous indeed.

The Perkins Coie Retail & Consumer Products industry group announced a new initiative earlier this year to survey our retail and consumer products industry clients periodically on legal issues and to report to our clients the results with related commentary.

On Tuesday, October 25, 2011, the Commodity Futures Trading Commission (the "CFTC") issued a notice of a proposed amendment to a July 14, 2011 final order (the "July 14th Order").  The July 14th Order grants temporary exemptive relief from certain provisions of the Commodity Exchange Act (the "CEA") that otherwise would have taken effect on July 16, 2011, the general effective date of title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

On October 14, 2011, the Federal Energy Regulatory Commission FERC issued an order approving in part and rejecting in part the rate incentives sought by RITELine Illinois, LLC and RITELine Indiana, LLC (jointly, the "RITELine Companies") for their Reliability Interregional Transmission Extension Project, a proposed 420-mile, 765 kV electric transmission project designed to serve new wind generation resources that would extend from the Indiana/Ohio border, through Indiana, and into Illinois.

The IRS announced the Year 2012 cost-of-living adjustments for various provisions affecting employee benefit plans.

Music and holiday shopping go hand-in-hand.  Chances are, your final plans for holiday-themed décor, events and websites will all involve music.  This wrapping paper is designed to help your creative team design and implement a music protocol that protects intellectual property ("IP") rights without breaking your holiday budget.

On Monday, October 17, 2011, the Federal Reserve Board (the "Board") announced that the Board and the Federal Deposit Insurance Corporation (the "FDIC") adopted a final rule implementing the resolution plan requirement of Section 165(d)(1) of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Section 165(d)(1) requires each non-bank financial company designated by the Financial Stability Oversight Council ("FSOC") for enhanced supervision by the Board and each bank holding company with assets of $50 billion or more to report periodically to the Board, the FDIC, and the FSOC the company's plan for rapid and orderly resolution in the event of material financial distress or failure.

Governor Brown recently signed several bills significantly impacting employers in California. These new laws were wide ranging and covered many diverse issues, including: limiting an employer’s use of consumer credit reports, barring discrimination on the basis of gender and sexual identity, imposing stiff penalties for employers who willfully misclassify employees as independent contractors, extending healthcare coverage to employees taking Pregnancy Disability Leave, and employment contract requirements for certain employees earning commission-based compensation.

After two-and-a-half years of public review, the San Francisco Bay Conservation and Development Commission (BCDC) unanimously approved a comprehensive set of amendments to its Bay Plan to address climate change and the resulting sea level rise anticipated to occur in San Francisco Bay.

On September 28, the Federal Judicial Center and the National Academies jointly released the third edition of the Reference Manual on Scientific Evidence (the "Manual"), containing tools for use by judges to manage cases involving complex scientific and technical evidence as part of their responsibilities under Daubert.

On Tuesday, October 11, 2011, the Office of the Comptroller of the Currency (the "OCC"), the Federal Reserve Board (the "Fed"), the Federal Deposit Insurance Corporation (the "FDIC"), and the Securities and Exchange Commission (the "SEC") jointly issued proposed regulation implementing the so-called "Volcker Rule" requirements of section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

In Neighborhood Alliance of Spokane County v. County of Spokane, the Washington Supreme Court clarified two topics previously unresolved in Washington: what constitutes an adequate search for records in response to a Public Records Act ("PRA") request and the scope of permissible discovery in PRA lawsuits. The Court held that a public entity must undertake a search “reasonably calculated to uncover all relevant documents,” and that discovery is permitted into any matter, not privileged, that is relevant to the subject matter of the lawsuit.

On September 30, 2011, the North American Electric Reliability Corporation filed a petition with the Federal Energy Regulatory Commission requesting that FERC approve new enforcement mechanisms for addressing potential violations of mandatory electric reliability standards.

In recent years, California has enacted numerous laws to encourage solar and infill development. Governor Jerry Brown has now signed Senate Bill 226, which amends the California Environmental Quality Act (CEQA) to further encourage projects designed to reduce greenhouse gas emissions.

On August 30, the National Labor Relations Board NLRB published new rules that require virtually all private sector employers to post notices informing employees of their rights under the National Labor Relations Act—the federal law that protects employees who engage in union and other concerted activities.

On September 14, 2011, the Subcommittee on Immigration Policy and Enforcement of the House Judiciary Committee, directed by House Judiciary Chairman Rep. Lamar Smith (R-TX), heard testimony from two venture capitalists in favor of Congress enacting the "EB-6 Startup Visa."

On September 15, 2011, the Federal Trade Commission ("FTC") released the changes it is proposing to make to the Children’s Online Privacy Protection Rule (required by the Children’s Online Privacy Protection Act, or "COPPA"), which has been in effect since 2000. To address technological developments in the past decade, the FTC is recommending a number of changes.

Continuing the reorganization of the Department of the Interior in the wake of the Gulf oil spill, Interior Secretary Salazar has formed a new offshore enforcement agency, the Bureau of Safety and Environmental Enforcement ("BSEE").

Is it the result of turbulent economic times, tighter bank financing, or the globalization of the private finance and investment world? We cannot say for sure what is fueling the interest, but an increasing number of our clients are asking about, exploring or already gaining the benefits of the EB-5 Immigrant Investor Visa Program.

California Governor Jerry Brown just signed AB 900, the Jobs and Economic Improvement Through Environmental Leadership Act of 2011. This bill creates a streamlined litigation process for challenges to environmental impact reports for certain projects that are expected to create jobs and cause relatively few environmental impacts. The bill allows these cases to be heard directly by the court of appeal, on an expedited basis, bypassing the trial court.

On Monday, September 19, 2011, the Securities and Exchange Commission proposed a new rule under the Securities Act of 1933 to implement the prohibition under Section 621 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 on material conflicts of interest in connection with certain securitizations.

On September 12, 2011, the Seattle City Council passed an ordinance (Council Bill No. 117216) requiring employers to provide paid “sick and safe” time off to employees who work in Seattle. Mayor Mike McGinn has indicated that he supports the ordinance. Assuming it is not vetoed, amended or voided through legal action, the ordinance will go into effect next year on September 1, 2012.

Today, after years of contentious debate over what should constitute “patent reform,” President Obama signed into law the America Invents Act, regarded by some to be the most significant change to the U.S. patent system since the Patent Act of 1952.

The SEC recently announced that it will not seek a rehearing or Supreme Court review of the decision by the U.S. Court of Appeals for the D.C. Circuit vacating SEC Rule 14a-11 on proxy access, which would have required companies subject to the Exchange Act’s proxy rules to include in their proxy materials shareholder nominees for the board of directors in some circumstances.

On Monday, September 12, 2011, the Commodity Futures Trading Commission (the “CFTC”) amended its regulations governing off-exchange foreign currency transactions with members of the retail public (“retail forex transactions”).

The U.S. Bureau of Industry and Security (BIS) has issued a request for public comments on the effect of extending foreign-policy based export controls for another year. Such controls require annual extension, including a review by BIS, a request for public comments, and a related report to Congress.

This evening, the U.S. Senate passed the Leahy-Smith America Invents Act, H.R. 1249 (the "Act"). The Act includes the provisions impacting fees, Patent and Trademark Office ("PTO") proceedings and litigation proceedings that will take effect upon or shortly following enactment.

On Thursday, August 25, 2011, the Commodity Futures Trading Commission (the “CFTC”) adopted final rules and new forms to implement Section 23 of the Commodity Exchange Act (the “CEA”) as amended by Section 748 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”).  Section 23, entitled “Commodity Whistleblower Incentives and Protection,” established a whistleblower program that requires the CFTC to pay an award, under regulations prescribed by the CFTC and subject to certain limitations, to eligible whistleblowers who voluntarily provide the CFTC with original information about a violation of the CEA that leads to the successful enforcement of a covered judicial or administrative action, or a related action.

The U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration ("PHMSA") has issued an Advance Notice of Proposed Rulemaking ("ANPRM") requesting comments on a number of changes being considered to strengthen and expand the integrity management ("IM") and non-IM requirements that apply to natural gas transmission pipelines.

For power plants over 50 megawatts, the Warren-Alquist Act provides a “one stop” permitting scheme at the California Energy Commission to obtain certain permits, but not Clean Water Act discharge permits.

On Friday, August 19, 2011, the Securities and Exchange Commission (the “SEC”) and the Commodity Futures Trading Commission (the “CFTC”) approved for publication in the Federal Register a request for public comment in connection with a joint study on stable value contracts. Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) provides for the comprehensive regulation of swaps and security-based swaps and includes definitions of key terms relating to such regulation.

A new access management bill was passed into law in Oregon's 2011 legislative session that will revolutionize highway access permitting in Oregon.

There have been many recent changes in the world of domain names.  This is the fourth in a series of updates on these issues.  It is intended to keep you informed about issues that are important to brand owners and any others with a significant web presence.

The U.S. Bureau of Industry and Security has published its Final Rule on the much anticipated license exception Strategic Trade Authorization 76 Federal Register 35276. This new license exception is the next significant step in the Obama Administration's Export Reform Initiative, intended to facilitate exports between the United States and its close partners and allies by easing the license burden on exports of numerous items.

In June of this year, the California legislature passed two bills designed to address the state’s budget crisis. The bills addressed redevelopment agencies, which are local agencies created to use property tax funds to redevelop blighted areas. ABX1 26 suspended most redevelopment agencies and provided for their gradual dissolution. It barred redevelopment agencies from taking action other than paying existing debts, performing existing contractual obligations and setting aside reserves required for bonds.

On Wednesday, August 10, 2011, the Commodity Futures Trading Commission (the “CFTC”) adopted final rules implementing new statutory provisions enacted by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act'”). The Dodd-Frank Act provides that swaps in an “agricultural commodity” (as defined by the CFTC) are prohibited unless entered into pursuant to a rule, regulation, or order of the CFTC adopted pursuant to certain provisions of the Commodity Exchange Act (the “CEA”). The new rules implement regulations whereby swaps in agricultural commodities may transact subject to the same rules as all other swaps. The rules repeal and replace the CFTC’s current regulations concerning the exemption of swap agreements.

The FTC and the Antitrust Division of the U.S. Department of Justice recently announced final amendments to the Hart-Scott-Rodino Premerger Notification Rules, the Premerger Notification and Report Form and associated Instructions in order to streamline the Form and capture new information that will help the Agencies conduct their initial review of a proposed transaction's competitive impact.

On Wednesday, July 27, 2011, the Commodity Futures Trading Commission (the “CFTC”) adopted regulations and amended existing regulations to implement Sections 717, 718, 723, 728, 733, 745, 803, 804, and 806 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act'”). The CFTC amended its existing regulations governing the submission of new products, rules, and rule amendments. The final regulations establish the Commission's procedural framework for the submission of new products, rules, and rule amendments by designated contract markets, derivatives clearing organizations, swap execution facilities, and swap data repositories. In addition, the final regulations prohibit event contracts involving certain excluded commodities, establish special submission procedures for certain rules proposed by systemically important derivatives clearing organizations, and stay the certifications and the approval review periods of novel derivative products pending jurisdictional determinations.

On July 26, 2011, the Financial Crimes Enforcement Network of the Department of the Treasury ("FinCEN") issued a final rule amending the Bank Secrecy Act's regulations and establishing comprehensive regulatory requirements for prepaid access ("Final Rule").

The 2011 Offshore Voluntary Disclosure Initiative, which ends August 31, 2011 offers taxpayers who either maintain undisclosed foreign bank accounts or use foreign entities to conceal offshore investments a way to substantially reduce their potential penalties as opposed to those who do not come forward.

On July 21, 2011, the Federal Energy Regulatory Commission issued "Order 1000," a major rulemaking imposing new electric transmission planning and cost allocation requirements on public utility transmission providers.

On Wednesday, July 20, 2011, the Office of the Comptroller of the Currency (the “OCC”) issued a final rule implementing Sections 312, 316, 322, 335, and 603 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). The rules incorporate the transfer to the OCC of certain functions of the Office of Thrift Supervision (the “OTS”). The rules also amend OCC rules pertaining to change in control of credit card banks and trust banks, deposit-taking by uninsured Federal branches, and OCC preemption and visitorial powers.

On July 22, 2011, the U.S. Court of Appeals for the D.C. Circuit issued its highly anticipated opinion in the challenge to SEC Rule 14a-11 brought by the Business Roundtable and the U.S. Chamber of Commerce. Rule 14a-11 would have required companies subject to the Exchange Act’s proxy rules to include in their proxy materials shareholder nominees for director who met specified conditions. In the strongly worded opinion, written by Judge Ginsburg, the court vacated Rule 14a-11, characterizing the SEC proxy access rule as “arbitrary and capricious” and stating that the SEC had failed “adequately to assess the economic effects” of Rule 14a-11. The court did not address the constitutional challenges raised by the plaintiffs under the First Amendment.

All of the tools and tricks you will use this holiday season to catch consumers' eyes and capture their dollars will likely involve intellectual property (IP) rights. New products (patents? copyrights?) with catchy names (trademarks?) and bright packaging (trade dress?) supported by huge advertising campaigns (more copyrights?) are distributed through new channels to attract new customers (trade secrets?). You've registered your trademarks and copyrights and thought about whether you have any patentable inventions. But your IP rights are implicated in many other areas of your business, especially during the holiday season.

The San Francisco Superior Court has announced that due to severe budget constraints, the court will implement a 40% reduction in staff, including eliminating 11 of the court’s 12 commissioners.

On Thursday, July 14, 2011, the Federal Reserve Board approved a final rule repealing Regulation Q, which prohibits the payment of interest on demand deposits if the institution is a member of the Federal Reserve System.  This rule implements Section 627 of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act").

On October 1, 2011 a new Federal Reserve Board Final Rule implementing the “Durbin Interchange Amendment” to the Dodd-Frank Act will go into effect.

Save the Plastic Bag Coalition v. City of Manhattan Beach

In a case under the California Environmental Quality Act, the court ruled City Council’s approval of a CEQA addendum complied with the procedural requirements for approval of a Water Supply Assessment.

On Tuesday, June 28, 2011, the Federal Financial Institutions Examination Council (FFIEC) issued supplemental guidance to the Authentication in an Internet Banking Environment, which was issued in October 2005.

In a matter of months, the amount of "Internet real estate"—which has been static for the past several years—will expand dramatically. Companies, organizations, cities and others will be able to apply to ICANN to launch new domain spaces using brand names (for example, .nike), generic terms (such as .shoes) and locations (such as .nyc).

On Wednesday, June 22, 2011, the SEC adopted amendments to the Investment Advisors Act, as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). The amendments require advisors to hedge funds and other private funds to register with the SEC, expand disclosure requirements for investment advisors, revise pay-to-play rules, establish addition exemptions from SEC registration and reporting requirements for certain advisors, and reallocate regulatory responsibility between the various states and the SEC. There is a transitional exemption period requiring registration by March 30, 2012 for those advisors previously not required to do so.

A recent Washington Supreme Court decision, Bellevue School District v. E.S., held that neither the U.S. Constitution nor the Washington State Constitution requires a school district to provide an attorney to a student at an initial truancy hearing.

The Department of Justice, Antitrust Division, recently updated its Policy Guide to Merger Remedies, the first update since 1994.

At an open meeting of the Securities and Exchange Commission (SEC) on June 23, 2011, the SEC Commissioners approved a new rule defining “family offices.” Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) excluded family offices from the definition of investment adviser under the Investment Advisers Act of 1940 (Advisers Act) and thereby exempted family offices from the registration requirements under the Advisers Act, as amended by the Dodd-Frank Act. However, Section 409 of the Dodd-Frank Act also directed the SEC to adopt a rule defining the term “family office” in order to identify the entities eligible for the exclusion. On June 23, 2011, the SEC adopted such a rule.

In American Electric Power Co. v. Connecticut, (June 20, 2011), the U.S. Supreme Court, in an 8-0 opinion, held that federal courts have no authority to apply the federal common law of nuisance to control greenhouse gas emissions.

The U.S. Supreme Court issued its opinion in the long-awaited Wal-Mart v. Dukes decision yesterday. The Court's decision is good news for employers as it will make it more difficult for plaintiffs to pursue large class actions against employers.

On Monday, June 13, 2011, the Federal Reserve Board adopted an interim final rule allowing small bank holding companies that are either S-corporations or organized in mutual form to exclude subordinated debt issued to Treasury under the SBLF, or Small Business Lending Fund, (as well as subordinated debt issued to Treasury under TARP) from treatment as "debt" for purposes of the Board's Small Bank Holding Company Policy Statement's debt-to-equity standard.

The U.S. Supreme Court in Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., ruled that the Bayh-Dole Act does not automatically vest title to inventions resulting from research funded by the federal government in federal contractors such as universities.

On June 9, the U.S. Supreme Court issued its decision in Microsoft Corp. v. i4i Limited Partnership, unanimously affirming that “clear and convincing” evidence is required to invalidate a patent in litigation.

On June 2, 2011, the National Ocean Council released a series of draft strategic action plans directed toward the nine priority objectives that the Council was tasked with addressing by President Obama’s June 2010 Executive Order. These strategic action plans will serve as the basis for the development of a comprehensive system of governance for the management and protection of U.S. oceans, coastal waters, and the Great Lakes.

The Physician Payment Sunshine Act, enacted into law as part of the Health Care Reform package in 2010, will require the tracking and reporting to the government of payments made on or after January 1, 2012 by drug, medical device and medical supply manufacturers to physicians and teaching hospitals.

