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Publication Results

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 June 20, 2014.
June 20, 2014
Publications
Last month, in a closely watched class action case — Loeffler v. Target Corp. — involving a claim for a refund of allegedly improperly collected sales taxes brought under California’s consumer protection laws, the California Supreme Court held that the refund scheme created by the California tax code provides the exclusive remedy for a dispute over the applicability of the state sales tax to retail transactions. Consequently, the court dismissed a suit under California’s Unfair Competition Law and Consumer Legal Remedies Act by consumers seeking to recover a refund of erroneously collected sales taxes.  The court’s holding closely followed the logic and policy reasoning outlined in an amicus brief filed in the case by Alston & Bird.
June 20, 2014.
Publications
Data privacy practices and related class action litigation continue to be super-hot topics that require close attention. Brand damage, governance shakeups and congressional inquiries because of data practices should provide sufficient motivation to stay up-to-the minute in these critical areas. This advisory examines the latest developments in the Hulu litigation involving alleged violations of the Video Privacy Protection Act. While a California federal district court has denied certification of a class of Hulu video service users, it left the door open for future class cases in this emerging area.
June 19, 2014
Advisories
Every company that hosts videos on its websites or mobile apps and includes a “Like” button or other social networking plug-in should pay very close attention to a unique case that continues in the Northern District of California.
June 19, 2014
Publications
On June 10, 2014, the U.S. Supreme Court unanimously held that claims under the Lanham Act for unfair competition and false advertising that relate to the labeling of food and beverages are not precluded by the compliance of the products with the Federal Food, Drug, and Cosmetic Act (FDCA). Reversing a Ninth Circuit decision, the Supreme Court’s ruling resolves the question of whether a competitor may bring a Lanham Act claim for unfair competition or false advertising relating to an allegedly misleading food or beverage label when those labels comply with FDA regulations.
June 18, 2014
Advisories
"The Rule Against (Liability in) Perpetuity," ALM Law Journal Newsletters, LJN’s Product Liability Law & Strategy, Vol. 32, No. 12, June 2014.
June 2014
Publications
This advisory discusses the first published decision from an administrative appeal under the Delaware Escheats Law, where the independent reviewer rejected the holder’s arguments that Delaware’s ability to estimate a liability was both unconstitutional and unlawful, and largely disagreed with the position that that Delaware’s estimation methodologies were flawed (though some potentially viable arguments were raised).
June 16, 2014
Advisories
This advisory discusses United States v. Zwerner, which raised important questions not only about the FBAR penalties at issue, including their constitutionality, but also about the IRS’ administration of the Offshore Voluntary Disclosure Program.
June 16, 2014
Advisories
The following is the A&B Healthcare Week In Review for the week ending June 13, 2014.
June 13, 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 June 13, 2014.
June 13, 2014
Publications
Rick Blumen, co-leader of the firm’s Finance Group, was quoted in Forbes and Mergermarket regarding his recent paper discussing earnout provisions – a tool that allows sellers to receive additional purchase price payments following the closing for hitting financial or other goals, while providing buyers a means to mitigate uncertainty in the valuation of a business; however, according to Blumen, these useful tools are not always getting proper accounting treatment in financing documents.

Blumen said where some lenders miss the mark is in the treatment of such non-cash EBITDA adjustments for purposes of calculating debt covenants. By not excluding these non-cash items, leverage ratios can be distorted in a counterintuitive way.

“The exclusion of earnouts from total debt started out as an exception to the rule, but has become the norm among lenders to private equity,” Blumen explained.
June 11, 2014
Advisories
This advisory discusses the Supreme Court ruling in CTS Corporation v. Waldburger, et al., which held that Section 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not preempt state statutes of repose. The Court’s 7–2 decision, reversing the holding of the Fourth Circuit Court of Appeals, resolved a circuit split on the issue.
June 10, 2014
Advisories
"Ability to Pay Taxation," 143 Tax Notes 1195, June 9, 2014.
June 9, 2014
Publications
This advisory discusses the issuance of the much-anticipated Supreme Court decision in Limelight Networks, Inc. v. Akamai Technologies, Inc., in which the Court unanimously held that a defendant cannot be liable for inducing infringement of a patent under 35 U.S.C. § 271(b) without an underlying act of direct infringement under 35 U.S.C. § 271(a), reversing a fractured en banc ruling by the Federal Circuit.
June 6, 2014
Advisories

In 2012, the U.S. District Court for the Western District of Missouri issued one of the first verdicts finding plan fiduciaries liable under the Employee Retirement Income Security Act of 1974, as amended (ERISA),2 for breaching their duties to participants and beneficiaries based upon an alleged failure to monitor the amount of recordkeeping fees paid under their plan. That decision was also the first to find a service provider liable for mishandling ‘‘float’’ income. Almost exactly two years later, the U.S. Court of Appeals for the Eighth Circuit reversed the District Court decision with respect to float, affirmed the decision against the fiduciaries based upon their failure to monitor recordkeeping fees, and remanded the decision against the fiduciaries for imprudent fund selection for further proceedings. This article discusses the history of the case and what led the Eighth Circuit to reach a split decision and identifies the steps employers and plan sponsors should take to avoid running into these situations in the future.

June 6, 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 June 6, 2014.
June 6, 2014
Publications
This advisory discusses the California Air Resources Board’s unveiling of details regarding its Draft 2013 Consumer and Commercial Products Survey. If enacted, this Survey would require parties dealing in consumer products to submit sales and formulation data through online reporting tools.
June 5, 2014
Advisories
Class actions and environmental-contamination cases tend to mix like oil and water.  As Judge Scheindlin of the Souther District of New York wrote back in 2002, "the overwhelming majority of state and federal courts have denied certification of environmental mass tort classes, even in single source cases." In re MTBE Prods. Litig., 209 F.R.D. 323, 347-48 (S.D.N.Y. 2002). 
June 5, 2014
Publications