Over the course of the last several decades, as compounds such as TCE, PCBs and MTBE have demonstrated substantial impacts upon the environment that were never conceived of when these substances were put into commerce— causing both industry and society in general to incur billions in costs to address the consequences — many in the environmental field have advocated a more rigorous process of identifying chemical risks at the outset. Leading companies have embraced the concept, instituting voluntary measures to carefully screen their chemical usage to minimize the environmental risks of their products.
October 31, 2012
Publications
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This article summarizes the analysis used by courts in assessing searches conducted of hospital patients, their rooms and their belongings–whether in the Emergency Department or elsewhere at a hospital.
October 2012
Publications
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Over the last year, we have reported on a suit filed under seal by a company challenging the CPSC’s decision to publish a complaint on the CPSC’s saferproducts.gov database that the company alleged was materially inaccurate. This week, the U.S. District Court for the District of Maryland published its highly anticipated opinion on the issue. In a very lengthy and detailed 78 page opinion, the Court chastised the CPSC for its continued efforts to publish the report and granted the company’s motion for summary judgment, thereby permanently preventing the CPSC from publishing the report. The Court also granted the company’s right to proceed under seal and heavily redacted its opinion so that neither the plaintiff nor the product that was the subject of the report could be identified. Further information on this important case is contained in the following Law 360 article, which came out last week.
October 2012
Advisories
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This advisory discusses the OFAC’s publication of a final rule that amended substantial portions of the Iranian Transactions Regulations (ITR) and renamed those regulations the “Iranian Transactions and Sanctions Regulations” (ITSR). Among the new provisions added to the ITSR are (1) expanded blocking provisions on the government of Iran and Iranian financial institutions that were previously in place only by executive order and statute, as well as (2) a new general license that authorize the export or re-export of “medicine” and “basic medical supplies” (both terms defined in the ITSR). These new provisions and other key aspects of the ITSR are summarized.
October 25, 2012
Advisories
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October 24, 2012
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October 23, 2012
Publications
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This advisory discusses the U.S. Court of Appeals for the Sixth Circuit’s holding in United States ex rel. Brian Wall v. Circle C. Construction, LLC that the submission of false payroll certifications required by the Davis-Bacon Act can form the basis for a False Claims Act (FCA) violation, at least where the proper classification of employees is not at issue. This latest step in the continuing expansion of FCA coverage further exposes contractors doing business with the federal government to potentially harsh penalties under the FCA, making the need to ensure regulatory compliance at all levels more important than ever.
October 19, 2012
Advisories
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"Recent Developments in Chapter 11," Norton Annual Survey of Bankruptcy Law, 1157 (2012 ed.)
2012
Publications
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There is no way around it—the CPSIA’s periodic testing requirements for children’s products are burdensome. The regulations require manufacturers to conduct “periodic testing” of a “sufficient number of samples” to provide a “high degree of assurance” that the tests conducted demonstrate the ability of the product to meet all applicable standards. There are a lot of unanswered questions as to what this all really means, but this article will help shed some light on some of the most significant requirements of the new regulations.
Fall 2012
Publications
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In July of this year, Treasury released a model intergovernmental agreement (IGA) that offered a work-around to foreign entities whose countries of residence have laws preventing the entities from complying directly with FATCA and reflected a cooperative intergovernmental approach to tackling international tax evasion. Under the reciprocal and nonreciprocal versions of the model IGA (“Model I”), in exchange for FATCA reporting to the local foreign government (with subsequent automatic exchange with the United States) and certain other reporting of payments made to nonparticipating foreign financial institutions (FFIs), an FFI would be relieved of certain requirements, such as entering an FFI agreement with the IRS, having tax withheld on payments to the FFI, withholding on payments to nonparticipating FFIs (unless the FFI acts as a Qualified Intermediary), withholding on or closing accounts of “recalcitrant” account holders and withholding on pass-thru payments or gross proceeds.
October 15, 2012
Advisories
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The continuing economic recession has greatly exacerbated the default of borrowers under CMBS loans. The overall delinquency rate for CMBS loans rose for a fourth consecutive month in June of 2012 to 10.16 percent. Commercial property cash flow deficits and lower property values have made it more difficult for borrowers to refinance and have prevented lenders from recovering all of their losses in a foreclosure. More than ever, lenders and servicers are now interested in restructuring defaulted CMBS loans in the hope that in the not-so-distant future, these properties will generate increased cash flow and substantially increase in value. This advisory serves as a servicer’s guide to navigating a CMBS loan restructuring because the tough decisions, when it comes to a restructuring of debt, most often lie with the special servicer.
October 12, 2012
Advisories
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Recent comments submitted by the EU on California's newly proposed Safer Consumer Products regulations demonstrate the complex hurdles faced by California regulators - in this case the Department of Toxic Substances Control (DTSC) - in implementing ambitious goals delegated to them by our Legislature that necessarily impact commerce in today's increasingly globalized economy.