On May 31, the U.S. Supreme Court clarified the level of knowledge required to establish inducement of patent infringement under 35 U.S.C. § 271(b), which provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.”

On Thursday, May 26, 2011, the Secretary of the Interior announced a joint effort between the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration National Marine Fisheries Service to identify and implement administrative reforms to the regulatory process used to implement the Endangered Species Act ("ESA").

On Wednesday, May 25, 2011, the Office of the Comptroller .of the Currency (the "OCC") proposed rules implementing Sections 312, 316, 322, 335, and 603 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). The proposed rules incorporate the transfer to the OCC of certain functions of the Office of Thrift Supervision. The OCC also is proposing amendments to its rules pertaining to change in control of credit card banks and trust banks; deposit-taking by uninsured Federal branches; and its preemption and visitorial powers rules.

On May 25, 2011, in a 3-2 vote, the U.S. Securities and Exchange Commission (“SEC”) adopted its final rules (“Rules”), as required under Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or the “Act”). The Rules implement the SEC’s hotly anticipated new whistleblower bounty program that rewards individuals who provide the SEC with information leading to successful enforcement actions that exceed $1 million in monetary sanctions. Eligible whistleblowers can earn a payout of 10% to 30% of any monetary sanctions collected because of the tipster's information.

On May 25, 2011, the Federal Circuit issued its long-awaited en banc decision in TheraSense Inc. v. Becton, Dickinson & Company  By a 6-4-1 vote, the court significantly narrowed the classes of cases where courts may find a patent unenforceable due to inequitable conduct before the Patent and Trademark Office.

On May 18, 2011, the Department of Defense ("DoD") published an interim rule amending the Defense Federal Acquisition Regulation Supplement ("DFARS") to require contractors on covered DoD contracts to establish and maintain acceptable business systems or risk partial withholds of contract payments if these systems have significant deficiencies.

Ninth Circuit reiterates ruling that logging road runoff is no longer exempt from NPDES permitting

A U.S. Supreme Court decision handed down on May 16, 2011, restricts the information upon which a private plaintiff can base a False Claims Act case. Private plaintiffs have often used the Freedom of Information Act ("FOIA") to obtain information from government agencies to bolster claims under the False Claims Act.

On Tuesday, May 10, 2011, the Securities and Exchange Commission (the "SEC") proposed a rule raising dollar thresholds required before investment advisers are able to charge their clients performance fees. This adjustment is required under Section 418 of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act"), which requires the SEC to issue an order to adjust for inflation these dollar amount thresholds by July 21, 2011, and every five years thereafter.

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.

This update was republished as an article on Law360

In an extremely rare move, the Department of Justice’s Antitrust Division recently announced that it had entered into a non-prosecution agreement (“NPA”) with UBS AG (“UBS”) to resolve criminal antitrust charges.

On May 11, 2011, U.S. Commodities Futures Trading Commission’s (CFTC) chairman Gary Gensler addressed managers of private equity funds at the 13th Annual Global Private Equity Conference.

In keeping with Secretary Solis's promise to shake things up at the DOL, earlier this week DOL's Wage and Hour Division launched a 21st century initiative that makes it much easier for employees to independently track hours worked for the purpose of calculating wage claim damages.  The DOL's newest tool – a smartphone app.

The DotAsia Organization will begin accepting Internationalized Domain Name (IDN) registrations of Chinese (Traditional and Simplified), Japanese and Korean domain names on May 11, 2011.

On April 26, 2011, the Department of Defense, General Services Administration and National Aeronautics and Space Administration published a proposed rule to amend the Federal Acquisition Regulation Organizational Conflicts of Interest (OCI) provisions that would change the longstanding framework of OCI analysis and impose additional obligations on contracting officers and contractors.

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.

Employers often rely on medical information and disability determinations made in workers' compensation matters to decide whether to return employees back to work, even though such determinations are made without regard to disability discrimination laws. However, it is now clear that employers do so at their own peril. In Cuiellette v. City of Los Angeles, the Second Appellate District Court affirmed a $1,571,500 judgment for disability discrimination and failure to accommodate disability in favor of the employee. In affirming the judgment, the court determined that the proper inquiry is whether an employee's medical restrictions prevented the individual from performing the functions of the position held or the desired position to be held.

In AT&T Mobility LLC v. Concepcion, the U.S. Supreme Court ruled that arbitration provisions governed by the Federal Arbitration Act may disallow class action proceedings.  In doing so, the Court disapproved the California Supreme Court's decision in Discover Bank v. Superior Court, which held that a consumer arbitration provision prohibiting class arbitration was unconscionable and unenforceable.

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.

On Thursday, April 21, 2011, the Federal Reserve Board issued a request for public information and comment on two bankruptcy-related studies that it will conduct pursuant to Section 216 and Section 217 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

The federal government continues to move forward in the creation of a National Ocean Policy, using Coastal and Marine Spatial Planning as a foundational principle.  This update provides a brief overview of federal ocean policy initiatives and identifies an immediate opportunity for interested parties to submit comments before the April 29 deadline.

On April 20, the Federal Circuit issued its long-awaited en banc decision in TiVo Inc. v. EchoStar Corp.,[1] vacating one ground for a contempt citation but affirming the other and upholding a $90 million sanction.  Along the way, the court significantly revised its approach to contempt proceedings in ways that may both help and hurt patentees in future cases.

On Friday, April 15, 2011, the Federal Reserve sought comment on a notice outlining the application of its consolidated supervisory program for bank holding companies to savings and loan holding companies for which it now has supervisory responsibility.

The Department of Defense ("DOD") recently announced a proposed rule that would tie the allowability of independent research and development ("IR&D") costs to a reporting requirement.  The proposed rule would require major contractors to report IR&D projects that generate annual costs in excess of $50,000.

On Friday, April 8, 2011, the CFTC and SEC released a joint study regarding the feasibility of requiring the derivatives industry to utilize algorithmic descriptions in order to describe financial derivatives.

On Monday, April 5, 2011, the Securities and Exchange Commission (SEC) announced a proposal establishing the "limit up-limit down" mechanism aimed at curbing extraordinary market volatility in the U.S. equity markets.  The proposal was filed by national securities exchanges and the Financial Industry Regulatory Authority (FINRA).

A year has passed since the Federal Energy Regulatory Commission ("FERC" or the "Commission") issued a landmark series of electric reliability orders that riled the industry.  Although progress has been made towards healing the rift created by the orders, important jurisdictional conflicts between FERC and the North American Electric Reliability Corporation ("NERC") remain.

On Friday, March 25, 2011, the Federal Reserve Board adopted two rules expanding the coverage of consumer protection in the areas of credit transactions and leases of higher dollar amounts.  The rules amend Regulation Z (Truth in Lending) and Regulation M (Consumer Leasing) and implement certain requirements under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").  Protections will now be in place for credit transactions and consumer leases up to $50,000, as compared with $25,000 currently.  The amount will be adjusted annually to reflect any shifts in the consumer price index.

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.

On March 24, 2011, more than two years after the ADA Amendments Act of 2008 ("ADAAA" or "the Act") became effective, the Equal Employment Opportunity Commission ("EEOC") issued its much-anticipated final regulations interpreting the ADAAA's requirements.

On Tuesday, March 15, 2011, the Board of the Federal Deposit Insurance Corporation approved a Notice of Proposed Rulemaking ("NPR") to clarify the application of orderly liquidation authority under the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act").

On March 22, 2011, the U.S. Supreme Court decided  that an employee’s complaint alleging violations of the federal Fair Labor Standard Act ("FLSA") need not be in writing to count as “protected activity” for purposes of an FLSA retaliation claim; an oral complaint will suffice.  The court did not, however, decide the related question of whether complaints to private employers, as opposed to government agencies, constitute protected activity under the FLSA.  Kasten v. Saint-Gorbain Performance Plastics Corp., No. 09-834 (U.S. Mar. 22, 2011).

On Wednesday, March 9, 2011, the Commodity Futures Trading Commission proposed amendments to its regulations regarding the registration of intermediaries.  These amendments are in-line with requirements under Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").  The amendments incorporate references into the regulations to swap dealers, swap execution facilities, and major swap participants.

Although halfway across the world, suspension of these Japanese operations may affect American companies that either have facilities located in Japan or that depend upon suppliers or customers stationed there.  If your business experiences a loss of income due to the recent earthquake or tsunami, the business interruption ("BI"), contingent business interruption ("CBI") or extra expense ("EE") provisions of your property policy may reimburse you for such losses.

On February 15, 2011, the Federal Trade Commission and the Department of Justice published their Hart‑Scott‑Rodino Annual Report for Fiscal Year 2010 for the period from October 1, 2009 to September 30, 2010.  The Annual Report summarizes Federal Trade Commission and Department of Justice actions conducted under the Hart-Scott-Rodino Antitrust Improvements Act, or HSR Act, in fiscal year 2010.  The number of filings in fiscal 2010 increased by 63% over the number of filings in 2009, after two consecutive years in which the number of filings reported to the agencies had declined.

Following the recent California Supreme Court’s decision in Pineda v. Williams-Sonoma Stores, Inc., 2011 WL 446921 (Cal. Feb. 11, 2011), numerous class action lawsuits have been filed under the Song-Beverly Credit Card Act of 1971, Cal. Civ. Code §§ 1747 et seq. ("Credit Card Act"), a state statute designed to protect the personal privacy of credit card users.  These lawsuits expose California businesses to considerable defense costs and the potential for substantial damages.  Law360 reports that in the wake of this ruling at least 30 proposed class actions have been filed in California, and many more are on the way.  That’s the bad news. The good news is that these claims may be covered under your Commercial General Liability ("CGL"), Errors and Omissions ("E&O"), or Directors and Officers ("D&O") Liability insurance policies.

On Tuesday, March 1, 2011, the Federal Reserve Board and the Federal Trade Commission proposed regulations regarding credit score disclosure.  The proposed regulations implement requirements under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").  Proposed requirements include the "disclosure of credit scores and related information to consumers in risk-based pricing and adverse action notices under the Fair Credit Reporting Act if a credit score was used in setting the credit terms or taking adverse action."  The proposed regulations would amend Regulation V (Fair Credit Reporting) and Regulation B (Equal Credit Opportunity).  Comments on the proposed rules are due 30 days after publication in the Federal Register.

The American Bar Association’s 25th Annual National Institute on White Collar Crime (March 2-4, 2011) featured, among other panelists, senior members from the U.S. Department of Justice ("DOJ"), various state and federal prosecutors, representatives from federal regulatory bodies, members of the federal judiciary and leading practitioners from the white collar defense bar.  This Update highlights several of the most significant trends in white collar prosecution signaled by these panelists as likely to shape 2011’s enforcement landscape.

This well-established principle surprises many nonunion employers who mistakenly think that the federal law protecting union activities, the National Labor Relations Act ("NLRA"), does not apply to them.  The reality is that the NLRA protects nonunion employees in exactly the same way it protects employees engaged in union activities.

On March 1, 2011, the U.S. Supreme Court issued a decision in Staub v. Proctor Hospital analyzing the so-called “cat’s paw” theory of discrimination.  Plaintiffs argue that the cat’s paw theory applies when a biased supervisor or manager influences, but does not personally make, an employment decision, and the actual decision maker is not demonstrably biased.  In the Staub decision, the Supreme Court held that employers can be held liable for cat’s paw discrimination.  Unfortunately, the decision provides little guidance on what steps employers may take to avoid cat’s paw liability.

Shortly before the end of 2010, when several income tax provisions were set to expire, a temporary compromise on the extension of income tax rates and unemployment benefits was reached.  The Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the "Tax Relief Act" or "TRA") was enacted on December 17.  In addition to the income tax provisions and unemployment benefit extensions, the TRA made substantial changes to the federal estate, gift, and generation-skipping transfer tax laws.

You already know how tax-deferred plans benefit your retirement planning, but do you know how to maximize their benefits for your favorite charities?

On Wednesday, February 9, 2011, the Federal Reserve Board approved a final rule implementing the conformance period relating to the so-called "Volcker Rule" under the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act").  The Volcker Rule would prohibit banking entities from engaging in proprietary trading and from investing in or sponsoring hedge funds or private equity funds.  The final rule gives banking firms a period of time to conform their activities to the prohibitions and restrictions of the Volcker Rule.  The final rule will be effective April 1, 2011.

The final rules require companies to include disclosure regarding certain golden parachute arrangements in proxy statements relating to proxy solicitations seeking shareholder approval of a merger or similar significant corporate transaction, as well as in other types of SEC filings.

This update summarizes the key aspects of the final rules on the say-on-pay and say-on-frequency votes and provides practical advice on steps companies can take in anticipation of the upcoming proxy season.

A lifetime gift to a charitable remainder trust (CRT) can produce impressive tax and nontax results. A gift to a CRT qualifies for current income and gift tax charitable deductions although the charity will not have the beneficial use of the property until the noncharitable interests expire. In the meantime, the donor or other noncharitable beneficiaries will receive payments from the trust. Transferring highly appreciated assets to a CRT is particularly attractive - especially for donors who have some charitable interests.

The federal gift tax annual exclusion currently allows each individual to give up to $13,000 each year to an unlimited number of donees – entirely free of tax. (Under the 1997 Tax Act, the amount of the exclusion is indexed to inflation and is rounded to the next lowest multiple of $1,000.)

On February 10, 2011, the California Supreme Court held that a customer's ZIP code is "personal identification information" ("PII") under the California Song-Beverly Credit Card Act of 1971 and that businesses cannot request and record a customer's ZIP code during a credit card transaction.

Should I consider gifting?  The answer to this question is a personal one. It involves a number of factors but first and foremost, one must be satisfied that he or she has more than sufficient wealth to provide for his or her long-term financial security. The amount of wealth required is different for each person. Once this has been achieved, a gifting program can be developed to transfer "surplus" wealth utilizing a variety of gifting strategies that are discussed below.

Charitable lead trusts (CLTs) offer a tax advantaged way to transfer property to family members after a term during which fixed amounts are payable to one or more charities. CLTs can provide for the payment to charity to be in the form of either a fixed amount (an annuity form of trust) or a fixed percentage of the annually determined value of the assets of the trust (a unitrust). CLTs almost always take the form of an annuity trust (a so-called CLAT), because it generally offers a greater overall benefit.

GRATs are a special type of trust, first authorized by Congress in 1990, that can greatly reduce the tax cost of making gifts. Importantly, recent developments confirm that GRATs can be planned that entirely eliminate gift tax costs. GRATs are particularly attractive because they have essentially no downside risk.

Creating an Irrevocable Life Insurance Trust (ILIT) can dramatically increase the liquidity of an individual’s estate and effectively leverage the value of the annual $13,000 per donee gift tax exclusion and the $5,000,000 generation-skipping transfer tax (GSTT) exemption. (Under the 1997 Tax Act, the amount of the annual exclusion is adjusted to reflect changes in the post-1997 inflation rate; adjustments are rounded down to the next lowest $1,000.)

A QPRT is simply an irrevocable trust to which an individual (the "grantor") transfers a personal residence, reserving the right to occupy the residence for a term of a certain number of years. At the end of the term, the trustee of a QPRT either distributes the residence to the designated beneficiaries - usually the grantor's children - or retains the residence in trust for later distribution to the beneficiaries. If the trust continues, the trustee can lease the residence back to the grantor at a market rental rate without causing the residence to be included in the grantor's estate.

On February 3, 2005, the Washington Supreme Court rendered a decision that effectively repealed the Washington estate tax. The legislature and the governor responded by enacting a new State estate tax to address the loss of tax revenue that would otherwise be incurred by the State.

With President Obama's signing of the National Defense Authorization Act for Fiscal Year 2011, the Government Accountability Office's ("GAO") protest jurisdiction over Department of Defense ("DoD") task and delivery orders in excess of $10 million was extended until September 30, 2016.  Although GAO's jurisdiction over DoD orders was extended, GAO's jurisdiction over civilian orders remains scheduled to expire on May 27, 2011.

On Wednesday, February 2, 2011, the SEC proposed rules that define security-based swap execution facilities and establish the facilities' registration requirements, duties, and core principles.  The SEC proposed these rules under the express direction under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") to implement a regulatory framework for security-based swaps.

The Securities and Exchange Commission recently proposed a new rule to conform the definition of “accredited investor” to the requirements under the Dodd-Frank Wall Street Reform and Consumer Protection Act.  In addition, the SEC’s proposed rules also clarify the treatment of debt secured by the property in the calculation of net worth.

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.

At this year’s annual “SEC Speaks” conference held on February 4-5, 2011, representatives from the U.S. Securities and Exchange Commission reviewed the SEC’s 2010 achievements and previewed upcoming 2011 enforcement initiatives.  While last year’s program sent a strong message of aggressive enforcement and regulation, the theme that emerged this year was the growing tension created by the SEC’s expanded mandate to regulate in the face of enormous budgetary constraints that threaten its ability to carry out its mission effectively.  In this regard, the message emerging from 2011’s SEC Speaks appears to be squarely directed to Congress, as the Commission plainly concedes that the bold possibilities created by the Dodd-Frank Wall Street Reform and Consumer Protection Act will require corresponding funding if the Commission is to succeed in meeting its mandate.

The Federal Trade Commission (FTC) recently announced that the reporting thresholds under Section 7 of the Clayton Act, known as the Hart‑Scott-Rodino Antitrust Improvements Act of 1976 (the Act), will be increased.  The Act requires all parties to certain transactions, including mergers and acquisitions that meet or exceed the Act's jurisdictional thresholds, to notify the FTC and the Antitrust Division of the Department of Justice of their intentions and to wait a designated period of time before consummating those transactions.

