http://paulhastings.com/publicationslist.aspxhttp://www.paulhastings.com/assets/images/podcast_logo.gifhttp://www.paulhastings.com/PublicationRSS.xmlSubscribe to our News RSS feed to get the latest thinking from Paul Hastings about important legal issues.en-us© Paul, Hastings, Janofsky & Walker LLP. All rights reserved.This Stay Current outlines what UK employers need to know to stay ahead in 2012. We review this year's legislative developments, the on-going Government reviews and consultations and key employment law cases for 2012. <br><a href=http://www.paulhastings.com/assets/publications/2111.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2111PublicationThu, 09 Feb 2012 00:00:00 Z<p>In its January 27, 2012 decision in <em>Auriga Capital Corp. et al v. Gatz Properties LLC et al</em>, C.A. 4390-CS (Del. Ch. Jan. 27, 2012), the Delaware Court of Chancery reaffirmed that limited liability company managers and other fiduciaries are charged with the equitable fiduciary duties of care and loyalty, similar to the obligations of officers and directors of a corporation, and that, in order to eliminate or limit those duties, the parties to the limited liability agreement must so agree in the agreement itself.</p> <p>The <em>Auriga</em> opinion contributes an extensive examination of Delaware statutory provisions, legislative history and precedent case law supporting the default application of traditional fiduciary duties in the absence of contractual carveouts. In <em>Auriga</em>, Chancellor Strine likewise reaffirms that, like corporate directors, general managers and trustees, limited liability company managers fall within the definition of “fiduciary."</p> <p>The decision serves as a reminder to practitioners, fiduciaries and minority investors of limited liability companies that, where limitations or waivers of the traditional fiduciary duties of loyalty and care are desirable in the limited liability company context, the governing documents should expressly modify or eliminate such duties. </p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2113PublicationThu, 09 Feb 2012 00:00:00 Z<p>Originally appearing in <i>PLC Magazine</i>, Ronan O’Sullivan and Ross McNaughton of Paul Hastings (Europe) LLP and James Doe of PricewaterhouseCoopers LLP compare the two main pricing mechanisms used to determine the value of a target business.</p> <p>One of the fundamental considerations when calculating the price of a target business in the context of private M&amp;A relates to the agreed pricing mechanism in the sale and purchase agreement (SPA). The two mechanisms typically deployed are either completion accounts or a locked box. The choice as to which structure to use goes directly to the heart of how the equity price of the target is calculated and, to the unwary, can have a profound impact on the actual price paid or received.</p><br><a href=http://www.paulhastings.com/assets/publications/2110.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2110PublicationWed, 08 Feb 2012 00:00:00 Z<p>In <em>Voom HD Holdings LLC v. EchoStar Satellite L.L.C.</em>, the First Department states that the New York standard establishing when a party’s duty to preserve evidence is triggered is the same as the standard set forth in the landmark S.D.N.Y. decision of <em>Zubulake</em> <em>v. UBS Warburg LLC</em>. </p> <p>The decision underscores that actual litigation or notice of a specific claim is not required to trigger the duty to preserve evidence. Additionally, the decision highlights the risks companies take when they rely on non-attorney employees to institute litigation holds or fail to take measures to suspend automated systems whose operation could lead to the destruction of relevant evidence.</p> <p>Finally, the decision provides guidance as to the factors New York state courts will consider in determining whether spoliation rises to the level of bad faith or gross negligence, and it reinforces prior cases holding that relevance may be presumed upon a finding of bad faith or grossly negligent spoliation. </p><br><a href=http://www.paulhastings.com/assets/publications/2107.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2107PublicationTue, 07 Feb 2012 00:00:00 Z<p>The UK Financial Services Authority has issued a consultation paper setting out various proposed amendments to its Listing Rules, Prospectus Rules and Disclosure and Transparency Rules which will be of fundamental importance to cash shells or special purpose acquisition companies with or seeking a UK main market listing.</p> <p>In its consultation paper the FSA has highlighted various concerns it has with the typical UK-listed cash shell structure and, in particular, the tendency for such structures to outsource significant management functions of the issuer to an off-shore advisory firm.</p> <p>This <em>Stay Current</em> sets out the FSA’s proposals and considers the legal and practical implications they may have for these structures going forward. It will be of interest, amongst others, to those contemplating raising funds via a cash shell or SPAC and considering the various structuring and listing options available. </p><br><a href=http://www.paulhastings.com/assets/publications/2103.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2103PublicationMon, 06 Feb 2012 00:00:00 Z<p>Recent case law has highlighted how failure to consider the rights and obligations of parties during an earn-out period can prove extremely costly. The recent decision in Porton Capital Technology Funds, Porton Capital Inc. and Ploughshare Innovations Limited v 3M UK Holdings Limited and 3M Company particularly served to underline the requirement for careful consideration of earn-out mechanics. </p> <p>In this case, the upside value which the sellers received for the business was entirely dependent on how successfully the buyer ran the business post-completion, but the claimants had no ongoing involvement in the business, and very little contractual protection. Thorough consideration of precise mechanics and respective rights and obligations should be considered by both parties during the negotiation of earn-out provisions to avoid such unsatisfactory outcomes. </p> <p>This memorandum discusses the intricacies of the 3M case and draws out a number of valuable practice points to consider, including the tailoring of earn-out provisions to the parties' negotiating position. </p><br><a href=http://www.paulhastings.com/assets/publications/2104.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2104PublicationMon, 06 Feb 2012 00:00:00 Z<p>On October 17, 2011, the United States Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum,1 a significant decision by the Court of Appeals for the Second Circuit concerning the Alien Tort Statute (“ATS”),2 a sweeping, if little-known, statute that permits non-U.S. nationals to sue in U.S. courts for violations of international law.3 In Kiobel, the Second Circuit held that corporations are not subject to suit under the ATS; the ruling, which when issued created a split among the federal circuits on the question of corporate liability under the ATS, has ignited a storm of controversy and comment within the U.S. legal profession concerning the scope and breadth of potential liability under international law that has seldom, if ever, been seen or heard outside the halls of the State Department and law school faculty lounges.</p>As if prompted by the Second Circuit’s decision in Kiobel, the federal courts issued a number of significant ATS decisions in 2011. Several of these decisions addressed the question of corporate liability, while others focused on other key jurisdictional issues that U.S. courts had not previously confronted with, such as whether international law contemplates aiding and abetting liability, the applicability of the political question and act of state doctrine, the nature of ATS jurisdiction, and the statute’s extraterritorial effect. This article discusses several recent decisions addressing these issues, which evidence a struggle by the U.S. courts to construe the meaning and purpose of this centuries-old statute in the context of the modern day, and which suggest that the Supreme Court, having only decided a single case involving the ATS in the 220 years since its adoption by the First Congress, may need to turn its attention to the statute with greater frequency in coming years. <p></p><br><a href=http://www.paulhastings.com/assets/publications/2105.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2105PublicationMon, 06 Feb 2012 00:00:00 ZThis article highlights cases we are monitoring that present, in our view, significant issues relating to various aspects of intellectual property law. Most of these cases are pending appeal at some level, and each has the potential for considerable impact on the landscape of U.S. intellectual property law. A small number of recently-decided cases have also been selected for inclusion in this discussion, as it remains to be seen precisely how these decisions will play out in practice over the coming year. Lastly, we take a look at continuing trends in the intellectual property marketplace and review key legislation, including what to expect from the recently-enacted America Invents Act. <br><a href=http://www.paulhastings.com/assets/publications/2106.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2106PublicationMon, 06 Feb 2012 00:00:00 ZThe Federal Trade Commission (“FTC”) has announced its 2012 jurisdictional and filing fee thresholds under the Hart–Scott–Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). Due to an increase in gross national product over the past government fiscal year, the new thresholds have also increased. The increased thresholds will become effective on February 27, 2012, and will apply to all covered transactions filed on or after that date. <br><a href=http://www.paulhastings.com/assets/publications/2102.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2102PublicationThu, 02 Feb 2012 00:00:00 Z<p>The U.S. Court of Appeals for the Second Circuit has issued two significant enforcement-related decisions in recent weeks. The first, involving a proceeding to confirm an arbitration award against Peru under the Panama Convention, mandated the dismissal of that proceeding on forum non conveniens grounds, and threatens to introduce new uncertainty into the confirmation process in Second Circuit courts. </p> <p>The second, involving a U.S. corporation's attempt to prospectively prevent enforcement of an Ecuadorian judgment on the grounds that the judgment was fraudulent and tainted by political influence, represents a key interpretation of the uniform act governing enforcement of foreign judgments and appears to set limits on the authority of U.S. courts to protect parties from vexatious foreign litigation. </p> <p>The Second Circuit is a key court whose decisions can affect international disputes far outside its borders, and these two decisions constitute watershed developments that any U.S. or non-U.S. party who may become involved in a cross-border dispute should be aware of. </p><br><a href=http://www.paulhastings.com/assets/publications/2100.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2100PublicationWed, 01 Feb 2012 00:00:00 ZThe Consumer Financial Protection Bureau's (CFPB ) Final Rule and a concurrent Proposed Rule address new requirements imposed by the Dodd-Frank Act on international money transfers initiated by consumers in the U.S. through a nonbank financial firm or an insured depository institutions. <br><br>The Final Rule implements section 1073 of the Dodd-Frank Act, which requires the CFPB to create a comprehensive system of consumer protections for remittance transfers. The Proposed Rule seeks comment on various issues related to the Final Rule, including whether additional regulatory action should be taken to reduce the compliance burden imposed on companies covered by the Final Rule and to increase the benefits to consumers under the CFPB’s regulatory regime with respect to international money transfers. <br><a href=http://www.paulhastings.com/assets/publications/2099.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2099PublicationTue, 31 Jan 2012 00:00:00 ZThis alert describes recently released regulations that provide guidance on dividend equivalents (i.e., payments under certain types of financial transactions that are determined by reference to US source dividends) under Section 871(m) of the Code. Most significantly, these new rules expand the definition of "specified notional principal contracts" beginning January 1, 2013 and provide guidance on other issues that arise under Section 871(m) including withholding obligations. <br><a href=http://www.paulhastings.com/assets/publications/2097.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2097PublicationMon, 30 Jan 2012 00:00:00 Z<p><font style="FONT-SIZE: 11pt">When was the last time your anti-corruption compliance program had a check-up? Like any other ‘‘wellness’’ program, a periodic review of a company’s compliance program is an integral component of its overall health. As with many of us who delay personal health check-ups, a compliance check-up is often put off until a problem arises, at which point a significant issue could exist. This note sets out a brief background on anti-corruption compliance reviews and provides a set of basic areas to review which, when adapted to a company’s individual risks, can be crafted into a useful tool for ensuring a continued healthy program. Like any other good diagnostic tool, a compliance check-up can keep your company out of trouble.</font></p><em><font style="FONT-SIZE: 11pt">Reproduced with permission from Corporate Accountability Report, 10 CARE 90 (Jan. 27, 2012). Copyright 2012 by The Bureau of National Affairs, Inc. (800-372-1033), </font><a href="http://www.bna.com/"><font style="FONT-SIZE: 11pt">bna.com</font></a></em> <p></p><br><a href=http://www.paulhastings.com/assets/publications/2096.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2096PublicationFri, 27 Jan 2012 00:00:00 Z <p>Last year ended with the Federal Communications Commission proposing new regulations that would reach an array of issues affecting broadcasting. </p> <p>The FCC's proposals range from revisions to the foundational rules governing the cross-ownership of television, radio and newspaper properties to the possibility of new regulation of multistation operational-sharing arrangements.</p> <p>In a year that saw a long-awaited uptick in broadcast M&amp;A activity and the controversial (or, in some quarters, tantalizing) specter of spectrum auctions, the FCC rulemaking is but one of several factors that signal that the coming year will bring to the broadcasting industry a confluence of political, judicial, regulatory, business and technological currents. Here's what to watch for in broadcasting in 2012:</p> <p><strong>To read the full article, </strong><a href="http://www.thedeal.com/content/tmt/the-coming-year-for-broadcasting.php" target=_blank><strong>click here. </strong></a></p><br><i>Originally published by, The Deal, LLC &#169;Copyright 2011 http://www.thedeal.com/</i>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2093PublicationWed, 25 Jan 2012 00:00:00 Z<p><font style="FONT-SIZE: 11pt">Determining the proper division of jurisdictional responsibilities between national courts and international arbitral tribunals requires constant calibration by the courts, the tribunals and the parties themselves. National courts play a crucial role in the international arbitral process by, among other things, issuing interim injunctive or provisional relief where necessary to aid the arbitration, particularly before the constitution of the arbitral tribunal.</font></p><font style="FONT-SIZE: 11pt">The majority of US federal circuit courts of appeals hold that there is no threshold jurisdictional bar to a US district court’s issuance of injunctive relief in aid of arbitration. However, a minority of US federal circuit courts, including district courts in those circuits, apply a jurisdictional hurdle that could improperly impede parties from an injunction in aid of arbitration, even where the situation warrants that remedy. </font> <p></p><font style="FONT-SIZE: 11pt">This unfortunate jurisdictional divide may negatively impact the ability of a party that may otherwise qualify for injunctive relief under US law to obtain that relief. This reality should inform a party’s choice of the US federal court in which it seeks to obtain injunctive relief in aid of arbitration.</font> <p></p><br><a href=http://www.paulhastings.com/assets/publications/2095.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2095PublicationWed, 25 Jan 2012 00:00:00 Z<p>Many employers are suffering from health care reform fatigue. After the implementation of plan design changes for 2011, many employers hoped for a healthy break to prepare for the play or pay requirement and plan design mandates of 2014. Unfortunately, there is no rest for the weary as the biggest traps are not the costs looming in the future, but rather the new litigation and regulatory risks that are present today. </p> <p>Today’s employer-sponsored group health plan is riddled with potential compliance missteps that could cost employers thousands of dollars in penalty taxes and even more in potential Employee Retirement Income Security Act litigation exposure. Employers now need to take proactive steps to shield themselves from these hidden dangers. </p> <p>This article addresses five aspects of the Patient Protection and Affordable Care Act (‘‘PPACA’’ or the ‘‘Act’’) that could result in significant costs to a plan sponsor if steps are not taken to ensure compliance: plan design mandates, internal and external claims review, enhanced notification requirements, nondiscrimination, and play or pay. This article analyzes the risks associated with noncompliance and provides a list of action items employers should implement to mitigate the risk of noncompliance.</p> <p><em><br><br>Reproduced with permission from Pension &amp; Benefits Daily</em></p><br><a href=http://www.paulhastings.com/assets/publications/2091.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2091PublicationMon, 23 Jan 2012 00:00:00 ZThis Stay Current discusses issues related to the CFPB's release of Bulletin 12-01, which addresses the treatment and scope of confidentiality protections accorded information collected from supervised institutions through the CFPB’s supervisory process. The bulletin addresses two specific parts of the CFPB’s policy on confidential information. First, it provides that institutions providing privileged information to the CFPB pursuant to a supervisory request will not waive any privilege that attaches to such information. Second, the bulletin indicates the CFPB will treat information obtained through the supervisory process as confidential and privileged. <br><a href=http://www.paulhastings.com/assets/publications/2090.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2090PublicationThu, 19 Jan 2012 00:00:00 Z<p>In October 2011, Paul Hastings released a <a href="http://www.paulhastings.com/assets/publications/2037.pdf?wt.mc_ID=2037.pdf" target=_blank>Stay Current</a> regarding a recently enacted rule by the National Labor Relations Board (“NLRB” or “Board”) that would require private sector employers (whether unionized or union-free) subject to the National Labor Relations Act (“NLRA”) to post a notice designed to inform employees of their rights under the NLRA, including their right to unionize and bargain collectively. Due to mounting criticism as well as lawsuits filed by the National Association of Manufacturers, the Coalition for a Democratic Workplace, the National Right to Work Legal Defense and Education Foundation, the U.S. Chamber of Commerce, and the National Federation of Independent Business, arguing that the NLRB had overstepped its statutory authority, the Board subsequently pushed the effective date of the rule to January 31, 2012. </p> <p>Now, the NLRB has delayed that posting, once again, to April 30, 2012. The reason for the delay is an ultimatum from U.S. District Court Judge Amy Berman Jackson who is presiding over the consolidated cases challenging the rule in the U.S. District Court for the District of Columbia. Judge Jackson, still considering cross-motions for summary judgment in that case, informed the Board’s attorneys that the NLRB would either have to postpone the effective date once again or she would enjoin the Board from implementing the rule. The Board, stating that the postponement would “facilitate the resolution of legal challenges that have been filed with respect to the rule,” complied with Judge Jackson’s demand and pushed the effective date. </p> <p>Depending on the outcome of the currently pending litigation, the posting requirement could be struck down, delayed once more, or could go into effect on the new effective date of April 30, 2012 as currently planned. Clients are urged to refresh their understanding of the poster’s requirements by referencing the Paul Hastings earlier <a href="http://www.paulhastings.com/assets/publications/2037.pdf?wt.mc_ID=2037.pdf" target=_blank>Stay Current </a>and to stay apprised through any future updates from the firm. </p><br><a href=http://www.paulhastings.com/assets/publications/2088.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2088PublicationTue, 17 Jan 2012 00:00:00 ZOn January 6, 2012, the NLRB released a decision that could substantially affect employers with pre-dispute arbitration agreements containing class or collective action waivers. D.R. Horton, Inc., 357 NLRB No. 184 (2012). The decision applies to most private sector employees, whether union or non-union. This Alert highlights some of the issues raised by the decision. <br><a href=http://www.paulhastings.com/assets/publications/2089.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2089PublicationTue, 17 Jan 2012 00:00:00 ZIf your company, in 2011, engaged in any transaction that affected the basis of all holders of a particular class of stock, including stock-splits, mergers, reorganizations, spin-offs, split-offs, stock redemptions, and distributions in excess of corporate earnings and profits, then your company has until January 17, 2012 to file a new tax form with the Internal Revenue Service.<br><a href=http://www.paulhastings.com/assets/publications/2087.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2087PublicationThu, 12 Jan 2012 00:00:00 ZThis quarter continued the trend of active FCPA enforcement, with the DOJ winning a historic prison sentence and reaching several settlements with high profile corporations. Though the sum total of corporate fines, penalties and disgorgement may have dropped in 2011 ($508.6 million, down from $1.8 billion in 2010), the DOJ has aggressively pursued enforcement actions against individuals. While there has been some push back from the courts against the DOJ’s tactics, the DOJ and the SEC continue to zealously pursue both corporate and individual violators of the FCPA. <br><a href=http://www.paulhastings.com/assets/publications/2085.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2085PublicationTue, 10 Jan 2012 00:00:00 Z<p><font style="FONT-SIZE: 9pt" face=Verdana>On Dec. 9, the Office of Federal Contract Compliance Programs (OFCCP) issued proposed regulations to implement Section 503 of the Rehabilitation Act of 1973, as amended. Section 503 prohibits discrimination by federal contractors against individuals with disabilities and requires them to take affirmative action in the employment of such individuals.</font></p><font style="FONT-SIZE: 9pt" face=Verdana>The non-discrimination and affirmative action obligations apply to all federal contractors (and subcontractors) with contracts in excess of $10,000. The requirement to prepare and maintain an affirmative action program applies only to contractors with both 50 or more employees and contracts of $50,000 or more. Failure to abide by these requirements can result in substantial sanctions against the contractor, including the withholding of progress payments under the contracts, the termination of contracts, and the loss of eligibility for receiving future contracts.</font> <p></p><font style="FONT-SIZE: 9pt" face=Verdana>The thrust behind the proposed regulations is the concern by the Department of Labor that, even after 40 years since the passage of the Rehabilitation Act, there still exists stark disparities facing working-age individuals with disabilities. According to the department, this group suffers a 13 percent unemployment rate – one and one-half times the rate of those without disabilities.</font> <p></p><font style="FONT-SIZE: 9pt" face=Verdana>OFCCP Director Patricia A. Shiu commented that the current regulations, requiring only “a good faith effort to recruit and hire people with disabilities,” simply are “not working.” The proposed regulations, she said, would “require real accountability and provide the clearest possible guidance” for complying with the law.</font> <p></p><font style="FONT-SIZE: 9pt" face=Verdana>The 60-day comment period for the proposed regulations ends on Feb. 7, 2012.</font> <p></p><font style="FONT-SIZE: 9pt" face=Verdana>The proposed regulations represent a sea change in the OFCCP’s approach to compliance under Section 503. In addition to bringing the regulations into harmony with the Americans with Disabilities Act Amendments Act of 2008, they expand the obligations of contractors in seven primary areas.</font> <p></p><br><a href=http://www.paulhastings.com/assets/publications/2086.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2086PublicationThu, 05 Jan 2012 00:00:00 ZIn recent years, plaintiffs have increasingly sought to bring claims against multinational corporations under the Alien Tort Statute for "aiding and abetting" alleged violations of international law committed by foreign governments. The recent proliferation of these cases, coupled with the lack of a well-developed body of law to guide courts in determining the proper scope of jurisdiction and liability under the ATS, has led to inconsistent rulings in U.S. courts, and ATS claims continue to be extraordinarily time-consuming and expensive to litigate. This alert, our latest summarizing decisions under the ATS, discusses the Ninth Circuit's recent en banc decision in Sarei v. Rio Tinto, a case that considered several fundamental issues that will continue to arise in ATS claims brought against private corporations. <br><a href=http://www.paulhastings.com/assets/publications/2081.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2081PublicationThu, 05 Jan 2012 00:00:00 ZThis client alert discusses the Federal Reserve Board's proposed rule, issued December 20, 2011, to implement the enhanced prudential standards and early remediation requirements of Sections 165 and 166 of the Dodd-Frank Act. The Section 165 enhanced prudential standards are designed to strengthen regulation and supervision of large bank holding companies and systemically important nonbank financial firms designated by the Financial Stability Oversight Council. The enhanced standards would affect a covered company’s enterprise-wide operations and address risk-based capital and leverage requirements, liquidity standards, requirements for overall risk management (including establishing a risk committee), single-counterparty credit limits, stress test requirements, and a debt-to-equity limit.The Section 166 early remediation requirements would apply to firms covered by Section 165. Comments are due March 31, 2012. <br><a href=http://www.paulhastings.com/assets/publications/2082.