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Publication Results

“America Invents Act Grace Period: How Much Protection Does It Really Provide?” Intellectual Property Today, January 2014.
January 2014
Publications
The following is a summary of the precedential patent-related opinions issued by the Court of Appeals for the Federal Circuit for the week ending December 27, 2013.
December 27, 2013
Publications
This advisory discusses the impact of the Supreme Court’s Windsor decision and recent Internal Revenue Service (IRS) and Department of Labor (DOL) guidance for health and welfare benefit plans. While there are still some unanswered questions, the recent agency guidance has given plan administrators guidelines about how to proceed. Some action must be taken quickly to take advantage of recent transition relief, so employers whose plans cover same-sex spouses (or who wish to amend their plans to do so) should take note of the relevant deadlines.
December 26, 2013
Advisories
On December 18, 2013, the Securities and Exchange Commission (the “Commission”) proposed new amendments to Section 3(b) (known as Regulation A) of the Securities Act of 1933, as amended (the “Securities Act”), as mandated by the Jumpstart Our Business Startups Act (the “JOBS Act”). Currently, Regulation A exempts certain offerings from the registration requirements under the Securities Act. The proposed rules, known as Regulation A+, would establish two tiers of Regulation A offerings: Tier 1 for offerings not exceeding $5 million and Tier 2 for offerings not exceeding $50 million. In addition, the proposed rules would amend Regulation A with respect to issuer eligibility, offering statement contents and “testing the waters” solicitation. Until final rules are adopted, no issuer or prospective issuer may rely on the proposed rules.
December 23, 2013
Advisories
The Lehman Brothers bankruptcy court has determined that the contractually specified methodology for conducting the liquidation of a swap agreement is protected by the safe harbor provisions of the bankruptcy, even if the selected methodology would be more favorable to the non-defaulting counterparty than the liquidation methodology that would apply absent the bankruptcy. See Michigan State Housing Dev. Auth. v. Lehman Bros. Deriv. Prods. Inc. (In re Lehman Bros. Holdings Inc.), No. 08-13555, ---B.R. ----, 2013 WL 6671630 (Bankr. S.D.N.Y. Dec. 19, 2013).
December 23, 2013
Advisories
The following is a summary of the precedential patent-related opinions issued by the Court of Appeals for the Federal Circuit for the week ending December 20, 2013.
December 20, 2013
Publications
The CPSC seems to have fully recovered from the Shutdown. After announcing only 12 recalls in October, the Commission made up for lost time and announced 21 recalls in November.

In addition to being active on the recall front, the CPSC issued a press release early this month with some startling statistics on holiday decorating injuries. According to the press release, there were approximately 15,000 emergency room visits in 2012 for holiday decorating injuries. The press release also notes that “the most frequently reported holiday decorating incidents seen in emergency departments involved falls (34%), lacerations (11%) and back strains (10%).” The complete press release can be found at Holiday Injury Press Release.
December 20, 2013
Publications
On December 2, 2013, the U.S. Supreme Court heard argument in BG Group PLC v. Republic of Argentina, the British energy company’s bid to reinstate a $185 million arbitration award against Argentina. The dispute began more than ten years ago when Argentina enacted several emergency measures designed to combat the collapse of its economy, which severely devalued BG Group’s investment in MetroGas, an Argentine gas distribution company. BG Group, like many other investors that were harmed by Argentina’s actions, wanted to recover its losses but had little faith in the Argentine courts.
December 20, 2013
Advisories
On December 10, 2013, the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Securities and Exchange Commission and the Commodity Futures Trading Commission (the “Agencies”) each adopted a final rule (the “Final Rule”) implementing Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, commonly referred to as the “Volcker Rule.” The long-anticipated Final Rule was adopted over two years after the proposed rule was released, for which about 18,000 comment letters were received.

This advisory provides a high-level summary of the Final Rule only, and does not purport to be a complete explication of all of the details contained therein. The Final Rule is highly complex, reflecting 71 pages of rules and approximately 900 pages of supplemental materials (with over 2800 footnotes) from five different regulatory agencies, each of which has discretion to interpret the Final Rule. There will be numerous interpretive questions to be resolved by the Agencies in regulatory commentary, Q&A, bulletins, examination guidance and other releases going forward. Thus, banking entities engaged in, or wishing to engage in, activities potentially subject to the Final Rule should consult with their regular Alston & Bird lawyer or one of the lawyers listed at the end of this advisory to help assess particular concerns.
December 19, 2013
Advisories
On September 13, the IRS and the Department of Labor (DOL) issued twin notices—IRS Notice 2013-54 and Technical Release 2013-03 (collectively, the “Agency Guidance”) —which adversely affect an employer’s ability to pay for major medical coverage issued in the individual market on a pre-tax basis and/or maintain a stand-alone defined contribution medical reimbursement plan, such as an HRA. The guidance created an explosion of interest within the employee benefits community with respect to such arrangements. This advisory provides an analysis of the Agency Guidance and its impact, including a summary reference chart of the arrangements that remain permissible and those that do not.
December 19, 2013
Advisories
The third quarter saw a number of lower courts interpreting Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), with varying results. Courts have also continued to explore the contours of CAFA removal (including exceptions to CAFA jurisdiction), arbitration provisions and who can enforce them, and the “silent killer” of class certification—the ascertainability requirement.