The Chinese government is in the midst of a six-month Intellectual Property Rights Campaign (“IPR Campaign”) that could provide some much needed help to businesses struggling with intellectual property (“IP”) infringement in China.  The IPR Campaign aims to reduce IP violations related to all types of IP, including copyrights, trademarks and patents.

On June 29, 2010, New Jersey enacted Assembly Bill 3002, which substantially revised the state’s unclaimed property laws.[1]  Many of these revisions directly impact issuers of “stored value cards,” which broadly includes paper gift certificates, gift cards, rebate cards, and other products.[2]  This white paper discusses AB 3002’s requirement to collect consumer names, addresses and zip codes and the abandonment period for stored value cards.

On Friday, January 14, 2011, the SEC proposed a rule requiring security-based swaps dealers and major security-based swap participants "to provide to their counterparties a trade acknowledgment detailing information specific to the transaction."  Trade acknowledgements must be provided within 15 minutes, 30 minutes, or 24 hours of execution of the transaction, depending on whether the transaction is executed or processed electronically.  The new rule is proposed under Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  The rule is aimed at increasing transparency in the security-based swaps market.

On January 24, 2011, the U.S. Supreme Court unanimously held that a man who said he was fired because his fiancée filed a sex discrimination charge against their mutual employer could pursue his claim of retaliation under Title VII of the Civil Rights Act.  Thompson v. North American Stainless LP, No. 09-291 (U.S. Jan. 24, 2011).

In late 2010, the Restore Online Shoppers' Confidence Act, (ROSCA), passed in both chambers of Congress and, on December 29, 2010, was signed by the President. ROSCA will become law once final administrative actions are complete. The Act contains two primary prohibitions: (1) it prohibits and prevents Internet-based post-transaction third party sales and (2) it imposes specific requirements on negative option features.  The relevant terms and provisions are summarized in more detail below.

Washington State recently amended its definition of "accredited investor" to exclude the value of an investor's primary residence from the $1 million threshold calculation.  This change reflects the altered definition of "accredited investor" as mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act.

On December 16, 2010, the Federal Reserve issued a proposed rule under Section 1075 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Section 1075, popularly known as the Durbin Amendment, requires debit-card interchange fees to be “reasonable and proportional” to the cost of the transaction and is widely considered to be a major victory for merchants. The Federal Reserve seeks comment on two alternative standards for determining whether a fee is “reasonable and proportional." It is important to note that these proposed alternatives only apply to debit-card transactions and not to credit-card transactions or certain prepaid cards.

Many companies might be surprised to learn that the difficult to control acts of their foreign agents, intermediaries, consultants, joint venture partners, suppliers, distributors and even outside counsel, private equity portfolio companies and franchisees can result in—and, in fact, have resulted in—potentially devastating civil and criminal Foreign Corrupt Practices Act (FCPA) liability to the principal or parent company . . . even absent any evidence of the company’s actual knowledge of this misconduct. And all indications are that the government will ramp up its reliance on such third-party liability as we move into 2011 and beyond. This update examines the growing threat of third-party liability and how clients can, through precautionary steps tailored to the particular circumstances of the company, effectively fend off the potentially catastrophic effects of third-party liability.
Note: A full-length version of this Update appeared on January 14, 2011, in BNA's White Collar Crime Report (6 WCR 33)

The U.S. Environmental Protection Agency (EPA) recently finalized two rules related to the capture and long-term storage of carbon dioxide, a process that aims to significantly reduce greenhouse gas (GHG) emissions in the atmosphere:  the Geologic Sequestration (GS) rule and a Clean Air Act rule requiring reporting of GHG emissions from GS facilities and all other facilities that inject carbon dioxide (CO₂) underground.

Re-published in Law 360.

With increased trade and closer relations between Taiwan, Republic of China and the People's Republic of China, patent applicants in Taiwan, as of November 22, 2010, can now claim priority to an earlier-filed Chinese patent application and vice versa.

On December 17, 2010, President Obama signed into law the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the “Act”).  Among other provisions, the Act extends for one additional year the exclusion from gross income of 100% of future capital gains of non-corporate taxpayers from certain investments in qualified small business stock.

The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 ("2010 Tax Relief Act"), signed into law on December 17, 2010, provides individual and business tax relief that includes a two-year extension of capital gains and dividend income rate reductions, a two-year extension of individual income tax rate reductions and certain other individual and business tax relief.  Additionally, the legislation increases the estate and gift tax exemption level to $5 million and reduces the tax rate to 35 percent through 2012.

On December 18, 2010, President Obama signed the Red Flag Program Clarification Act of 2010.  Effective immediately, the act changes the definition of the word “creditor” in the FTC Red Flags Rule to exclude most professionals that take payment after rendering services.

On Tuesday, December 14, 2010, the Board of Directors of the FDIC approved an interagency rule implementing certain provisions of Section 171 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, commonly referred to as to the Collins Amendment.  The Collins Amendment requires capital requirements applicable to insured banks to "serve as floor for other capital requirements the agencies establish."  Basel II, as it is, allows for reductions in risk-based capital requirements below those applicable to insured banks, and will need to be altered.

On December 11, 2010, in a one-day special session, the Washington state legislature passed its first ever amnesty program, which the Governor is expected to sign.  Under certain circumstances, taxpayers paying past tax liabilities will have their interest and penalties waived.

The Federal Trade Commission ("FTC") issued a staff report last week that calls on companies to more effectively protect consumer privacy. Stressing that current models for consumer privacy protections have failed to keep pace with technological growth and consumer expectations, the FTC proposes a framework intended to inform future laws and policies. 

The stage is set for a three-way convergence (or train wreck, depending on your point of view) on federal climate change policy as all three branches of government wrestle with big-picture questions about whether, when, and how greenhouse gas (GHG) emissions will be controlled.  This week, the U.S. Supreme Court agreed to consider the question whether states can seek to control industry emissions of GHGs through the federal common law of public nuisance.

On November 19, 2010, the Securities and Exchange Commission released two companion releases proposing new rules related to registration requirements for investment advisers to private funds, including hedge funds, private equity funds and other pooled investment vehicles.

When the American Recovery and Reinvestment Act of 2009 (“ARRA” or the “Recovery Act”) was enacted in February 2009, it gave broad investigative and examination powers to the Office of the Inspector General (“OIG”) and the Comptroller General of the Government Accountability Office (“GAO”).  It is critical when dealing with investigations conducted by these federal agencies to understand how these changes may impact your business.

On Tuesday, November 9, the Board of Directors of the Federal Deposit Insurance Corporation approved a final rule implementing section 343 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Section 343 allows for temporary unlimited deposit insurance coverage for noninterest bearing transaction accounts.  This coverage will become effective on December 31, 2010 and will terminate on December 31, 2012.

Although no one has yet successfully sued a company for climate change damage allegedly caused by greenhouse gas ("GHG") emissions, lawsuits blaming industrial emitters for global warming, extreme weather events and other natural disasters are pending in Alaska, Washington, D.C., California and Louisiana.  Shareholder resolutions to force companies to limit their carbon emissions are becoming commonplace, and corporate executives and risk managers are becoming ever increasingly concerned about business risks related to climate change.

2010 has seen a number of new developments concerning employee benefit plans and also marks the deadline for amending plan documents to come into compliance with certain developments from recent years. Below is a brief list of some significant plan issues from 2010 that may require prompt action. Items discussed in this update are only general descriptions of the required amendments and the actions that may be necessary. For more information on any topics discussed here, contact an attorney in our Employee Benefits and Executive Compensation practice group.

Consumers crave environmentally friendly products and services, so naturally advertisers weave "green" messages into advertising, using "eco-friendly" words, images, brand names, logos and certifications. But making false or misleading green claims can trigger legal challenges that result in a wide range of penalties and negative publicity.

If your business provides automatically renewed or continuous subscriptions for services such as online games, online or print publications, or other subscription content, then you will need to tailor your service offers to California residents to meet the requirements of California Senate Bill 340 ("SB 340") by December 2010

On October 21, 2010, the New York Court of Appeals issued an important ruling that significantly limits the ability of corporations and those who stand in their shoes (e.g., a bankruptcy trustee or a derivative plaintiff) to assert claims against third-party professionals for assisting or failing to detect wrongdoing by the corporation’s own management.

On November 19, 2010, the Securities and Exchange Commission proposed a new rule, based on requirements under the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, defining “venture capital funds” for purposes of exempting advisers to these funds from registering under the Investment Advisers Act of 1940.

Recent news reports that the National Labor Relations Board has accused an employer of violating federal labor law when it discharged an employee for bad-mouthing her boss on her Facebook page is a timely reminder that most employees have extensive protection under federal law, whether or not they are represented by a union.

On October 28, 2010, in Lummi Indian Nation v. State, the Washington Supreme Court unanimously upheld Washington's 2003 Municipal Water Law ("MWL") against facial constitutional challenges brought by several Indian tribes and environmental groups.

The U.S. District Court for the Western District of Washington granted Amazon.com's request for  declaratory judgment that the North Carolina Department of Revenue’s (the Department) information requests for the production of customer purchase records violated the First Amendment and the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710.  Amazon.com LLC v. Lay, No. C10-664-MJP, 2010 WL 4262266 (W.D. Wash. Oct. 25, 2010).

The SEC recently settled a Regulation FD action against Office Depot and several of its executives.  This Update summarizes the key issues addressed in this action and offers practical guidance.

Effective November 1, 2010, the U.S. Sentencing Commission has changed how fines for companies are calculated under the U.S. Sentencing Guidelines. The inquiry has now shifted away from the (mis)conduct of the company’s high-level personnel and toward the effectiveness of the company’s compliance and ethics program.

On October 26, 2010, the Justice Department announced a $750 million settlement of criminal and civil actions stemming from a whistleblower suit against the pharmaceutical manufacturer GlaxoSmithKline (GSK).  The settlement, which included a record $96 million award to the whistleblower, reflects the growing number and scale of False Claims Act (FCA) suits against the health care industry.

The SEC recently issued proposed rules to implement the provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act that mandate shareholder advisory votes on executive compensation (the say-on-pay vote), on the frequency of the say-on-pay vote, and on golden parachute compensation arrangements, as well as related disclosure requirements.

The IRS announced the Year 2011 cost-of-living adjustments for various provisions affecting employee benefit plans.  The following table shows certain Year 2011 limits and those from prior years.  2011 limits listed below remain unchanged from 2010.  The IRS publication with a complete list of 2011 limits can be found at http://www.irs.gov/newsroom/article/0,,id=229975,00.html.

Among the many tax issues implicated by separation arrangements are two relatively new developments that may require special attention when drafting offer letters, severance plans, release agreements, change in control arrangements and similar separation arrangements.  Employers should review their separation arrangements by year-end to address these new developments.

On Tuesday, October 19, 2010, the Board of Directors of the FDIC approved a proposed long-range plan for deposit insurance fund management.  The proposal was created in response to the FDIC's altered authority under the Dodd-Frank Wall Street Reform and Consumer Protection Act

Earlier this month, the Federal Trade Commission and the Department of Justice published their Hart‑Scott‑Rodino Annual Report for Fiscal Year 2009 for the period from October 1, 2008 to September 30, 2009. The Annual Report summarizes Federal Trade Commission and Department of Justice actions conducted under the Hart-Scott-Rodino Antitrust Improvements Act, or HSR Act, in fiscal 2009.

The OECD has criticized other signatory nations for not living up to their anti-bribery obligations, and in its just released report also identifies certain discrete areas for U.S. improvement. But the bottom line message is that the U.S. government is a leader in anti-corruption enforcement.

On Wednesday, October 13, 2010, the SEC adopted an interim rule requiring certain swap dealers to report security-based swaps entered into prior to the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act on July 21.

On Tuesday, October 12, 2010, Minnesota-based TCF Financial Corp. filed a lawsuit against the Federal Reserve in order to declare the Durbin Amendment, found in the Dodd-Frank Wall Street Reform and Consumer Protection Act, unconstitutional.  The Durbin Amendment allows the Federal Reserve to limit how much a bank with assets exceeding $10 billion can charge retailers when using a debit card.  TCF argues that the Durbin Amendment favors small banks and, therefore, violates the bank's right to equal protection.

On September 13, the Ninth Circuit issued its fourth (and final) opinion in United States v. Comprehensive Drug Testing, an en banc opinion issued per curiam.  The opinion tackles the applicability of the plain view doctrine to digital evidence, the Government’s obligation to segregate and return non-responsive electronic data, Federal Rule of Criminal Procedure 41(g)’s applicability when a motion is made by a party against whom no criminal charges are pending, and the appropriateness of using a subpoena to obtain the same information previously sought pursuant to a search warrant but ordered returned pursuant to Rule 41(g).

The U.S. Supreme Court has denied certiorari in Apex Oil Co., Inc. v. United States, No. 09-1023, 2010 WL 752322 (U.S. Oct. 4, 2010).  At issue in Apex was whether an injunctive order requiring a cleanup of contamination under the Resource Conservation and Recovery Act (RCRA) may be discharged in bankruptcy.

On October 12, 2010, the Securities and Exchange Commission proposed a new rule, based on requirements under the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, defining “family offices” that will be excluded from regulation under the Investment Advisers Act of 1940.

When consumers type your brand names into an Internet search engine this holiday season, do you expect that your website or the stores that sell your product would be at the top of the results list?  They might.  But the first link could direct those consumers to your fiercest competitor's site. 

On Monday, September 27, 2010, the FDIC Board of Directors approved a final rule extending through December 31, 2010 the Safe Harbor Protection for Treatment by the FDIC as Conservator or Receiver of Financial Assets Transferred by an Insured Depository Institution in Connection With a Securitization or Participation.  This final rule ensures that securitizations or participations in process before the end of 2010 will be permanently grandfathered under the existing terms of treatment.

On September 27, 2010, President Obama signed into law the Creating Small Business Jobs Act of 2010 (the “Act”).  Among other provisions, the Act excludes from gross income for regular income and alternative minimum tax purposes 100% of the capital gains (subject to a per issuer limitation described below) of non-corporate taxpayers from investments in qualified small business stock made after September 27, 2010 and before January 1, 2011.  For investments in qualified small business stock made after December 31, 2010, only 50% of the capital gains generally will be excluded from gross income.

On September 24, 2010, the IRS released final Schedule UTP and its corresponding instructions that require certain corporations with audited financial statements to report uncertain tax positions.  Earlier this month, on September 9, 2010, a notice of proposed rulemaking was issued setting forth a proposed regulation that specifically authorizes the IRS to require the filing of Schedule UTP. 

On July 28, 2010, the Securities and Exchange Commission adopted amendments to Part 2 of Form ADV, the form used by investment advisers to register with the SEC and state securities regulators.  These amendments are effective for filings made on or after October 12, 2010.  Also affecting advisers are changes made as a result of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or the Financial Reform Act, which President Obama signed into law on July 21, 2010. Both the SEC's recent action and the Financial Reform Act make a variety of changes to the Investment Advisers Act of 1940.

On September 17, 2010, the Federal Energy Regulatory Commission (FERC or Commission) issued a Revised Policy Statement on Penalty Guidelines (Revised Policy Statement).  The Revised Policy Statement modifies the penalty guidelines that were issued on March 23, 2010 and subsequently suspended to allow for public comments.

On Friday, September 17, 2010, the SEC proposed new rules requiring public companies to disclose information regarding short-term borrowing.  The new rules are designed "to enable investors to better understand whether amounts of short-term borrowings reported at the end of reporting periods are consistent with amounts outstanding throughout the reporting periods."  Enhanced disclosure would be included in the Management's Discussion and Analysis of Financial Condition and Results of Operations section of a public company's quarterly and annual reports and would include quantitative information for each type of short-term borrowing used as well as additional information to provide a context for the quantitative data.

On September 16, 2010, the Federal Energy Regulatory Commission ("FERC" or the "Commission") re-affirmed its March 18, 2010 order directing the North American Electric Reliability Corporation ("NERC") to revise its reliability standards development process in order to ensure that the process cannot be used to negate a Commission directive.

On Friday, September 10, 2010, the SEC announced the approval of new rules submitted by the national securities exchanges and FINRA to expand circuit breaker rules to all stocks in the Russell 1000 Index and certain exchange-traded funds.

Earlier this year, the Building Owners and Managers Association (BOMA) International adopted new measurement standards for office buildings.

When the American Recovery and Reinvestment Act of 2009 ("ARRA"), was enacted in February 2009, the compliance landscape for state agencies and contractors shifted significantly.  Although promising substantial funds to state agencies, the ARRA also demands a level of transparency and oversight previously unseen in government contracting.  State agencies and contractors need to become knowledgeable regarding these compliance "strings" attached to ARRA funds. This is the first of three updates that will focus on ARRA compliance requirements for state agencies and their contractors or grantees.  This Update focuses on reporting and registration requirements. 

Collecting the right retail sales tax is sometimes a difficult task, but the government should not intentionally make it harder.  Unfortunately, because of a recent change in the law, retailers with operations in Washington state faced a confusing and uncertain tax environment, made worse by an unfortunate injunction obtained by the City of Bellingham and Whatcom County. 

On August 11, 2010, a California appeals court upheld most of a $21 million predatory pricing judgment against a Bay Area alternative weekly newspaper in Bay Guardian Co. Inc. v. New Times Media L.L.C., No. A122448, 2010 WL 3156631 (Cal. Ct. App. Aug. 11, 2010).  The case reinforced the need for companies doing business in California to tread lightly when considering pricing below cost, as the court based its ruling in part on the wide-reaching nature of California’s Unfair Practices Act.