October 12, 2012
Publications
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This advisory discusses a recently issued Executive Order (http://www.whitehouse.gov/the-press-office/2012/10/09/executive-order-president-regarding-authorizing-implementation-certain-s) that implements a number of provisions under various Iran-related statutes, including Section 218 of the Iran Threat Reduction and Syria Human Rights Act of 2012 (ITRSHRA), which for the first time applies Office of Foreign Assets Control (OFAC) Iran sanctions to U.S.-controlled offshore subsidiaries. The language of Section 4 of the Executive Order, which gives effect to Section 218 of the ITRSHRA, is essentially identical to that of Section 218 and adds little in the way of clarification.
October 10, 2012
Advisories
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We have learned that Verus Financial, LLC (“Verus”), the contract audit firm recently known for conducting multistate unclaimed property examinations of the insurance industry, has begun to focus its audit activity on companies in the securities/financial products and services arena. It is issuing notices on behalf of more than 20 states for these audits. This advisory discusses how this development may impact companies that fall into this business sector.
October 9, 2012
Advisories
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This November, California voters might make history through Proposition 37 (“Prop 37”) by requiring labels on all food products sold within the state with genetically engineered (GE) origins or ingredients. If passed, Prop 37 will be the first of its kind at the state or national level. Prop 37, as discussed in this advisory, will cover a wide range of food products and allow private citizens to file suits against alleged violators, and thus has the potential to parallel the course of the now-famous Proposition 65 that has left its mark on the California business and legal worlds for more than 25 years.
October 8, 2012
Advisories
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As reported in our recent advisory “SEC Adopts Final Rules Implementing Dodd-Frank Provisions on Independence of Compensation Committees and Their Advisers,” on June 20, 2012, the Securities and Exchange Commission (SEC) issued final Rule 10C-1 under the Securities Exchange Act of 1934 (“Exchange Act”) implementing the provisions of Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).
October 5, 2012
Advisories
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In Trends, we highlight aspects of our litigation practice of which we are proud, and a recent study by BTI Consulting plainly falls into that category. Based on a survey of more than 240 general counsel and in-house litigation heads, the consulting firm’s survey termed Alston & Bird one of a select group of “BTI Awesome Opponents.” The broader BTI Litigation Outlook, based on more than 350 interviews with legal decision-makers at top-spending companies, recognized our litigators in several special practices, including complex matters, product liability, securities and financial services. We are proud of our rankings in this and other third-party sources, especially because they reflect the views of our clients, as well as those of our adversaries and colleagues.
Fall 2012
Publications
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This advisory discusses a U.S. district court judge’s ruling last week that individuals who make disclosures that are required or protected under the Sarbanes-Oxley Act (SOX) or the Securities Exchange Act of 1934 (SEA) may also qualify as whistleblowers under the Dodd-Frank anti-retaliation provisions, regardless of how those disclosures were made. The decision, in Kramer v. Trans-Lux Corp., is one of only a handful of cases that have examined the anti-retaliation provisions in Dodd-Frank, and the ruling seems to be yet another indication that courts will take a broad view of protected activity when it comes to retaliation claims. Looking ahead, we can anticipate an increase in the number of such claims brought under Dodd-Frank, as the Act’s lengthy statute of limitations, double-pay awards and lack of an exhaustion requirement provide an appealing option for plaintiffs who can qualify as whistleblowers under a liberal construction of the term.
October 3, 2012
Advisories
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This advisory discusses Department of Energy (DOE) conservation investigations and how businesses may be facing exposure on the basis of practices believed to be lawful for the last 35 years. In 2011, the Department of Energy (DOE) launched a rigorous campaign of regulatory enforcement seeking to impose penalties on manufacturers, distributors and private labelers for perceived failures to satisfy federally mandated energy and water conservation standards and reporting requirements. Now, the DOE may unilaterally enforce its regulations even when it has not received any complaints. Those regulations require compliance with the standards and particularized reporting through a DOE-specific system. Moreover, the DOE is creating testing policies that are inconsistent with many longstanding industry-consensus standards and practices that may require manufacturers to redesign their products and re-evaluate their certification filings.
October 3, 2012
Advisories
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As consumers have become more environmentally conscious, manufacturers have increasingly used environmental benefit marketing claims to promote sales of their products. The Federal Trade Commission (FTC) has created guidelines, known as the Green Guides, to aid marketers in properly utilizing environmental benefit claims, out of concern that consumers’ perceived environmental benefit may exceed the actual environmental benefit provided by the manufacturer. On October 1, 2012, the FTC released its final revisions to its Green Guides after a multiyear investigatory process, which included reviewing comments submitted by companies, trade organizations, government entities and individuals. This advisory outlines the major changes contained within the final revisions to the Green Guides.
October 2, 2012
Advisories
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