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2082PublicationThu, 05 Jan 2012 00:00:00 ZAn employer's ability to enforce a covenant not to compete varies from state to state. Until recently, the law in Illinois, the largest corporate hub in the Midwest, was muddled, which caused confusion for employers and practitioners alike. This month, the Illinois Supreme Court clarified the law regarding the circumstances in which a covenant not to compete can be enforced, and in doing so, the Court brought that state's law closer in line with the law in the State of New York. <br><a href=http://www.paulhastings.com/assets/publications/2080.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2080PublicationWed, 04 Jan 2012 00:00:00 Z <p>The California Wage Theft Prevention Act of 2011 ("WTPA") became effective on January 1, 2012. Among other provisions, the WTPA adds section 2810.5 to the California Labor Code. That section obligates California employers to provide a notice to new non-exempt employees at the time of hiring and to existing non-exempt employees under specified circumstances. The California Division of Labor Standards Enforcement ("DLSE") has belatedly issued both a template notice and FAQs that raise many compliance questions. We have prepared a letter containing our compliance advice that we will send to our clients who are interested in receiving a copy. Please feel free to contact your existing Paul Hastings lawyer or any of the partners listed below. Thank you.</p> <p><strong>Los Angeles</strong><br><br>Leslie Abbott<br>1.213.683.6310<br><a href="mailto:leslieabbott@paulhastings.com">leslieabbott@paulhastings.com</a> <br><br>George Abele<br>1.213.683.6131<br><a href="mailto:georgeabele@paulhastings.com">georgeabele@paulhastings.com</a><br><br>Paul Grossman<br>1.213.683.6203<br><a href="mailto:paulgrossman@paulhastings.com">paulgrossman@paulhastings.com</a> <strong><br><br>Orange County</strong><br><br>Stephen L. Berry<br>1.714.668.6246<br><a href="mailto:stephenberry@paulhastings.com">stephenberry@paulhastings.com</a> <br><br>James P. Carter<br>1.714.668.6206<br><a href="mailto:jamescarter@paulhastings.com">jamescarter@paulhastings.com</a> <br><strong><br>Palo Alto</strong><br><br>Bradford K. Newman<br>1.650.320.1827<br><a href="mailto:bradfordnewman@paulhastings.com">bradfordnewman@paulhastings.com</a> <strong><br><br>San Diego</strong><br><br>Raymond W. Bertrand<br>1.858.458.301<br><a href="mailto:raymondbertrand@paulhastings.com">raymondbertrand@paulhastings.com</a><br><br>Mary C. Dollarhide<br>1.858.458.3019<br><a href="mailto:marydollarhide@paulhastings.com">marydollarhide@paulhastings.com</a> <br><strong><br>San Francisco</strong><br><br>E. Jeffrey Grube<br>1.415.856.7020<br><a href="mailto:jeffreygrube@paulhastings.com">jeffreygrube@paulhastings.com</a><br><br>Zachary Hutton<br>1.415.856.7036<br><a href="mailto:zacharyhutton@paulhastings.com">zacharyhutton@paulhastings.com</a><br><br>Kirby C. Wilcox<br>1.415.856.7002 <a href="mailto:kirbywilcox@paulhastings.com"><br>kirbywilcox@paulhastings.com</a></p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2078PublicationTue, 03 Jan 2012 00:00:00 ZIn July 2011, California enacted legislation that abolished the state's redevelopment agencies and a companion bill that gave the agencies the option of continuing in existence in exchange for transferring tax revenues to the state. The redevelopment agencies appealed to the California Supreme Court arguing that both bills violated the state Constitution. On December 29, 2011, the California Supreme Court upheld the abolition of the redevelopment agencies as a valid exercise of the legislature's power but invalidated the bill giving the agencies the option to continue in existence. As a result of the Court's ruling, redevelopment agencies will cease to exist as of February 1, 2012 and the procedures for dissolving the agencies will go into effect. This Stay Current discusses the implications of the Supreme Court's decision as it will affect developers, lenders, investors and other parties that are doing business with redevelopment agencies. <br><a href=http://www.paulhastings.com/assets/publications/2079.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2079PublicationTue, 03 Jan 2012 00:00:00 ZAs part of an ongoing effort to curtail domestic corruption, the Chinese government continues to tighten regulations governing the commercial prepaid card market. On November 23, 2011, China’s Ministry of Commerce released its Rules on the Administration of Single Use Commercial Prepaid Cards for public comment. As the third government release in 2011 in connection with this popular form of gift-giving, the Draft Rules impose significant compliance obligations on card issuers. Companies that purchase prepaid cards as promotional items or as gifts for customers or government officials should ensure that their internal policies and practices with respect to these cards accurately reflect the Chinese government’s intent to curtail their misuse as a means of tax evasion and bribery. <br><a href=http://www.paulhastings.com/assets/publications/2077.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2077PublicationMon, 02 Jan 2012 00:00:00 ZInvestors are piling into a US natural gas boom built on ‘fracking’. But with an uncertain regulatory climate, they would be well advised to keep an eye on potential environmental liabilities, says Tom Mounteer.<br><a href=http://www.paulhastings.com/assets/publications/2098.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2098PublicationSun, 01 Jan 2012 00:00:00 Z<p><img src="http://www.paulhastings.com/assets/images/banner_top_quarterly.jpg"></p> <p><strong>Antitrust and Competition:</strong></p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2028" target=_blank>Domestic Welfare Trumps International Comity in Strongly Worded Price-Fixing Case</a></li></ul> <p><strong>China Matters: </strong></p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2057" target=_blank>Strengthening Your Compliance Program in China through Employment Building Blocks - From Onboarding to Termination</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2051" target=_blank>Proposed Changes to the Maternity Insurance System in the People’s Republic of China</a></li></ul> <p><strong>Employment:</strong> </p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2022" target=_blank>California Is At It Again: A Dozen New Laws Will Significantly Impact the State’s Employers</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2020" target=_blank>Job Applicant and Employee Credit Checks in California: Proceed With Caution</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2076" target=_blank>California Supreme Court Clarifies the Administrative Exemption An Analysis of Harris v. Superior Court of Los Angeles County</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2073" target=_blank>More Challenges for Federal Contractors as OFCCP Turns its Focus to Employees with Disabilities</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2037" target=_blank>NLRB Adds Another Required Poster to Long List for Employers</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationID=2046" target=_blank>New IRS Voluntary Worker Reclassification Program</a></li></ul> <p><strong>ERISA and Global Benefits:</strong></p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2027" target=_blank>Model Participant-Directed Defined Contribution Plan Investment/Expense Disclosure Package</a></li> <li><a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=2063" target=_blank>Getting Executive Compensation Ready for 2012: Starting with ISS Guidelines</a></li> <li><a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=2108" target=_blank>Candor for Compensation Committees</a></li></ul> <p><strong>Global Banking and Payment Systems:</strong> </p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2038" target=_blank>The Volcker Rule Proposal – Many Questions, Few Answers</a> </li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2043" target=_blank>The Volcker Rule’s Impact on Bridge Loans</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2058" target=_blank>CFPB Announces Early Warning Notice Process for Potential Enforcement Targets</a> </li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2060" target=_blank>CFPB Initiates Inherited Regulations Streamlining Process</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2055" target=_blank>Regulation LL and Recent Developments Under the Federal Reserve Board’s Control Rules: Issues for All Holding Companies and Investors</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2053" target=_blank>Federal Agencies Clarify Method of Determining Institutions Subject to CFPB’S Supervision and Enforcement Jurisdiction</a></li></ul> <p><strong>Global Compliance and Disputes:</strong> </p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2085" target=_blank>Quarterly FCPA Report: Fourth Quarter 2011</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2068" target=_blank>Record DOJ Fraud Recoveries Underscore Need for Robust Corporate Compliance Programs</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2069" target=_blank>California Transparency in Supply Chains Act of 2010</a></li></ul> <p><strong>Healthcare:</strong></p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2034" target=_blank>CMS’s Final Rule on Accountable Care Organizations</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2024" target=_blank>Time to Reassess Audit and Compliance Priorities: The OIG Issues Its 2012 Work Plan</a></li></ul> <p><strong>Investment Management:</strong> </p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2061" target=_blank>SEC Charges Multiple Hedge Fund Managers with Fraud in Inquiry Targeting Suspicious Investment Returns</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2052" target=_blank>SEC and CFTC Adopt Private Fund Adviser Reporting Form</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2039" target=_blank>Hedge Fund Report - Summary of Key Developments - Fall 2011</a></li></ul> <p><strong>Intellectual Property:</strong></p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2050" target=_blank>A Sign of Future Biosimilars Litigation?</a></li></ul> <p><strong>Mergers and Acquisitions:</strong> </p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2072" target=_blank>A Tale of Two Bankruptcies: Colorado Court Rejects and New York Court Upholds Validity of Security Interests Associated with FCC Licenses</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2040" target=_blank>Preliminary Observations Regarding Recent Changes to the UK Takeover Regime</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2033" target=_blank>Going-Private Transactions</a></li></ul> <p><strong>Real Estate:</strong> </p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2023" target=_blank>Governor Signs Third CEQA Reform Bill</a></li> <li><a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=2098" target=_blank>Finding Fault with Fracking</a></li></ul> <p><strong>Securities &amp; Capital Markets: </strong></p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2059" target=_blank>Coach, Inc. Lists on the Hong Kong Stock Exchange: A Harbinger of Things to Come?</a></li></ul> <p><strong>Securities Litigation and Enforcement: </strong></p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2056" target=_blank>Amgen Punctuates Circuit Split: What Must Plaintiff Prove to Establish the “Fraud-On-The-Market” Presumption at Class Certification?</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2071" target=_blank>Second Circuit Provides Guidance on the Nature of Disclosures That Will Avoid Liability for Market Manipulation</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2062" target=_blank>What <em>Janus</em> Meant: The First Wave of Court Decisions Interpreting the Supreme Court’s “Ultimate Authority” Test in Securities Cases</a></li></ul> <p><strong>Tax:</strong> </p> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2066" target=_blank>Temporary Estate, Gift And GST Tax Laws Provide Unprecedented Opportunities In 2012</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=2031" target=_blank>Full Qualified Small Business Stock Capital Gain and AMT Exclusions Set to Expire at Year-End</a></li></ul> <p>&nbsp;</p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2101PublicationSun, 01 Jan 2012 00:00:00 ZThe California Supreme Court has issued its long-awaited opinion in <em>Harris v. Superior Court</em>, the first case in which it has addressed the administrative exemption under California law. Reversing the court below, the Supreme Court held that the administration/production worked dichotomy is ill-suited for the modern workplace, and cannot be used as a dispositive tool for finding employees non-exempt. Instead, courts are to consider the particular facts before them and apply the language of the statutes and wage orders at issue. Employers should consider whether the new guidelines announced in Harris expand or contract the set of employees eligible for the administrative exemption.<br><a href=http://www.paulhastings.com/assets/publications/2076.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2076PublicationFri, 30 Dec 2011 00:00:00 Z<p><font style="FONT-SIZE: 10pt">On December 21, 2011, the Securities and Exchange Commission (SEC) adopted amendments to the definition of “accredited investor” under Regulation D of the Securities Act of 1933, as amended (Securities Act), to implement the requirements of Section 413(a) of The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).</font></p><font style="FONT-SIZE: 10pt"><font style="FONT-SIZE: 10pt">The Dodd-Frank Act, along with the SEC’s amendments, exclude the value of a person’s primary residence in determining whether the person qualifies as an “accredited investor” under Regulation D on the basis of having a net worth of more than $1 million for purposes of participating in certain securities offerings that are not registered under the Securities Act. As a result, the Dodd-Frank Act and recent amendments to Regulation D have narrowed one of the primary means historically used by individuals to qualify as accredited investors in order to participate in private placements of securities. The SEC amendments will go into effect 60 days after publication in the Federal Register.</font> </font> <p></p><br><a href=http://www.paulhastings.com/assets/publications/2083.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2083PublicationWed, 28 Dec 2011 00:00:00 ZThe Office of Federal Contract Compliance Programs ("OFCCP") issued proposed regulations on December 9, 2011 that would vastly expand federal contractors' affirmative action obligations towards individuals with disabilities. This Client Alert identifies seven key areas in which contractors' responsibilities will increase if the proposed regulations are finalized. The proposed changes will result in contractors needing to review and modify their recordkeeping, applicant tracking systems, personnel training, policies on reasonable accommodation requests, and other personnel processes.<br><a href=http://www.paulhastings.com/assets/publications/2073.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2073PublicationWed, 21 Dec 2011 00:00:00 ZIn <i>Wilson v. Merrill Lynch &amp; Co., Inc.</i>, ___ F.3d ___, 2011 WL 5515958 (2d Cir. Nov. 14, 2011), the Second Circuit examined an investor’s securities class action complaint arising from the widespread disruption of the auction rate securities markets in February 2008. Echoing Section 10(b) claims asserted separately against virtually all of the major investment banks that participated in the auction rate securities markets, the plaintiff claimed that Merrill Lynch &amp; Co., Inc. manipulated auctions for which it served as a dealer through its practice of placing “support bids” for the securities. In a unanimous opinion, the Second Circuit upheld dismissal of the case on a motion to dismiss, finding that where the conduct alleged to be manipulative is “fairly” disclosed to the market, a plaintiff is precluded from pleading the “manipulative acts” element of a market manipulation claim. The <i>Wilson</i> case stands for the proposition that, in order to plead the “manipulative acts” element of a market manipulation claim under Section 10(b), a plaintiff must plead facts sufficient to establish that disclosures a defendant’s market activity were materially false or misleading. <br><a href=http://www.paulhastings.com/assets/publications/2071.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2071PublicationTue, 20 Dec 2011 00:00:00 ZThis alert is a snapshot of certain recent UK and German tax developments. Including: <ul> <li>The 2011 Autumn Statement </li> <li>Draft Finance Bill 2012 </li> <li>New UK Regime for Controlled Foreign Companies (“CFCS”) </li> <li>UK Patent Box Proposals Update </li> <li>The Anson (formerly 'Swift') Decision </li> <li>Taxation of Private Equity Funds in Germany </li> <li>Taxation of Foreign Institutional Investors on Dividends from German Corporations </li></ul><br><a href=http://www.paulhastings.com/assets/publications/2070.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2070PublicationMon, 19 Dec 2011 00:00:00 Z<p><font style="FONT-SIZE: 10pt" face=Verdana>In a recent speech, one Commissioner of the Securities and Exchange Commission, described the SEC’s enforcement program as a “national treasure.” This exuberance, whether rational or not, may be attributable to the fact that the SEC’s Division of Enforcement just completed its most productive year in history. During fiscal 2011 (Oct. 1, 2010 to Sept. 30, 2011), the SEC brought a record 735 enforcement actions – more cases than it has ever filed in a prior fiscal year and a 7.5 percent increase over fiscal 2010. Many of these cases involved the SEC’s core enforcement priorities, including insider trading, Foreign Corrupt Practices Act (FCPA) violations, offering fraud, and financial fraud. The SEC also obtained orders for approximately $2.8 billion in disgorgement and penalties.</font></p><font style="FONT-SIZE: 11pt"><font style="FONT-SIZE: 10pt" face=Verdana>Public issuers, compliance professionals, and securities law practitioners should take notice of these efforts because they portend future SEC enforcement activities and priorities. Here are the most significant developments in SEC enforcement activity in 2011.</font> </font> <p></p><br><a href=http://www.paulhastings.com/assets/publications/2084.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2084PublicationMon, 19 Dec 2011 00:00:00 ZThe Department of Justice recently announced that in fiscal year 2011, it has obtained over $5.6 billion in criminal and civil fraud recoveries. This alert examines recent enforcement actions by the DOJ and encourages companies to review and update their compliance programs. <br><a href=http://www.paulhastings.com/assets/publications/2068.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2068PublicationThu, 15 Dec 2011 00:00:00 ZThe California Transparency in Supply Chains Act goes into effect on January 1, 2012. Retailers and manufacturers who do business in California and whose global annual sales exceed $100 million will be required to disclose, on their websites, their efforts to ensure that their product supply chains are free from slavery and human trafficking. This client alert discusses the scope, requirements and enforcement of the Act<br><a href=http://www.paulhastings.com/assets/publications/2069.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2069PublicationThu, 15 Dec 2011 00:00:00 Z <p>Law360, New York (December 15, 2011, 1:42 PM ET) -- Over the past year, a bankruptcy proceeding in Colorado — In re Tracy Broadcasting — has called into question creditors’ ability to take a security interest in the proceeds from the future sale in bankruptcy of spectrum licenses issued to borrowers by the Federal Communications Commission.</p> <p>But, in a contemporaneous proceeding aligned with the majority view — In re TerreStar — the influential Bankruptcy Court for the Southern District of New York upheld the right of the TerreStar creditors’ security interest in the proceeds from the sale of the company’s FCC licenses and sharply criticized the Tracy decision. </p> <p><em><strong><a href="http://www.law360.com/articles/293521/a-tale-of-two-bankruptcies" target=_blank>Read the full article here.</a></strong></em></p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2072PublicationThu, 15 Dec 2011 00:00:00 ZIt appears that the current favorable estate, gift and generation skipping transfer (GST) tax laws may remain in effect until December 31, 2012 -- despite earlier rumors of an accelerated 2011 expiration date. These laws provide significant opportunities for wealth transfer at a reduced tax cost. We are advising our clients to take advantage of these laws in 2012 because there simply may not be another opportunity to transfer up to $5 million per person ($10 million for a couple) in tax-free gifts or to make taxable gifts at the current low 35 percent gift tax rate<br><a href=http://www.paulhastings.com/assets/publications/2066.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2066PublicationWed, 14 Dec 2011 00:00:00 ZOver the past year, a bankruptcy proceeding in Colorado – <em>In re Tracy Broadcasting </em>– has called into question creditors’ ability to take a security interest in the proceeds from the future sale in bankruptcy of spectrum licenses issued to borrowers by the Federal Communications Commission. But, in a contemporaneous proceeding aligned with the majority view – <em>In re TerreStar </em>– the influential Bankruptcy Court for the Southern District of New York upheld the right of the <em>TerreStar </em>creditors’ security interest in the proceeds from the sale of the company’s FCC licenses and sharply criticized the <em>Tracy </em>decision. In light of these seemingly contradictory decisions, FCC-regulated borrowers and their creditors may wonder whether the decision in <em>Tracy</em>, although an outlier to the prevailing view, changes the landscape of courts’ treatment of security interests in proceeds from the sale of FCC licenses – a shift that could impede the value of collateral packages within the communications and broadcasting sectors. We address the cases from the perspective of what Article 9 of the UCC permits and what limitations FCC regulations impose. Taken together, we offer clarity on the differing analyses of the dueling decisions and provide practical advice to broadcasters, lenders, and practitioners on navigating secured finance in the communications and broadcast sectors. <br><a href=http://www.paulhastings.com/assets/publications/2067.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2067PublicationWed, 14 Dec 2011 00:00:00 ZThe classification of employees as exempt from federal and state overtime compensation requirements has continued to be a frequently litigated area of wage and hour law nationwide. Resolve in 2012 to audit the exempt classifications in your workforce or to encourage your clients to do so. Reclassify jobs to the extent appropriate based on the employer’s business requirements and risk tolerance. The process may take several months to complete, so employers should develop an action plan early based on the following steps.<br><a href=http://www.paulhastings.com/assets/publications/2065.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2065PublicationTue, 13 Dec 2011 00:00:00 ZThe Supreme Court's holding in <i>Janus v. First Derivative Traders</i> in June 2011 appeared straightforward – no primary liability except for those who actually have ultimate authority or control over the content and dissemination of a statement. The decision has already had a major impact. In the six months since <i>Janus</i> was decided, courts have applied its rule in cases involving related corporate entities, corporate officers, and major shareholders. Yet just how high the pleading and proof bar has been set outside the mutual fund and investment advisor context remains an open question. Different federal courts – even within the same district – have come to different conclusions. Until higher courts rule on the scope of <i>Janus</i>, the uncertainty created by these differing lower court decisions could blur the Janus “bright line rule.” And plaintiffs have begun to cast their nets wider, looking for alternative theories to avoid dismissal under <i>Janus</i>. <br><a href=http://www.paulhastings.com/assets/publications/2062.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2062PublicationMon, 12 Dec 2011 00:00:00 ZOn November 17, 2011, Institutional Shareholder Services (ISS) released its 2012 policy updates to its proxy voting guidelines. In the aftermath of the Dodd-Frank Act's say-on-pay requirement for advisory shareholder votes on executive compensation, ISS has emerged as the leading proxy advisory firm for public companies. Especially for executive compensation, its policy updates have come to establish best and worst practices by which shareholders and stock analysts hold boards accountable. As a result, ISS's annual updates to its voting guidelines are closely watched. The 2012 policy updates apply to shareholder meetings held on or after February 1, 2012. <br><a href=http://www.paulhastings.com/assets/publications/2063.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2063PublicationMon, 12 Dec 2011 00:00:00 Z<p><font style="FONT-SIZE: 11pt">There is no let-up in sight for workplace disability discrimination claims. The Equal Employment Opportunity Commission reports that during 2010 it received the greatest number of discrimination charges under the Americans with Disabilities Act in 14 years, and many observers believe the trend has continued, if not accelerated, during 2011. More than twenty-five percent of all charges filed with the Commission last year alleged physical or mental disability discrimination. In 2011 the long awaited EEOC final regulations regarding the ADA Amendments Act (“ADAAA”) heightened awareness of available protections under not only federal law but the New York State and City Human Rights Laws. In celebration of National Employee Disability Awareness Month (October), the EEOC proudly notes on its web-site that it has filed nearly 60 lawsuits under the ADAAA, underscoring its commitment to vigorous enforcement of the law.</font></p><font style="FONT-SIZE: 11pt">It is axiomatic that, twenty-one years after the enactment of the ADA, accommodations for employees with disabilities must be “reasonable” and must not cause their employers “undue hardship.” The meaning and application of those terms, however, is far from clear, despite decades of guidance from courts and the Commission. Disputes and litigation over accommodation requests are frequent and a source of frustration for employees and employers alike. Two types of accommodation requests are perennial flashpoints: leaves of absence and work-at-home (telecommuting).</font> <p></p><br><a href=http://www.paulhastings.com/assets/publications/2064.