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 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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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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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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The Alston & Bird Government Contracts Review is a bi-monthly publication highlighting recent trends and developments in the government contracts industry. In this issue, the Government Contracts Group analyzes:
- The potential risks of public disclosure under the FOIA of a contractor’s affirmative disclosure of fraud or other suspected procurement misconduct under the FAR’s mandatory disclosure requirements
- The Fifth Circuit’s recent holding that a federal employee, whose job it is to investigate fraud, may be able to serve as the relator in a qui tam action
- A new DCAA audit policy heightening contractor internal audit report requirements
October 2012
Publications
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"Review of Proposed Final Judgments Under the Tunney Act: The E-Book Example," Antitrust Corporate Counselor, October 2012.
October 2012
Publications
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San Fernando Valley Business Journal, “40 under 40,” October 2012.
October 2012
Publications
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“New Regulations on Splitter Arrangements – a Splitting Headache,” Journal of Taxation, Vol. 117, No. 4, Oct. 2012.
October 2012
Publications
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“Why Apple Persuaded a Jury that Samsung Should Pay Apple 1.05 Billion Dollars and Lessons For Non-U.S. Based Companies Embroiled in Patent Litigation,” The Lawyers, October 2012 (Japanese).
October 2012
Publications
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"Final Regulations Impose Reinsurance ‘Contribution’ on Fully Insured and Self-Insured Plans Starting in 2014", The Self Insurer, October 2012.
October 2012
Publications
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This advisory discusses how the Tax Court applied the economic substance doctrine in Gerdau MacSteel, Inc., 139 TC No. 5 (August 30, 2012), and denied penalty relief in a liability management company “tax shelter” case because the company’s tax department failed to either obtain an outside opinion or write its own.
October 1, 2012
Advisories
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"Acquiring IP: Due Diligence," Financier Worldwide, October 2012.
Due diligence is defined by Black’s Law Dictionary as “[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.” But, this definition sheds little light on what is reasonably to be expected when acquiring intellectual property (IP), including patents, trademarks, copyright, and trade secrets.
October 2012
Publications
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Two recent cases examine the interface between California election law and compliance with CEQA. In Chung v. City of Monterey Park (October 23, 2012, 2nd Appellate District), the City Council placed an initiative on the local ballot that would require competitive bidding for all future awards of trash collection contracts. A CEQA suit was brought claiming that the exemption for actions approved by election only applied to voter-sponsored initiatives. However, the Court held that CEQA compliance prior to placing the initiative on the ballot was not required due to a different CEQA exemption— namely, the exemption in favor of “government fiscal activities which do not involve any commitment to any specific project.”
October-November 2012
Publications
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"MSOs' Recent Patent Victory Paints Plaintiff into a Corner," CableFax, October 1, 2012.
October 1, 2012
Publications
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This edition of the FDA Monitor provides a summary of recent reports of arsenic in food and suggestions for manufacturers, distributors, and retailers.
October 1, 2012
Publications
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This special edition of the FDA Monitor provides a compliance check-up for providers and pharmacies on reporting requirements for controlled substance thefts and losses.
September, 2012
Publications
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This advisory serves as a reminder of the multiple year-end notices that defined contribution plans must issue to participants. These notices must be distributed within a reasonable period of time, typically 30 days, prior to the start of the plan year. It also provides a table with a list of the content and deadlines for the most common notices that plan sponsors may need to distribute.
September 26, 2012
Advisories
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This advisory serves as a reminder to plan sponsors of deadlines for amending qualified retirement plans and for submitting certain plans to the IRS for a determination letter. Plan sponsors should review their qualified retirement plans now to ensure compliance with required amendment and filing deadlines.
September 26, 2012
Advisories
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