The third quarter was also noteworthy for the number of key certiorari decisions from the U.S. Supreme Court. The court agreed to revisit the “fraud-on- the-market” evidentiary issue in the Halliburton Co. v. Erica P. John Fund securities class action. At the same time, the court denied cert in Marek v. Lane, which asked whether a cy pres remedy that provides no direct relief to class members comports with the requirement of Federal Rule of Civil Procedure 23(e)(2).

The certiorari petitions remain pending in the Whirlpool/Sears front-loading washing machine class actions, where the defendants argue that, in light of Comcast, cases involving consumers who allegedly experienced a product defect have to be litigated on a member-by-member basis.
December 17, 2013
Advisories
“Your Skills: Four Lesson in Mentoring,” The Recorder, December 16, 2013.
December 16, 2013
Publications
For the past several years, Congress has been interested in addressing the perceived abuse of the patent litigation system by non-practicing entities (NPEs). For example, through the Leahy-Smith America Invents Act, enacted in 2011, Congress mandated that the Government Accountability Office conduct a study of the consequences of litigation by NPEs. Published this past summer, the study concluded that an examination of the types of patents being increasingly asserted may bear fruit in addressing perceived litigation abuse. The White House likewise issued several executive actions and legislative recommendations regarding reform of patent litigation this past June, including calls for greater transparency in patent ownership, more discretion in awarding fees to prevailing parties and stays of judicial proceedings with respect to downstream consumers. As a milestone in Congress’s efforts, on December 5, the House passed Representative Goodlatte’s (R-VA) Innovation Act (H.R. 3309) by a vote of 325-91. The Act addresses several of these recommendations, in addition to making other changes intended to ameliorate abusive patent litigation practices. This advisory summarizes key provisions of the Innovation Act and discusses next steps in the legislative process.
December 16, 2013
Advisories
On October 22, 2013, the National Institute of Standards and Technology (NIST) released its Preliminary Cybersecurity Framework (“Framework”), marking one of the final steps in creating the “voluntary” Framework envisioned in an Obama Administration Executive Order (EO) issued earlier this year. That EO, which was designed to strengthen the cybersecurity of the United States’ critical infrastructure,3 required NIST to work with the private sector to develop a cybersecurity Framework to reduce the risks from cyber attacks. The Framework is designed to identify beneficial cybersecurity practices and create a common language for discussing those practices. While the Framework does not create new security standards, it uses existing standards to create a comprehensive approach to cybersecurity risk management that may be useful to companies with either nascent or more robust cybersecurity programs.
December 16, 2013
Publications
On December 4, 2013, the U.S. Treasury issued final and proposed regulations under Section 871(m) of the Code. The final rules extend the current definition of “notional principal contracts” (NPCs) to payments made before January 1, 2016, while the proposed regulations introduce rules that may modify the scope and application of Section 871(m)’s resourcing rule for “dividend equivalent” payments.

Also, in Chief Counsel Advice 201349015 (CCA), released December 6, 2013, the IRS advised on the proper reporting of U.S. taxable income and the proper standard for determining the “compulsory amount” of creditable foreign taxes imposed on transactions between a U.S. corporation and its foreign disregarded entity (DRE) or branch.
December 16, 2013
Advisories
On December 10, 2013, the Privacy Enforcement and Protection Unit of the California Office of the Attorney General (CA AG) held a meeting in San Francisco for interested stakeholders to discuss best practices in light of the Assembly’s enactment of A.B. 370, California’s new do-not-track disclosure law that goes into effect on January 1, 2014. As discussed in the previous Alston & Bird Client Advisory on A.B. 370, the new law provides that operators of websites, online services and mobile applications must amend their privacy policies as of the new year to either (1) disclose how they respond to do-not-track signals from Internet browsers or other consumer choice mechanisms regarding the collection of behavioral tracking data; or (2) link to an online location containing a description of a consumer choice program the operator follows and explain the effects of that program. The new law also requires these operators to disclose the type and nature of any third-party tracking occurring on their sites, services or apps. The CA AG staff focused the discussion with stakeholders on what should constitute “best practices” regarding do-not-track disclosures, rather than on what would be required for businesses to simply comply with the new disclosure requirements created by passage of A.B. 370.
December 13, 2013
Advisories
The following is a summary of the precedential patent-related opinions issued by the Court of Appeals for the Federal Circuit for the week ending December 13, 2013.
December 13, 2013
Publications
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