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2064PublicationMon, 12 Dec 2011 00:00:00 ZOn December 1, 2011, the U.S. Securities and Exchange Commission (the “SEC”) announced that it has brought enforcement actions against three advisory firms and six individuals for various types of misconduct including improper use of fund assets, fraudulent valuations, and misrepresenting fund returns. Notably, the SEC stated that these actions were “part of an initiative to combat hedge fund fraud by identifying abnormal investment performance.” Earlier this year, during congressional testimony, Robert Khuzami, the Director of the SEC’s Division of Enforcement (the “Enforcement Division”), faced questions regarding the SEC’s response to the Madoff scandal. During his testimony, Khuzami announced an investigative and enforcement initiative targeting hedge funds and their managers. He reported that the Enforcement Division is now focusing on hedge funds that outperform “market indexes by 3% and [are] doing it on a steady basis.” Khuzami referred to such performance as “aberrational,” and stated that the Enforcement Division is “canvassing all hedge funds” for such “aberrational performance.”<br><a href=http://www.paulhastings.com/assets/publications/2061.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2061PublicationFri, 09 Dec 2011 00:00:00 ZThis Stay Current discusses the CFPB's publication in the Federal Register on December 5 of a Notice requesting comment on its inherited regulations streamlining proposal. The Notice provides an opportunity for financial services providers subject to the rules inherited by the CFPB to provide recommendations on how to update the regulatory framework in order to both better protect consumers as well as eliminate unnecessary compliance obligations as consumer products and the systems for delivering these products evolve. <br><a href=http://www.paulhastings.com/assets/publications/2060.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2060PublicationThu, 08 Dec 2011 00:00:00 ZThis Stay Current discusses the CFPB's announcement in November of an Early Warning Notice process for potential subjects of enforcement action. The new process, which is modeled on similar procedures at other federal agencies, could provide potential enforcement targets notice of a possible action and an opportunity to state their case before such action is undertaken by the CFPB, but also presents potential regulatory risks for these entities. <br><a href=http://www.paulhastings.com/assets/publications/2058.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2058PublicationMon, 05 Dec 2011 00:00:00 ZThis Stay Current discusses the recent listing of Coach, Inc. depositary receipts on the Hong Kong Stock Exchange and why Coach may be the first of many U.S. public companies to list on the Hong Kong Stock Exchange. The alert further discusses the no-action letter relief obtained by Coach, Inc. and J.P. Morgan to enable them to meet the safe harbor for offshore transactions found in Regulation S promulgated under the Securities Act of 1933. <br><a href=http://www.paulhastings.com/assets/publications/2059.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2059PublicationMon, 05 Dec 2011 00:00:00 ZThe link between employment and anticorruption compliance is direct, and this newsletter highlights the distinctive aspects of PRC employment law that impact actions employers should take with new hires to bolster adherence to your company's anticorruption policy to the likelihood of being able to conduct an effective and successful internal investigation to dealing with terminations of employment for violations of your anticorruption policy. At the end of the newsletter is a link to the recording of the program entitled "Strengthening Your China Compliance Program Through Employment Building Blocks" given by Shanghai-based partner K. Lesli Ligorner on September 9 China time/September 8 US time for the China Committee and the International Anticorruption Committee of the ABA. <br><a href=http://www.paulhastings.com/assets/publications/2057.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2057PublicationThu, 01 Dec 2011 00:00:00 ZRecent actions taken by the Federal Reserve Board and its staff (the “Board”) impact the application of rules applicable to investments in banking organizations: (1) for investors in thrift institutions, by means of the Board’s adoption of Regulation LL in new Part 238 of Title 12 of the Code of Federal Regulations, as described below; and (2) for all minority investors in banking organizations, by means of the Board’s increased focus on and scrutiny of minority stock investments below the 10% threshold under Regulations Y and LL. Bank, financial and thrift holding companies should consider reviewing minority investments in their organizations to determine if an investor’s level of stock ownership, actions and conduct are consistent with a passive investment, and whether the investment would qualify for a passivity agreement under the relevant control rules, or would the investor be required to make control filings in appropriate circumstances. Similarly, investors should review their current and anticipated stockholdings in banking organizations, as well as their actions and conduct with respect to the banking organizations to determine if they are in compliance with the Board’s current rules and policies under the Holding Company Acts and Regulations Y and LL. <br><a href=http://www.paulhastings.com/assets/publications/2055.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2055PublicationWed, 30 Nov 2011 00:00:00 ZThis Stay Current analyzes a recent Ninth Circuit decision that impacts securities class action litigants at the class certification stage. The decision involves the "fraud-on-the-market" presumption of reliance at class certification, and pertains to what plaintiffs seeking class certification must prove at that stage. The case also discusses -- and limits -- the scope of what defendants may rebut at the class certification stage. The Ninth Circuit opinion highlights a current split among the courts of appeals. <br><a href=http://www.paulhastings.com/assets/publications/2056.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2056PublicationWed, 30 Nov 2011 00:00:00 Z<p>This Stay Current discusses the recent supervisory statement from the federal banking agencies and the CFPB outlining how the Agencies intend to calculate asset sizes for insured depository institutions and credit unions in determining which institutions will be subject to their respective supervision and enforcement authority with respect to Federal consumer financial law under Dodd-Frank Act (DFA) Sections 1025 and 1026. </p> <p>Under those provisions, institutions and credit unions with total assets of more than $10 billion and their affiliates would be subject to the CFPB's supervisory and enforcement authority, while institutions and credit unions at or below the $10 billion asset threshold and their affiliates would remain subject to the supervisory and enforcement authority of the federal banking agencies. The Agency guidance is primarily intended to eliminate uncertainty for institutions regarding the identity of their primary supervisor under DFA Sections 1025 and 1026. </p><br><a href=http://www.paulhastings.com/assets/publications/2053.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2053PublicationTue, 29 Nov 2011 00:00:00 ZCompared to previous years, which had seen the implementation of several European directives (Market Abuse, Prospectus, Transparency and Takeover Directives, Markets in Financial Instruments Directive (MiFID)) and the creation of a new securities market in Paris, fewer meaningful statutes or modifications to the General Regulation of the French securities regulator, Autorité des Marchés Financiers (AMF) took place in 2010. A notable exception to this was the October 22, 2010 Financial and Banking Reform Statute (FBRS), which was taken in the aftermath of the financial crisis and will have notable influence over listed companies’ and certain capital markets’ activities. In addition, some enforcement decisions by the AMF are worth noting, as they will have an impact on future equity capital markets (ECM) or public mergers and acquisitions (M&amp;A) activity.<br><a href=http://www.paulhastings.com/assets/publications/2054.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2054PublicationTue, 29 Nov 2011 00:00:00 Z<p>In late October 2011, the U.S. Securities and Exchange Commission (the “SEC”) and the U.S. Commodity Futures Trading Commission (the “CFTC”, and collectively with the “SEC”, the “Commissions”) jointly adopted Form PF and accompanying rules under the Investment Advisers Act of 1940 and the Commodity Exchange Act of 1936 (“Final Rules”) to implement certain provisions of Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The information to be collected on Form PF is intended to assist the Financial Stability Oversight Council (“FSOC”) in monitoring the potential systemic risks posed by private funds by providing empirical data to FSOC with which it may make determinations about such risks. </p> <p>The Final Rules require an investment adviser to file Form PF if it (1) is registered or required to register with the SEC, (2) advises one or more “private funds,”, and (3) has at least $150 million in regulatory assets under management attributable to private funds as of the end of its most recently completed fiscal year (“Private Fund Advisers”). Under the Final Rules, information reported on Form PF will remain confidential, although the information would be available to the Commissions generally, including for the purposes of rulemaking, examinations, investigations and investor protection efforts. </p> <p>In addition, information collected on Form PF may be shared with other Federal agencies, organizations or self-regulatory bodies, although such entities would be required to represent to the SEC that they have sufficient controls in place to use and handle the information in a manner consistent with the protections established under the Dodd-Frank Act. </p><br><a href=http://www.paulhastings.com/assets/publications/2052.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2052PublicationMon, 28 Nov 2011 00:00:00 ZThis client alert examines the proposed regulations relating to extended maternity leave issued by the Legislative Affairs Office of the State Council of the People’s Republic of China. The regulations aim to reflect social progress and public policy in the PRC to provide greater protections to female employees before and after childbirth. <br><a href=http://www.paulhastings.com/assets/publications/2051.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2051PublicationWed, 23 Nov 2011 00:00:00 ZWith the likely difficulty of demonstrating biosimilarity or interchangeability under the recent Biologics Price Competition and Innovation Act of 2009 ("BPCIA"), patents covering analytical methods for biologic product characterization and quality control will likely play a larger role in providing protection for both innovator products and leaders in biosimilars development. In the recent Momenta v. Amphastar decision from the District Court for the District of Massachusetts, the court found that an alleged infringer of patented methods directed to quality control of a generic product could not seek safe harbor under &#167; 271(e)(1) of the Hatch-Waxman Act. The court held that when such patented methods are used to test commercial batches after FDA approval of the generic product, the safe harbor provision does not shield against liability for infringement – even when FDA guidelines require the generic manufacturer to practice these kinds of methods to establish "similarity" to the branded reference drug product. The decision may be a harbinger for future litigation as drug manufacturers decide how to protect and market biologics under the provisions of the BPCIA. <br><a href=http://www.paulhastings.com/assets/publications/2050.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2050PublicationMon, 21 Nov 2011 00:00:00 ZSavvy online vendors dramatically increase their sales by purchasing “keywords” from online search engines. Hereʼs how it is typically done. A vendor creates an ad. The vendor then selects or “bids on” keywords, which are words or phrases related to its business that it thinks customers will likely use when searching online for a business or item. When people search using one of the vendorʼs keywords, the vendorʼs ad appears next to the search results. The purchased keywords allow a vendor to more easily attract online customers. However, sometimes those keywords may be trademarked terms, including trademarks of the vendorʼs competitors. What happens when purchase of anotherʼs trademark as a keyword actually drives consumer traffic to the competing vendorʼs ad?<br><a href=http://www.paulhastings.com/assets/publications/2074.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2074PublicationMon, 21 Nov 2011 00:00:00 Z<p>Law360, New York (November 17, 2011, 2:39 PM ET) -- On Sept. 8, 2011, the U.S. Department of Justice Antitrust Division announced[1] that it would condition its approval of Cumulus Media Inc.’s proposed merger with Citadel Broadcasting on the divestiture of three radio stations in two overlap markets.</p> <p>In its court filings, the DOJ emphasized that the proposed transaction would result in Cumulus-Citadel controlling more than 40 percent of the radio advertising market in the Harrisburg-Lebanon-Carlisle, Pa., and Flint, Mich., Arbitron metros. </p> <p><a href="http://www.law360.com/articles/286470/implications-of-cumulus-citadel" target=_blank>Read the full article here.</a></p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2075PublicationThu, 17 Nov 2011 00:00:00 Z<p>The U.S. Supreme Court’s June 2011 decision in Wal-Mart Stores Inc. v. Dukes,1 a gender discrimination action seeking certification of a nationwide class of all female Wal-Mart employees, has been heralded by a number of employment defense lawyers as a major blow against employment class actions under Federal Rules of Civil Procedure 23(a) and 23(b)(2). While employee rights attorneys have been quick to point out limitations to Justice Antonin Scalia’s opinion, few dispute that the decision clarifies a plaintiff’s burdens in certifying a class. Many employment lawyers agree that, on balance, Dukes is helpful to the defense of employment class actions under the applicable provisions of Rule 23.</p>Fewer commentators, however, have explored the impact of Dukes on multidistrict employment litigation against employers and the strategic implications of such litigation. Through multidistrict employment litigation, parties with overlapping individual and class-based claims grounded on one or more common facts centralize actions from multiple federal court jurisdictions under the auspices of a single district court judge for pre-trial purposes. Pursuing multidistrict litigation of overlapping employment actions filed in district courts throughout the country can transform litigation by rendering discovery more manageable and dispositive rulings more consistent. Despite such potential benefits, the decision to do so should be undertaken only after a searching review of the strategic considerations. <p></p><br><a href=http://www.paulhastings.com/assets/publications/2049.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2049PublicationMon, 14 Nov 2011 00:00:00 Z<p>香港联合交易所有限公司（联交所）于2011年10月28日刊发《有关检讨企业管治守则及相关上市规则的咨询总结》（《咨询总结》）。咨询期内，联交所共收到118份来自上市发行人、市场参与者以及专业及业界组织、机构投资者及个人的回应意见。</p> <p>此客户资讯讨论内容为《咨询总结》中的重要事项。本简报结尾附有表格列明《上市规则》及《守则》的修订概要及修订的实施日期。</p><br><a href=http://www.paulhastings.com/assets/publications/2045.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2045PublicationFri, 11 Nov 2011 00:00:00 ZThis Stay Current reviews a recent announcement from the Internal Revenue Service. The new initiative – the Voluntary Classification Settlement Program – provides partial relief from federal employment taxes for employers with potential exposure relating to independent contractor worker classification, if they agree to prospectively treat workers as employees. In considering potential program participation, employers should consider not only the program itself, but also the practical issues associated with participation. <br><a href=http://www.paulhastings.com/assets/publications/2046.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2046PublicationThu, 10 Nov 2011 00:00:00 ZThis client alert represents the second installment in a series of client alerts that will explore various issues presented by the current interagency proposal to implement the Volcker Rule and the first installment in a series of alerts that will address specific leveraged finance issues stemming from the implementation of the Volcker Rule. Specifically, this client alert addresses the potential impact of the Volcker Rule’s restriction on “proprietary trading” on the making of non-investment grade bridge loans in the context of committed financings for acquisitions. For a more general discussion of the issues and concerns in implementing the Volcker Rule please see our article titled <a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=2038" target=_blank>The Volcker Rule Proposal – Many Questions, Few Answers</a>. <br><a href=http://www.paulhastings.com/assets/publications/2043.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2043PublicationTue, 08 Nov 2011 00:00:00 Z<p>The outcomes of The UK Takeover Panel’s (the “Panel”) review of the regulation of takeover bids were implemented and came into effect on 19 September 2011. These changes followed the Panel's review last year of certain fundamental aspects of the UK takeover regime, which in turn followed the highly politicised debates arising out of Kraft's takeover of Cadbury in early 2010. With the possible exception of the prohibition of deal protections (such as break fees), the most significant change to the UK takeover regime is the new requirement that an announcement of a possible offer released by a target must, subject to limited exceptions, identify all offerors who have made an approach and not been rejected.</p> <p>The rule changes reinforce the importance of secrecy at the initial stages of a potential public acquisition governed by the UK takeover code and appear to be forcing offerors to be more prepared before making their approaches, which may have the unintended consequence of catching potential targets unaware, but does support the stated objective – to prevent target companies being under siege for long periods. </p><br><a href=http://www.paulhastings.com/assets/publications/2040.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2040PublicationMon, 07 Nov 2011 00:00:00 Z<p>On October 24, 2011, the Commodity and Futures Trading Commission’s (CFTC) whistleblower rules became effective and its Whistleblower Office opened for business. The new Whistleblower Office is charged with implementing the CFTC’s recently adopted whistleblower rules mandated by Section 748 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) and Section 23 of the Commodity Exchange Act (CEA). Under the new rules, the CFTC may pay an award to an eligible whistleblower who voluntarily provides the agency with original information about a violation of the CEA that leads to a successful enforcement action.</p>The CFTC first published its proposed rules in December 2010 and invited public comment. During the comment period, industry groups urged the CFTC to require a whistleblower to first report the information internally to an entity to be eligible for an award in order to preserve the integrity of internal reporting systems. After the public comment period closed, the CFTC revised the proposed rules to promote harmonization with the Securities and Exchange Commission’s (SEC) whistleblower rules and program, which became effective on August 12, 2011, and to respond to concerns raised during the public comment period. <p></p>The final rules, which largely mirror the SEC’s whistleblower rules, were adopted by the CFTC on August 4, 2011 in a 4-1 vote. While the final rules do not require a whistleblower to first internally report the information, they do provide incentives for whistleblowers to use a firm’s internal compliance system as part of the reporting process and disincentives for whistleblowers who bypass or thwart these systems. <p></p><br><a href=http://www.paulhastings.com/assets/publications/2041.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2041PublicationMon, 07 Nov 2011 00:00:00 Z<p>Since the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) was passed, the Securities and Exchange Commission (the “SEC”) and various other regulatory agencies, including the Commodity Futures Trading Commission (the “CFTC”), the Federal Reserve Board (the “Federal Reserve”), and the Department of the Treasury (the “Treasury”), have been busy proposing and finalizing rules to implement provisions of the Dodd-Frank Act. There have also been a number of significant developments in the hedge fund tax area, and the SEC and private plaintiffs have continued at a fast pace in bringing enforcement actions and litigation involving private funds and fund managers. Additionally, Bruce Karpati, co-chief of the SEC Division of Enforcement’s Asset Management Unit, announced the Asset Management Unit’s priority areas of focus for 2012 at HedgeWorld’s 2011 Fund Services Conference &amp; Expo held on October 26, 2011. </p> <p>This Report provides an update since our last <a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1891" target=_blank>Hedge Fund Report</a> in April 2011 and highlights recent regulatory and tax developments, as well as recent civil litigation and enforcement actions as they relate to the hedge fund industry. Paul Hastings attorneys are available to answer your questions on these and any other developments affecting hedge funds and their investors and advisers. </p><br><a href=http://www.paulhastings.com/assets/publications/2039.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2039PublicationThu, 03 Nov 2011 00:00:00 Z<p>This is the first in a series of client alerts that will explore various issues presented by the current interagency proposal to implement the Volcker Rule. This alert presents an overview of the structure of the Agencies’ proposal to implement the Volcker Rule's restrictions on the ability of banks to engage in proprietary trading and invest in hedge funds and private equity funds. </p> <p>It also discusses the general parameters of the proposed rule, and highlights some of the important issues raised in the almost 400 questions set forth in the proposal, that are categorized <a href="http://www.paulhastings.com/assets/pdfs/VolckerRuleQuestions.pdf" target=_blank><strong>here</strong></a>, and on which comment is due to the agencies by January 13, 2012. </p><br><a href=http://www.paulhastings.com/assets/publications/2038.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2038PublicationTue, 01 Nov 2011 00:00:00 Z<p>We have experienced significant changes in the lending industry over the past few years. Originating and refinancing loans in 2011 is dramatically different from what we did from 2005 through 2007. This article examines some of the notable ways in which key loan terms and practices have changed.</p> <p><strong><em>To read the full article, </em></strong><a href="http://www.globalhotelnetwork.com/globalhotelnetwork/Welcome_files/Jeffrey%20D.%20Diener2011Final.pdf" target=_blank><strong><em>visit this link</em></strong></a><strong><em>. </em></strong></p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2048PublicationTue, 01 Nov 2011 00:00:00 ZThe National Labor Relations Board (“NLRB” or “Board”) recently enacted a rule requiring private sector employers (whether unionized or union-free) subject to the National Labor Relations Act (“NLRA”) to post a new notice designed to inform employees of their rights under the NLRA, including their right to unionize and bargain collectively. This new notice is in addition to the already long list of mandatory postings required in U.S. workplaces. The rule was originally to go into effect on November 14, 2011, but after facing mounting criticism as well as lawsuits filed by the National Association of Manufacturers, the Coalition for a Democratic Workplace, the National Right to Work Legal Defense and Education Foundation, The U.S. Chamber of Commerce, and the National Federation of Independent Business, arguing that the NLRB has overstepped its statutory authority, the Board recently pushed back the effective date to January 31, 2012. While the NLRB announced that implementation of the rule is delayed to allow for enhanced education and outreach to employers, a federal judge’s request that the NLRB delay implementation of the rule so that she could carefully consider arguments in one of the pending lawsuits may have played a role as well.<br><a href=http://www.paulhastings.com/assets/publications/2037.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2037PublicationMon, 31 Oct 2011 00:00:00 ZOn October 20, 2011, the Centers for Medicare and Medicaid Services (“CMS”) released a final rule (the “Final Rule”) regarding the formation of accountable care organizations (“ACOs”) and the implementation of the Shared Savings Program (the “Program”). The Final Rule takes into account the many comments received by CMS in response to its ACO proposed rules, which were issued on March 31, 2011 and were published in the April 7, 2011 Federal Register (the “Proposed Rules”). In connection with the Final Rule, CMS and the Department of Health and Human Services Office of Inspector General announced an interim final rule regarding the waiver of fraud and abuse laws for ACOs, the Department of Justice and Federal Trade Commission released an ACO antitrust policy statement, and the IRS issued further ACO-related guidance as well. The Final Rule will be published in the November 2, 2011 Federal Register.<br><a href=http://www.paulhastings.com/assets/publications/2034.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2034PublicationThu, 27 Oct 2011 00:00:00 ZThe purpose of this article is to analyze federal law in the United States regarding a federal court’s authority to issue preliminary injunctive relief in aid of arbitration. This article concludes by offering a proactive approach for parties litigating in the circuits that have not yet adopted the majority rule. These recommendations should help protect parties litigating or arbitrating in those circuits until the law in these jurisdictions is clarified or more closely aligned with the majority, which will only be a matter of time.<br><a href=http://www.paulhastings.com/assets/publications/2035.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2035PublicationThu, 27 Oct 2011 00:00:00 ZA key component of the Small Business Jobs Act of 2010, as extended by the 2010 Tax Relief Act, which was designed to spur investment in emerging companies throughout the U.S., is set to expire on December 31, 2011. The Jobs Act amended Section 1202 of the Internal Revenue Code (“Code”) to allow non-corporate taxpayers the opportunity to exclude from gross income and Alternative Minimum Tax (“AMT”) up to 100% of the gain recognized from the sale or exchange of Qualified Small Business Stock (“QSBS”) purchased from September 28, 2010 through December 31, 2011. There has been no formal legislative proposal to extend the end-date or otherwise make the exclusions permanent. Accordingly, qualified small business issuers and their investors and employees should consider whether the current exclusions warrant taking certain actions by year-end.