For the second time in two weeks, the Supreme Court delivered a win to class-action defendants. Two weeks ago, in Standard Fire Insurance Co. v. Knowles, No 11-1450, 568 U.S. ___ (March 19, 2013), the Court rejected a named plaintiff’s attempt to thwart removal to federal court by stipulating to damages below the Class Action Fairness Act’s $5 million jurisdictional threshold. Last week, in Comcast Corp. v. Behrend, No. 11-864, 569 U.S. ____ (March 27, 2013), the Court (in a 5-4 decision) made clear that the “rigorous analysis” first called for in General Telephone Co. v. Falcon, 457 U.S. 187 (1982) and reaffirmed in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) applies to damages issues, even when those issues overlap substantially (or even completely) with the merits.
April 2, 2013
Advisories
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April 1, 2013
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“Joinder: One Year after the America Invents Act,” LANDSLIDE, March/April 2013.
March/April 2013
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This advisory discusses United States v. Gary Woods, 471 Fed. Appx. 320 (5th Cir. 2012), affirming per curiam, 794 F. Supp. 2d 714 (WD Tex. 2011), which will be reviewed by the Supreme Court under its writ of certiorari issued at the request of the United States on March 25, 2013.
April 1, 2013
Advisories
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Nicki Carlsen is the co-leader of Alston & Bird LLP’s environmental and land development group. Her practice focuses on land use, environmental compliance and litigation. She has experience with the federal, state and local regulations affecting development projects, including land use planning and subdivision laws, the California Environmental Quality Act, the National Environmental Policy Act, the Clean Water Act and endangered species acts.
April 2013
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"New HIPAA Omnibus Rule: Issues for Employer Plan Sponsors and Group Health Plans," The Self Insurer, April 2013.
April 2013
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"IRS Issues Game-Changing Regulations Interpreting Health Care Reform’s Pay or Play Requirement," ECFC Flex Reporter, March 2013.
March 2013
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"New HIPAA Omnibus Rule: Issues for Employer Plan Sponsors and Group Health Plans," ECFC Flex Reporter, March 2013.
March 2013
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In recent years, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have aggressively investigated and enforced both the anti-bribery and accounting provisions of the Foreign Corrupt Practices Act (FCPA). Many of these matters have been the result of “industry sweeps,” which have included the oil and gas, pharmaceutical and medical device, and telecommunication industries.
DOJ and the SEC have also made clear that the banking and finance industry is a high priority for FCPA enforcement. This advisory discusses some of the pitfalls that hedge fund and private equity managers specifically may confront and provides guidance on how those risks can be minimized.
March 27, 2013
Advisories
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This advisory discusses new Federal Trade Commission (FTC) guidance for advertising online. Entitled “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” the new guidance comes in response to consumers’ growing use of mobile devices and social media applications, and advertisers’ efforts to reach consumers via these new devices and media. The FTC’s guidance emphasizes that the same consumer protection laws that apply to traditional advertising also apply to online advertising. The FTC issued the guidance, however, to address some of the unique advertising issues that arise in advertising on mobile devices and in social media.
March 26, 2013
Advisories
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In the age of targeted intrusions, sophisticated criminal and nation-state actors are often compromising hundreds of systems within a single company’s environment. However, companies are often only seeing a small portion of the entire incident, as their response to such invasions can be, and often is, too narrowly shaped by state security breach notification requirements, industry rules governing payment card breaches and the absence of a direct legal obligation requiring a more comprehensive review. If a company has a less-than-complete understanding of the nature and scope of the intrusion, it could be exposed when the criminals revisit the enterprise for further exploitation or when regulators and class-action plaintiffs begin probing into details of the company’s response.
March 26, 2013
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March 25, 2013
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March 22, 2013
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The Class Action Fairness Act (CAFA) plainly provides for federal-court jurisdiction over a putative class action if, among other things, the matter in controversy exceeds $5 million. To make that determination, CAFA requires a district court to “aggregate” the value of all putative class members’ claims.
In Standard Fire Insurance Co. v. Knowles, No. 11-1450, 568 U.S. ___ (March 19, 2013), the named plaintiff in a state class action tried to thwart removal to federal court by stipulating to damages under $5 million for himself and for the class that he sought to represent. That clever gambit worked in the lower courts, but the Supreme Court saw through the ruse and rejected it.
March 21, 2013
Advisories
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This advisory was previously published as a Law360 “Expert Analysis” column on March 14, 2013.
All 50 states and the District of Columbia have enacted, and enforce, laws providing for the reporting and remittance of unclaimed property. Over the past few years, states’ administration of their unclaimed property/escheat laws have received increased attention from the media, business and political community. Such attention is well deserved, considering the states’ aggressive posture toward the pursuit of unclaimed property—arguably with the goal of raising revenue, rather than reuniting owners with their property. Delaware’s administration and enforcement of its unclaimed property laws has been of particular interest.
March 20, 2013
Advisories
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Few courts have construed the meaning of “repurchase agreement” as used in the Bankruptcy Code, so the recent HomeBanc case out of the United States Bankruptcy Court for the District of Delaware is a must-read for “repo” counterparties. The principal issue in HomeBanc was whether several zero purchase price repo transactions under the parties’ contract for the sale and repurchase of mortgage-backed securities fell within the definition of a “repurchase agreement” in Section 101(47) of the Bankruptcy Code. The Homebanc court also weighed in on (i) whether Article 9 of the Uniform Commercial Code’s “commercial reasonableness” standard applies to repo participants’ disposition of securities and (ii) the appropriate valuation method to use in valuing securities when the market is dysfunctional.
March 19, 2013
Advisories
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As we have reported in the past, two of the five commissioner spots at the CPSC are currently vacant. The democrat that was nominated by President Obama for one of these open seats in January 2012 was re-nominated in January 2013, but so far, there has been no action on her nomination and the President has yet to nominate someone for the other vacant seat (which by statute, must be filled by a Republican so that there are no more than 3 commissioners of one party).
March 2013
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March 18, 2013
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