Federal contractor past performance information—traditionally made available only to federal acquisition professionals for use in making award and responsibility determinations—will soon be made available to the general public at the Federal Awardee Performance and Integrity Information System ("FAPIIS") website, http://www.ppirs.gov/fapiis.html.

Recently the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice jointly released their new Horizontal Merger Guidelines (the 2010 guidelines).

At yesterday's open meeting of the Securities and Exchange Commission (SEC), a split Commission approved rule amendments to permit shareholders to nominate directors for corporate boards.

The Federal Trade Commission recently announced and asked for comments about proposed changes to the Hart-Scott-Rodino (HSR) premerger notification rules and report form.

Since 1965 Washington State has granted a retail sales tax exemption for purchases of goods for use outside the state by residents of states and provinces with a retail sales tax of less than 3%.

Title VII of the Financial Reform Act, entitled "Wall Street Transparency and Accountability," substantially overhauls the regulation of the over-the-counter derivatives markets.  This Update provides highlights of the Financial Reform Act as it relates to derivatives.

Until now, the Environmental Protection Agency (EPA) has acted on the assumption that National Pollution Discharge Elimination System (NPDES) permits are not required for discharges of pollutants from ditches, culverts and channels that collect stormwater runoff from logging roads.

On August 10, 2010, President Obama signed into law the Education Jobs and Medicaid Assistance Act of 2010 (the “Act”).

On June 30, 2010, the House of Representatives approved the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, a comprehensive and expansive set of financial reforms widely thought to be the toughest changes to financial regulation in the United States since the Great Depression.

On June 30, 2010, the House of Representatives approved the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, a comprehensive and expansive set of financial reforms widely thought to be the toughest changes to financial regulation in the United States since the Great Depression.

Perkins Coie is pleased to announce the publication of a new edition of the Executive Compensation Disclosure Handbook: A Practical Guide to the SEC's Executive Compensation Disclosure Rules, a publication written by Perkins Coie attorneys and published by RR Donnelley.

The Departments of Labor, Health and Human Services and Treasury (the "Departments") recently issued Interim Final Regulations (the "Regulations") on grandfathered health plans under the Patient Protection and Affordable Care Act ("PPACA").

On July 21, 2010, President Barack Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, declaring the Financial Reform Act to contain "the strongest consumer financial protections in history."

On June 30, 2010, the House of Representatives approved the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, a comprehensive and expansive set of financial reforms widely thought to be the toughest changes to financial regulation in the United States since the Great Depression.

On Wednesday, July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 into law.

Under a new Federal Acquisition Regulation ("FAR") requirement, effective July 8, 2010, federal contractors must disclose first-tier subcontractor award information for contracts valued at $25,000 or more.

On June 30, 2010, the House of Representatives approved the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, a comprehensive and expansive set of financial reforms widely thought to be the toughest changes to financial regulation in the United States since the Great Depression.

Congress has approved the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, and President Obama has signed it into law.

In April the Chinese Ministry of Science and Technology ("MOST"), the National Development and Reform Commission ("NDRC"), and the Ministry of Finance ("MOF") jointly issued the Draft Notice Regarding the Launch of the National Indigenous Innovation Product Accreditation Work for 2010.

YouTube received a resounding win in a recent decision in the long-running Viacom v. YouTube case.

On Thursday, July 15, 2010, the Senate approved the Dodd-Frank Bill by a vote of 60 to 39.  Having already passed the House, it is now anticipated that President Obama will sign the bill into law next week.

On Tuesday, June 29, 2010, the conference committee that previously finalized the Dodd-Frank Bill reopened the conference in order to swap out a controversial $19 billion tax on large banks in favor of winding TARP down early and assessing modest fees through the FDIC.

Last year, Governor Christine Gregoire signed into law the Uniform Limited Partnership Act, or ULPA.  ULPA modified Washington's existing limited partnership statute, which was based on the Revised Uniform Limited Partnership Act, or RULPA.  ULPA became effective for new limited partnerships on January 1, 2010, but generally takes effect for existing limited partnerships, with certain significant exceptions, on July 1, 2010.

By a 5-4 vote, the United States Supreme Court has rejected the notion that business methods are categorically unpatentable. By a unanimous vote, however, the Court has affirmed the PTO and Federal Circuit’s rulings rejecting Bilski’s patent claims on methods of hedging commodity risks. The Court also unanimously agreed that while the "machine or transformation" test adopted by the Federal Circuit is a useful indicator of patentability, it is not the sole test for patentability under Section 101 of the Patent Act. Although many had feared--and some had hoped--that all software patents were in jeopardy, the Court’s relatively narrow decision should allay those fears and dash those hopes.

Early Friday morning, June 25, 2010, the House-Senate Conference reached final agreement on financial regulatory reform legislation, otherwise known as the Dodd-Frank Act of 2010. The Act, among other things, establishes a consumer financial protection entity, eliminates "too big to fail" bailouts, establishes a warning system to avoid systemic crises, and improves transparency and accountability for complex financial instruments as derivatives.

The House-Senate Conference Committee continues to negotiate financial regulatory reform legislation. Both sides have put forth offers and counter offers in an effort to have the final legislation signed by the President before the July 4th recess.

On July 6, 2010, the Federal Reserve's Regulation E prohibition of overdraft fees will take effect. From then on, financial institutions will no longer be able to charge a fee when a consumer overdraws a checking account by making a debit card purchase or requesting an ATM withdrawal for an amount that exceeds the consumer's available funds, unless the overdraft service is expressly authorized by the account holder.

On June 15, 2010, the House-Senate Conference committee began reconciling the two versions of financial regulatory reform legislation. The current timeline is to have the President sign a finalized bill by the July 4th recess.

On June 10, 2010, amendments to Washington's Limited Liability Company Act, which address the dissolution of a Washington limited liability company, took effect.

The Federal Circuit held in Pequignot v. Solo Cup Co., No. 2009-1547 (June 10, 2010), that the false marking statute, 35 U.S.C. § 292, applies to products marked with expired patents, although the presumption of intent to deceive the public is weaker in such cases than in cases involving marking with patents that never covered the product.

The framework for international arbitration is provided primarily by arbitration agreements, institutional rules and national laws.  Those sources, however, typically say little or nothing about rules of evidence or the process for presenting documents, fact and expert witnesses, discovery, and the conduct of the evidentiary hearing.

The U.S. Court of Appeals for the Ninth Circuit ruled last week that potentially responsible parties ("PRPs") in Superfund cases that are not settling with the government may intervene in a consent decree approval proceeding.

This is the first of a two-part update on climate change risk management and how it might create business risks — ranging from supply chain interruptions to third-party claims for economic damages caused by unusual weather events.

On May 27, 2010, the Washington State Department of Ecology ("Ecology") released a draft guidance document ("Guidance") for use by state and local lead agencies when evaluating proposals under the State Environmental Policy Act ("SEPA") that will result in greenhouse gas ("GHG") emissions or that may be vulnerable to the effects of climate change.

On Wednesday, June 2, 2010, the Economic and Monetary Affairs Committee approved a resolution to toughen regulation regarding derivatives trading so as to "reduce speculative trading" and ensure that derivates are traded openly and with uniform standards.

The U.S. Environmental Protection Agency ("EPA") just published in the Federal Register its final rule to control greenhouse gas emissions ("GHGs") from stationary sources under the two major Clean Air Act ("CAA" or the "Act") permitting programs.

On Friday, May 28, 2010, the House passed the American Jobs and Closing Tax Loopholes Act of 2010, H.R. 4213.  The bill passed by a vote of 215-204.

The Patient Protection and Affordable Care Act, signed into law on March 23, 2010, provides an opportunity for biotech and biopharma companies to recover certified investments in qualifying therapeutic discovery projects as a cash grant or a tax credit.

On Thursday Evening, May 20, 2010, the Senate passed the Restoring American Financial Stability Act of 2010.  The vote of 59 to 39 came with four Republicans voting in favor of the bill, and two Democrats voting against it.

On Thursday, May 20, 2010, the Senate invoked cloture on the Restoring American Financial Stability Act of 2010.  The vote of 60-40 allows the Senate to move the bill to a final vote by the end of the week, although it can still be further amended before the final Senate vote.

Parties often seek to modify the default rule that arbitrators may award costs, including attorneys’ fees, as part of the final award by providing that each party shall bear its own costs.

On Wednesday, May 5, 2010, Congressman Mike Pence (R-IN), Chairman of the House Republican Conference, and Conference Vice-Chair Cathy McMorris Rodgers (R-WA) sent a letter to Vice President Joe Biden, opposing an International Monetary Fund (IMF) bailout for Spain.

Last month, the United States Environmental Protection Agency (EPA) published a notice in the Federal Register soliciting public comment on the effects of "ocean acidification" as it relates to the listing of impaired waters under section 303(d) of the Clean Water Act (CWA).

On April 23, 2010, Governor Christine Gregoire signed into law Second Engrossed Substitute Senate Bill 6143, which extends Washington's business and occupation (B&O) tax to corporate directors beginning July 1, 2010. 

In Stolt-Nielsen, S.A. v. AnimalFeeds International Corp., No. 08-1198 (U.S. Apr. 27, 2010), the U.S. Supreme Court placed a significant roadblock in the path of commercial parties who desire to use arbitration as a vehicle to obtain classwide relief. 

On Wednesday, April 28, 2010, Senate Republicans finally agreed to allow the opening of the debate of the Restoring American Financial Stability Act of 2010.

On April 20, 2010, the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice jointly released their proposed revisions to the Horizontal Merger Guidelines for public comment.

In the Update issued on March 23, 2010, we reported that the Federal Energy Regulatory Commission (FERC or Commission) had issued a policy statement and new civil Penalty Guidelines intended to add fairness, consistency and transparency to future civil penalty determinations.

On Friday, April 16, 2010, President Obama threatened to veto a Wall Street reform bill that fails to regulate the derivatives market.  The President stated that he “want[s] to see what emerges, but [he] will veto legislation that does not bring the derivatives market under control in some sort of regulatory framework and assures that we do not have the same sort of mess that we've seen in the past.”

Recent events suggest the importance of understanding the basics of patent marking. You are not required to mark your patented products with the corresponding patent numbers.  However, there are a number of reasons why you should consider doing so.

President Obama signed the Patient Protection and Affordable Care Act ("PPACA") on March 23, 2010 and the Health Care and Education Reconciliation Act ("RA") on March 30, 2010 (together, the "Acts").

On Wednesday, April 7, 2010, Federal Reserve Chairman Ben Bernanke gave a speech at the Dallas Regional Chamber discussing the origins of the financial crisis, the Federal Reserve's policy responses, and both near term and longer term economic challenges facing the United States.

On April 12, 2010 the Washington State Legislature resolved the budget impasse and adopted a $794 million tax package that the governor is expected to sign.  The tax bill, 2ESSB 6143, contains a number of major changes to Washington’s tax system.

On March 15, 2010, the Securities and Exchange Commission approved Nasdaq's proposed rule change to modify its requirements pertaining to public disclosures by listed companies.  In an effort to eliminate duplicate disclosures, the Nasdaq rule change will allow companies to make a public announcement by filing a Form 8-K, where required by SEC rules, or by issuing a press release.

A federal district court in Michigan has held that certain supplemental unemployment compensation benefits ("SUB pay") are not "wages" subject to Federal Insurance Contributions Act ("FICA") taxation. 

Biotech and biopharma companies now have an opportunity to recover up to 50% of their qualified investments in qualifying therapeutic discovery projects as a cash grant or tax credit. 

On Thursday, March 25, 2010 the Securities and Exchange Commission announced that it is conducting a review to evaluate the use of derivatives by mutual funds, exchange-traded funds and other investment companies.

Continuing its focus on Regulation FD, the SEC filed an action in early March against Presstek, Inc., a manufacturer and distributor of high-technology digital imaging equipment, and its former CEO, Edward J. Marino.  

The ability to credit bid is a valuable right for secured lenders.  With a credit bid, a secured lender may participate in an auction of assets by bidding up to the amount of its secured claim merely by giving credit against the secured claim – that is, the lender need not come up with any additional cash in order to compete in the sale. 

On March 18, 2010, the Federal Energy Regulatory Commission (FERC or the Commission) approved, with modifications, certain Violation Severity Level (VSL) assignments for Critical Infrastructure Protection (CIP) reliability standards as proposed by the North American Electric Reliability Corporation (NERC).[1]  The Commission also provided additional guidance for determining appropriate VSLs in the context of requirements in the cyber security reliability standards.

On Thursday, March 18, 2010, members of the House Financial Services Committee, Ranking Member of the Capital Markets Subcommittee, Scott Garret (R-NJ), along with support from Chairman Paul Kanjorski (D-PA) and Ranking Member Spencer Bachus (R-AL), introduced the United States Covered Bond Act.

The IRS recently issued Revenue Procedure 2010-14, which provides long-awaited guidance for taxpayers whose deferred like-kind exchange of relinquished property would be non-taxable under Section 1031 of the Internal Revenue Code but for the failure of the qualified intermediary ("QI") to acquire and transfer identified replacement property due to the QI's insolvency proceedings.

On March 18, 2010, the Federal Energy Regulatory Commission (FERC or Commission) issued a policy statement and new civil penalty guidelines (Penalty Guidelines) intended to add fairness, consistency and transparency to future civil penalty determinations.

Until recently, the taxability of Smart Grid Investment Grants (SGIGs) was an undecided issue. Effective March 10, 2010, the Internal Revenue Service (IRS) has announced that these grants will be treated as nonshareholder contributions to the capital of grant recipients and thus not included in their taxable gross income.

On Monday, March 15, 2010, Senator Christopher J. Dodd (D-CT), Chairman of the Senate Banking, Housing and Urban Affairs Committee, released a draft of a financial services reform bill entitled "Restoring American Financial Stability Act of 2010."  This legislative proposal is a companion to a similar bill that was passed by the House of Representatives in December 2009.

"Points," "coins," "bucks" and other forms of virtual currency are becoming standard offerings for online game sites, social media sites, retailers and other businesses. Virtual currency systems generate revenue, provide low-cost alternatives to credit cards for micropayments, offer prepaid solutions appealing to youth and other users without credit cards, and help companies build attractive loyalty programs.

On Thursday, February 25, the Technical Committee of the International Organization of Securities Commissions (IOSCO) published a template for the global collection of hedge fund information.  SEC Commissioner Kathleen Casey is the chair of the Technical Committee of IOSCO.  The IOSCO template is aimed at enabling “the collection and exchange of consistent and comparable data amongst regulators and other competent authorities for the purpose of facilitating international supervisory cooperation in identifying possible systemic risks in this sector.”

The Securities and Exchange Commission recently adopted amendments to the e-proxy rules in an effort to increase shareholder participation in the voting process.  Data indicates that, since the adoption of the e-proxy model, participation by retail shareholders has been lower when those shareholders receive only the Notice of Internet Availability rather than a full set of proxy materials.

On Friday, February 19, the Federal Reserve launched an informational website aimed at helping consumers understand the recent credit card rules, which took effect Monday, February 22.  The website helps consumers by summarizing the rules, promulgated as part of the Federal Reserve's implementation of provisions of the Credit Card Accountability, Responsibility and Disclosure Act of 2009 (Credit CARD Act), and explaining how they will affect credit card users.

The Securities and Exchange Commission has proposed amendments to clarify and modernize Rule 10b-18 of the Securities Exchange Act of 1934 that governs public companies' repurchases of their common stock.  The SEC is accepting comments to these proposed amendments through March 1, 2010.  This Update summarizes the key issues in the proposed amendments and alerts you to the opportunity to make comments on the proposal.

On January 21, 2010, the Colorado Court of Appeals issued a decision upholding the right of lenders to charge a prepayment premium.  Planned Pethood Plus, Inc. v. Keycorp, Inc., 228 P.3d 262  (Colo. App. 2010). 

As of February 22, 2010, the reporting thresholds under Section 7 of the Clayton Act, known as the Hart Scott-Rodino Antitrust Improvements Act of 1976 (the Act), decreased.

Compliance with the North American Electric Reliability Corporation (NERC) Reliability Standards, particularly the Critical Infrastructure Protection Reliability Standards (CIP Standards), can be challenging if not onerous.  In addition, failure to comply with the standards presents potentially costly risks for companies involved in the generation, transmission and distribution of electricity.  This Update discusses the scope of NERC reliability compliance and includes tips to help ensure compliance with the CIP Standards and other Reliability Standards.

Prototype and volume submitter defined contribution plans (such as profit sharing, 401(k) and money purchase pension plans) must be amended and restated for the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA Restatement) and subsequent legislation and guidance by April 30, 2010.  Employers who maintain a prototype or volume submitter defined contribution plan should have been contacted by their document provider who will provide the required restatement.

The successive snow storms in Washington D.C. have limited the activity this week in Congress on financial services reform.  Nonetheless, on Tuesday, February 9, House Financial Services Committee Chairman, Barney Frank issued a statement regarding the financial industry and the need for increased consumer protection in the U.S. financial industry. 

On February 2, 2010, the Securities and Exchange Commission issued an interpretive release related to climate change disclosure for publicly traded companies.  The SEC approved the issuance of this guidance on January 27, 2010, as discussed in our February 1, 2010 Update.  The interpretive release is effective when published in the Federal Register.  This Update summarizes the key issues in the interpretive release and offers practical advice.