<br><a href=http://www.paulhastings.com/assets/publications/2031.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2031PublicationMon, 24 Oct 2011 00:00:00 Z<p>The United States has had status-based harassment and discrimination laws in place for decades, well in advance of most other countries. Though the United States has taken several measures to protect those who are harassed in the workplace based on "protected categories," it has not introduced legislation to assist those who are "bullied" in the workplace, but do not have such a protected status on which to base a claim. Recent surveys indicate that a significant portion of U.S. workers may fall into this category; 35 percent of U.S. workers reported experiencing workplace bullying, the majority of which was same-gender harassment.</p>Currently, there is no state or federal law to fill this gap in coverage. The first anti-bullying piece of legislation, the "Healthy Workplace Bill" (HWB), was introduced in California in 2003. Since then, 21 other states, including New York, have proposed bills based on the HWB, though none have yet been enacted. The New York State Legislature, however, is considering such a bill. A bill establishing "a civil cause of action for employees who are subjected to an abusive work environment" provides a remedy for victims of harassment that is not based on a protected category and holds employers civilly liable for maintaining abusive work environments. If the bill is passed into law, New York will become the first state in the country to recognize a cause of action for workplace bullying, though several states have considered such legislation in the past. <p></p>Other countries have been more proactive in combating workplace bullying. In particular, Sweden, the United Kingdom, France and Japan have introduced new legislation or have interpreted existing legislation to address bullying in the workplace. This article summarizes New York's proposed bill. It also analyzes workplace bullying laws in place in Sweden, the UK and France as examples of treatment of workplace bullying outside the United States. Finally, this article provides recommendations to multinational employers that are faced with complying with developing bullying laws. <p></p><br><a href=http://www.paulhastings.com/assets/publications/2032.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2032PublicationMon, 24 Oct 2011 00:00:00 ZIn a recent, strongly worded federal antitrust decision, pleas for international comity by China’s nationalized vitamin industry and its regulatory overseer, China’s foremost trade industry, fell short in a showdown with U.S. domestic antitrust laws. The case indicates that foreign compulsion defenses are likely to be strictly and narrowly viewed when bumping against the domestic welfare statutes like the Sherman Act. Equally important, the case should signal a caution flag to industries coordinating in nationalized economies exporting to America. <br><a href=http://www.paulhastings.com/assets/publications/2028.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2028PublicationTue, 18 Oct 2011 00:00:00 Z<p>Last year, the Department of Labor issued a regulation, 29 C.F.R. &#167; 2550.404a-5, requiring plan administrators of 401(k) and other defined contribution plans that permit participants to direct how their accounts are invested to provide, starting next year, very detailed investment and expense information. To comply, (1) a special notice must be given to existing participants no later than the effective date described below; (2) thereafter, this special notice must also be given to a participant (normally, a new participant) before he or she first becomes eligible to direct plan investments; (3) the special notice also must be given at least annually and when certain information in it changes; and (4) other special information must be included in quarterly benefit statements.</p> <p>The Department of Labor’s new disclosure regulation does not provide a comprehensive model disclosure package, although it does include a form of comparative chart that would satisfy some of the new requirements. Because that chart does not satisfy all of the new disclosure requirements, we created the copyrighted model package attached to this client alert, which incorporates a slightly modified version of the Department of Labor chart. Our model package is intended to be a starting point from which plan administrators can develop customized disclosures that will satisfy all of the new requirements. A Word copy, which we likely will update from time to time, is available at <a href="http://www.paulhastings.com/assets/news/ModelFeeandExpenseDisclosureNotice.DOC" target=_blank>http://www.paulhastings.com/assets/news/ModelFeeandExpenseDisclosureNotice.DOC</a>. </p><br><a href=http://www.paulhastings.com/assets/publications/2027.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2027PublicationMon, 17 Oct 2011 00:00:00 Z<p style="MARGIN: 0in 0in 10pt" class=MsoBodyText><font color=#333333 size=2>On 12 October 2011, The Stock Exchange of Hong Kong Limited (the “HKEx”) issued “HKEx Guidance Letter HKEx-GL25-11” (“GL25-11”) regarding the conditions for waivers from strict compliance with the requirement to include three years’ financial statements in prospectuses pursuant to Rule 4.04(1). This client alert explains the new requirements under the conditions, the significance of GL25-11 and its implications for listing applicants issuing prospectuses within the first three months of their financial year. GL25-11 will affect listing applicants whose financial year-end falls on or after 31 December 2011.</font></p><br><a href=http://www.paulhastings.com/assets/publications/2025.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2025PublicationFri, 14 Oct 2011 00:00:00 Z<p>Recently the Office of Inspector General of the Department of Health and Human Services (“OIG”) released its “areas most in need of attention” for the 2012 fiscal year. As a guidepost to the OIG’s current and future audit initiatives, the 2012 Work Plan is essential reading for compliance officers, legal counsel and provider administrators charged with setting audit priorities for their internal corporate compliance programs. As described by the OIG, a healthy compliance program is constantly identifying new risk areas for investigation and audit. The OIG issues the Work Plan as a catalog of risk areas designed to guide hospitals and other healthcare providers and suppliers in the operation of their individual compliance plans.</p> <p>In the 2012 Work Plan, the OIG’s audit priorities for CMS programs – including the Medicare and Medicaid programs – covers several dozen pages of densely written text. A recitation of all the priorities is beyond the scope of this Client Alert and is better left to a review of the Work Plan itself. However, the following is an abridged review of some areas of particular interest in the Work Plan. </p><br><a href=http://www.paulhastings.com/assets/publications/2024.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2024PublicationThu, 13 Oct 2011 00:00:00 ZEach fall for several years before the arrival of Governor Schwarzenegger, California employers came to expect that the legislature and governor would enact a slew of employment-related laws that imposed new obligations on them and created additional legal risks. The last seven legislative sessions have been relatively mild for employers, but the respite is over. Just nine months after taking office, Governor Brown has joined forces with the legislature to produce a dozen new employment-related laws, which, as in the “old days,” impose substantial additional responsibilities, burdens and costs on employers. The new laws take effect on January 1, 2012. This Alert summarizes the key changes resulting from the recently concluded legislative session of which employers with operations in California must take note.<br><a href=http://www.paulhastings.com/assets/publications/2022.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2022PublicationWed, 12 Oct 2011 00:00:00 Z<p>On October 4, 2011, California Governor Jerry Brown signed Senate Bill 226 (“SB 226”), in an attempt to help improve the state’s economy, create jobs and increase tax revenues for the state. SB 226 includes a number of amendments to CEQA, the most significant of which are the following: 1) allowing qualified urban infill projects that meet new statewide performance standards to undergo limited California Environmental Quality Act (“CEQA”) review; 2) exempting from environmental review effects which solely relate to increases in greenhouse gas emissions; and 3) as the Governor stated in announcing his signing of the bill, “avoid[ing] costly and repetitive permitting for certain renewable power projects.” </p> <p>SB 226 is the third piece of CEQA legislation signed by the Governor this year. Last month, Governor Brown approved Assembly Bill 900, which expedites judicial review for development projects that incorporate various environmental features, and Senate Bill 292, which establishes administrative and judicial review procedures for the proposed football stadium in downtown Los Angeles. We described these new laws in a Client Alert dated September 28, 2011, entitled <i>Governor Signs CEQA Reform Into Law</i>, [<a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=2011">http://www.paulhastings.com/publicationDetail.aspx?publicationId=2011</a>]. </p><br><a href=http://www.paulhastings.com/assets/publications/2023.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2023PublicationWed, 12 Oct 2011 00:00:00 ZOn October 9, 2011, Governor Brown signed Assembly Bill 22 into law. The new law takes effect on January 1, 2012, and significantly changes the legal landscape for employers who request and consider credit-related information as part of job applicant and employee background checks. The law prohibits employers from obtaining credit information about applicants for employment as part of the background check process and deciding whether or not to continue the employment of an existing employee, unless the applicant/employee occupies a position specified in the law. The law also requires employers who obtain credit information as part of a background check to identify the specific basis in the law that authorizes the credit check.<br><a href=http://www.paulhastings.com/assets/publications/2020.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2020PublicationTue, 11 Oct 2011 00:00:00 ZThe third quarter demonstrated that the Foreign Corrupt Practices Act (“FCPA”) continues to hold the attention of a broad audience, including in the courtroom. For the second consecutive quarter, a guilty jury verdict was handed down, this time for two executives in the Haiti Teleco case. Also for the second quarter in a row, the definition of “foreign official” was the subject of courtroom activity in the Control Components, Inc. (“CCI”)-related case, U.S. v. Carson et al. There, the U.S. Department of Justice (“DOJ”), in preparing its jury instructions, helped clarify an issue related to the definition of “foreign official.” <br><a href=http://www.paulhastings.com/assets/publications/2021.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2021PublicationTue, 11 Oct 2011 00:00:00 ZOn 20 June 2011, the Supreme Court granted Mayo’s petition for a writ of certiorari to review Federal Circuit’s holding that Prometheus's patents claiming methods for determining optimal dosages of thiopurine drugs to treat certain diseases were directed to statutory subject matter pursuant to 35 USC &#167; 101. With this grant, the Supreme Court has agreed to re-enter the field of patent-eligible subject matter of method claims, only a little over a year after its decision in Bilski. The outcome of this case is eagerly awaited and likely to have broad implications on the validity of patents in the pharmaceutical and biotechnology sectors, where many patents claim methods similar to those at issue in Prometheus. Briefing will occur over the next several months with a decision likely to come by the end of the term in June 2012. <br><a href=http://www.paulhastings.com/assets/publications/2018.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2018PublicationMon, 10 Oct 2011 00:00:00 Z<p>This book analyzes the major U.S. employment-related legal issues (and other important considerations) that arise (1) when an employer is planning or preparing for a work force reduction, (2) in implementing a work force reduction, and (3) in the days and weeks following an announcement and rollout of such a business restructuring. In other words, this publication provides step-by-step analysis of reductions in force (RIFs) from an employment law perspective.</p> <p>This excerpt is the first chapter, "Getting Started."</p><br><a href=http://www.paulhastings.com/assets/publications/2019.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2019PublicationMon, 10 Oct 2011 00:00:00 Z<p><a href="http://www.paulhastings.com/assets/pdfs/Gender_Parity_on_Corporate_Boards.pdf" target=_blank>Click here for a PDF of the full text.</a></p> <p><strong>FOREWORD </strong></p> <p>We are pleased to present the inaugural edition of “Breaking the Glass Ceiling: Women in the Boardroom,” a global survey that looks at regional differences in how legislatures and regulators are addressing gender parity on the boards of listed companies.</p> <p>In the report, we examine the legal and regulatory developments and trends around this issue. In certain jurisdictions, change is mandated; in others, change is encouraged; and, in still others, change is dependent on whether industry will respond. We offer insights into differences in viewpoint and the varying degrees of government involvement in mandating stronger representation of women in the boardroom. Following is a brief snapshot of our findings.</p> <p>Since its beginning, the European Union has viewed gender equality with keen interest. However, despite a number of directives and recommendations starting in 2006 addressing gender equality, women in general remain underrepresented on boards throughout Europe. In response, earlier this year the EU Commission issued its “Green Paper on Corporate Governance,” which solicited suggestions from Member States, Parliament, and other interested parties on how to better ensure gender balance. This, along with more persuasive measures such as quotas – and even the threat of quotas – has helped keep the issue in the spotlight. Although the EU is still analyzing responses to the Green Paper, one thing is clear: gender parity is a high priority in Europe, with some countries adopting quotas while others are implementing less stringent affirmative action initiatives.</p> <p>Across the pond, gender parity continues to gain attention in both Canada and the U.S., but with far less vigor. While there is no existing statutory requirement that mandates equality on boards in Canada, it has become a focus of major policy issues with a number of initiatives underway to level the playing field. In the U.S., although there is strong support for diversity initiatives as a whole, efforts around diversity on boards remain largely voluntary and progress has been slow.</p> <p>While the SEC requires disclosure of a company’s diversity policy, it does not mandate that listed companies commit to diversity. The aspirational view is that, while these measures may not be as immediately impactful as quotas, they will be more widely embraced and therefore will be more effective in the long run.</p> <p>Lastly, we examine efforts in Australia and New Zealand. Australia reports a high number of women in the workforce, but a small number of women represented in leadership roles or on boards. However, new legislative measures and more stringent disclosure requirements for listed companies have recently delivered encouraging results with a positive trend line. In New Zealand, gender equality in high-ranking public positions is not equally reflected on corporate boards.</p>Though there is a desire for change, legally mandated action or quotas are not popular options. Only time will tell whether other less stringent measures will be strong enough catalysts for change. <p></p> <p>Diversity has been a core value of our firm since inception and remains so today. We are proud to have a number of women in leadership roles and strive to ensure that diversity influences all aspects of our business. We were honored to receive Gold Standard Certification from the Women In Law Empowerment Forum (WILEF) in June 2011, recognizing that women comprise a significant portion of our leadership structure and are top earners.</p> <p>We are pleased to present this study and hope you find it interesting and informative. We are already working on the next edition which will add jurisdictions, notably in Asia which is missing from this report, as well as address developments in the countries covered by this inaugural edition. We look forward to providing you with future updates and welcome the interesting and important discourse that is part of the debate as to how best to achieve gender parity on corporate boards.</p> <p>Tara K. Giunta, Partner<br>Paul Hastings (Washington, D.C.)<br>Editor</p><br><a href=http://www.paulhastings.com/assets/publications/2036.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2036PublicationSat, 01 Oct 2011 00:00:00 Z<p>On July 1, 2011 the PRC Social Insurance Law, issued by the Standing Committee of the National People’s Congress (“SIL”), took effect and established the first national, basic social insurance framework for employees across the PRC. The SIL requires that employers enroll each employee in five insurance programs – the pension, medical, work-related injury, unemployment and maternity insurance programs. </p> <p>One of the most controversial aspects of the SIL is the purported mandatory inclusion in the social insurance system of expatriates. Before the SIL, PRC law did not mandate that any foreigners to enroll in its social insurance system. </p><br><a href=http://www.paulhastings.com/assets/publications/2013.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2013PublicationFri, 30 Sep 2011 00:00:00 ZThe Ministry of Commerce (“MOFCOM”) issued the long-awaited Interim Rules on Evaluating Competitive Effects of Concentration of Business Operators (2011 Announcement No. 55) (the “Interim Rules”) on August 29, 2011. Before the formal promulgation of these Interim Rules, MOFCOM published a draft of the Interim Rules on June 3, 2011 for a ten-day solicitation of public comments. The formally promulgated Interim Rules keep almost all the contents of the June 3, 2011 draft. The Interim Rules, which took effect on September 5, 2011, provide some guidelines with respect to MOFCOM’s evaluation of the competitive effect of a potential transaction. <br><a href=http://www.paulhastings.com/assets/publications/2012.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2012PublicationThu, 29 Sep 2011 00:00:00 Z<p>On September 27, 2011, Governor Brown signed two bills into law that amend the California Environmental Quality Act (“CEQA”) in an attempt to help improve the state’s economy. These bills aim to curtail delays attributed to CEQA litigation and to produce much-needed economic growth, jobs and tax revenues for the state. “It’s time for big thinking and big projects that put Californians back to work,” said Governor Brown.</p> <p>The most significant change comes from Assembly Bill 900 (“AB 900”), which expedites judicial review for development projects that incorporate various environmental features. More narrowly, Senate Bill 292 (“SB 292”) establishes administrative and judicial review procedures specifically tailored for the proposed football stadium in downtown Los Angeles. The Governor, however, has not signed Senate Bill 226 (“SB 226”), which would create CEQA exemptions and/or limited review for qualified “green projects”, such as urban infill developments and rooftop solar projects. </p><br><a href=http://www.paulhastings.com/assets/publications/2011.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2011PublicationWed, 28 Sep 2011 00:00:00 Z China’s Ministry of Commerce (“MOFCOM”) issued on August 25, 2011 the Rules on the Implementation of the National Security Review Mechanisms (the “New SR Implementation Rules”《商务部实施外国投资者并购境内企业安全审查制度的规定》). The New SR Implementation Rules became effective on September 1, 2011 and replaced the Temporary Rules on Several Issues Related to the Implementation of the National Security Review Mechanisms (the “Temporary Rules”《商务部实施外国投资者并购境内企业安全审查制度有关事项的暂行规定》) which were effective from March 4, 2011 to August 31, 2011. The Temporary Rules implemented the State Council’s 3 February 2011 Circular on the Establishment of Security Review Mechanisms for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (《国务院办公厅关于建立外国投资者并购境内企业安全审查制度的通知》) (the “NSR Circular”). <br><a href=http://www.paulhastings.com/assets/publications/2010.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2010PublicationTue, 27 Sep 2011 00:00:00 ZOn September 8, 2011, the U.S. Department of Justice (“DOJ”) Antitrust Division <a href="http://www.justice.gov/opa/pr/2011/September/11-at-1153.html" target=_blank>announced </a>that it would condition its approval of Cumulus Media Inc.’s proposed merger with Citadel Broadcasting on the divestiture of three radio stations in two overlap markets. In its court filings, the DOJ emphasized that the proposed transaction would result in Cumulus/Citadel controlling more than 40 percent of the radio advertising market in the Harrisburg-Lebanon-Carlisle, Pennsylvania, and Flint, Michigan, Arbitron Metros. The DOJ also stated that the proposed settlement would “preserve choices for advertisers” by preventing excessive market concentration through the divestitures that would bring market concentration to below 40 percent in both Metros.<br><a href=http://www.paulhastings.com/assets/publications/2006.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2006PublicationThu, 15 Sep 2011 00:00:00 Z<table cellSpacing=2 cellPadding=2 width="100%"> <tbody> <tr> <td bgColor=#f3f3f3> <table cellSpacing=2 cellPadding=2 width="100%"> <tbody> <tr> <td>&nbsp;</td> <td> <p><strong>STAY CURRENT </strong></p> <p><a href="http://paulhastings.com/publicationDetail.aspx?PublicationId=1999" target=_blank>Recent Developments in English Contract Law</a></p> <p><a href="http://paulhastings.com/publicationDetail.aspx?PublicationId=1991" target=_blank>Michael Cohen Appears on CNBC to Discuss Mergers and Acquisitions Activity in Japan</a></p> <p><a href="http://paulhastings.com/publicationDetail.aspx?PublicationId=1979" target=_parent>TV’s Next M&amp;A Wave Won’t Be Like Last One</a></p> <p><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=1966" target=_blank align="justify">Recent Revisions to the Hart-Scott-Rodino Act Reporting Requirements</a><br></p> <p><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1960" target=_blank align="justify">Don’t Miss the Mark: Why Deal Makers Should Not Overlook Recent False Marking Statute Decisions</a><br></p> <p><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1929" target=_blank align="justify">Delaware Court Applies Revlon to “Hybrid” Merger and Provides Guidance</a><br></p> <p><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1928" target=_blank align="justify">China Matters: China Establishes its Security Review Mechanisms for Inbound M&amp;A Transactions </a><br><br><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1913" target=_blank>Delaware Chancery Court Rules that a Reverse Triangular Merger May Constitute an “Assignment by Operation of Law” </a></p> <table cellSpacing=1 cellPadding=1 width="100%"> <tbody> <tr> <td class=WHITE_copy bgColor=#8b0e04> <table cellSpacing=2 cellPadding=2 width="100%"> <tbody> <tr> <td>&nbsp;</td> <td> <p style="COLOR: #ffffff"><strong>RECENT CLIENT SUCCESS</strong><br> <p style="COLOR: #ffffff" align=justify>Representing <strong>Samsung Electronics</strong> in the $1.375 billion sale of its hard disk drive (HDD) business to Seagate Technology, a NASDAQ-listed manufacturer of HDD and storage solutions, and extending and enhancing the existing patent cross-license agreement between the companies. </p> <p style="COLOR: #ffffff" align=justify>Represented leading ambulance and private fire protection services company <a style="COLOR: #ffffff" href="http://www.paulhastings.com/NewsDetail.aspx?NewsId=126047" target=_blank><strong>Rural/Metro Corporation</strong></a> in its $670 million acquisition by global private equity firm Warburg Pincus. </p> <p style="COLOR: #ffffff" align=justify>Represented the Special Committee of the Board of Directors of <strong>Trimeris, Inc</strong>., a publicly-traded biotechnology company, in its $275 million reverse merger stock-for-stock combination with privately held Synageva BioPharma Corp.</p> <p style="COLOR: #ffffff" align=justify>Represented <strong><a style="COLOR: #ffffff" href="http://www.paulhastings.com/NewsDetail.aspx?NewsId=73527" target=_blank>Rudong Ritai Infrastructure Development &amp; Investment Co., Ltd.</a></strong> in its $230 million acquisition of equity interests in Rudong Yangkou Port Investment &amp; Development Co., Ltd. from Glory Well Limited, a subsidiary of PYI Corporation Limited, a Hong Kong Stock Exchange-listed company. This is the largest acquisition transaction in Rudong county, China.</p> <p style="COLOR: #ffffff" align=justify>Represented <a style="COLOR: #ffffff" href="http://paulhastings.com/NewsDetail.aspx?NewsId=105847" target=_blank><strong>Kobe Steel Ltd.</strong></a>, a major Japanese equipment manufacturer, in its acquisition of a 44.3% equity share in Wuxi Compressor Co., Ltd., a leading Chinese manufacturer of compressors.</p> <p style="COLOR: #ffffff" align=justify>Represented <strong>Korea East-West Power Co., Ltd.</strong> in its acquisition of a 40% stake of Jamaica Public Service Company Limited, a vertically integrated utility with the exclusive right to transmit and distribute electricity in Jamaica, from Marubeni Corporation.</p> <p style="COLOR: #ffffff" align=justify>Represented <strong>Astorg Partners</strong>, one of the major French private equity firms, in its leveraged buyout of France-based Saverglass, a leading designer and manufacturer of luxury glass bottles. </p></td> <td>&nbsp;</td></tr></tbody></table></td></tr></tbody></table> <p><strong><br>EXPANDING OUR M&amp;A PRACTICE</strong><strong><img hspace=5 vspace=5 align=right src="http://www.paulhastings.com/assets/professionalImages/115111.jpg" width=124 height=170></strong></p> <p align=justify>We are pleased to announce that <a href="http://www.paulhastings.com/ProfessionalDetail.aspx?ProfessionalId=115111" target=_blank><strong>Garrett Hayes</strong></a> has joined Paul Hastings as a partner in our M&amp;A and Private Equity practices.<br><br>Based in the firm's London office, Mr. Hayes' expertise covers a broad range of general corporate work, with a specialty in private company M&amp;A and private equity.