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Publication Results

“Religious Liberty, Conscience and Health Care: A Case Study of the Administration’s Implementation of the Public Health Service Act,” 52 Chicago Studies 80, Winter 2013.
Winter 2013
Publications
With increasing frequency, employers are being targeted by lawsuits alleging violations of state and federal consumer reporting statutes. Particularly when claims are brought on behalf of a class of claimants under the federal Fair Credit Reporting Act (FCRA) and/or similar state statutes, such litigation can result in significant losses for employers who fail to take steps to ensure compliance with federal and state consumer reporting laws. This advisory discusses federal and state requirements for employment-related usage of consumer reports, statutory incentives for class-action lawsuits against employers, and offers suggestions to employers on the steps to confirm they are FCRA-compliant.
July 18, 2014
Advisories
In a decision that may have far-reaching implications to the Federal Government’s efforts to oversee the E-Rate Program, the Fifth Circuit Court of Appeals recently reversed a district court decision denying several technology companies’ motion to dismiss a False Claims Act (FCA) case arising out of the defendants’ participation in the E-Rate Program. The Fifth Circuit held that E-Rate funds are not “provided by” the Federal Government merely because Congress established the program, thereby concluding at least some financial harm to the U.S. Treasury is required before FCA liability can attach. Alston & Bird Government Contracts attorneys Jeff Belkin, Andy Howard, and Jessica Sharron represent two defendants (only one of which was involved in the appeal) in the case.
July 16, 2014
Advisories
In a landmark decision, FDIC v. Loudermilk,1 the Georgia Supreme Court confirmed that the business judgment rule protects Georgia’s directors and officers, including bank directors and officers, from second-guessing of the wisdom of business decisions. With this ruling, scattershot allegations regarding the business decisions of directors and officers will not survive, and plaintiffs, such as the FDIC, must instead focus on the very narrow issue of whether the directors or officers, in making the business decisions, did so either without deliberation, without assessing the facts upon which the decision was based, or in bad faith.
July 15, 2014
Advisories
Following the administration budget’s proposal for stricter anti-inversion legislation, Congressmen Chris Van Hollen and Sander Levin have introduced the Stop Corporate Expatriation and Invest in America’s Infrastructure Act (H.R. 4679) to stiffen the provisions of Section 7874. (Senator Carl Levin introduced a similar proposal, S. 2360, in the Senate.) The proposed legislation epitomizes the government’s anti-inversion frenzy, as more U.S. companies look for greener tax pastures overseas.
July 15, 2014
Advisories
Earlier this month, the U.S. Food and Drug Administration (FDA) issued an Interim Draft Guidance, “Current Good Manufacturing Practice – Interim Guidance for Human Drug Compounding Outsourcing Facilities Under Section 503B of the FD&C Act” (July 2014) (the “Interim Draft Guidance”). The Interim Draft Guidance delineates the agency’s current expectations regarding outsourcing facility compliance with current good manufacturing practice (cGMP) requirements in 21 CFR Parts 210 and 211. Outsourcing facilities, as defined in the 2013 Drug Quality and Security Act, are facilities engaged in the compounding of sterile drugs that have elected to register with the FDA. The Interim Draft Guidance will be in effect for these facilities until more specific cGMP final regulations are promulgated.
July 14, 2014
Advisories
The following is the A&B Healthcare Week In Review for the week ending July 11, 2014.
July 11, 2014
Publications
Greenhouse gas reporting programs at the state and federal level are becoming increasingly important as their output can form the basis for future regulations. The authors of this BNA Insight look at two such programs in California and one from the EPA. Compliance is critical, they argue, as penalties can quickly mount and enforcement activity is likely to rise in the coming years.
July 11, 2014
Publications
This advisory discusses the United States Court of Appeals for the D.C. Circuit’s issuance of an important decision in In re Kellogg Brown & Root, Inc., which restored the applicability of the attorney-client privilege to documents created in connection with a company’s internal investigation. The court’s opinion is considered a victory for the business community, as it reversed a lower court decision that “threaten[ed] to vastly diminish the attorney-client privilege in the business setting.”
July 9, 2014
Advisories
"Supreme Court Holds CERCLA Does Not Preempt State Limitations Periods," Westlaw Journal Environmental, July 9, 2014.
July 9, 2014
Publications
This alert discusses the SEC’s Division of Investment Management and Division of Corporation Finance’s provided guidance in Staff Legal Bulletin No. 20 related to registered investment advisers and proxy advisory firms.
July 7, 2014
Advisories
The following is the A&B Healthcare Week In Review for the week ending July 5, 2014.
July 5, 2014
Publications
In its long-awaited Hobby Lobby decision (Burwell v. Hobby Lobby Stores, Inc.), issued on June 30, 2014, the Supreme Court held 5–4 that the Department of Health and Human Services’ (HHS) preventive care mandates regarding contraceptive coverage issued under the Affordable Care Act (ACA) violate the Religious Freedom Restoration Act (RFRA) when applied to closely held, for-profit corporations that hold sincere religious beliefs against such coverage. This decision has generated headline news and considerable commentary, including whether it will have broader implications. This advisory focuses on the practical implications of the decision for group health plans, employers, insurers and third-party administrators (TPAs).
July 3, 2014
Advisories
This advisory discusses the game-changing Supreme Court decision in NLRB v. Noel Canning, holding that President Obama exceeded his authority under the Constitution when he made high-level government appointments during a period in which he declared the Senate to be in recess and unable to act on the nominations. Significantly for employers, the Court held that three of Obama’s appointments to the National Labor Relation’s Board made during a so-called Senate recess period in January 2012 were unconstitutional.
July 2, 2014
Advisories
Stymied by Congress in efforts to pass legislation such as the Fair Minimum Wage and Paycheck Fairness Acts, President Obama has been using his executive powers to impact employment laws.  Additional executive action may be on the way.
July 2014
Publications
Rev. Proc. 2014-3 provides that the IRS won’t issue rulings on “the treatment or effects of hook equity, including as a result of its issuance, ownership, or redemption.” It defines hook equity as “an ownership interest in a business entity (such as stock in a corporation) that is held by another business entity in which at least 50 percent of the interests (by vote or value) in such latter entity are held directly or indirectly by the former entity.” But a recent ruling involved hook stock and predated the no-rule. LTR 201404002 involved a surprising but somewhat common use of Section 355 to eliminate hook stock. It requires the invention of yet another spinoff term—this time, the split-down.
July 1, 2014
Advisories
We recently sat down with Ken Jaffe, partner and leader of the firm’s Energy Group, and discussed new economic and regulatory trends that are creating significant challenges, and opportunities, for electricity suppliers, market operators and delivery companies in the electricity markets.
June 30, 2014
Interviews
This advisory discusses Lewis Brothers Bakeries, Inc. and Chicago Baking Co. v. Interstate Brands Corp., in which the United States Court of Appeals for the Eighth Circuit, sitting en banc, held that a perpetual, royalty-free, assignable, transferable, exclusive trademark license granted in connection with a substantially consummated asset purchase agreement was not an executory contract that could be assumed or rejected by the licensor-debtor in bankruptcy. The holding should be noted by parties to trademark licenses as it outlines certain rights when a party to the license files bankruptcy.
June 30, 2014
Advisories