On January 14, 2010, the Commodity Futures Trading Commission (CFTC) held a public meeting to decide whether to issue a Notice of Proposed Rulemaking (NOPR) that would allow the CFTC to impose federal speculative position limits for futures and option contracts of certain energy commodities.  By a vote of 4-1, with Commissioner Jill Sommers dissenting, the CFTC agreed to publish the NOPR.  The purpose of the NOPR is to address concerns over volatile energy prices and excessive speculation in commodity markets.

On Wednesday, January 27, the SEC approved new rules aimed at reforming the regulation of money market funds in order to increase investor protection and curb risk. The approval provides for new rules and amends existing rules under the Investment Company Act of 1940.

On January 29, 2010, the U.S. Secretary of Energy, Steven Chu, announced the formation of a Blue Ribbon Commission on America's Nuclear Future to provide recommendations for developing a safe, long-term solution to managing spent nuclear fuel and nuclear waste.  The chairs of the new commission are former Congressman Lee Hamilton and former National Security Advisor Brent Scowcroft.

The U.S. Environmental Protection Agency (EPA) developed its recent Clean Water Act (CWA) Enforcement Action Plan (the Plan) to renew and embolden state and federal enforcement actions to protect water quality across the nation. Under the Plan, released last fall, the EPA targets enforcement at the most significant water pollution problems and will work to improve transparency and accountability by providing the public with access to better data on water quality in their communities.

On January 27, 2010, the Securities and Exchange Commission announced the adoption of interpretive guidance related to climate change disclosure for publicly traded companies.  This Update answers questions based on the SEC's press release and related open meeting, and offers practical advice.  Upon publication of the SEC's interpretive release, which is expected to occur soon, we will issue an additional Update with further guidance.

On December 19, 2009, the COBRA subsidy program first introduced by the American Recovery and Reinvestment Act of 2009 (ARRA) was extended as a part of the Department of Defense Appropriations Act, 2010 (2010 Act).  The extension allows individuals who are involuntarily terminated up to February 28, 2010 to pay only 35% of the premium for COBRA coverage and extends the maximum duration of subsidized coverage from 9 to 15 months.

On January 21, 2010, the U.S. Department of Justice (DOJ) filed in federal court in Washington, D.C. a complaint and consent decree requiring two merging companies (Smithfield Foods (Smithfield) and Premium Standard Farms LLC (Premium Standard)) to pay $900,000 in civil penalties for violations of the "file and wait" provisions of the Hart‑Scott‑Rodino Antitrust Improvements Act of 1976.

On Thursday, January 21, House Financial Services Committee Chairman Barney Frank (D-MA) released a memo clarifying uncertainties surrounding the Consumer Financial Protection Agency (CFPA).

The U.S. Supreme Court issued its decision in Citizens United v. FEC, a case examining the legality of a documentary film released in 2008 about Hillary Clinton’s candidacy for president. In a 5-4 ruling, the court struck down laws banning independent electoral and issue advocacy sponsored by nonprofit and for-profit corporations. 

On December 10, 2009, the United States Court of Appeals for the Ninth Circuit decided the case of Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009) dealing with a child abuse investigative interview at a public school.  The case arose in Oregon, whose system is similar to Washington's.  The court determined that an interview at school of a suspected nine-year-old female victim of familial sexual abuse was a "seizure" under the Fourth Amendment, requiring probable cause and a prior court-issued warrant.   

Long-awaited Washington Supreme Court decision clarifies scope of Washington Consumer Protection Act and Washington's rules for certification of class actions, rejecting plaintiffs' proposed nationwide class against company "headquartered" in Washington.

Last week, the Federal Reserve issued new rules regulating credit cards that go into effect February 22, 2010.  These consumer protective rules will affect credit card companies and consumers alike.

Three major tax bills were introduced this week as part of the governor’s budget package.  All three appear to be on a fast track and have been scheduled for a hearing before the House Finance Committee this coming Tuesday January 26, 2010 at 1:30 p.m. 

On January 13, 2010, the U.S. Supreme Court issued a decision holding that the Mobile-Sierra public interest standard applies to third parties that were not parties to the underlying wholesale energy contract.  NRG Power Mktg., LLC v. Maine Pub. Util. Comm’n, No. 08-674, 2010 WL 98876 (U.S. Jan. 13, 2010) (NRG v. Maine PUC).  This decision upholds the purpose of the Mobile-Sierra doctrine, which is to create additional stability in wholesale energy contract markets and ultimately provide more certainty for both buyers and sellers.

On September 30, 2009 we reported that the U.S. Environmental Protection Agency (EPA) issued its final rule for mandatory Greenhouse Gas (GHG) reporting. In recent months, a number of our industrial clients with plants in the United States, Canada, the United Kingdom, the European Union and Australia have inquired about compliance with the new EPA rule and standards for voluntary and required GHG reports in the United States and elsewhere.

On December 18, 2009, the U.S. Court of Federal Claims issued an opinion awarding more than $50 million to Perkins Coie's client, Wisconsin Electric Power Company (WE), in its claim against the U.S. Department of Energy (DOE) for the partial breach of a contract to accept and dispose of spent nuclear fuel (SNF) and high-level waste (HLW) from WE's Point Beach Nuclear Power Plant.

On January 6, 2010, the U.S. Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking identifying three industry sectors for which it will begin the regulatory development process for financial assurance requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

With the recent flurry of legislative activity focused on reform of the regulatory framework for financial institutions and the financial markets, the Perkins Coie Financial Services Practice is pleased to bring you the Financial Services Bulletin. This bulletin highlights recent legislative activity impacting financial services and financial institutions. The group plans to publish future bulletins as new legal developments are announced.

The Internal Revenue Service recently issued new final regulations addressing the return and information statement requirements applicable to exercises of incentive stock options, or ISOs, and transfers of shares purchased under an employee stock purchase plan, or ESPP.  The IRS has waived the requirements under the new regulations for ISO exercises and transfers of ESPP shares that occur during 2009.

The Securities and Exchange Commission recently adopted final rules to require enhanced compensation and corporate governance disclosure for public company proxy statements and other SEC filings.  The final rules reflect changes that clarify, and in some instances broaden, the proposed rules issued on July 17, 2009.  The SEC designed these amendments to improve corporate disclosures and allow shareholders to make more informed voting and investment decisions.

On Friday, December 11, 2009, the House passed the extensive Wall Street Reform and Consumer Protection Act.  The Wall Street Reform Act, as proposed to the floor of the House and aimed at financial regulatory reform, was discussed in our December 11, 2009  Financial Services Bulletin.

The days of self-issued resale certificates in Washington state are numbered.  Effective January 1, 2010, buyers in Washington must provide a reseller permit or a Streamlined Sales and Use Tax Agreement ("SSUTA") exemption certificate with the buyer’s reseller permit number in order to purchase goods and services for resale without paying sales tax.

On November 25, 2009, the Securities and Exchange Commission approved in their entirety the proposed amendments to the corporate governance requirements of the NYSE Listed Company Manual.  These amendments will become effective January 1, 2010.

As part of its initiative to strengthen enforcement of energy efficiency standards, the U.S. Department of Energy (DOE) announced on December 9, 2009 that it will give manufacturers a 30-day grace period—ending on January 8, 2010—to file or update certifications of compliance with energy efficiency standards for appliances.  After that date, DOE will begin more aggressively enforcing the certification requirements.

On December 9, 2009, marking the one-year anniversary of former Gov. Blagojevich’s arrest, Gov. Quinn signed legislation enacting the state’s first comprehensive campaign finance regulations.

On December 7, 2009, the U.S. Department of Energy (DOE) invited applications to be filed for the second round of grant funding under the Advanced Research Projects Agency – Energy (ARPA-E) grant program. 

On Wednesday, December 2, 2009, the House Financial Services Committee finished working on a comprehensive set of legislative initiatives aimed at financial regulatory reform, which are reflected in The Wall Street Reform and Consumer Protection Act (H.R. 4173).

The U.S. Patent Office (PTO) just announced a pilot program that will advance "green tech" patent applications out of turn for early examination.  The program allows patent applicants to petition the PTO to "make special" a green tech patent application.

The U.S. Treasury Department, chair of the Committee on Foreign Investment in the United States ("CFIUS"), recently published guidance on the types of transactions previously reviewed by CFIUS that have presented national security considerations ("Guidance").  The Guidance is intended to provide insight into how CFIUS identifies the national security effects of covered transactions and may assist parties considering whether to file a voluntary notice of a transaction with CFIUS [1]. This is an important determination because, although filing a CFIUS notice is voluntary, the parties may be forced to unwind a transaction where no filing was made if the President later determines it poses national security risks.

Facebook updated its Promotions Guidelines ("Guidelines") on November 4, 2009, which govern the publicizing and administering of all promotions, including contests, sweepstakes, competitions or similar offerings on Facebook.  The changes to the Facebook Guidelines expand Facebook's restrictions on the content of promotions publicized or administered through the Facebook Platform and limit the manner in which a business may use Facebook to publicize or administer promotion(s). 

Product endorsements and testimonials are one of the most effective and powerful advertising techniques used by retailers.  As a result, the Federal Trade Commission (FTC) has for years regulated such advertising in traditional media—television, radio and print.

On Wednesday, December 2, 2009, the House of Representatives Financial Services Committee passed two significant acts, the Financial Stability Improvement Act and the Federal Insurance Office Act, both of which are aimed at further regulation of the financial services sector.  Both bills have been referred to the full House for consideration.  Below are brief summaries of the acts and links to the legislative text.

Public companies should take steps to determine whether any amendments may be required to new and outstanding compensatory arrangements in light of Section 162(m) of the Internal Revenue Code and certain transition relief under Revenue Ruling 2008-13.

Failing to comply with the rules of civil discovery can result in serious sanctions.  Washington’s Supreme Court recently emphasized just how serious when it upheld, in Magana v. Hyundai Motor America, an $8 million default judgment against Hyundai for violating the discovery rules.

On November 12, 2009, the SEC announced the settlement of its first Regulation G enforcement action.  Regulation G prohibits the presentation of non-GAAP financial measures in a misleading way and requires companies to present—alongside the non-GAAP financials—the most directly comparable GAAP measures and a clearly understandable reconciliation of the GAAP and non-GAAP measures.

In Mechling v. City of Monroe, the Washington Court of Appeals ruled that public agencies must provide nonexempt public records in electronic format, upon request, when "reasonable and feasible" to do so.

Last summer, the General Assembly passed SB 51 to amend the Procurement Code. Governor Quinn vetoed the legislation and proposed specific amendments, which the General Assembly overrode. Accordingly, the law became effective on November 3, 2009 as Public Act 96-0795. The General Assembly returned to ethics reform legislation in October to pass another bill further regulating procurement-based disclosure requirements and contribution bans.

A study by the American Management Association determined that 3% of companies reported medical testing for breast or colon cancer, 2% for sickle-cell anemia and 1% for Huntington’s disease—all of which can have genetic links. In addition, 15% of companies collected family medical histories, which can reveal genetic predispositions for some diseases. All of these practices may run afoul of provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA), which is set to take effect on November 21, 2009.

On Tuesday, November 10, 2009, Senator Dodd (D-CT), Chairman of the Senate Banking Committee, released a draft of a financial services reform bill, entitled "Restoring American Financial Stability Act of 2009."  This legislative proposal is a companion to a similar, albeit less extensive, version that has been introduced in the House of Representatives.

If you are a retailer with brick-and-mortar stores in California and accept credit cards for payment, take note.  You may want to take a few simple steps to avoid liability for an increasing number of claims under an old law that has received a lot of recent attention.

On October 21, 2009, the Washington Department of Ecology (WDOE) reissued its Industrial Stormwater General Permit (ISWGP).  The general permit was issued under the authority of the Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seq., and Washington state's Water Pollution Control Act, Chapter 90.48 RCW. The reissued ISWGP is effective January 1, 2010 and will replace the prior ISWGP that expired in April of 2009.

In August 2009, the Federal Trade Commission (FTC) adopted a Final Rule prohibiting manipulative or deceptive behavior in the course of purchasing or selling wholesale crude oil, gasoline or petroleum distillates. In doing so, the FTC joins other federal agencies with similar rules already on the books, including the Commodities and Futures Trading Commission (CFTC) and the Federal Energy Regulatory Commission (FERC).

The Holiday season this year carries with it not only high hopes for successful sales but the threat of widespread – and increasing – influenza outbreaks. Retailers are uniquely threatened by the flu: sales personnel are routinely exposed to hundreds of shoppers in close quarters, shaking hands, handling merchandize, and exchanging cash. But careful planning can help minimize the impact on your sales force.

Employers are learning the hard way that gaining access to private employee information during workplace investigations can lead to lawsuits, liability and headaches.

Environmentally friendly advertising claims effectively grab the attention of consumers hungry for "green" products and services. But as you prepare your holiday advertising, there are several things to keep in mind if you are making "green" claims.

The IRS announced the Year 2010 cost-of-living adjustments for various provisions affecting employee benefit plans.

On October 7, 2009, the Department of Energy (DOE) issued a solicitation inviting the submission of applications for loan guarantees for “commercial technology renewable energy” (CTRE) projects.  This solicitation was issued under Section 1705 of Title XVII of the Energy Policy Act of 2005, as amended by the American Recovery and Reinvestment Act (ARRA).

As discussed in our July 20, 2009 Update, the Securities and Exchange Commission in June 2009 proposed amendments to the federal proxy rules to expand access to the board of directors nomination process for eligible shareholders. 

The Securities and Exchange Commission announced on October 2 a six-month extension of the date on which non-accelerated filers must begin to comply with the auditor attestation requirement under Section 404(b) of the Sarbanes-Oxley Act.  A non-accelerated filer must now provide an auditor attestation to the effectiveness of the filer's internal controls in its SEC annual report for the year ending on or after June 15, 2010. 

The Federal Trade Commission (FTC) recently adopted important changes to the agency’s Guides Concerning the Use of Endorsements and Testimonials in Advertising.  The Guides now directly apply to product endorsements through nontraditional media, such as blogs.

On October 1, 2009, the Federal Circuit issued an opinion in Stanford v. Roche, Case Nos. 2008-1509, 2008-1510.  One section addresses the interpretation of a patent assignment clause to determine whether it creates an automatic assignment or merely an obligation to assign.

In an opinion that should bolster the use of tiered studies under the National Environmental Policy Act (NEPA) for highway and high-speed rail projects, the U.S. District Court for the Western District of Virginia has issued an opinion upholding the use of a tiered NEPA process for improvements to the I-81 corridor in Virginia.

Last week's settlement of a Reg. FD action by the SEC against the CFO of American Commercial Lines (ACL) seems like a throwback to an interrupted line, to the enforcement actions from 2002 to 2005 that slowed to a crawl with the "Siebel II" action in late 2005. 

On September 30, the EPA proposed new construction and operating permit requirements under the Clean Air Act. These requirements would apply to all sources that emit greenhouse gases (GHGs) in amounts more than 25,000 tons a year, or some other level to be set in the final rule.

Remember the hype surrounding Tickle Me Elmo in 1996, Sony's Playstation in 1995 and, if you're old enough, the Cabbage Patch Kids in 1986?  Each holiday season features new "must-have" gifts—that toy your child just cannot live without or that next generation video game or console or that one special pair of boots.  

New legislation applicable to Washington public construction projects completed after September 30, 2009.

On September 23, the Department of Justice (DOJ) released a new policy governing the DOJ's invocation of the Military and State Secrets Privilege (state secrets privilege).  Although the policy provides an additional level of oversight regarding invocation of the privilege within DOJ, it mostly avoids concerns expressed by Congress in connection with pending legislation requiring heightened judicial oversight over the invocation of the state secrets privilege.

On September 22, 2009, the U.S. Environmental Protection Agency (EPA) issued its Final Rule for Mandatory Reporting of Greenhouse Gases (the "Rule").  Based on existing Clean Act authority, the Rule requires large U.S. emissions sources and major U.S. fuel suppliers to monitor their greenhouse gas (GHG) emissions and report the results to EPA.

This month, Congress will begin to address the proposed Consumer Financial Protection Agency Act of 2009, known as the CFPAA, which is one piece of the dramatic financial regulatory reform that Barney Frank, Chairman of the House Financial Services Committee, introduced in July 2009. 

A center with a high vacancy level will likely experience a significant drop-off in holiday shoppers visiting the center, so you need to be proactive to minimize the impact.

On July 31, 2009, the House of Representatives, with the support of the Obama Administration, passed H.R. 3269, the Corporate and Financial Institution Compensation Fairness Act of 2009, proposed legislation that would require all publicly traded companies to seek a nonbinding "say‑on-pay" vote of shareholders on executive compensation packages annually and in acquisition transactions. 

A recent decision by the Delaware Court of Chancery reinforces the responsibility of a board of directors to assertively defend the interests of the noncontrolling stockholders when negotiating with a controlling stockholder in order to satisfy the board's duty of loyalty.

The federal government's long-running investigation into steroid use in Major League Baseball has yielded more than just newspaper headlines and embarrassed sluggers. Last week, an en banc panel of the Ninth Circuit Court of Appeals reviewing the steroid investigation announced new and enhanced guidelines applicable to all search warrants for electronically stored information ("ESI") in the Ninth Circuit.

On August 31, 2009, the U.S. Environmental Protection Agency (EPA) published a Notice of Data Availability, requesting public comment regarding its proposed "Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells." 74 Fed. Reg. 44802 (Aug. 31, 2009) (Notice)

In Briggs v. Nova Services, No. 79615-7 (Aug. 27, 2009), the Washington Supreme Court rejected wrongful discharge and retaliation claims asserted by two employees who were fired after they complained about the management of their employer and by six other employees who walked off the job after the first two employees were fired.  But, although the employer prevailed in Briggs, the case leaves open important questions about employees’ rights to join together in protest of working conditions.