<br><br>In particular, he has acted for private equity sponsors and portfolio companies on leveraged buyouts, restructurings, and auction sale processes. He has also advised management on a number of high-profile transactions.</p> <hr> <p><strong>RECENT ACCOLADES </strong></p> <p align=justify><a href="http://www.paulhastings.com/NewsDetail.aspx?NewsId=113927" target=_blank align="left"><i><strong>Chambers USA</strong></i></a>, <a href="http://www.paulhastings.com/NewsDetail.aspx?NewsId=60599" target=_blank><i><strong>Chambers Global</strong></i></a>, and <a href="http://www.paulhastings.com/NewsDetail.aspx?NewsId=109079" target=_blank><i><strong>Legal 500 US</strong></i></a> again named Paul Hastings to their 2011 lists of top M&amp;A firms and lawyers. <p align=justify><strong>Bloomberg</strong>, <strong>Thomson Reuters</strong>, and <strong>mergermarket </strong>ranked Paul Hastings as a leading M&amp;A advisor in their Q1-Q2 2011 <strong><a href="http://www.paulhastings.com/NewsDetail.aspx?NewsId=137359&amp;Other=True" target=_blank>M&amp;A League Tables</a></strong>. </p> <p align=justify>London office Chair <a href="http://www.paulhastings.com/ProfessionalDetail.aspx?ProfessionalId=109611" target=_blank><strong>Ronan O'Sullivan</strong></a> was selected as a winner of <i>M&amp;A Advisor</i>'s 2nd Annual <strong>40 Under 40 Recognition Awards</strong>. Additionally, partners <a href="http://www.paulhastings.com/ProfessionalDetail.aspx?ProfessionalId=19817" target=_blank><strong>Peter Burke</strong></a>, <a href="http://www.paulhastings.com/ProfessionalDetail.aspx?ProfessionalId=108471" target=_blank><strong>Jeff Hartlin</strong></a>, and <a href="http://www.paulhastings.com/ProfessionalDetail.aspx?ProfessionalId=113617" target=_blank><strong>Sammy Li</strong></a> were selected as finalists. The 2011 40 Under 40 Award winners and finalists were selected for their accomplishments and expertise from a pool of prominent nominees by an independent judging panel of distinguished business leaders. </p> <p align=justify>Paul Hastings was awarded the <strong>Real Estate Deal of the Year Award</strong> by <i>M&amp;A Advisor</i> at the 2011 Alternative Investing &amp; Financing Awards. The award honored the firm's representation of <a href="http://paulhastings.com/NewsDetail.aspx?NewsId=749" target=_blank><strong>Oaktree Capital</strong></a> in its acquisition of loans and properties from the FDIC. </p> <p align=justify>Paul Hastings has been nominated for "<strong>In-House Community Firm of the Year</strong>" in China for Corporate and M&amp;A by <i>Asian-Mena Counsel </i>and has also been selected as a finalist for "<strong>China M&amp;A Deal of the Year</strong>" for our work on the <a href="http://paulhastings.com/NewsDetail.aspx?NewsId=748" target=_blank><strong>Hanwha Chemical deal</strong></a> by <i>China Law &amp; Practice</i>.</p></td> <td>&nbsp;</td></tr></tbody></table></td></tr></tbody></table>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2008PublicationMon, 12 Sep 2011 00:00:00 Z<p>On July 8, 2011 and July 11, 2011, the Courts of Appeals for the District of Columbia Circuit and the Seventh Circuit, respectively, handed down decisions concerning the scope of liability under the Alien Tort Statute (“ATS”), 28 U.S.C. &#167; 1350, a federal statute that grants district courts jurisdiction to entertain suits sounding in torts committed in violation of international law. </p> <p>The implications of the Courts’ rulings are significant, and have deepened a split among the federal appellate courts by holding that corporations are subject to civil liability under the ATS on the ground that they “aided and abetted” violations of customary international law undertaken by third parties in the nations where they were operating. By so ruling, the Courts’ signaled their disagreement with the Second Circuit’s recent ruling in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), which held that corporations could not be held liable under the ATS. </p><br><a href=http://www.paulhastings.com/assets/publications/2003.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2003PublicationMon, 12 Sep 2011 00:00:00 ZReverse merger companies, which are formed when a public “shell company” survives a merger with a private operating company, have recently been subject to numerous federal securities fraud lawsuits and Securities and Exchange Commission (“SEC”) enforcement actions and penalties due to concerns relating to accounting irregularities and other disclosure issues. As a response to these concerns, and in an effort to increase transparency and limit risks to investors, the New York Stock Exchange (“NYSE”) and The Nasdaq Stock Market LLC (“Nasdaq”) have each proposed additional listing application requirements for reverse merger companies seeking to list on their exchanges . The proposed sets of rules effectively create a “seasoning” period prior to listing and generally require that the reverse merger company: <ul> <li>have its equity securities trade in the United States over-the-counter market or on a national or foreign exchange subsequent to the consummation of the reverse merger for a specified period of time prior to listing;</li> <li>file all required information regarding the reverse merger transaction with the SEC, including audited financial statements;</li> <li>maintain a minimum stock price of $4 per share for a certain period of time prior to listing; and</li> <li>file all required reports with the SEC subsequent to the reverse merger during the “seasoning” period, including certain specified periodic reports. </li></ul> <p>The NYSE and Nasdaq expect that the “seasoning” period will increase the integrity of the reverse merger company’s financial and operations related reporting and allow auditors and company management to adequately evaluate and address accounting irregularities and internal controls deficiencies. In addition, this period would allow for additional market and regulatory scrutiny of these companies and provide time to identify concerns that could otherwise preclude listing eligibility. The SEC is currently reviewing the proposed listing requirements of each securities exchange and may act on each proposal in September 2011. </p><br><a href=http://www.paulhastings.com/assets/publications/2002.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2002PublicationFri, 09 Sep 2011 00:00:00 Z <p>Today the U.S. Senate endorsed all provisions in H.R. 1249: Leahy-Smith America Invents Act, a comprehensive patent reform bill, the progress of which we have reported in earlier alerts found <a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=1940" target=_blank><strong>here</strong></a> and <a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=1848" target=_blank><strong>here</strong></a>.</p> <p>The Senate's passage of the bill by a vote of 89 to 9 means that the bill will make it to the President's desk shortly. When passed (President Obama had previously pledged that he would sign a patent reform bill when it reaches his desk), the legislation would offer the first significant change to the U.S. patent system in nearly sixty years. </p> <p>The Senate's successful vote on the bill came just days after a cloture vote held on September 6, where the Senate garnered enough votes required to effectively limit consideration of the bill that had passed in the House of Representatives by a vote of 304-117 back in June, to an additional 30 hours. Majority Leader Harry M. Reid (D-Nev.) filed a cloture motion last August, just before the Senate adjourned for vacation, to which the Senate gave unanimous consent. Today, several amendments were proposed, yet none approved.</p> <p>Despite the differences between H.R. 1249 passed by the House last June, and S.23, the original Senate bill passed last March, the Senate today still managed to pass the Leahy-Smith America Invents Act. Arguably the biggest difference between the two involved the issue of U.S. Patent and Trademark Office ("PTO") funding, which had threatened to derail patent reform. The House bill, unlike the original Senate bill, did not ban fee diversion, the oft-criticized practice of diverting PTO revenue that exceeds the agency's budget to other government programs. Today's bill passed by the Senate does not ban fee diversion. Starting October 1, 2011, fee collections by the PTO during a fiscal year that exceed the amount appropriated to the PTO for that fiscal year will be deposited in a Reserve Fund and made available to the extent and in amounts provided in appropriations Acts.</p> <p>Today's passed bill contains numerous provisions, some of which (along with their effective dates) are listed here: </p> <table border=1 cellSpacing=0 borderColor=#333333 cellPadding=0> <tbody> <tr style="BORDER-BOTTOM: #333333; BORDER-LEFT: #333333; BORDER-TOP: #333333; BORDER-RIGHT: #333333"> <td style="BACKGROUND-COLOR: #700000" vAlign=top> <p style="COLOR: #ffffff"><b>Provisions of Passed Bill</b><br></p></td> <td style="BACKGROUND-COLOR: #700000" vAlign=top> <p style="COLOR: #ffffff"><b>Effective Date</b></p> <p></p></td></tr> <tr> <td vAlign=top> <table cellSpacing=1 cellPadding=1> <tbody> <tr> <td> <p><strong>Inventor's oath or declaration:</strong></p> <p>Modification of inventor's oath or declaration requirements so that a person to whom an inventor has assigned (or is under an obligation to assign) an invention can file a patent application as an agent of the inventor</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=1 cellPadding=1> <tbody> <tr> <td> <p>1-year from date of enactment.<br></p> <p>Applies to any patent application that is filed on or after that effective date.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>First inventor to file:</strong></p> <p>Replacement of the current "first to invent" system with a new "first inventor to file" system<br><br></p> <p>Amendment of 35 U.S.C. Sections 102 and 103, including changes as a result of the elimination of "first to invent," such as the removal of Sections 102(c)-(g)</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>18 months from date of enactment.<br><br>Applies to any application and patent with a claim having an effective filing date on or after the effective date for this provision, or having a specific reference under 35 U.S.C. Sections 120, 121, or 365(c) to an application or patent having such a claim.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=1> <tbody> <tr> <td> <p><strong>Defense to infringement based on prior commercial use:</strong></p> <p>Addition of a "commercial use" defense, which permits an accused infringer to prove that it had commercially used the claimed subject matter more than one year before the earlier of the effective filing date of the claimed invention, or the date on which the claimed invention was disclosed to the public in a matter that qualified for the exception from prior art under 35 U.S.C. Section 102(b)</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>Applies to any patent issued on or after date of enactment.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Best mode requirement:</strong></p> <p>Elimination of patent infringement defense of failure to comply with the best mode requirement of Section 112</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>Date of enactment.<br><br>Applies to proceedings commenced on or after that date.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Human Organism Limitation:</strong></p> <p>Prohibits issuance of any patent claim directed to or encompassing a human organism</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>Date of enactment.<br><br>Applies to any application that is pending on, or filed on or after, the date of enactment.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Patent Term Extension for Drug Product</strong>:</p> <p>Calculation of Patent Term Extension modified in pending applications and matters subject to judicial review</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>Date of enactment.<br><br>Applies to any application for extension that is pending on, filed after, or to which a decision regarding the application is subject to judicial review on the date of enactment.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Third Party Preissuance Submissions:</strong></p> <p>Allowance of third parties to submit patents or publications along with a statement of relevance for the PTO's consideration before certain specified events in the examination of a pending patent application</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>1-year from date of enactment.<br><br>Applies to any patent application filed before, on, or after that effective date.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Post-Grant Review:</strong></p> <p>Creation of a new third-party post-grant review procedure to allow a third party to request cancellation on any invalidity ground not later than 9 months after the date of the grant of the patent or of the issuance of a reissue patent</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>1-year from date of enactment.</p> <p>Applies with certain exceptions to patents described in section 3(n)(1), "First-to-File Provision." <i>E.g.</i>, patents with a claim having an effective filing date on or after the 18 months from date of enactment, or a specific reference under 35 U.S.C. Sections 120, 121, or 365(c) to an application or patent having such a claim.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Supplemental Examinations:</strong></p> <p>Establishment of supplemental examination procedures for issued patents to allow cure of potential inequitable conduct occurring during the original prosecution. Our previous alerts on an earlier version of this provision can be found <u><a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=1848" target=_blank><strong>here</strong></a></u> and <u><a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=1821" target=_blank><strong>here</strong></a></u>.</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>1-year from date of enactment.<br><br>Applies to any patent issued before, on, or after that effective date.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong><i>Inter Partes</i> Review:</strong></p> <p>Replacement of an existing <i>inter partes</i> reexamination with an <i>inter partes</i> review procedure that may only be used after the newly established third-party post-grant review procedure, or after the 9 month period for requesting third-party post-grant review expires; <i>inter partes</i> review may only be based on prior art consisting of patents and printed publications<br><br></p> <p>Transition <i>inter partes</i> from "a substantial new question of patentability affecting any claim of the patent" to "a reasonable likelihood that the requester would prevail"</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><i>Inter partes</i> review: 1-year from date of enactment and applies to any patent issued before, on, or after that effective date.<br><br>Reexamination (transition): Date of enactment and applies to requests for <i>inter partes </i>reexaminations filed during the 1-year period beginning on enactment date.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Patent Trial and Appeal Board:</strong></p> <p>Elimination of the Board of Patent Appeals and Interferences and creation of a new Patent Trial and Appeal Board with responsibility (1) to conduct post grant review proceedings, (2) to conduct derivation proceedings to determine whether the subject matter of a filed application was misappropriated from an actual inventor, and (3) to review decisions of examiners in examination and reexamination proceedings</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>1-year from date of enactment.<br><br>Applies to proceedings commenced on or after that effective date, except for certain specific exceptions.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Fee Setting Authority:</strong></p> <p>Authority to set or adjust fees for recovering costs for fees specified by statute<br><br></p> <p>Fees including a temporary, statutory fee schedule; establishment of fees for "micro entities" and filing a prioritized application</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>Fee-setting authority: Date of enactment with a 7 year sunset provision.<br><br>Fee schedule: There are different effective dates for the specific fees.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Business Method Patents</strong>:</p> <p>Tax avoidance/reduction strategies will be within the prior art</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>Date of enactment.<br><br>Applies to any application that is pending on, or filed on or after enactment date, and to any patent that is issued on or after enactment date.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Advice of Counsel:</strong></p> <p>Prohibits use of an accused infringer's failure to obtain advice of counsel regarding infringement to prove that any infringement was willful or induced</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>1-year from date of enactment.<br><br>Applies to any patent issued on or after that effective date.</p></td></tr></tbody></table> <p>&nbsp;</p></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Marking:</strong></p> <p>Changes false marking legislation (35 U.S.C. &#167; 292) eliminating the <i>qui tam </i>provision (which permits any person to sue on behalf of the United States); the passed bill states that only the United States or a person who has suffered a competitive injury may bring a false marking case.&nbsp; Patentees are protected from false marking actions based on the marking of a product with matter relating to a patent that covered that product but has expired.<br><br></p> <p>Allows a patent holder to satisfy the patent marking statute (35 U.S.C. &#167; 287) through "virtual marking," which is a mark directing a reader to a public website listing relevant patents</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>False marking: Applies to all cases, without exception, that are pending on, or commenced on or after, the date of enactment.<br><br>Virtual marking: Applies to any case that is pending on, or commenced on or after, the date of enactment.</p></td></tr></tbody></table> <p>&nbsp;</p></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Jurisdiction and Procedural Matters</strong>:</p> <p>Adds procedural provisions regarding joinder of accused infringers in patent cases (not involving certain drugs and biologics, in particular, cases brought under 35 U.S.C. &#167;&nbsp;271(e)(2)) such that parties accused as defendants may be joined in one action only if questions of fact common to all defendants will arise in the action, and (1) any right to relief is asserted against the parties jointly and severally, or (2) if it arises out of the same transaction or occurrence relating to the alleged infringement; however, accused infringers may not be joined solely based on allegations that each has infringed the patents in suit</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>Applies to any civil action commenced on or after the date of enactment.</p></td></tr></tbody></table> <p>&nbsp;</p></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Transitional Program for Covered Business Method Patents:</strong></p> <p>Requires the PTO Director to establish a transitional program to allow post-grant review of the validity of business method patents claiming "a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service"</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>1-year from date of enactment.</p></td></tr></tbody></table></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Diversity Studies:</strong></p> <p>Directs the PTO to establish methods for studying the diversity of patent applicants and prohibits the results of any such study to be used to provide preferential treatment to patent applicants</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>Not later than 6 months after date of enactment.</p></td></tr></tbody></table> <p>&nbsp;</p></td></tr> <tr> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p><strong>Genetic Testing Study:</strong></p> <p>Mandates a PTO study on genetic diagnostic testing to determine whether providing independent, confirming genetic diagnostic testing activity (for second opinions to patients) would impact existing patent and license holders of exclusive genetic tests</p> <ul></ul></td></tr></tbody></table></td> <td vAlign=top> <table cellSpacing=2 cellPadding=2> <tbody> <tr> <td> <p>Report is due no later than 9 months after date of enactment.</p></td></tr></tbody></table></td></tr></tbody></table> <p><br>The above list contains the major provisions found in the Leahy-Smith America Invents Act. All provisions, including other less significant provisions not above can be found in the full bill <a href="http://www.paulhastings.com/assets/pdfs/HR1249.pdf" target=_blank><strong>here</strong></a>. The PTO has also created a website seeking comments relating to "Leahy-Smith America Invents Act Implementation" that can be found <a href="http://www.uspto.gov/patents/init_events/aia_implementation.jsp" target=_blank><strong>here</strong></a>.</p><br><a href=http://www.paulhastings.com/assets/publications/2001.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2001PublicationThu, 08 Sep 2011 00:00:00 Z<p>This Stay Current focuses on four significant recent cases in England which may have implications for those looking to enter into any English law contracts and agreements, particularly in the context of mergers and acquisitions.</p> <p>The first case considers some of the issues with clauses providing that a party must use “best” or “reasonable” endeavours, which are terms used in many agreements of all kinds, whilst the second case deals with the enforceability of certain restrictive covenants, such as those that might be given by a seller of a business. Another case, Barbudev, demonstrates the danger of relying on side letters or similar documents which do not contain all of the terms which will apply to a transaction. Finally, the case of Erlson deals with the buyer’s right to rescind a share purchase for fraudulent misrepresentation. </p><br><a href=http://www.paulhastings.com/assets/publications/1999.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1999PublicationTue, 06 Sep 2011 00:00:00 ZAfter years of consideration, the Internet Corporation for Assigned Names and Numbers (“ICANN”) has approved the use of the .XXX top level domain (“TLD”) for adult entertainment websites. However, not all companies and individuals want to be associated with the content likely to be displayed on websites bearing the .XXX TLD. Such websites are scheduled to become operative in December 2011, but owners of registered trademarks and service marks are able to take preventive measures as early as September 7, 2011 to avoid having their marks used in connection with .XXX websites. <br><a href=http://www.paulhastings.com/assets/publications/1998.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1998PublicationFri, 02 Sep 2011 00:00:00 Z<p>On 6 June 2011, the US Supreme Court rendered a long-awaited decision clarifying the ownership rights in inventions funded by grants from the US federal government. The decision — Board of Trustees of the Leland Stanford Junior University v Roche Molecular Systems, Inc, 131 S Ct 2188 (2011) — is the first time the US highest court examined the Bayh-Dole Act, 35 USC &#167;&#167; 200-212 — a 30-year-old federal law that governs the allocation of these rights among individual inventors, research institutions receiving government grants, and the federal government.</p>The Supreme Court held that the Bayh-Dole Act does not alter the long-standing principle of US patent law that a third party may acquire a right to an invention only through an assignment by the inventor. By reaffirming this principle, the Supreme Court chose the course of action that effects little, if any, change in the existing law. Nevertheless, the decision will require research institutions — and, particularly, universities — that receive government grants – to examine carefully the employment agreements with their researchers, in order to ensure that these agreements effect an immediate assignment of all future patent ownership rights to the institution. <p></p><br><a href=http://www.paulhastings.com/assets/publications/1997.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1997PublicationWed, 31 Aug 2011 00:00:00 Z<p>Consumer class actions are expensive. Case after case confirms this fact. Recognizing this reality, many consumer class action lawsuits are filed without a proper class representative, solely so that discovery may be initiated to locate a plaintiff with a ‘‘legitimate’’ claim. As counsel for the named plaintiffs search for someone, anyone, to step into the lawsuit in the place of the original plaintiffs, the defendant faces substantial cost in discovery alone, and that cost takes many forms. It includes dollars spent, employee hours lost, possible reputational harm in the market place, and a general distraction from a business’s day-to-day operations. In light of that reality, there are a number of strategies a defendant might employ in an effort to reduce that cost.</p> <p>One of those strategies is to pursue bifurcated discovery. Assuming a case survives a demurrer or a motion to dismiss, and after consultation with the client to ensure the strategy is appropriate for the particular case, seeking to bifurcate discovery into two phases often makes sense: (1) pre-class certification discovery, and (2) post-class certification discovery. In the pre-class certification phase, discovery would be limited to the issues relevant to the class-certification analysis, inclusive of the Plaintiff’s standing to pursue the asserted claims. If a class is certified and makes it to the postclass certification phase, discovery will focus on the ‘‘merits’’ of the underlying claims. Where a court agrees to bifurcate discovery, the costs of pursuing ‘‘merits’’ discovery can be delayed or eliminated. This article discusses the reasoning behind and the practical implications of pursuing a bifurcated discovery plan in consumer class action cases, and how that strategy can adroitly be used to block improper class representatives from filing suit to find a proper representative and a ‘‘better’’ case.<br>&nbsp;</p> <p><em>Reproduced with permission from Class Action Litigation Report, 12 CLASS 803, 08/26/2011. Copyright &#169; 2011 by The Bureau of National Affairs, Inc. http://www.bna.com</em></p><br><a href=http://www.paulhastings.com/assets/publications/1996.