A recent full court First Circuit decision held that the taxpayer's tax accrual workpapers are not protected under the work product privilege and must therefore be released to the Internal Revenue Service. 

Increased energy costs and growing awareness about climate change have pushed "green issues" into corporate boardrooms.  Regulatory, shareholder, employee and customer concerns about corporate environmental accountability, in addition to emerging climate change and energy regulations, have made "green" policies a common element of business strategic planning.

On July 29, 2009, the Department of Energy (DOE) issued two solicitations inviting applications to be filed for loan guarantees under Title XVII of the Energy Policy Act of 2005, as amended by the American Recovery and Reinvestment Act (ARRA).  One solicitation makes available $8.5 billion in loan guarantees for innovative renewable energy, energy efficiency, and electricity transmission technologies.

On July 24, 2009, the Western Climate Initiative (WCI) Offsets Committee released a white paper on various definitions and criteria to determine eligible offsets for the purpose of developing a greenhouse gas ("GHG") offset system ("White Paper").

In December 2009, the Plenary United Nations Conference of the Parties on Climate Change will convene in Copenhagen (the "Copenhagen COP") to produce an outline for international climate change regulation after 2012.

The Securities and Exchange Commission (SEC) recently released new proposed rules concerning compensation and corporate governance disclosure for public company proxy statements and other SEC filings.

The FTC recently extended the enforcement deadline for the Red Flags Rule until November 1, 2009. The Rule was originally scheduled to go into effect on November 1, 2008, but on Wednesday, July 29, 2009, the FTC announced that it was delaying enforcement for the third time because a number of industries and entities within the FTC’s jurisdiction still expressed confusion and uncertainty about what types of entities would be subject to the Rule and what the Rule actually required of covered entities.

On July 17, 2009, a federal district court in Texas dismissed an insider trading suit brought by the Securities and Exchange Commission (SEC) against Mark Cuban, the high-profile owner of the NBA's Dallas Mavericks.

The Securities and Exchange Commission recently released new proposed rules concerning compensation and corporate governance disclosure for public company proxy statements and other SEC filings.  The SEC intends these proposed amendments to improve corporate disclosures and allow shareholders to make more informed voting and investment decisions.

On July 1, 2009, the Securities and Exchange Commission (SEC), in a 3-to-2 vote, approved a proposed amendment to New York Stock Exchange (NYSE) Rule 452 that will prohibit discretionary broker voting in director elections.

The U.S. Environmental Protection Agency reports that energy consumed by commercial and residential buildings accounts for approximately 40% of total U.S. energy consumption and 67.9% of total U.S. electricity consumption.

Recently, Perkins Coie Partners Mike House and Allan Abravanel, and Fasken Martineau Partners Peter Kirby and Marks Sills participated in a panel discussion where they reviewed possible trade issues raised by current and future GHG regulation. This update highlights their discussion.

On June 10, 2009, the Securities and Exchange Commission proposed amendments to the federal proxy rules to expand access to the board of director nomination process for eligible shareholders.

The Pension Protection Act of 2006 made numerous changes to rules regarding employee benefit plans, including tax-qualified defined benefit and defined contribution plans.  Although the changes took effect at various dates (and plans have been required to operationally comply with each change as of the specified effective date), amendments reflecting these changes generally do not have to be adopted until the last day of the plan's 2009 plan year.

In its interim guidance for high-speed passenger rail grants, the Federal Railroad Administration (FRA) recognized that a “crucial” issue in the application process is the applicant’s compliance with the National Environmental Policy Act (NEPA) and related laws.

Faced with mounting public pressure in the wake of recent scandals, Illinois Governor Pat Quinn is expected to sign several pieces of “ethics” legislation that the General Assembly adopted in May. Two bills, SB 51 and SB 54, which amend the Procurement Code and Lobbyist Registration Act, change the registration and reporting requirements for companies doing or seeking more than $50,000 worth of business with the state and for lobbyists.

The U.S. Department of Energy, National Energy Technology Laboratory (DOE) has issued a Funding Opportunity Announcement (FOA) under which it will award up to $1.3 billion for projects involving large-scale carbon capture and sequestration (CCS) from industrial sources and an additional $100 million for innovative concepts for beneficial carbon dioxide (CO2) use.

Government contracts for the development, production or construction of complex systems often involve numerous contract change orders.  In the past, contractors have been found entitled to recover not only for the direct and indirect costs of the changed work and for any associated delay, but also for the "cumulative impact" that those changes may have had upon unchanged contract work.

On June 25, 2009, the Department of Energy (DOE) announced that $3.4 billion in federal grants will be available through the Smart Grid Investment Grant Program (SGIG) and an additional $615 million will be available under the separate Smart Grid Demonstration Program (SGDP).  Funding for these programs was provided in the American Recovery and Reinvestment Act.

On June 22, 2009, the Office of Management and Budget (OMB) issued guidance on the reporting requirements for recipients of federal funds under the American Recovery and Reinvestment Act of 2009 (ARRA).  This guidance provides important information for any company, nonprofit organization, state or local government, or Indian tribe that has applied or is considering applying for federal grants or loans under ARRA.

In a June 22, 2009 decision, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, No. 07-984, the U.S. Supreme Court affirmed a federal Clean Water Act Section 404 permit issued by the U.S. Army Corps of Engineers for an Alaska gold mine project to place crushed rock tailings slurry as "fill material" in a settling pond impoundment constructed in a small natural lake. 

The American Recovery and Reinvestment Act of 2009 (ARRA) contains several unique requirements applicable to all contracts, grants and cooperative agreements using ARRA funds.  Recently, these requirements have been implemented on an interim basis in the Federal Acquisition Regulation (FAR).

In our last update on this issue, we advised you of the tough stance the Trademark Trial and Appeal Board ("TTAB") has taken against incorrect "statements of use" in trademark applications and registrations.  Specifically, filing an erroneous statement that a trademark is in use, when in fact it is not in use, can constitute fraud on the U.S. Patent and Trademark Office ("Trademark Office").

The Obama Administration has proposed sweeping new regulations that would overhaul the U.S. financial regulatory system, including a proposal published June 17, 2009 that would require investment advisers of hedge funds and other private pools of capital whose assets under management exceed some unspecified, but modest, threshold to register with the Securities and Exchange Commission under the Investment Advisers Act of 1940. 

On June 17, 2009, the Obama administration released its proposal for financial regulatory reform. The five policy objectives outlined in the proposal include (1) promoting supervision and regulation of financial firms, (2) establishing supervision and regulation of financial markets, (3) increasing protections for financial consumers, (4) improving tools for managing financial crises, and 5) establishing international regulatory standards and stepping up international cooperation.

On June 17, the Federal Railroad Administration (FRA) released interim guidance that opens the competition for more than $8 billion in federal funding for high-speed and intercity passenger rail projects.

Last week, in Kearns v. Ford Motor Co., __ F.3d __, 2009 WL 1578535 (9th Cir. June 8, 2009), the Ninth Circuit Court of Appeals issued a ruling that will restrict the ability of consumers to bring generalized claims for fraudulent business practices and perhaps limit the reach of the recent California Supreme Court decision, In re Tobacco II Cases, 207 P.3d 20, 93 Cal. Rptr. 3d 559 (Cal. 2009). 

Beginning June 13, 2009, at 12:01 a.m. EDT (June 12, 2009, at 9:01 p.m. PDT), Facebook will allow current members to select a username that will be associated with their personal profile or their Facebook Page (which is a profile page for business, brands and public figures).

With rising fossil fuel prices, increased energy regulation and a constrained real estate market, our clients are looking for ways to reduce costs and make their facilities, whether commercial, industrial, retail or residential, more marketable.  Although energy efficiency improvements and renewable energy systems save money over time, many are costly to install.

Shareholders increasingly use derivative lawsuits to assert claims against a corporation's directors and officers.  On May 21, 2009, the Washington Supreme Court handed down an important decision supporting the right of shareholders of Washington corporations to bring derivative lawsuits in some circumstances without first requesting relief from the company's board of directors.

The Financial Accounting Standards Board recently issued Staff Position No. 141(R)-1, Accounting for Assets Acquired and Liabilities Assumed in a Business Combination That Arise from Contingencies, which provides new guidance that changes the accounting treatment of contingent assets and liabilities in mergers and acquisitions and other business combinations under FASB Statement No. 141 (revised 2007), Business Combinations.

Carbon capture and sequestration ("CCS") is the process of capturing carbon dioxide ("CO2") and injecting it underground for long-term storage. The federal government, a growing number of businesses and other organizations are promoting CCS as an essential technology that must be successfully implemented as one way to reduce greenhouse gas emissions and control global warming.

On May 18, 2009, the Federal Circuit issued an opinion in Abbott Labs. v. Sandoz, Inc., 2007-1400, -1445.  One section, decided by the court en banc, addressed the interpretation of product-by-process claims for the purposes of determining infringement.

This update provides the latest details on U.S. legislative initiatives to develop a federal greenhouse gas cap-and-trade program and on the status of cap-and-trade authorizing legislation in several Western Climate Initiative ("WCI") member states and provinces.

On May 18, 2009, the California Supreme Court issued its long-awaited decision in In re Tobacco II Cases, __ Cal. 4th __, No. S147345 (May 18, 2009), which addresses the requirements for standing and reliance in class actions under California’s Unfair Competition Law (“UCL”), Business and Professions Code § 17200 et seq., as modified by California voters in 2004.

Cleantech products and services improve efficiency and productivity by reducing costs, energy consumption, waste or pollution.  Consumer, regulatory and industry interests in clean energy, global warming and advanced science and technology have created a growing cleantech market that attracted more than $1 billion of venture capital funding in the first quarter of 2009.

China's Supreme Court issued Guidelines on Implementing the National Intellectual Property Strategy ("the Guidelines") on March 29, 2009 to require people’s courts of various levels to fully implement the National IP Strategy.  Promulgated by China’s State Council on June 5, 2008, the National IP Strategy is a roadmap to lead China to become one of the world's most innovative countries by 2020.

Green leasing is an emerging field of interest to developers, landlords, tenants, board members, shareholders, lenders, and government officials.  Such wide-ranging interest stems from the many financial, public relations and environmental benefits that may be realized through adoption of green leasing policies. 

Defendants who are not parties to an arbitration agreement, but who are implicated in the parties' dispute may request a stay of the action under Section 3 of the Federal Arbitration Act, 9 U.S.C. § 3, pending arbitration of the relevant claims, and may appeal an order denying that request under Section 16 of that Act.

The Federal Trade Commission (FTC) may be rethinking its approach to resale price maintenance (RPM) agreements.  The FTC has scheduled a series of public workshops on RPM to examine, for the purposes of enforcing Section 1 of the Sherman Act and Section 5 of the FTC Act, how to best distinguish between those uses of RPM that benefit consumers and those that do not.

The Trademark Trial and Appeal Board ("TTAB") has taken a tough stance against incorrect "statements of use" in trademark applications and registrations.  Specifically, the TTAB has taken the position that an incorrect statement of trademark use in connection with one good or service listed in a U.S. application or registration can constitute an act of fraud on the U.S. Patent and Trademark Office ("PTO") and invalidate an entire registration. 

Green building may mean different things to different people.  According to the U.S. Environmental Protection Agency, green building is the practice of creating and using healthier and more resource-efficient models of construction, renovation, operation, maintenance and demolition.

In Lyondell Chemical Corp. v. Ryan, C.A. 3176 (Del. Mar. 25, 2009), the Delaware Supreme Court, acting en banc, reversed the decision of the Delaware Court of Chancery and granted summary judgment to Lyondell's board of directors, dismissing the claim that it failed to act in good faith in conducting the sale of its company through an accelerated negotiation process.  The Court reaffirmed important principles governing a board's Revlon duties in connection with the sale of a company and directors' good faith performance of those duties.

On March 5, 2009, the Washington Death with Dignity Act (the "Act") became effective. The new law, enacted by voter initiative as I-1000 in the November 2008 election and codified at RCW 70.245, permits a physician to prescribe life-ending medication to a patient, but only if the patient meets strict qualifications and the physician follows a series of required safeguards.

During his 2008 Presidential campaign, then-Sen. Barack Obama expressed his plan to “reinvigorate antitrust enforcement.”  See Statement of Sen. Barack Obama for the American Antitrust Institute. 

In Washington, a competent adult has the right to control his or her health care treatment. Unfortunately, a patient's medical condition may prevent the patient from communicating treatment preferences to a health care provider when the time comes to make important health care decisions. Washington law allows an adult to express preferences in advance by executing a Health Care Directive, a Durable Power of Attorney and a Physician Order for Life-Sustaining Treatment form.

Effective May 1, 2009, the total official fees for European Union ("EU") Community Trademark ("CTM") applications covering up to three classes of goods and/or services will drop by approximately 40 percent.  The official registration fee has been eliminated, reducing the overall total official fees from €1,600 (US$2,200) to €900 (US$1,200) – a savings of nearly US$1,000.

In a decision that affirms existing Delaware law, the Delaware Court of Chancery in In re Citigroup Inc. Shareholder Derivative Litigation, No. 3338-CC, 2009 WL 481906 (Del. Ch. Feb. 24, 2009), upheld the business judgment rule and its protection of directors' business decisions in the face of worldwide economic losses.  The court dismissed all but one facet of the case, which alleged Caremark violations against Citigroup directors due to Citigroup's losses in the subprime lending market. 

The recent Supreme Court decision in Wyeth v. Levine has important implications for drug manufacturers.  In a 6-3 decision, the Court held that the FDA’s approval of drug warning labels for Wyeth’s product, Phenergan, did not preempt state law failure-to-warn claims.

A report commissioned by the Office of the Privacy Commissioner of Canada concludes that Canada's Personal Information Protection and Electronic Document Act ("PIPEDA") applies to Second Life, a massively multiplayer online game ("MMOG") operated by Linden Lab, which is based in San Francisco, California.

The much-publicized Employee Free Choice Act (EFCA), recently reintroduced in Congress, hit an obstacle on March 24th, when Republican Senator Arlen Specter declared that he would not support it.  His opposition may preclude the bill's passage in its current form, but does not mean that other legislation will not be proposed to make it easier for unions to gain the right to represent employees.

Expansion of the United States' electric transmission infrastructure is key to increasing the availability of renewable energy resources nationwide.  However, virtually any effort to build new transmission infrastructure will raise local concerns about development of the lines. 

In Gantler v. Stephens, C.A No. 2392, 2009 WL188828 (Del. Jan. 27, 2009), the Delaware Supreme Court affirmed a principle of corporate law that had been implied in prior decisions:  officers of Delaware corporations owe the same fiduciary duties of care and loyalty to the corporation and its shareholders as directors owe.  The Court also resolved contradictory prior opinions on the common law doctrine of shareholder ratification by limiting the doctrine to approval of board action that is not otherwise required to be approved by shareholders in order to be effective. 

The so-called "Stimulus Bill," or American Recovery and Reinvestment Act of 2009, signed by President Obama on February 17, 2009 (the "Act"), greatly expands the options available for state and local government financing, both by adding to the available categories of tax-exempt bonds, and by creating new and expanded categories of tax-credit bonds, including the new "Build America Bond" provisions.  In addition, the Act adopts other measures intended to increase the market for traditional state and local bonds in the current economy.

Several states and provinces have enacted or are enacting regulations to require industrial facilities to report annual greenhouse gas ("GHG") emissions.  These GHG reporting requirements are the first step of a larger regulatory initiative to achieve substantial GHG reductions across multiple sectors of the North American economy.

Unless the SEC grants another extension, a non-accelerated filer must provide its first auditor attestation report under Section 404(b) of the Sarbanes-Oxley Act in its SEC annual report for the fiscal year ending on or after December 15, 2009.  A "non-accelerated filer" is a company that did not have a public float of $75 million or more on the last business day of its most recently completed second fiscal quarter.

On March 10, 2009, the U.S. Environmental Protection Agency ("EPA") issued a proposed rule for mandatory greenhouse gas ("GHG") emissions reporting from large U.S. GHG emissions sources.  The proposed rule would require the sources of more than 85% of U.S. GHG emission sources to report their emissions data. 

In February 2009, at the annual SEC Speaks conference in Washington, D.C., senior staff of the U.S. Securities and Exchange Commission reviewed significant actions of the previous year and identified top priorities for the year to come.  This update lists our top takeaways from the conference that may have an impact on your business. 

On March 3, 2009, President Obama issued a memorandum ordering the review of recent rulemaking that allows federal agencies, under certain circumstances, not to consult with, or obtain the concurrence of, the U.S. Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS) under section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2), for federal actions that may affect ESA-listed species or their designated critical habitats.  74 Fed. Reg. 9753 (Mar. 6, 2009).

On January 16, 2009, the U.S. Department of Labor ("DOL") issued a comprehensive set of revisions to the regulations implementing the Family and Medical Leave Act (“FMLA”) and issued new regulations implementing the military family leave entitlements enacted by Congress as a part of the 2008 National Defense Authorization Act.  While many employers will not experience the full impact of the new regulations until an employee actually requests FMLA leave, all covered employers need to take a few immediate steps in order to ensure compliance with the new regulations.

The American Recovery and Reinvestment Act of 2009, commonly referred to as the Stimulus Bill, was signed into law on February 17, 2009 and contains an expanded tax credit for first-time homebuyers who make qualifying purchases prior to December 1, 2009.