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1996PublicationFri, 26 Aug 2011 00:00:00 Z <p>When it comes to employee terminations, employers have several alternatives by which to structure any severance-related pay that they desire to provide. A ‘‘terminal leave’’ approach may appeal to employers who want to delay an employee’s termination date, perhaps to allow for further vesting of stock awards or retirement benefits — or to extend the period when COBRA1 health insurance coverage will begin. Terminal leaves come with some baggage, however, because they trigger complex risks under Section 409A of the Internal Revenue Code, and could create disputes with health and welfare insurance providers when policies tie coverage to active employee status. At the other end of the spectrum, an accelerated termination date may be desired in order to assure that an exiting employee’s execution of a claims release does not leave the door open for claims of employment discrimination during atail-end period of terminal leave or wind-up services. </p> <p>Garden leave falls somewhere in between by continuing the employment relationship, albeit sometimes inactively, for a transition period, while coincidentally stalling the employee from joining a new employer. The structuring of garden leave severance implicates subtle, yet material, issues that include drafting for maximum enforceability, cost-benefit analyses, and compliance with Section 409A. This last issue has become the latest trap for the unwary.</p> <p><em><br>Reproduced with permission from Pension &amp; Benefits Daily, 164 PBD, 08/24/2011. Copyright&nbsp;&nbsp;&#169; 2011 by The Bureau of National Affairs, Inc. (800-372-1033)<br>http:// www.bna.com</em></p><br><a href=http://www.paulhastings.com/assets/publications/1995.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1995PublicationWed, 24 Aug 2011 00:00:00 Z<p>The recent fine of &#163;6.895 million levied by the UK’s Financial Services Authority (“FSA”) against insurance broker Willis Limited, a subsidiary of Willis Group Holdings, (“Willis”) represents the largest penalty imposed by the FSA in its history for inadequate financial crime systems and controls. The action, which pre-dates the effective date of the UK’s Bribery Act 2010 (the “Bribery Act”), relates to conduct in breach of Principle 3 of the FSA’s Principles for Businesses Sourcebook and Rule SYSC 3.2.6 R of the FSA’s Senior Management Arrangements, Systems and Controls Sourcebook of the FSA Handbook .</p> <p>Willis is one of the leading insurance and re-insurance brokers in the London market with clients in the marine, aerospace, construction, and energy industries. Willis also engages in reinsurance, risk management, and financial and human resource consulting. The record penalty follows the FSA’s publication of the results of its eighteen-month investigation into anti-bribery and corruption in the commercial insurance banking industry in May 2010 and demonstrates the continued attention of the FSA in this area.</p> <p>The FSA’s 24 page Final Notice and related press release set out the facts of the Willis case and contain valuable lessons for the financial services industry. </p><br><a href=http://www.paulhastings.com/assets/publications/1994.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1994PublicationMon, 22 Aug 2011 00:00:00 Z<p>On Aug. 12, 2011, the U.S. Securities and Exchange Commission’s “Office of the Whistleblower” officially opened for business. The new whistleblower office is part of the Division of Enforcement and will handle whistleblower tips and complaints, provide guidance to enforcement staff, and assist the commission in determining the size of the awards received by whistleblowers.</p> <p>The office is charged with implementing the recently adopted SEC whistleblower rules, which were mandated by Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Dodd-Frank overhauled the SEC’s whistleblower provisions, greatly expanding its power to reward whistleblowers and vesting it with enforcement authority over employers who wrongfully retaliate against whistleblowers. </p> <p>Regulators and industry observers agree that the SEC’s whistleblower rules are likely to have a profound impact on enforcement activities. The SEC has estimated that it expects the new whistleblower office to receive thousands of credible whistleblower complaints each year. While the SEC may not have the resources to investigate every complaint, observers project a significant increase in whistleblower activity and expect that many complaints will result in full-blown SEC investigations. The projected increase in whistleblowing activity highlights the strong need for public companies and other regulated entities to respond quickly and comprehensively to whistleblower allegations. </p><br><a href=http://www.paulhastings.com/assets/publications/2005.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=2005PublicationMon, 22 Aug 2011 00:00:00 Z<p>Click <a href="http://video.cnbc.com/gallery/?video=3000036461" target=_blank>here</a> or the image below to view the video.</p><a href="http://video.cnbc.com/gallery/?video=3000036461" target=_blank><img src="http://www.paulhastings.com/assets/images/michael_cohen_screenshot.jpg"></a> http://www.paulhastings.com/publicationDetail.aspx?publicationID=1991PublicationTue, 16 Aug 2011 00:00:00 ZWith increasing scrutiny by the United States Department of Justice (DOJ) on intellectual property cases, a foreign company being sued by a competitor in the United States also may become the target of a federal criminal investigation. Whether or not the United States government may obtain a defendant’s foreign-based documents by serving a grand jury subpoena on a civil plaintiff, despite the existence of a civil protective order, turns on the law of the federal Circuit Court in which the case is pending. The majority of federal United States Circuit Courts (including recent decisions by the United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the Ninth Circuit) hold that a federal grand jury subpoena supersedes the provisions of a civil protective order per se. On the other hand, two minority rules have emerged. At least one Circuit Court has articulated that civil parties should be able to rely on the enforceability of their agreements, even against the government, barring some "compelling need" by the government for the requested information. Other Circuit Courts urge that there is a "rebuttable presumption" with respect to the enforcement of grand jury subpoenas unless the person seeking to avoid the subpoena can demonstrate the existence of exceptional circumstances sufficient to do so. This is a significant issue for foreign companies which do business in the United States. <br><a href=http://www.paulhastings.com/assets/publications/1992.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1992PublicationTue, 16 Aug 2011 00:00:00 ZOn July 26, 2011, the Financial Crimes Enforcement Network (“FinCEN”) issued a long-awaited final rule implementing the Bank Secrecy Act (“BSA”) applicable to Money Services Businesses (“MSBs”) with regard to stored value, or prepaid access (“Prepaid Access Final Rule” or “Final Rule”). The Final Rule was issued under the Credit Card Accountability Responsibility and Disclosure Act of 2009 (the “CARD Act”), which directed FinCEN to issue final rules regarding the sale, issuance, redemption or international transport of stored value, including stored value cards. Pursuant to that authority, FinCEN published a Notice of Proposed Rulemaking (“NPRM”) on June 21, 2010. The Prepaid Access Final Rule follows a related final rule issued by FinCEN on July 18, 2011, which clarified the types of entities subject to the requirements applicable to MSBs (“MSB Definitions Rule”). <br><a href=http://www.paulhastings.com/assets/publications/1986.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1986PublicationMon, 15 Aug 2011 00:00:00 ZThe Federal Energy Regulatory Commission (“FERC” or the “Commission”) has recently taken significant action with regard to transmission incentives, planning and cost allocation. Virtually every industry group involved in buying, selling or consuming wholesale electric power, as well as in developing power plants, will be affected. You will want to determine how your organization is affected and to assess what steps your organization should take to protect your interests, and to ensure compliance, where applicable. <br><a href=http://www.paulhastings.com/assets/publications/1987.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1987PublicationMon, 15 Aug 2011 00:00:00 ZAn important development of the new enforcement scheme established by the Dodd‐Frank Wall Street Reform and Consumer Protection Act (Dodd‐Frank Act) is state and federal enforcement of consumer banking regulations. State enforcement is a radical change from the traditional enforcement scheme, which has been almost exclusively federal. However, state enforcement of federal regulations creates numerous challenges. For example, while the Dodd‐Frank Act establishes a framework for a certain level of state‐federal cooperation, ambiguities in the enforcement scheme may actually restrict collaboration. Further limiting the consumer protection and enforcement scheme envisioned by its drafters is the controversy surrounding the agency created to enforce it, the Consumer Financial Protection Bureau (CFPB). Among the most significant issues that the CFPB must overcome are its leadership and the scope and limits of its powers. Finally, because the Dodd‐Frank Act reduces the impact of federal preemption on some state banking laws, the CFPB, in adopting its own consumer protection rules, may be at the forefront of a regulatory “pile‐on” with states following suit to pass and enforce their laws even more broadly, rather than cooperating with federal regulators to enforce the CFPB’s rules under the Dodd‐Frank Act.<br><a href=http://www.paulhastings.com/assets/publications/1989.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1989PublicationMon, 15 Aug 2011 00:00:00 Z<p>On May 17, 2011, the Securities and Exchange Commission ("SEC" or "Commission") entered into its first ever Deferred Prosecution Agreement (“DPA”) with Tenaris S.A., a Luxembourgish manufacturer and supplier of steel pipes for the oil and gas, energy, and mechanical industries. The SEC alleged that Tenaris violated the Foreign Corrupt Practices Act (“FCPA”) by paying bribes to Uzbekistani government officials during a bidding process to supply pipelines for transporting oil and natural gas. The DPA provided that any action against Tenaris would be deferred for a two‐year period conditional on Tenaris undertaking certain remedial measures. In a parallel settlement, the company entered into a non‐prosecution agreement (“NPA”) with the Department of Justice (“DOJ”). The SEC announced last year that it would begin using DPAs and NPAs in an effort to foster greater cooperation by defendants.</p> <p>The SEC may find the new agreements particularly useful in FCPA enforcement actions since the Commission typically requires that corporate defendants undertake significant remedial measures. Specifically, unlike a simple administrative order such as a cease and desist order, the new agreements allow the SEC to “defer prosecution” for a several‐year period during which the SEC may monitor a company’s remedial efforts. While the SEC may find the new agreements useful as an enforcement tool, it remains to be seen whether they provide additional incentives to corporate defendants to cooperate. Specifically, given the joint nature of FCPA investigations involving both the DOJ and SEC, it may not be immediately clear what additional advantage a company may find to cooperate with the SEC given existing incentives for cooperation in such joint investigations. </p><br><a href=http://www.paulhastings.com/assets/publications/1990.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1990PublicationMon, 15 Aug 2011 00:00:00 ZIn a decision with far-reaching consequences for both cartel enforcement and civil antitrust damages actions in Europe, the European Court of Justice has ruled that national courts should decide whether private plaintiffs may be granted access to confidential leniency applications.<br><a href=http://www.paulhastings.com/assets/publications/1980.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1980PublicationThu, 11 Aug 2011 00:00:00 Z<p>Following a protracted, controversial and hard-fought political battle to block or delay its issuance, the Federal Reserve Board (“FRB”) released the long-awaited Debit Card Interchange Fee and Routing Rule (“Interchange Rule”) on June 29, 2011. The rule, which is generally scheduled to take effect October 1, 2011, represents a compromise of sorts between the interests of retail merchants that lobbied hard for inclusion of section 1075 of the Dodd-Frank Act (“DFA”), i.e., the so-called “Durbin Amendment,” and those of bank issuers and payment card networks that originally opposed inclusion of the Durbin Amendment in the DFA last year and then attempted to delay its effective date this spring.</p> <p>In issuing the rule, the FRB was effectively caught between a rock and hard place with respect to addressing and accommodating the competing concerns of the amendment’s sponsor, Senator Durbin, and numerous bipartisan supporters on the Hill, backed by a number of influential players in the retail merchant space community, and similarly vocal, bipartisan Hill opposition to the amendment, including a number of influential members of the Senate Banking Committee, pushed by virtually the entire banking industry, including large banks, regional banks, small community banks and credit unions. Ultimately, the FRB found a way to implement a compromise that almost nobody likes but everybody appears to be able to live with, even if grudgingly so. In navigating between a proposed interchange fee cap viewed by the banking industry as overly restrictive and a "reasonable and proportional" cost recovery cap that is not directly tied to an issuer's specific costs opposed by merchants, the FRB effectively compromised by adopting a threshold stand-alone cap that, although higher than proposed, the banking industry still does not like, but which has also been heavily criticized by the retail merchant industry due to the increase from the proposed baseline fee from the proposal. The ultimate effects on the payments industry of the Interchange Rule, including delivery of promised benefits to merchants and consumers and impact on community banks, are not easy to predict. What is clear, however, is that the Interchange Rule will have immediate practical impacts on all organizations in the value chain of delivery of consumer payment services. These impacts arise not only from the revenue and cost re-distribution between issuers and merchants, but also from substantial infrastructure efforts necessary to implement the two-tier interchange rate structure applicable to covered and exempt issuers and products as well as the network exclusivity and routing provisions. </p><br><a href=http://www.paulhastings.com/assets/publications/1981.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1981PublicationThu, 11 Aug 2011 00:00:00 Z<p>Set out below is a snapshot of some of the key VAT developments that have arisen so far in 2011 and a summary of their impact in the UK.</p> <p><strong>VAT in Respect of Services Following the European Court of Justice (“ECJ”) Judgment in AXA UK PLC (CASE REF C-175/09) (“AXA”)</strong></p> <p><strong><em>Background</em></strong></p> <p>AXA was primarily concerned with the application of the exemption from VAT at Article 135(1)(d) of the EU VAT Directive for “transactions, including negotiation, concerning deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments, but excluding debt collection,” which is implemented into UK law as the exemption for ‘payments and transfers’ at Item 1, Group 5 of Schedule 9 to the Value Added Tax Act 1994. The point in question being whether the services concerned fell within the scope of ‘debt collection’ and would therefore be liable to VAT at the standard rate. </p> <p>Whilst this case had progressed through both the VAT Tribunal and the High Court in favour of AXA with findings of a separate exempt supply of payment services falling within Article 135(1)(d), upon reaching the Court of Appeal, it was determined that the issue was not clear and that the matter should be referred to the ECJ. Explicit consideration was therefore given to the specific functions of a business that would bring it within the VAT exemption.</p> <p>The ECJ subsequently held that the supply present in AXA (which it summarised as the collection, processing and onward payment of sums of money due from third parties) was specifically excluded from the Article 135(1)(d) exemption as ‘debt collection’. In reaching this position, it was noted in the judgment that the phrase ‘debt collection’ in Article 135(1)(d) covers “the collection of debts of any nature, without limiting their application to debts which were not paid on their due date” and also cover “debts which have not yet become due and which will be paid on the due date.” </p><br><a href=http://www.paulhastings.com/assets/publications/1978.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1978PublicationWed, 10 Aug 2011 00:00:00 Z<p>The United States has some of the most comprehensive and robust export controls on Earth, yet many are holdovers from the Cold War era that no longer adequately address the unique national security threats of the twenty-first century. In August 2010, President Obama launched an Export Control Reform Initiative to identify reforms to the current export control system that would better protect the United States against modern threats like the proliferation of weapons of mass destruction. </p> <p>An interagency task force conducting the review determined that the current regime is overly complicated, redundant, and attempts to protect too much. To address these criticisms, the Department of Commerce Bureau of Industry and Security (“BIS”) issued a Proposed Rule on July 15, 2011 to remove certain items from the United States Munitions List (“USML”) – where they are administered under the stricter International Traffic in Arms Regulations (“ITAR”) – and move them to the Commerce Control List (“CCL”), subject to the Export Administration Regulations (“EAR”). This proposal is a first step in a much bigger plan to harmonize both control regimes, to create a list based on “positive” technical specifications and performance and eventually to combine them into one list administered by a single agency. While the CCL has historically been less restrictive than the USML, the Proposed Rule would still impose enhanced restrictions for defense items and other articles with an inherent military nature. The goal is to provide a more flexible system of controls, providing restrictions where needed while allowing exports of defense articles to NATO and other partner nations. </p><br><a href=http://www.paulhastings.com/assets/publications/1977.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1977PublicationTue, 09 Aug 2011 00:00:00 Z<p>Changes in the television industry since the last wave of M&amp;A activity will spur new deal-making and change its very nature. Retrans fees — which had not yet matured as a meaningful second income stream as of the last M&amp;A cycle — will now be a new catalyst for growth and achieving scale. Add to that the differentiating value of broadcast television — its ability to generate cash, the near-term value of huge spending in political advertising, and the emerging (and, yes, changing) shape of station economics — and you have newly ripening incentives for buyers and sellers. </p> <p>To read the full article, <a href="http://www.tvnewscheck.com/article/2011/08/04/53040/tvs-next-ma-wave-wont-be-like-last-one" target=_blank>click here</a>.</p> <p><br><br><i>Originally published by &#169; 2011 NewsCheckMedia LLC at <a href="http://www.tvnewscheck.com/" target=_blank>http://www.tvnewscheck.com/</a></i> </p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1979PublicationFri, 05 Aug 2011 00:00:00 Z<p><strong>Summary of Opinion</strong></p> <p>On July 29, 2011, The U.S. Court of Appeals for the Federal Circuit decided <em><a href="http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-1406.pdf" target=_blank>Ass’n for Molecular Pathology v. Myriad Genetics, Inc.</a> See</em> No. 2010-1406 (Fed. Cir. July 29, 2011). The case was an appeal from a district court summary judgment decision holding that all claims of patents held by Myriad Genetics, Inc. (“Myriad”), including claims directed to isolated DNA molecules, were invalid under 35 U.S.C. &#167; 101 as patent-ineligible subject matter. On the threshold issue of jurisdiction, the Federal Circuit affirmed district court’s decision to exercise declaratory judgment jurisdiction, albeit on narrower grounds, by concluding that at least one Plaintiff had standing to challenge the validity of Myriad’s patents because that Plaintiff had an actual and imminent plan to engage in potentially infringing activities. </p> <p>On the merits, the Court held that Myriad's patent composition claims directed to “isolated” DNA molecules, whether limited to cDNAs or not, are directed to patent-eligible subject matter under 35 U.S.C. &#167; 101. Thus, the Court reversed the district court’s grant of summary judgment of invalidity under &#167; 101. The Court also reversed the district court’s decision that Myriad’s method claims directed to screening potential cancer therapeutics is directed to patent-ineligible subject matter, holding that the claims were patent eligible because they contained “transformative steps.” The Court, however, affirmed the district court’s decision that Myriad’s method claims directed to “comparing” and “analyzing” DNA sequences are patent ineligible because they include no transformative steps and instead cover only abstract, mental steps.</p> <p>The Court's decision regarding claims directed to “isolated” DNA molecules followed Supreme Court precedent in construing &#167; 101 language broadly.<em> See</em> 35 U.S.C. &#167; 101; <em>Myriad</em>, slip op. at 36 (citation omitted) (“In choosing such expansive terms . . . modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.”). Notably, in deciding the patentability of Myriad’s method claims, the Court employed the "machine-or-transformation" test as a means by which to determine statutory subject matter under &#167; 101 in light of <em>Bilski v. Kappos</em>, 130 S. Ct. 3218 (2010). See also Prometheus Labs., Inc. v. Mayo Collaborative Servs., 628 F.3d 1347, 1350 (Fed. Cir. 2010). </p><br><a href=http://www.paulhastings.com/assets/publications/1975.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1975PublicationMon, 01 Aug 2011 00:00:00 Z<p>On Friday, July 29, 2011, the Federal Circuit issued a decision reversing the District of New Jersey's ruling that patent claims covering the use of tomoxetine (marketed as Strattera&#174;) to treat attention deficit/hyperactivity disorder (''ADHD'') are invalid for lack of ''enablement/utility.'' <em>Eli Lilly &amp; Co. v. Actavis Elizabeth LLC</em>, No. 2010-1500 (Fed. Cir. July 29, 2010). <a href="http://www.paulhastings.com/assets/pdfs/10-1500.pdf" target=_blank>Read the decision here</a>. Although nonprecedential, the opinion is important in that it indicates that at least certain members of the court recognize that the recent enablement/utility decisions in <em>Rasmusson v. SmithKline</em> Beecham Corp., 413 F.3d 1318 (Fed. Cir. 2005), and <em>Janssen Pharmaceutica N.V. v. Teva Pharmaceuticals USA, Inc.</em>, 583 F.3d 1317 (Fed. Cir. 2009), are limited to their facts, and do not establish any general rule requiring experimental data to support the utility of method-of-use claims. </p> <p>The '590 patent-in-suit covers a method of treating ADHD by administering ''an effective amount of tomoxetine.'' At the time the '590 patent application was filed, tomoxetine was a known compound that had been proven safe, but not medically effective, in clinical trials aimed at treating depression and urinary incontinence. Slip Op. at 5. The '590 application disclosed the use of tomoxetine to treat ADHD, but did not include any data in support of this claim given the then-absence of any animal model for experimental evaluation of potential ADHD treatments and the inability to test for any effect on ADHD in humans without FDA authorization. <em>Id</em>. at 5, 12. Human test data demonstrating the effectiveness of tomoxetine in treating ADHD was obtained, however, during the prosecution of '590 application. <em>Id</em>. at 6. </p> <p>In its earlier Rasmusson decision, the Federal Circuit explained that ''the how to use prong of section 112 [concerning enablement] incorporates as a matter of law the requirement of 35 U.S.C. &#167; 101 that the specification disclose as a matter of fact a practical utility for the invention.'' 413 F.3d at 1323 (quoting <em>In re Cortright</em>, 165 F.3d 1353, 1356 (Fed. Cir. 1999)). Relying on <em>Rasmusson</em> and the above-mentioned <em>Janssen</em> decision, the district court ''held that utility was not established because experimental data showing the results of treatment of ADHD were not included in the specification.'' Slip Op. at 11, 16. </p> <p>In reversing the district court, the Federal Circuit explained that such data is not required because an assertion of utility in the specification '''<em>must</em> be taken as sufficient to satisfy the utility requirement . . . <em>unless</em> there is reason for one skilled in the art to question the objective truth of the statement of utility or its scope.''' <em>Id.</em> at 15 (citation omitted). The court distinguished Rasmusson as applying only to patent interferences ''where evidence of actual reduction to practice was required to establish a priority date earlier than that of an adverse claimant.'' <em>Id</em>. at 16. The court further explained that, where ''priority is not at issue, generally the applicant may provide data obtained either before or after the patent application was filed'' to establish utility. <em>Id</em>. </p> <p>The Federal Circuit also distinguished <em>Janssen</em> as applying where a specification sets forth only a '''mere research proposal,''' and there is no '''reasonable correlation between a compound's activity and its asserted therapeutic use.''' <em>Id</em>. at 17. Contrasting this situation with that of '590 patent, the court noted that: (1) other compounds in tomoxetine's class of drugs were known to treat ADHD; (2) tomoxetine's ''safety for antidepressant activity had been established''; (3) ''the specification contained a full description of the utility''; (4) ''experimental verification had been obtained before the patent was granted''; and (5) ''the examiner had not requested additional information.'' <em>Id</em>. at 17.</p> <p>The court's decision is also important in that it makes clear that reliance upon the knowledge of one of ordinary skill in the art to establish utility does not necessarily result in a finding of obviousness. In affirming the district court on this issue, the Federal Circuit determined that ''there was no evidence that use of []tomoxetine had been identified as a possible solution to the problems of treating ADHD, nor that the exercise of common sense would have led a person of ordinary skill to test []tomoxetine for treatment of ADHD.'' <em>Id</em>. at 8.¹ Thus, the state of the art supported the credibility of the disclosed utility, but at the same time did not render that utility obvious.</p> <p>Considering the significance of method-of-use claims to the pharmaceutical industry, it will be interesting to watch whether the Federal Circuit continues to implement this interpretation of <em>Rasmusson</em> and <em>Janssen</em> when addressing enablement/utility challenges.</p> <hr> <div align=left> <p>¹The Federal Circuit also affirmed the district court on the issues of ''enablement/scope'' and inducement of infringement, and reversed on contributory infringement. With respect to induced infringement, the court held that substantial off-label uses do not preclude such infringement where the proposed generic product ''is labeled solely for the patented use.'' <em>Id.</em> at 19. The Federal Circuit similarly ruled that off-label uses do not avoid contributory infringement where the product ''is authorized to be sold solely for the infringing use.'' <em>Id.</em> at 20.</font></p></div><br><a href=http://www.paulhastings.com/assets/publications/1976.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1976PublicationMon, 01 Aug 2011 00:00:00 Z<p>On July 25, 2011, the California Air Resources Board (“ARB”) released its proposed final cap-and-trade regulations, initiating a 15-day public comment period on the specifics of a cap-and-trade program slated to start in 2012, with compliance obligations beginning in 2013. As compared to the original version of the regulations, adopted in late 2010, the current proposal includes significant modifications, highlights of which include: </p> <ul> <li>Changes to market operations, oversight, and timing (most notably, an official push back in compliance from 2012 to 2013); </li> <li>The inclusion of quantitative data on benchmarking and allowance allocation; </li> <li>New compliance and oversight mechanisms for the electricity sector; and </li> <li>Modifications and clarifications on the regulation of offsets. </li></ul> <p>Public comment is open until August 11th. ARB staff is inviting stakeholders to provide comments on several specific issues. These include, among others: </p> <ul> <li>The phasing in of various program elements in 2013 as opposed to 2012; </li> <li>The sufficiency of the regulation’s new “Voluntary Associate Entity” category designed to provide opportunity for derivatives clearinghouse entities to participate in the market; Regulatory verification of early action offset credits; </li> <li>Distribution of extra allowances collected for untimely surrender; </li> <li>The new equation for calculating obligation of electricity deliveries from outside California; and </li> <li>The exemption from compliance of waste-to-energy facilities. </li></ul> <p>These issues are explained in greater detail below, as are highlights of the proposed modifications in general and the new program timeframe for compliance. First, we offer some background on the cap-and-trade regulations within the framework of California’s climate change law, and the current status amid pending litigation that has received substantial publicity. </p><br><a href=http://www.paulhastings.com/assets/publications/1974.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1974PublicationFri, 29 Jul 2011 00:00:00 ZWith a wave of initial public offerings (“IPOs”) expected in the next few months, hedge fund managers should be aware of FINRA’s rules with regard to investing in new issues. Fund managers who intend to invest in IPOs will need to comply with the certification requirements under Rules 5130 and 5131 by making annual representations about their eligibility to acquire new issues. Fund managers will likely need to obtain additional information from their investors in order to satisfy FINRA’s eligibility requirements. We describe each rule in more detail below, as well as the measures that fund managers should consider implementing to meet these requirements. <br><a href=http://www.paulhastings.com/assets/publications/1971.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1971PublicationWed, 27 Jul 2011 00:00:00 ZOn July 22, 2011, the United States Court of Appeals for the District of Columbia (the “Court”) vacated Rule 14a-11 (“Rule 14a-11”) promulgated under the proxy access provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which were enacted last year as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). Rule 14a-11 had been adopted by the Securities and Exchange Commission (the “SEC”) on August 25, 2010 along with certain related rule changes to implement proxy access (collectively, the “Proxy Access Rules”). <br><a href=http://www.paulhastings.com/assets/publications/1970.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1970PublicationTue, 26 Jul 2011 00:00:00 ZThe Federal Trade Commission recently announced significant revisions to the reporting rules under the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended (the “HSR” Act), which will take effect on August 18, 2011. <strong>Importantly</strong>, the revisions do not alter the rules with regard to whether a particular transaction is HSR reportable or not, but rather change what information needs to be supplied to the federal antitrust enforcement agencies for transactions that are HSR reportable. The revisions are designed to provide the antitrust authorities with more meaningful information by which to assess the competitive implications of proposed transactions, and to help streamline the reporting process. While both of these goals are reflected in the changes, on balance the changes appear to impose a greater burden on filing parties. The following is a brief explanation of the more important changes that parties should bear in mind going forward. <br><a href=http://www.paulhastings.com/assets/publications/1966.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1966PublicationThu, 21 Jul 2011 00:00:00 Z<p>The State of California has recently enacted a Voluntary Compliance Initiative 2 (“VCI 2”) for taxpayers who underreported their California income tax liabilities, through the use of so-called “abusive tax avoidance” transactions or offshore financial arrangements, to amend their tax returns for 2010 and earlier. An “abusive tax avoidance transaction” is defined to include a:</p> <p>1. Tax shelter; </p> <p>2. Reportable transaction that is not adequately disclosed;</p> <p>3. Listed transaction;</p> <p>4. Gross misstatement; or</p> <p>5. Transaction to which the California noneconomic substance transaction (“NEST”) penalty applies. </p><br><a href=http://www.paulhastings.com/assets/publications/1967.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1967PublicationThu, 21 Jul 2011 00:00:00 Z<p>With the statement, “The new consumer agency is here to make sure that markets work for American families, and our bank supervision program is a big part of that,” Elizabeth Warren, the Treasury’s Special Advisor on the Consumer Financial Protection Bureau (“CFPB”), officially launched the new agency’s bank supervision program. Notwithstanding the lack of a Director to run the fledgling agency, the CFPB is moving forward on one of the key elements of its mission – the supervision and oversight of large bank’s consumer financial protection compliance programs. Emphasizing that the CFPB will be hitting the ground running, Warren noted, “Starting on July 21, we will be a cop on the beat – examining banks and protecting consumers.” </p> <p>Interestingly, the announcement was made through a July 12, 2011 press release issued by the Treasury Department, underscoring that, at least for now, official pronouncements regarding the CFPB’s work and agenda are emanating from Warren’s authority from the Treasury Secretary to “perform the functions of the [CFPB]” until a CFPB Director is confirmed by the Senate. </p> <p>In discussing the CFPB’s initiation of its bank supervision program, Warren highlighted the scope, staffing and training, and supervisory process that the CFPB will pursue, as well as immediate efforts and actions that the agency will take in establishing “channels of communication” with large banks (i.e., holding assets greater than $10 billion). </p><br><a href=http://www.paulhastings.com/assets/publications/1962.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1962PublicationThu, 14 Jul 2011 00:00:00 ZOn June 29, 2011, Governor Brown signed ABx1 26 into law, fulfilling his promise to abolish California’s nearly 400 redevelopment agencies (the “RDAs”) as part of his 2011-2012 budget. In conjunction with ABx1 26 (the “RDA Abolition Bill”), the Governor signed ABx1 27 (the “Opt-In Program”), through which RDAs wishing to continue their redevelopment activities may do so upon making certain voluntary payments to the State. The Governor’s budget office predicts that elimination of the RDAs will redirect $1.7 billion from the RDAs to the State treasury to pay for schools and other core governmental services. RDAs that opt-in to the voluntary program would be required to make payments to the State based on a formula which, if all RDAs opt-in, would total $1.7 billion during the current fiscal year and approximately $400 million in each subsequent year.<br><a href=http://www.paulhastings.com/assets/publications/1963.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1963PublicationThu, 14 Jul 2011 00:00:00 Z<p>Patent holders frequently mark products by stamping “patented” or “protected by U.S. Patent No. ________” on the article in order to put potential infringers on notice that the product is patent protected. The Patent Marking Statute (35 U.S.C. &#167; 287(a)) limits the damages a patent holder may recover to those stemming from acts of infringement which occurred after an infringer was given actual or constructive notice of infringement. Marking a patented article establishes such constructive notice.</p> <p>The 2009 Federal Circuit Court case of <em>The Forest Group, Inc. v. Bon Tool Co</em>., which interpreted the federal False Marking Statute to impose up to $500 in penalties per mismarked article, created a bit of a firestorm among patent counsel , and raised the importance of conducting patent false marking diligence as a part of a party’s standard intellectual property related diligence for a deal. With potentially huge verdicts imaginable, the <em>Forest Group</em> decision sparked into action numerous disgruntled competitors and so-called “false-marking trolls”—adventurous patent counsel acting independently. </p> <p>Court decisions within the past few months appear to be reducing the potential false marking risks, and with it the need for deal counsels’ vigilance. Indeed, bills are working their way through the U.S. House of Representatives and Senate which would amend the False Marking Statute so only the federal government could prosecute violations. However, the legal authority on this point is still in flux and M&amp;A practitioners and deal makers should stay tuned for future developments—and be sure to perform their IP diligence carefully and review intellectual property representations and warranties with an eye towards potential false marking exposure. The results of such diligence, while likely not rising to the level of killing a deal (in the absence of fraud or other purposeful abuse), may give one party additional leverage during negotiations. </p><br><a href=http://www.paulhastings.com/assets/publications/1960.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1960PublicationTue, 12 Jul 2011 00:00:00 Z<p>The second quarter of 2011 was an action packed three months for the Foreign Corrupt Practices Act (“FCPA”), which included judicial opinions, jury verdicts, and a Congressional hearing. In the Control Components Inc. and Lindsey trials, defendants challenged the definition of “foreign official” under the FCPA, and in both cases, the government’s interpretation was upheld. There were also rulings entered in the twenty-two defendant arms contract case. There, the judge ruled that no actual foreign official is necessary to establish the element of intent under the FCPA and denied defendants’ motion to dismiss, which had challenged the government’s tactic of having an undercover FBI agent pose as an agent of an African country in order to solicit illicit payments from the defendants. Also in that case, the judge threw out one of the government’s charges against U.K. citizen and defendant, Pankesh Patel, based on a lack of jurisdiction.</p> <p>While the courts were active determining the perimeters of the current law, Congressional representatives held a hearing to discuss possible amendments to the FCPA. On June 14, 2011, the House Judiciary Committee’s Subcommittee on Crime, Terrorism and Homeland Security held a hearing on the FCPA. During this hearing, various amendments to the law were discussed, including: 1) clarifying the definition of “foreign official” and “instrumentality,” 2) creating a compliance program affirmative defense, 3) implementing changes to successor liability, 4) implementing changes to the mens rea requirement for company-defendants, and 5) creating a de minimis exception. At the end of the hearing, subcommittee Chairman James Sensenbrenner announced that the committee will be drafting a bill to amend the FCPA. </p> <p>In addition to these developments on the interpretations of the law, there were numerous enforcement actions against individuals and companies. The individual actions included four guilty pleas and two guilty jury verdicts for FCPA violations, and the trial of the first four defendants in the arms contract case ended in a mistrial after the jury was unable to reach a verdict. The corporate actions included one guilty jury verdict and one deferred prosecution agreement (“DPA”). Also, three entities entered into settlement agreements with the Securities and Exchange Commission (“SEC”), two of which also entered into a DPA or non-prosecution agreement (“NPA”) with the Department of Justice (“DOJ”). A final corporate entity entered into the first ever DPA with the SEC, while also entering into an NPA with the DOJ. </p><br><a href=http://www.paulhastings.com/assets/publications/1958.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1958PublicationMon, 11 Jul 2011 00:00:00 Z<p>In two highly anticipated decisions, the U.S. Supreme Court both clarified and reshaped how the law of personal jurisdiction applies to foreign corporations selling their products to customers in the United States. In <em>Goodyear Dunlop Tires Operations, S.A. v. Brown</em>, No. 10-76 (June 27, 2011), the Supreme Court reaffirmed that foreign companies are not subject to state courts’ general jurisdiction — the power to decide claims unrelated to a company’s activities in a state — unless the company’s contacts with the state were “continuous and systematic.” Specifically, the Court held that a foreign corporation’s placement of goods in the stream of interstate commerce alone cannot support general jurisdiction in a state where those goods end up being sold. In <em>J. McIntyre Machinery, Ltd. v. Nicastro</em>, No. 09-1343 (June 27, 2011), the Supreme Court imposed limits on a state court’s specific jurisdiction — the power to decide claims related to activities occurring within or affecting the state. The majority of the justices concluded that a foreign corporation’s targeting of the U.S. market as a whole for sales of its products through an independent distributor would not permit a state to exercise specific jurisdiction over the corporation unless it had also targeted that specific state. </p> <p>Taken together, <em>Goodyear</em> and <em>Nicastro</em> suggest that foreign corporate defendants (and, possibly, even out-of-state U.S. corporate defendants, who are considered “foreign” from the perspective of state sovereignty) may be able to avoid state court jurisdiction — and thereby limit their products-liability exposure — by strategically structuring their sales activity in the United States. </p><br><a href=http://www.paulhastings.com/assets/publications/1959.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1959PublicationMon, 11 Jul 2011 00:00:00 Z<p>The record &#163;1.35 billion recently raised by Vallares, a “cash shell” company co-sponsored by Nathaniel Rothschild and former BP executive Tony Hayward, has again put the spotlight on this type of entity and attracted a flurry of comment in the financial media. In truth however, Vallares is merely the latest and most striking embodiment of a market trend of an increasing number of equity offerings and listings of these vehicles over the last few years, which includes a line of precedents such as Justice Holdings, Vallar, Horizon Acquisition, Resolution Limited and Sherborne Investors.</p> <p>As the profile of this type of structure increases, and at a time when certain institutional investors are finding themselves increasingly constrained, not least by the additional capital requirements imposed by Basel III and the Capital Requirements Directive, we expect this to be a structure of interest to many investment managers going forward. However, the commercial, structural and legal issues arising in the context of these types of listings can be complex and require a careful navigation of the relevant listing regime. This <em>Stay Current </em>examines the recent return of cash shells to prominence in the London equity markets and discusses some of the key legal issues associated with this type of entity, as well as the developing market practice arising from recent listings. </p><br><a href=http://www.paulhastings.com/assets/publications/1955.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1955PublicationFri, 08 Jul 2011 00:00:00 Z<p>After nearly four years, the first significant, fully placed CMBS of European collateral has been issued. The CMBS transactions that have been issued since mid-2007 cannot be considered to be “true” CMBS. Either the transactions were “retained” deals issued for ECB financing purposes or they were credit tenant lease deals tracking the credit of a rated tenant (e.g., Tesco). During this time there has not been any issuance of true, structured credit CMBS of European collateral placed in the market. </p> <p>The revival had been anticipated for several months, given the reopening of the US markets during 2010. The US CMBS market continues to expand and 2011 issuance already exceeds 2010 levels. </p><br><a href=http://www.paulhastings.com/assets/publications/1952.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1952PublicationThu, 07 Jul 2011 00:00:00 Z<p>Connecticut became the first state in the nation to mandate a paid sick leave policy for service workers. An Act Mandating Employers Provide Paid Sick Leave to Employees (“Paid Sick Leave Act”) goes into effect on January 1, 2012 and requires employers with fifty or more employees to pay service workers for sick leave, “accruing at a rate of one hour per 40 hours worked.” To whom does the Paid Sick Leave Act Apply?</p> <p>The Paid Sick Leave Act only applies to employers with fifty or more employees within Connecticut “in any one quarter in the previous year.” Manufacturers and certain tax exempt organizations are excluded from coverage, however. Additionally, employers with pre-existing policies that allow at least as much coverage as that prescribed by the Act are deemed to be in compliance with the Act.</p> <p>Eligible employees include service workers who primarily work in one of 68 Standard Occupational Classifications. The following workers, however, are not eligible under this Act: (1) day or temporary workers; (2) non-hourly workers; and (3) salaried employees. The Act defines “day or temporary worker” as an individual who works on a per diem basis or who works on “an occasional or temporary basis for only the time required to complete such work.” </p><br><a href=http://www.paulhastings.com/assets/publications/1953.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1953PublicationThu, 07 Jul 2011 00:00:00 Z<p>Connecticut became the first state in the nation to mandate a paid sick leave policy for service workers. An Act Mandating Employers Provide Paid Sick Leave to Employees (“Paid Sick Leave Act”) goes into effect on January 1, 2012 and requires employers with fifty or more employees to pay service workers for sick leave, “accruing at a rate of one hour per 40 hours worked.” To whom does the Paid Sick Leave Act Apply?</p> <p>The Paid Sick Leave Act only applies to employers with fifty or more employees within Connecticut “in any one quarter in the previous year.” Manufacturers and certain tax exempt organizations are excluded from coverage, however. Additionally, employers with pre-existing policies that allow at least as much coverage as that prescribed by the Act are deemed to be in compliance with the Act.</p> <p>Eligible employees include service workers who primarily work in one of 68 Standard Occupational Classifications. The following workers, however, are not eligible under this Act: (1) day or temporary workers; (2) non-hourly workers; and (3) salaried employees. The Act defines “day or temporary worker” as an individual who works on a per diem basis or who works on “an occasional or temporary basis for only the time required to complete such work.” </p><br><a href=http://www.paulhastings.com/assets/publications/1954.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1954PublicationThu, 07 Jul 2011 00:00:00 ZIn a proposal published in the Federal Register on June 8, 2011, the Office of the Comptroller of the Currency (“OCC”) issued guidance (“Proposed Guidance”) addressing issues related to the safety and soundness of deposit-related consumer credit products. On July 1, 2011, the OCC extended the comment period on the Proposed Guidance 30 days, from July 8, 2011, to August 7, 2011, to “allow interested persons additional time to analyze the proposed guidance and prepare their comments.” The Proposed Guidance specifically highlights concerns with national bank (and federal thrift ) automated overdraft protection programs and direct deposit advance programs. <br><a href=http://www.paulhastings.com/assets/publications/1950.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1950PublicationWed, 06 Jul 2011 00:00:00 Z<p>L’Autorité de la concurrence (ci-après, &#171; <strong>l’Autorité</strong> &raquo;) a publié le 16 mai 2011 un communiqué de procédure relatif à la méthode de détermination des sanctions pécuniaires (ci-après &#171;<strong>le Communiqué</strong> &raquo;). En exposant de manière détaillée la doctrine de l'Autorité en matière de calcul des sanctions pécuniaires, le Communiqué constitue une avancée majeure pour les entreprises. L’Autorité suit ainsi l’exemple de la Commission européenne qui, dès 1998, a publié des Lignes directrices sur le calcul des amendes , dans des versions successives, la dernière datant de 2006. </p> <p>L’origine du Communiqué est singulière. Sa publication fait en effet suite au rapport remis en septembre 2010 par Jean-Martin Folz, Christian Raysseguier et Alexander Schaub à la Ministre de l’Economie à la suite de l’arrêt rendu par la Cour d’appel de Paris le 19 janvier 2010 dans l’affaire du cartel de négoce de l’acier. Dans cette affaire, la Cour d’appel de Paris avait en effet divisé par 8 le montant des sanctions prononcées par le Conseil de la concurrence , réduisant le montant total des sanctions pécuniaires prononcées de 575 millions d’euros à 72 millions d’euros. Il s’agissait, pour le Conseil devenu Autorité de la concurrence, d’un sérieux camouflet – une réduction de cette ampleur étant sans précédent.</p> <p>L’intérêt du Communiqué pour les entreprises est en réalité double. </p><br><a href=http://www.paulhastings.com/assets/publications/1951.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1951PublicationWed, 06 Jul 2011 00:00:00 ZOn June 22, 2011, the Securities and Exchange Commission (the “SEC”) adopted rules and rule amendments (the “Final Rules”) designed to implement a number of significant changes applicable to private investment funds and their managers imposed by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). <br><a href=http://www.paulhastings.com/assets/publications/1949.