The highly publicized economic stimulus bill, known as the American Recovery and Reinvestment Act of 2009 ("ARRA") includes provisions that substantially impact COBRA continuation coverage by creating a subsidy of 65% of the COBRA premium for up to nine months.  With the subsidies being available generally as of March 1, 2009, employers and plan administrators must understand and comply with the new premium subsidies and other COBRA requirements in a very short period of time.

Floodplain management and use in Washington is largely governed by the National Flood Insurance Program ("NFIP").  Administered by the Federal Emergency Management Agency ("FEMA"), the NFIP provides the mechanism for local participating communities to obtain the flood insurance necessary for floodplain developments. 

As the most sought-after nonimmigrant work visa, the H-1B visa allows U.S. employers to hire foreign nationals in temporary employment positions deemed “Specialty Occupations.” These positions must require (at a minimum) a relevant bachelor’s degree, the candidate must possess such a degree, as well as any specific experience that the position requires. In certain situations, professional-level experience may be substituted for a university degree.

The American Recovery and Reinvestment Act of 2009, commonly referred to as the Stimulus Bill, signed into law on February 17, 2009, contains renewable energy tax incentives, defers realization of certain cancellation of debt income, suspends certain restrictions on the deductibility of original issue discount, and limits S corporation built-in gain recognition.

Once again, a United States Court of Appeals has rejected an effort to bar class action relief.  The Second Circuit, in In re American Express Merchants' Litigation, _ F.3d. _, 2009 WL 214525 (2nd Cir. Jan. 30, 2009), held that the enforceability of a class action waiver was for the court to decide rather than the arbitrator, and that this waiver was unenforceable because it would grant the defendant de facto immunity from federal antitrust liability.

In the next six months, significant Canadian and U.S. climate change legislative and regulatory developments will affect business activities in both countries.  Newly appointed Canadian ministers and new U.S. executive and congressional leadership will influence the scope of new laws and regulations, when they take effect and their potential compliance costs and benefits to business.

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 ("ARRA"), a $787 billion mixture of tax cuts, tax credits and spending provisions designed to stimulate the dismal American economy. Some of ARRA provides immediate stimulus, i.e., spending that increases 2009 consumer demand or creates jobs and stimulates additional increased demand or jobs (a multiplier effect).

Client Updates were issued on January 8, 2009 and January 14, 2009 regarding the new E-Verify rule that, if implemented, would require federal government contractors to verify employee eligibility to work in the United States (see E-Verify Client Update 1 and Update 2).  The government has since delayed the implementation of the E-Verify rule until at least May 21, 2009 to give the new administration an opportunity to reconsider the rule. 

This update is to inform you of two notable developments in the area of data security and privacy.  One is revisions to the Massachusetts Data Protection Regulations, and the other is an FTC Staff Report with guidance applicable to those engaged in online behavioral advertising and to Web site operators that collect online data generally.

Proxy statement preparation and planning for annual meetings of stockholders are in full swing.  Along with proxy season comes the possibility that stockholders may submit proposals or nominations for consideration at the annual meeting. 

While the downturn in the economy has adversely affected the sellers of directors’ and officers’ liability insurance – much as it has companies in all sectors of the economy – investing in D&O insurance is still a wise course of action.  This Update offers nine suggestions for ensuring that a company’s directors and officers are adequately protected in this environment against potential liabilities that D&O insurance normally would pay.

On Friday, January 30, President Obama signed three Executive Orders that will impact the relationship between government contractors and union employees. 

One of the Executive Orders addresses "Nondisplacement of Qualified Workers Under Service Contracts" and provides, with a number of exceptions, that after one contractor is replaced with another performing "the same or similar services at the same location," the successor contractor must offer a "right of first refusal" of employment to qualified employees of the predecessor contractor.

The Third Circuit recently clarified the standards a district court should apply in deciding whether to certify a class under Federal Rule of Civil Procedure 23 (Rule 23) in In re Hydrogen Peroxide Antitrust Litig., __ F.3d __, 2008 WL 5411562 (3rd Cir. Dec. 30, 2008).  The court joined a growing number of circuits in holding that the "rigorous analysis" under Rule 23 requires courts to weigh factual and expert evidence and make findings as to whether plaintiffs can satisfy all elements of Rule 23 at the certification stage. 

Last week, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act (S. 181) (the "Act"), substantially expanding the time limit within which a worker may bring a claim for unlawful pay discrimination.  The revised statutory language of the Act rendered the U.S. Supreme Court's opinion in Ledbetter v. Goodyear Tire and Rubber Co., 550 U.S. 618 (2007), invalid.  In Ledbetter, the Supreme Court held that a plaintiff bringing a claim for discriminatory pay practices had to show that the discriminatory acts affecting his or her pay occurred during the 180 days (for states without a fair employment agency) or 300 days (for states with a fair employment agency) prior to the filing of a discrimination charge.  The Act eliminates this required showing by amending Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act.  Each statute will now permit the period for a worker to file a charge of pay discrimination to be triggered each time the worker receives an allegedly discriminatory paycheck, even if the pay decision was made much earlier.

On January 30, 2009, the Consumer Product Safety Commission (CPSC) voted unanimously to delay, for one year, certain product testing and certification requirements contained in the Consumer Product Safety Improvement Act of 2008 (CPSIA).  These testing and certification requirements were scheduled to take effect on February 10, 2009.  The stay significantly reduces one looming regulatory burden for manufacturers and importers of products subject to the safety rules and regulations enforced by the CPSC. 

In a closely watched case, the Second Circuit Court of Appeals has refused to cut back on traditional standards for corporate criminal liability.  The Association of Corporate Counsel, the U.S. Chamber of Commerce and other groups had asked the court to depart from a century of judicial precedent holding corporations broadly liable for criminal acts committed by employees.  The groups argued that such broad vicarious criminal liability was counterproductive and asked the court to bar corporate criminal liability unless prosecutors could show that the corporation lacked an effective compliance program.

In a further effort to streamline federal contracting requirements, the Civilian Agency Council and the Defense Acquisition Regulation Council modified the relevant Federal Acquisition Regulation ("FAR") to waive compliance with two existing statutory requirements for commercial off-the-shelf ("COTS") item contracts.  These waivers reflect the result of an extended review of the application of 20 statutes to COTS item contracts undertaken under the authority of the Clinger-Cohen Act of 1996.  See 74 Fed. Reg. 2,710.

Employees who complain about sexual harassment are protected from retaliation by federal and state laws.  Under a January 26 ruling from the U.S. Supreme Court, employees who provide information in the employer’s investigation of the complaint have the same protection.  Crawford v. Metropolitan Government of Nashville, No. 06-1595 (Jan. 26, 2009).

The Federal Trade Commission (the "FTC") recently announced that the reporting thresholds under Section 7 of the Clayton Act, known as the Hart‑Scott-Rodino Antitrust Improvements Act of 1976 (the "Act"), and the civil penalty for failure to comply with the Act, will be increased.  The Act requires all parties to certain transactions, including mergers and acquisitions, to notify the FTC and the Antitrust Division of the Department of Justice and wait a designated period of time before consummating those transactions that meet or exceed the Act's jurisdictional thresholds.  The 2000 amendments to the Act require the FTC to revise the Act's jurisdictional and filing fee thresholds annually, based on the change in gross national product.  Certain related thresholds and limitation values in the Hart-Scott-Rodino ("H-S-R") rules will also be adjusted.  The increased thresholds will apply to all transactions that close on or after February 12, 2009.

The 2009 proxy season marks the first year in which all public companies must comply with the Securities and Exchange Commission's e-proxy rules.  These rules were effective for large accelerated filers, and on a voluntary basis for all other companies, as of January 1, 2008.  The experience of early adopters in 2008 provides valuable insight for companies implementing the e-proxy rules for the first time, as well as those companies that are looking for ways to improve their e-proxy experience over last year.  The lessons learned will help companies better anticipate challenges, establish informed expectations, and identify strategies for the upcoming proxy season.  This Update provides background information on e‑proxy rules and offers our "Top 8" lessons learned from the 2008 e-proxy season.

A Client Update was issued on January 8, 2009 regarding the new E-Verify rule that will require federal government contractors

In a recent unpublished decision involving MySpace, the Ninth Circuit reaffirmed that a prior voluntary and profitable course of dealing between the parties is a prerequisite to establishing a refusal to deal case between competitors. 

For many tenants, one of the most important provisions in a lease is the exclusive right to operate their businesses. 

Effective January 15, 2009, a new federal procurement rule requires federal government contractors to use E-Verify – an online system operated by the Department of Homeland Security, U.S. Citizenship and Immigration Services, and the Social Security Administration – to verify that new hires and current employees are employed legally in the United States.

As of January 3, 2009, a new law enacted in New York will limit employers' use of employees' Social Security Numbers (SSNs). 

According to a recent report, nearly a quarter of U.S. employers expect to institute layoffs sometime during 2009.  While a reduction in force (RIF) may be an effective means by which to control costs during hard economic times, an employer must plan for a RIF with numerous employment laws.

On December 11, 2008, the Federal Trade Commission (the "FTC") issued a press release describing a $1 million settlement with Sony BMG Music Entertainment ("Sony Music") over charges that it violated the Children's Online Privacy Protection Act (COPPA).

The Federal Trade Commission recently proposed changes to the agency’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. The Guides will now explicitly apply to advertising through nontraditional media, such as blogs.

As part of the busy holiday shopping season will your company be sharing customer data with a partner service provider?  If so, don’t forget that if a security breach happens as part of that offering, you, the retailer, are likely on the hook alone unless you have carefully crafted your agreements with third-party service providers.

A recent decision by the Ninth Circuit Court has made the development of oil and gas reserves on the Outer Continental Shelf (OCS) more difficult and presents the potential for similar consequences on other resource-development activities.

As the 111th Congress and 44th President take office, we do not expect controversy to continue about whether humans contribute to climate change with increased emissions of greenhouse gases (GHGs). Industrial nations in the Kyoto Protocol have had significant GHG reporting and reduction requirements in place since 2006.

The California Supreme Court recently granted review in Clayworth v. Pfizer, Inc., No. S166435 (Cal. Nov. 19, 2008), to decide an issue of first impression under California’s antitrust law: Can a defendant accused of price fixing avoid liability by demonstrating that the plaintiff passed on the entire alleged overcharge to its customers?

On November 12, 2008, the U.S. Department of Energy (DOE) issued interim final regulations implementing the Advanced Technology Vehicles Manufacturing (ATVM) Incentive Program.

On December 2, 2008, the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) issued long-awaited revisions to their joint guidance following the Supreme Court's 2006 decision in Rapanos v. United States and Carabell v. United States (collectively, Rapanos).

Greenhouse gas (GHG) emissions reporting will be required under all the emerging North American cap-and-trade programs. Many states and provinces have therefore developed or are developing greenhouse gas reporting rules to require businesses to measure and publicly report their annual GHG emissions. In this update, we summarize the status of GHG reporting rules for those states and provinces that are members of the Western Climate Initiative (WCI), the largest proposed regional cap-and-trade program in North America.

In this current slumping economy, many employers are being forced to consider downsizing their workforce. Many of you have already gone through at least one round of downsizing. Such reductions in force are fraught with legal pitfalls and may bring on heightened litigation exposure. Although no downsizing method comes with a lawsuit-free guarantee, employers that are aware of their legal obligations and carefully plan their reductions in force to minimize risk will likely experience less legal fallout. Employee rights should be thoroughly analyzed under applicable statutes and common law, as well as under any applicable employment agreement or collective bargaining agreement. This update provides just some of the legal issues that may be implicated in achieving a leaner work force.

This update summarizes some of the key energy provisions enacted by Congress this fall and also previews the energy priorities that have been announced by the incoming Obama administration.

ICANN Will Open Top-Level Domain Spaces to the Public in 2009

Have you ever wanted to have your own company's name as a domain name extension like .com, .net or .org – e.g., [mark].perkinscoie?

Given the current economic news and retail environment, this holiday season is likely to see more going out of business sales than usual.

On November 12, 2008, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (together, "Councils") issued a final rule amending the Federal Acquisition Regulation ("FAR") to amplify the requirements for a contractor code of business ethics and for disclosure to the government of certain violations of criminal law, violations of the civil False Claims Act ("civil FCA") or significant overpayments.

The Federal Trade Commission and the Department of Justice recently released their Hart-Scott-Rodino Annual Report for Fiscal Year 2007 for the period from October 1, 2006 to September 30, 2007.

Are you an employer that sometimes sends workers based in other states to perform work in California? Have you thought about whether California wage law applies to that work? If you haven’t considered the question before now, a new decision from the Ninth Circuit Court of Appeals gives you a good reason to do so.

The Massachusetts Office of Consumer Affairs and Business Regulations (OCABR) has extended to May 1, 2009 its deadline for businesses and others to comply with its new data security regulations.

Trademark and copyright owners enjoy expanded protections under the Enforcement of Intellectual Property Rights Act of 2008 (The Act).

As a presidential hopeful, Barack Obama promised to increase antitrust enforcement, stating: "We are going to have an antitrust division in the Justice Department that actually believes in antitrust law. We haven't had that for the last seven, eight years." (Reuters news release.) "As president, Obama and Biden will reinvigorate antitrust enforcement, which is how we ensure that capitalism works for consumers."

On October 20 and 21, the Midwest Greenhouse Gas Accord ("Accord") advanced their recently released draft design recommendations for this multisector greenhouse gas ("GHG") cap-and-trade program (the "Program"). The Program would be one of the world's largest cap-and-trade programs.

In a highly anticipated decision, on October 30, 2008, the Federal Circuit Court of Appeals decided en banc that a claimed method must satisfy a "machine-or-transformation" test to be statutory subject matter under 35 U.S.C. § 101.

On Wednesday, October 22, 2008, the FTC announced that it has suspended enforcement of its new "Red Flag Rules" for combating identity theft for a period of six months, which gives entities that are subject to the rule until May 1, 2009 to implement their written "Red Flag Programs."

On October 6th, the Securities Exchange Commission (SEC) released its Enforcement Division manual to the general public for the first time.

While retailers are (or should be) cognizant of the requirements within the federal Americans With Disabilities Act (“ADA”) and its applicable state counterparts with respect to the accessibility of their brick–and-mortar stores, they may not have considered accessibility issues involving their Web sites. However, a recent settlement of a federal lawsuit against Target Corporation will likely bring the issue of e-commerce accessibility to the forefront. Under the terms of a settlement filed on August 27, 2008, Target agreed to make its Target.com Web site fully accessible to blind customers by February 2009 and pay $6 million in damages to those visually impaired customers in California who were unsuccessful in using the site. This update provides a brief overview of the Target suit and settlement, and demonstrates why the court’s pretrial rulings are even more significant than the amount of the settlement itself.

As part of the recently enacted Emergency Economic Stabilization Act, commonly referred to as the "bailout" bill for the financial sector, a new section has been added to the Internal Revenue Code ("Code"). Section 457A, Nonqualified Deferred Compensation from Certain Tax Indifferent Parties, taxes employees on compensation that is deferred under a "nonqualified deferred compensation plan" of a "nonqualified entity" when the compensation is no longer subject to a "substantial risk of forfeiture," and potentially imposes an interest charge and a 20% penalty tax with respect to the compensation. The new rules apply in addition to the requirements of existing Code Section 409A and any other provisions with respect to nonqualified deferred compensation, and are effective for amounts deferred that are attributable to services performed after December 31, 2008. For existing deferrals, the deferral amounts will be includible in the later of a) the year 2017, or b) the tax year in which no substantial risk of forfeiture exists concerning the rights to the deferred compensation.

The IRS recently announced the Year 2009 cost-of-living adjustments for various provisions affecting employee benefit plans. The following table shows the Year 2009 limits plus those from prior years:

In a decision that amplifies how Delaware courts analyze material adverse effect clauses in merger agreements and examines what constitutes bad faith by a buyer, the Delaware Court of Chancery in Hexion Specialty Chemicals, Inc. v. Huntsman Corp., C.A. No. 3841-VCL, 2008 WL 4457544 (Del. Ch. Sept. 29, 2008), dealt the buyer, Hexion Specialty Chemicals, Inc., a stunning blow.

The holiday season is marked by many colorful, highly competitive ad campaigns. Conducting a legal review of advertising materials can go a long way toward managing legal liability and associated costs. Advertising review should cover a number of issues, including copyright, trademark and right of publicity/privacy issues, comparative advertising, claim substantiation, offer terms, and regulator and industry self-regulation compliance issues, to name a few. This update highlights some copyright, trademark, right of publicity/privacy and comparative advertising issues businesses should consider when designing ads for this holiday season.

On September 23, after 18 months of effort, the Western Climate Initiative ("WCI") issued its final design recommendations for a regional cap-and-trade program (the "Program").

Retailers that sell goods over the Internet or through catalogs are under increasing pressure to collect sales/use tax even in states where the retailer does not have a clear physical presence. Recent legislative developments in several states may significantly impact retailers this holiday season by requiring Internet (and catalog) retailers to collect tax on transactions that, until now, did not require tax collection.

The SEC recently adopted amendments to rules and forms affecting foreign private issuers.

A greater emphasis on corporate record keeping under the Sarbanes-Oxley Act of 2002 and related regulations, shareholders’ heightened expectations of directors and the intense scrutiny of director conduct in litigation, including option backdating cases, are increasingly placing corporate minutes in the spotlight.

On September 17, 2008, the House approved the ADA Amendments Act of 2008 (S. 3406).

Protection of directors from the expense of litigation is a key issue for both companies and directors. Most corporate bylaws make indemnification of directors to the fullest extent allowed by law mandatory.

In Broadcom v. Qualcomm, decided September 24, 2008, the Court of Appeals for the Federal Circuit ruled that a jury can be told that the defendant in a patent infringement action had not obtained an opinion from patent counsel. The Federal Circuit’s decision allows patent plaintiffs to argue that such a failure supports a conclusion that the defendant induced infringement. The decision removes some of the benefits patent defendants obtained from the Federal Circuit’s Seagate decision, which held that potential patent defendants have no obligation to seek or obtain an exculpatory opinion from patent counsel.

The White House has announced that President Bush signed Federal Rule of Evidence 502 into law on September 19, 2008. Formally titled “Attorney-Client Privilege and Work-Product Doctrine; Limitations on Waiver,” Rule 502 limits the scope of waiver of the attorney-client and work-product privileges, including the effect of inadvertent disclosure during discovery or in dealing with government agencies.

The IRS recently published Revenue Procedure 2008-50, which updated and expanded its Employee Plans Compliance Resolution System.

As the public becomes increasingly concerned about climate change and greenhouse gas regulation, publicly traded companies are considering the extent to which they need to disclose climate change risks in their annual securities filings with the Securities and Exchange Commission.

Earlier this year, the SEC amended its rules to revise the information required to be furnished on Form D and, after a transition period, to require the form to be filed electronically.

September 30, 2008 is the deadline for mandatory electronic filing of export information. Is your company in compliance?

New owners of existing facilities often seek to address environmental noncompliance that began prior to acquisition of the facility in order to avoid or reduce penalties that may be imposed by federal and state governmental agencies.

Proposed North American greenhouse gas (GHG) cap-and-trade programs would require large GHG emitters to substantially reduce carbon emissions. These reductions may require investment in energy efficiency, renewable power and the development of alternative low-carbon fuels.

The SEC recently issued an interpretive release regarding the use of company websites to disclose information to investors. This new guidance focuses on four main topics:

On August 14, 2008, President Bush signed into law the Consumer Product Safety Improvement Act of 2008 (the "Act"), which passed the House on July 30, 2008 by a vote of 424-1 and the Senate on July 31, 2008 by a vote of 89-3.

On August 15th Louisiana became the tenth state to prohibit employers from enforcing any workplace policy that would prevent their employees from storing a gun in their cars on a company lot.

On August 7, 2008, the U.S. Court of Appeals for the Ninth Circuit held that the Federal Communications Act ("FCA" or the "Act") does not pre-empt state claims brought pursuant to a Washington state consumer protection statute, RCW 82.04.500, which has been interpreted to prohibit Washington businesses from passing line-item charges on to a customer without proper disclosure prior to the customer agreeing to the final purchase price.

The SEC recently approved a one-year extension of the date on which non-accelerated filers must begin to comply with the auditor attestation report on internal control over financial reporting required by Section 404(b) of the Sarbanes-Oxley Act of 2002.

On May 27, 2008, the U.S. Supreme Court denied certiorari in T-Mobile USA, Inc. v. Laster, No. 06-55010, 2007 WL 3194117 (9th Cir. Oct. 16, 2007), cert. denied, 128 S. Ct. 2500 (2008), thereby declining to resolve confusion surrounding the validity of waivers of class action relief as part of an arbitration agreement.

The Oregon Land Use Board of Appeals ("LUBA") recently handed down a decision that held that under ORS 227.178(4) and its companion statute, ORS 215.427(4), applications not completed after 180 days are considered void.

The prevalence of–and risks associated with–litigation over intellectual property (IP) rights has escalated tremendously over the past decade.

Members of the securities industry have voiced concern in response to the Securities and Exchange Commission’s proposed amendments to Regulation S-P ― the consumer privacy and data security rules first adopted by the SEC in 2000.

The deregulation of telecom and cable television industries under the Telecommunications Act of 1996 brought on widespread telecom and video television competition.

On July 23, 2008, the Western Climate Initiative ("WCI") issued the Draft Design for its regional greenhouse gas ("GHG") cap-and-trade program. The Draft Design reflects stakeholder feedback to WCI’s previous draft recommendations, which were discussed in our recent update, WCI Cap-and-Trade Design Recommendations.

The state and provincial regulatory systems that ultimately emerge from the Western Climate Initiative (WCI) and other regional initiatives will be designed to substantially reduce greenhouse gas (GHG) emissions through market-based regulation.

On June 26, 2008, the Washington Supreme Court issued its decision in Community Telecable of Seattle, Inc. v. City of Seattle, Dkt. No. 79702-1. A unanimous court held that the City of Seattle ("City") could not tax an Internet service provider at a tax rate exceeding the City's general service classification rate.

Auditors today routinely request information about internal investigations.

In Quanta Computer, Inc. v. LG Electronics, Inc., No. 06-937 (decided June 9, 2008), the Supreme Court reaffirmed the broad scope of the doctrine of “patent exhaustion,” holding that (1) both method and apparatus claims can be exhausted, and (2) authorized sales of components can exhaust patent claims on systems if the components embody essential features of the claims and have no substantial use other than to practice the claims.

The deadline is fast approaching for amending deferred compensation arrangements that are subject to Section 409A of the Internal Revenue Code.

In addition to running businesses and fulfilling their ordinary fiduciary duties, in recent years, officers and directors of financially troubled companies have had to worry about potential "deepening insolvency" claims.

Last year, the Oregon Court of Appeals sent shock waves through Oregon’s employers by ruling that employees had the right to sue and seek lost wages and penalty pay for missed rest breaks.

Effective May 27, 2008, government contractors may protest the issuance or proposed issuance of a task or delivery order valued in excess of $10 million.

The Federal Trade Commission recently issued a final Discretionary Rule under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM).

On May 20, 2008, Division II of the Washington Court of Appeals held that, for purposes of the local use tax on brokered natural gas (BNG), the place of use is where the taxpayer first exercises dominion and control over the gas and not where it is burned or consumed. G-P Gypsum Corporation v. State of Washington, Department of Revenue.

The Western Climate Initiative ("WCI"), a collaboration among certain U.S. states and Canadian provinces, recently issued recommendations for the design of North America's largest greenhouse gas ("GHG") cap-and-trade program.

The Federal Communications Commission ("FCC") has asserted federal jurisdiction over many VoIP services, thereby preempting the application of most state regulation of VoIP services.

On May 14, 2008, Secretary of the Interior Dirk Kempthorne announced the decision by the U.S. Fish and Wildlife Service (FWS) to list the polar bear as a "threatened" species under the Endangered Species Act (ESA).

Concerns about climate change have sparked global efforts to regulate carbon dioxide and other "greenhouse gases" (GHGs). Recent, but sometimes inconsistent, developments at various levels of government present significant business risks and opportunities.

The U.S. Supreme Court will hear arguments on an EPA rule that the electric power industry estimates could cost it tens of billions of dollars.

This client update reports recent litigation involving climate change and greenhouse gas ("GHG") regulation.

On April 4, 2008, the Ninth Circuit Court of Appeals issued a much-anticipated opinion in United States v. Stringer, defining the boundaries of permissible government conduct in parallel civil and criminal investigations.

The Washington Legislature has passed, and the governor has signed into law, two new types of employee leaves that all Washington employers, regardless of size, will be required to provide.

In an eagerly awaited decision, the U.S. District Court for the Eastern District of Virginia permanently enjoined the U.S. Patent and Trademark Office (USPTO) from implementing proposed rules that would have restricted the ability of patent applicants to file multiple continuation applications and required applicants to provide extensive additional information if they filed more than five independent claims or 25 total claims.

On March 25, 2008, the U.S. Supreme Court invalidated a contract clause that provided for expanded judicial review of an arbitration award.

The IRS recently issued Revenue Ruling 2008-13, which clarifies the IRS's new position with
respect to the applicability of the performance-based compensation exception for purposes of Section 162(m) of the Internal Revenue Code and grants transition relief to provide public companies an opportunity to review outstanding compensation plans, agreements and other arrangements in light of the IRS's new position.

On Monday, March 3, 2008, the electricity sector subcommittee of the Western Climate Initiative ("WCI") issued initial draft design recommendations for recording greenhouse gas ("GHG") emissions from fossil‑fueled (coal and gas) power plants.

In Centre Insurance Co. v. SNTL Corp. (In re SNTL Corp.), 380 B.R. 204 (B.A.P. 9th Cir. 2007), the Ninth Circuit Bankruptcy Appellate Panel held that an unsecured creditor may include postpetition attorneys’ fees in its proof of claim.

The U.S. Supreme Court recently decided a defined contribution plan case that could expand the right of participants in ERISA-covered benefit plans to sue fiduciaries for a breach of their duties under ERISA.

On February 7, 2008, U.S. District Judge Neil Wake issued a lengthy order upholding the Legal Arizona Workers Act (“Act”) against a variety of constitutional challenges.

On February 20, 2008, the U.S. Supreme Court once again rejected a state's attempt to interfere with arbitration.

As the most sought-after category of nonimmigrant work visa, the H-1B visa allows U.S. employers to hire foreign nationals in positions deemed “Specialty Occupations.”

The U.S. Department of Labor ("DOL") has recently issued a comprehensive set of proposed new regulations under the Family and Medical Leave Act ("FMLA").

On December 31, 2007, President Bush signed into law the Openness Promotes Effectiveness in our National Government Act, better known as the OPEN Government Act of 2007.

At the annual SEC Speaks conference in Washington, D.C., last week, senior staff of the U.S. Securities and Exchange Commission reviewed significant SEC actions from the previous year and identified their top priorities for the year to come.

On January 28, 2008, President Bush signed into law an amendment to the Family and Medical Leave Act ("FMLA"). The amendment creates two new types of leave under the FMLA.

Boards often appoint special committees to investigate allegations of wrongdoing by senior management.

As the news is increasingly filled with reports of identity theft and the data security breaches experienced by large retailers such as TJX, several groups are expressing concerns about the safety of sensitive consumer data.

Contractors have become increasingly concerned about TAA interpretation and enforcement, as well as potential False Claims Act liability. A recent GSA announcement, however, may signal a shift toward a more contractor-friendly perspective.

The SEC recently amended the eligibility requirements for companies to use Form S-3 registration statements to facilitate more efficient capital market access by smaller public companies.

The Federal Trade Commission recently announced a complaint and settlement with Negotiated Data Solutions LLC (N-Data) alleging that N-Data engaged in unfair methods of competition and unfair acts or practices in its enforcement of patents against makers of computer equipment employing Ethernet, the dominant computer networking standard.

The Federal Trade Commission (FTC) recently announced that the reporting thresholds under the Hart‑Scott-Rodino Antitrust Improvements Act of 1976 (Act) will be increased, effective February 28, 2008.

Given developments in 2007, now is a good time for a company to review the adequacy of its export compliance program.

The Securities and Exchange Commission recently finalized amendments to Rules 144 and 145 under the Securities Act of 1933, which will become effective on February 15, 2008. The amendments apply to securities acquired before or after February 15, 2008.

In 2007 the Securities and Exchange Commission adopted amendments to the proxy rules that will require companies to post their proxy materials on a publicly available Internet website. Proxy materials include proxy statements, proxy cards, information statements, annual reports to security holders, notices of shareholder meetings, additional soliciting materials, and any amendments to such materials. The e‑proxy rules do not apply to proxy materials relating to business combination transactions.

In a highly anticipated case which pit the plaintiffs’ securities bar against business interests and the SEC, the Supreme Court yesterday rejected “scheme-liability” claims against third parties that do business with public companies accused of violating federal securities laws. Shareholders of Charter Communications alleged that two suppliers knowingly entered into sham transactions with Charter, allowing the company to overstate its operating cash flow. Because Charter’s investors did not rely on the actions or statements of the suppliers, the Court refused to extend liability under Section 10(b) of the Securities Exchange Act of 1934 to those suppliers. The Supreme Court said that Congress—not the Court—would have to expand any such liability beyond the boundaries set by Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164 (1994).

The National Labor Relations Board ("NLRB" or "Board") recently issued a significant decision that will affect workplace e-mail policies for both union and nonunion employers.

In 2007 Governor Ted Kulongoski signed into law HB 2826, a bill that amended the Oregon Business Corporation Act effective January 1, 2008 to expressly permit a company’s articles of incorporation to include a provision "authorizing or directing the corporation to conduct the business of the corporation in a manner that is environmentally and socially responsible." HB 2826 is codified at ORS 60.047(2)(e).

It has been a whirlwind two weeks in the life of the Legal Arizona Workers Act ("Act"), but despite all of the activity, the Act remains slated to go into effect on January 1, 2008.

The Defense Department, General Services Administration and NASA published a final rule establishing policy for a contractor code of business ethics and conduct as well as procedures for displaying Office of Inspector General fraud hotline posters.

Companies, insurers, attorneys and other professionals sometimes hire private investigators to obtain confidential information about an individual. A recent indictment brought by federal prosecutors in Seattle raises red flags about this practice and confirms that those who engage in pretexting to obtain confidential information or who knowingly purchase pretexted information may face criminal prosecution.

This update highlights seasonal wage/hour flashpoints for retail industry employers.  The holiday season's unique opportunities demand flexible staffing, but the same inflexible rules that govern wages and hours year round remain in effect. Also, several state laws will change during the holiday season. Plaintiffs' lawyers leverage minor violations of these technical rules into class action lawsuits, so even small mistakes can prove costly. The only sure defense against wage/hour claims is to know the rules and insist on strict compliance

Currently, Arizona’s employer sanctions law – known as the Legal Arizona Workers Act or the Fair and Legal Employment Act – remains slated to go into effect on January 1, 2008. Shortly after the law was passed in July, several lawsuits were filed raising a variety of challenges to the law under both the U.S. and Arizona constitutions. In response, the state moved to dismiss the lawsuits on procedural grounds, asserting that the cases were not yet ripe for decision and the plaintiffs lacked standing. A lengthy hearing to address these issues took place in federal court on November 14 before Judge Neil Vincent Wake. Judge Wake has promised to issue a decision before January 1, although many interested parties hope that he will rule by mid-December. Whichever way the judge rules, it is likely that the losing side will appeal.

Stories about recalls of consumer products—particularly imports from Asia—have been front-page news for the past several months. This update provides basic guidance to retailers about their obligations regarding recalled products and the steps they can take both before and during a recall to minimize their expense and liability exposure. It also summarizes the reporting requirements under the Consumer Product Safety Act (CPSA).This update provides general information and not legal advice or opinions on specific fact.

On November 26, 2007, U.S. Citizenship and Immigration Services announced in the Federal Register that as of December 26, 2007, employers must use the new version of the Form I-9 when verifying the employment eligibility of new hires.

Over the past three decades, the video game industry has grown to be a major part of the entertainment industry. Recently, a genre of video game called "Massively Multiplayer Online Role Playing Games" has experienced a meteoric rise in popularity.

On October 1, 2007, the Ninth Circuit clarified an issue near and dear to landlords: what lease rejection damages can be collected under the damages cap set forth in Section 502(b)(6) of the Bankruptcy Code. In In re El Toro Materials Co. 2007 WL 2822019 (9th Cir. Oct. 1, 2007), the Ninth Circuit held that damages that clearly do not arise from the rejection of a lease are not subject to the cap. In articulating a standard, the Ninth Circuit offered significant guidance to both landlords and debtors alike.

Halloween is over, Thanksgiving is nearly here - the holiday shopping season is upon us. As retailers ready themselves for the push for year-end profits and as malls and shopping centers gear up to attract and manage hordes of shoppers, we have made a list of lease terms of particular importance for the holidays. With best wishes to our clients and friends in the retail industry, we hope this list helps avoid misunderstandings and disputes that could spoil a landlord’s or tenant’s holiday cheer.

On October 31, 2007 the United States Patent and Trademark Office (USPTO) announced that it would not enforce the new patent regulations directed to continuing applications and patent claim limits that it published earlier. On August 21, 2007, the USPTO had issued new regulations that substantially changed how patent applicants can protect their inventions. Perkins Coie published an Update summarizing these regulations which were scheduled to become effective on November 1. However, on October 31, a federal district court in Virginia granted a preliminary injunction to prevent the USPTO from enforcing these new regulations until the court decides whether or not the new regulations are unlawful.

The Securities and Exchange Commission recently reviewed the executive compensation disclosure of 350 companies under its new rules adopted in 2006. Following this review, the SEC issued comment letters to the companies reviewed and then issued a report that follows the general themes that run throughout these comment letters.

Last week the IRS issued Notice 2007-86, which delays until January 1, 2009 the deferred compensation final regulations of Internal Revenue Code Section 409A and generally provides expanded relief and guidance.  The IRS also separately issued Notice 2007-89, which generally extends for the 2007 tax year prior IRS guidance to employers and other service providers regarding reporting and withholding obligations for annual deferrals of compensation and amounts includible in gross income due to Section 409A violations.  This update summarizes key aspects of both notices and provides practical guidance.

As the rush of the holiday season begins with the hiring of seasonal workers, retailers should take note of a new federal regulation that imposes additional requirements on employers to verify the work eligibility of applicants and employees.

The National Environmental Policy Act (NEPA) requires federal agencies to assess the environmental impacts associated with major federal actions, projects or decisions, such as issuing permits, spending federal funds or approving actions that affect federal lands.

On October 18, the Washington Supreme Court held that service technicians who drive company vehicles from their homes to their first jobsite of the day and back home from the day’s last jobsite are entitled to compensation for all of the time that they spend driving between home and a jobsite. These arrangements are common, and this decision has significant potential implications for any employers who require or permit employees to take company vehicles home.