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1949PublicationTue, 05 Jul 2011 00:00:00 Z<p><img src="http://www.paulhastings.com/assets/images/banner_top_quarterly.jpg"></p> <table width="100%"> <tbody> <tr> <td> <h3><br>CHINA MATTERS: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1928" target=_blank><em>China Matters:</em> China Establishes its Security Review Mechanisms for Inbound M&amp;A Transactions</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1899" target=_blank><em>China Matters:</em> Preparing for Changes to the Social Insurance Scheme and Shanghai Issues Regulations on Employee Representative Congresses, a Driver to Unionize in the PRC</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1903" target=_blank><em>China Matters:</em> China Reverse Mergers Under Increasing Scrutiny from U.S. Regulators and Plaintiffs' Lawyers</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1934" target=_blank><em>China Matters:</em> One Country, One Immunity: Hong Kong Court of Final Appeal Holds Foreign States Have Absolute Sovereign Immunity</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1879" target=_blank><em>China Matters:</em> China's Anti-Monopoly Law Enforcement Authorities Issue Long-Awaited Regulations for Implementing the Anti-Monopoly Law</a></li></ul></td></tr></tbody></table></td></tr></tbody></table> <h3><br>COMPLEX LITIGATION AND TRIAL PRACTICE: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1943" target=_blank>Bifurcated Discovery in Class Actions: An Effective Strategy to Prevent the Continuation of the Unmeritorious Lawsuit</a></li></ul></td></tr></tbody></table> <h3><br>EMPLOYMENT LAW: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1881" target=_blank>What UK Employers Need to Know: UK Employment Law Changes in April 2011 </a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1924" target=_blank>Some Cafeteria Plans Must Be Amended by June 30</a></li></ul></td></tr> <tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1875" target=_blank>Health Care Act W-2 Requirements: To Report or Not To Report-That is the Question</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1873" target=_blank>United States Supreme Court Expands Retaliation Risks for Employers</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1906" target=_blank>New Challenges Faced as Support of Veterans' Employment Rights Ramps Up</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1871" target=_blank>DOL Grants Certain Group Health Plans Relief By Extending Non-Enforcement Period for Internal Claims and Appeals Requirements</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1936" target=_blank>Time to Get Ready - The Temporary Agency Worker Regulations</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1907" target=_blank>States May Not Prohibit Class Action Waivers as Part of Pre-Dispute Arbitration Agreements</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1944" target=_blank>Dealing with Stock Options and Free Shares when Launching a Tender Offer on a French Company</a></li></ul></td></tr></tbody></table> <h3><br>ERISA AND GLOBAL BENEFITS:</h3> <ul> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=1923" target=_blank>Checklist for Evaluating the Need for a New or Amended Stock Award Plan </a></li></ul> <h3><br>FINANCE: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1946" target=_blank>The Saga of a Secured Lender's Right to Credit Bid Continues - Seventh Circuit Rejects Third Circuit Approach and Upholds Secured Lender's Right to Credit Bid in Sale Pursuant to a Bankruptcy Plan</a></li></ul></td></tr></tbody></table> <h3><br>GLOBAL BANKING AND PAYMENT SYSTEMS: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1880" target=_blank>Regulators Propose "Skin in the Game" Rule</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1919" target=_blank>FRB Proposes Rules for Remittance Transfers</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1948" target=_blank>Unclear Whether Latest Preemption Developments Create Clear Path or Muddy Waters for Federally Chartered Banks</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1939" target=_blank>Uncertainty Regarding Fed Proposal – and CFPB Action – on Minimum Underwriting Standards for Consideration of a Consumer's Ability to Repay</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1945" target=_blank>CFPB Maps Out "Larger Participant" Nonbank Supervision Program</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1910" target=_blank>Fed Consolidated Regulation Poses New Challenges for Savings and Loan Holding Companies</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1876" target=_blank>Payroll Card Regulations: Too Much of a Good Thing </a></li></ul></td></tr></tbody></table> <h3><br>GLOBAL COMPLIANCE AND DISPUTES:</h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1894" target=_blank>Extraterritorial Effect of the Anti-Corruption Law of the People's Republic of China</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1878" target=_blank>Quarterly FCPA Report: First Quarter 2011</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1926" target=_blank>Recent Challenges to Definition of "Foreign Official" Reinforce Government's Broad Interpretation</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1882" target=_blank>Johnson &amp; Johnson Reaches Settlement of Charges with US and UK Enforcement Agencies</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1958" target=_blank>Quarterly FCPA Report: Second Quarter 2011 - <em>Courtroom Activity Defines the Second Quarter of 2011</em></a></li></ul></td></tr></tbody></table> <h3><br>HEALTHCARE: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1872" target=_blank>HHS and CMS Issue Proposed Rule on Accountable Care Organizations</a></li></ul></td></tr></tbody></table> <h3><br>INTELLECTUAL PROPERTY: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1927" target=_blank>Supreme Court Affirms “Clear and Convincing Evidence” Standard of Proof for Patent Invalidity </a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1916" target=_blank>Federal Circuit Significantly Tightens Doctrine of Inequitable Conduct Today in It's En Banc Therasense Ruling</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1940" target=_blank>U.S. House Passes Comprehensive Patent Bill</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1877" target=_blank>Failure to Launch</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1947" target=_blank>Supreme Court Is Not Done Hearing Patent Cases</a></li></ul></td></tr></tbody></table> <h3><br>INTERNATIONAL ARBITRATION: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1909" target=_blank>Commercial Aftershocks of the Great Eastern Japan Earthquake: Force Majeure and Related Issues</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1917" target=_blank>International Dispute Resolution Update: May 2011</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1870" target=_blank>Recent Developments: Chevron-Ecuador Dispute</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1908" target=_blank>U.S. Supreme Court Further Limits Class Arbitration</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1902" target=_blank>Sovereign Immunity: A Venerable Concept in Transition? </a></li></ul></td></tr></tbody></table> <h3><br>INVESTMENT MANAGEMENT: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1941" target=_blank>SEC Adopts Final Dodd-Frank Adviser Registration Rules and Extends Deadline for Compliance</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1911" target=_blank>FINRA Proposes Revisions To Its Mutual Fund Cash Compensation Disclosure Rules</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1891" target=_blank>Hedge Fund Report Summary of Key Developments - Spring 2011</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1912" target=_blank>SEC To Adjust "Qualified Client" Dollar Thresholds For Investment Adviser Performance Fee Rule, Implementing Requirements Imposed By Dodd-Frank</a></li></ul></td></tr></tbody></table> <h3><br>MERGERS AND ACQUISITIONS: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1913" target=_blank>Delaware Chancery Court Rules that a Reverse Triangular Merger May Constitute an "Assignment by Operation of Law"</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1929" target=_blank>Delaware Court Applies Revlon To "Hybrid" Merger And Provides Guidance</a></li></ul></td></tr></tbody></table> <h3><br>SECURITIES FINANCE AND CAPITAL MARKETS: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1933" target=_blank>SEC Proposes Rules Modifying the Net Worth Standard for 'Accredited Investors' </a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1889" target=_blank>UK Securities Law Update – Q1, 2011</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1955" target=_blank>UK Securities Law Update - Q2, 2011 <em>Market Update: The Recent Prominence of Cash Shells</em> </a></li></ul></td></tr></tbody></table> <h3><br>SECURITIES LITIGATION AND ENFORCEMENT: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1930" target=_blank>In Narrowly Tailored Opinion, Supreme Court Finds "Loss Causation" Not Required at Class Certification Stage</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1932" target=_blank>An Investment Adviser Cannot Be Sued in Private Action Under Rule10B-5 for Inaccurate Statements in a Mutual Fund Prospectus</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1915" target=_blank>SEC Enacts Even More Rigorous Whistleblower Program After Public Comment</a></li></ul></td></tr></tbody></table> <h3><br>TAX:</h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1886" target=_blank>The IRS Creates a 70% Safe-Harbor for Deductibility of Investment Banking and Other Success-Based Fees Contingent on the Closing of a Transaction</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1920" target=_blank>Modifications to Treatment of Aircraft and Vessel Leasing Income</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1937" target=_blank>Recent "FBAR" Guidance Extends the June 30, 2011 Filing Deadline for Certain US Persons</a></li></ul></td></tr></tbody></table> <h3><br>WHITE COLLAR CRIME AND REGULATORY ENFORCEMENT: </h3> <table cellSpacing=0 cellPadding=0> <tbody> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1898" target=_blank>The U.S. Government's Recent Efforts to Ban Pharmaceutical Executives from the Industry Without Due Process</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1914" target=_blank>California Announces Creation of a Mortgage Fraud Task Force to Pursue Mortgage Fraud at "All Levels"</a></li></ul></td></tr> <tr> <td> <ul> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1900" target=_blank>The U.S. DOJ Forms Oil and Gas Price Fraud Working Group to Focus on Energy Markets</a></li></ul></td></tr></tbody></table> <p>&nbsp;</p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1972PublicationFri, 01 Jul 2011 00:00:00 Z<p>On June 23, the Consumer Financial Protection Bureau (“CFPB”) issued a notice and request for comment (“Notice”) on defining which entities should be included as “larger participants” in its nonbank supervision program. Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“DFA”), the CFPB is required by July 21, 2012, to define who is a “larger participant of a market for other consumer financial products or services.” This provision, included within the CFPB’s nonbank supervision authority, in effect requires the CFPB to identify the markets for “other consumer financial products or services” that will be part of its nonbank supervisory program, as well as the “larger participants” of such identified markets that will be subject to the CFPB program. Pursuant to this authority, the CFPB can supervise persons/entities covered by the program, including requiring reports and conducting examinations, to monitor and oversee compliance with existing federal consumer financial law.</p> <p>While the DFA specifically authorizes the CFPB to examine all nonbank mortgage companies, payday lenders, and private education lenders, its supervision of other markets providing consumer financial products and services generally must be conducted via its supervision of “larger participants” in such markets. Thus, the “larger participant” rulemaking is a critical component of the CFPB’s overall nonbank supervision program.</p> <p>In preparation for the required rulemaking, the Notice seeks public comment on the following six markets the CFPB is considering including in the initial rule: (i) debt collection; (ii) consumer reporting; (iii) consumer credit and related activities; (iv) money transmitting, check cashing, and related activities; (v) prepaid cards; and (vi) debt relief services. </p><br><a href=http://www.paulhastings.com/assets/publications/1945.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1945PublicationThu, 30 Jun 2011 00:00:00 ZA secured lender’s well-worn tools to protect its security interest have included the right to credit bid when its collateral is being sold. Credit bidding refers to the ability of a secured lender to participate in a foreclosure or other form of sale of assets that are subject to its liens and, where the cash bids yield less value than the secured lender believes its collateral to be worth, to bid all or a portion of its debt in lieu of cash. Because any cash the secured lender pays would be round-tripped back to itself as proceeds of collateral, the lender need not actually put cash on the table; instead, it reduces the underlying debt by the amount of its credit bid to take title to the collateral.<br><a href=http://www.paulhastings.com/assets/publications/1946.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1946PublicationThu, 30 Jun 2011 00:00:00 ZThis week the United States Supreme Court granted the petitions for writ of certiorari in two more patent cases, furthering its top-down review of patent law and more directly the Court of Appeals for the Federal Circuit and how it has handled such issues. The two petitions granted were in <em>Kappos v. Hyatt </em>and Caraco <em>Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S</em>, and follows three decisions by the Supreme Court in the past two months. <br><a href=http://www.paulhastings.com/assets/publications/1947.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1947PublicationThu, 30 Jun 2011 00:00:00 ZRecent pronouncements from the courts and the Office of the Comptroller of the Currency (“OCC”) have begun to shed some light on what preemption for national banks and federal savings associations will look like on and after July 21, 2011, the effective date of the preemption provisions of Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). In <i>Baptista v. JP Morgan Chase Bank, N.A.</i>, the 11th Circuit upheld a pre-Dodd-Frank Act District Court determination that a Florida statute limiting check-cashing fees does not apply to national banks. One day later, the Acting Comptroller of the Currency wrote a letter to a member of Congress to outline the agency’s interpretation of particular aspects of the preemption provisions of the Dodd-Frank Act and the agency’s plans to amend its regulations to reflect such interpretation (the “May 12th OCC Letter”). These events were closely followed by a notice of proposed rulemaking by the OCC that sets those plans in motion (the “Preemption NPR”). The comment deadline for the Preemption NPR closed on June 27, 2011. <br><a href=http://www.paulhastings.com/assets/publications/1948.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1948PublicationThu, 30 Jun 2011 00:00:00 Z<p>Acquisitions of French companies raise a number of employment law issues, including issues related to employee share compensation plan, information and consultation of employee representatives, management transition and treatment of employee personal data. Dealing with these issues is important, especially when employees are key to the success of the business.</p> <p>When the target is a public company acquired through a tender offer, bidders need to carefully consider employees’ incentive schemes as they may have a significant impact on the outcome of the tender offer itself. As bidders generally seek to control at least 95% of the target for tax integration purposes and in order to be allowed to squeeze out the minority shareholders, French tender offers are often subject to a minimum tender condition threshold generally computed on a fully diluted basis. In a friendly deal, it is therefore both the target’s and the bidder’s interest that stock options and free shares be tendered.</p> <p>Most French listed companies have stock option and free share plans in place, benefiting not only top executives but also more and more often other executives as well as rank-and-file employees. At the time a change of control is considered, the number of shares or options granted pursuant to such compensation plans can represent a significant portion of a company’s capital on a fully diluted basis. Considering that stock options and free shares are subject, under French law, to restrictive vesting and lock-up periods during which the underlying shares cannot be assigned, share compensation plans must be dealt with carefully in the context of a public tender offer in order to ensure that the bidder owns in the end more than the required number of target shares to meet the condition, on a fully diluted basis. </p> <p>Dealing with such stock options and free shares requires a prior review of the moving legal framework applicable to French stock option and free share schemes, in order to identify and distinguish between several groups of holders and treat each of these groups in a way which will allow the bidder to fulfill its objectives. </p><br><a href=http://www.paulhastings.com/assets/publications/1944.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1944PublicationTue, 28 Jun 2011 00:00:00 Z<p>Consumer class action lawsuits are expensive. Case after case confirms this fact. Recognizing this, many consumer class action lawsuits are filed without a proper class representative, solely so that discovery may be initiated to locate a plaintiff with a “legitimate” claim. As counsel for the named plaintiffs search for someone, anyone, to step into the lawsuit in the place of the original plaintiffs, the defendant faces substantial cost in discovery alone, and that cost takes many forms. It includes dollars spent, employee hours lost, possible reputational harm in the market place, and a general distraction from day-to-day operations. In light of that reality, the Paul Hastings Complex Litigation and Trial Practice employs a number of strategies in an effort to reduce that cost. </p> <p>One of those strategies is to pursue bifurcated discovery. Assuming a case survives a demurrer or a motion to dismiss, and after consultation with the client to ensure the strategy is appropriate for the particular case, Paul Hastings will often seek to bifurcate discovery into two phases: (1) pre-class certification discovery, and (2) post-class certification discovery. In the pre-class certification phase, discovery would be limited to the issues relevant to the class-certification analysis, inclusive of the plaintiff’s standing to pursue the asserted claims. If a class is certified and makes it to the post-class certification phase, discovery will focus on the “merits” of the underlying claims. Where a court agrees to bifurcate discovery, the costs of pursuing “merits” discovery can be delayed or eliminated.</p> <p>This alert discusses the reasoning behind and the practical implications of pursuing a bifurcated discovery plan in consumer class action cases, and how that strategy can adroitly be used to block the claims of improper class representative plaintiffs in their entirety. </p><br><a href=http://www.paulhastings.com/assets/publications/1943.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1943PublicationMon, 27 Jun 2011 00:00:00 Z<p>On June 22, 2011, the Securities and Exchange Commission (the “SEC”) adopted final rules and amendments (the “Rules”) under the Investment Advisers Act of 1940 (the “Advisers Act”). These Rules are designed to give effect to provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act that, among other things, subject certain investment advisers to hedge funds and other private funds (including private equity funds and certain real estate funds) to SEC oversight and registration requirements. Under Dodd-Frank, investment advisers to private funds with fewer than fifteen clients previously relying on the “private adviser” exemption from registration are required to register with the SEC. To facilitate the transition to SEC registration and to allow these advisers to meet their obligations under the new Rules, the SEC has extended the deadline for registration for currently unregistered private advisers until March 30, 2012. </p> <p>The Rules also address (i) the reallocation of regulatory responsibility for advisers between the SEC and the states, (ii) amendments to Form ADV to expand the disclosure provided by registered advisers and to require reporting by certain “exempt reporting advisers”, (iii) the registration exemptions for family offices and venture capital funds and (iv) amendments to the pay to play rules.</p> <p>Look for our Client Alert shortly that will provide an in-deptvh analysis of the Rules. </p><br><a href=http://www.paulhastings.com/assets/publications/1941.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1941PublicationFri, 24 Jun 2011 00:00:00 ZComments are due in a month on a proposed rule (“Proposed Rule”) issued by the Federal Reserve Board (the “Board”) on a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“DFA”) requiring mortgage lenders to take into account a borrower’s ability to repay when making a mortgage loan. However, it remains unclear what the July 22, 2011 comment period close will mean for the Proposed Rule because, the day immediately preceding expiration of the comment period, jurisdiction of the Proposed Rule will shift to the new Consumer Financial Protection Bureau (“CFPB”). <br><a href=http://www.paulhastings.com/assets/publications/1939.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1939PublicationThu, 23 Jun 2011 00:00:00 Z<p>Today the U.S. House of Representatives passed the Leahy-Smith America Invents Act, a comprehensive patent reform bill containing significant substantive, procedural, and technical changes impacting U.S. patent law. If passed by the Senate and signed into law by the President, the Leahy-Smith America Invents Act would be the first time in nearly 60 years that Congress enacted comprehensive patent reform legislation. Barring unforeseen circumstances, it is our understanding that the Senate will take up identical legislation in the coming weeks.&nbsp; </p> <p>The Leahy-Smith America Invents Act contains significant transformations in U.S. patent law that would generally take effect one year after enactment and would apply to any patent issued on or after that date. In some instances, however, such as the modifications to the false patent marking statute discussed below, the provisions would be effective immediately upon enactment.</p> <p>The Leahy-Smith America Invents Act contains the following changes to U.S. patent law:</p> <ul> <li>Replaces the current “first to invent” system with a new “first inventor to file” system to harmonize the U.S. patent system with other countries</li> <li>Amends 35 U.S.C. Sections 102 and 103, including changes as a result of the elimination of “first to invent,” such as the removal of Section 102(g)</li> <li>Adds a “commercial use” defense, which permits an accused infringer to prove that it had commercially used the claimed subject matter more than one year prior to the filing of the asserted patent</li> <li>Eliminates failure to comply with the best mode requirement of 35 U.S.C. Section 112 as a defense to patent infringement</li> <li>Allows third parties to submit patents or publications along with a statement of relevance for the PTO’s consideration during examination of a pending patent application </li> <li>Creates a new third-party post-grant review procedure to allow a third party to request cancellation on any invalidity ground during the first year following issuance or reissuance</li> <li>Replaces existing <em>inter partes</em> reexamination with an <em>inter partes</em> review procedure that may only be used after the newly established third-party post-grant review procedure, or after the one year time period for requesting third-party post-grant review expires; <em>inter partes</em> review may only be based on prior art consisting of patents and printed publications</li> <li>Eliminates the Board of Patent Appeals and Interferences and creates a new Patent Trial and Appeal Board with responsibility (1) to conduct post grant review proceedings, (2) to conduct derivation proceedings to determine whether the subject matter of a filed application was misappropriated from an actual inventor, and (3) to review decisions of examiners in examination and reexamination proceedings</li> <li>Establishes supplemental examination procedures for issued patents to allow cure of potential inequitable conduct occurring during the original prosecution; our previous alerts on an earlier version of this provision can be found <u><a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=1821">here</a></u> and <u><a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=1848">here</a></u>; the only difference is that the new bill includes a paragraph authorizing the Patent and Trademark Office (“PTO”) Director to make a confidential referral to the Attorney General if potential fraud on the PTO is found during supplemental examination or the resulting reexamination proceeding. The legislative history confirms that this is a narrow provision to be used only in extraordinary circumstances.</li> <li>Modifies inventor’s oath or declaration requirements so that a person to whom an inventor has assigned (or is under an obligation to assign) an invention can file a patent application as an agent of the inventor</li> <li>Changes false marking legislation (35 U.S.C. &#167; 292) eliminating the <em>qui tam </em>provision (which permits any person to sue on behalf of the United States) and protecting patentees from false marking actions during the three year period following patent expiration; the passed bill states that only the United States or a person who has suffered a competitive injury may bring a false marking case</li> <li>Allows a patent holder to satisfy the patent marking statute (35 U.S.C. &#167; 287) through “virtual marking,” which is a mark directing a reader to a public website listing relevant patents</li> <li>Prohibits use of an accused infringer’s failure to obtain advice of counsel regarding infringement to prove that any infringement was willful or induced</li> <li>Adds procedural provisions regarding joinder of accused infringers in patent cases (not involving certain drugs and biologics, in particular, cases brought under 35 U.S.C. &#167;&nbsp;271(e)(2)) such that parties accused as defendants may be joined in one action only if questions of fact common to all defendants will arise in the action, and (1) any right to relief is asserted against the parties jointly and severally, or (2) if it arises out of the same transaction or occurrence relating to the alleged infringement; however, accused infringers may not be joined solely based on allegations that each has infringed the patents in suit</li> <li>Requires the PTO Director to establish a ten-year transitional program to allow post-grant review of the validity of business method patents claiming “a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service”</li> <li>Prohibits issuance of any patent claim directed to or encompassing a human organism</li> <li>Mandates a PTO study on genetic diagnostic testing to determine whether providing independent, confirming genetic diagnostic testing activity (for second opinions to patients) would impact existing patent and license holders of exclusive genetic tests</li> <li>Directs the PTO to establish methods for studying the diversity of patent applicants and prohibits the results of any such study to be used to provide preferential treatment to patent applicants</li> <li>Authorizes the PTO Director to establish three or more U.S. satellite offices and requires that the PTO consider several factors in selecting the location of each office, including the economic impact to the region and the availability of scientific and technical personnel in the region from which to draw examiners at minimal cost &nbsp;</li></ul> <p>The above list contains the most prominent provisions of the Leahy-Smith America Invents Act, but it is not exhaustive. The text of H.R. 1249 can be found <u><a href="http://www.paulhastings.com/assets/pdfs/HR1249.pdf">here</a></u>. The amendments approved during today’s session can be found <u><a href="http://www.paulhastings.com/assets/pdfs/HR1249A.pdf">here</a></u>. Amendment Nos. 1, 4-7, 9 and 10 were adopted. Amendment Nos. 2, 3, 8 and 12-15 were denied. Amendment No. 11 was withdrawn. For a complete version of the bill with all amendments incorporated <u><a href="http://www.paulhastings.com/assets/pdfs/HR1249W.pdf">click here</a></u>. </p> <p>Under the new law, patentees would need to consider well in advance of the new law’s effective date how patenting strategies previously used outside the U.S. in first-to-file systems should be adopted for U.S. filings. Patentees and accused infringers would also need to re-think patentability, infringement, validity and enforceability issues in accordance with the new statute, as well as the implementing regulations to be enacted by the PTO. And the myriad issues raised by this new paradigm will generate a significant body of new judicial precedent interpreting and explaining the revised law.</p><br><a href=http://www.paulhastings.com/assets/publications/1940.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1940PublicationThu, 23 Jun 2011 00:00:00 Z<p>On Thursday, June 16, 2011, the Internal Revenue Service (the “IRS”) released Notice 2011-54 which extended the Report of Foreign Bank and Financial Accounts (referred to as “FBAR”) filing deadline from June 30, 2011 to November 1, 2011 for US persons who have signature authority over, but no financial interest in, a foreign financial account for which the reporting deadline was properly deferred under Notices 2009-62 and 2010-23. </p> <p>This extension applies only to FBAR filings for calendar years 2009 or earlier. The FBAR filing deadline for calendar year 2010 remains June 30, 2011. </p><br><a href=http://www.paulhastings.com/assets/publications/1937.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1937PublicationWed, 22 Jun 2011 00:00:00 ZOn 1 October 2011 new legislation will dramatically impact the rights of temporary agency workers. It will mean an increase in the cost of using them, certain risks from day 1 of an assignment and liability transferring to the end user or hirer if they get it wrong. Given the increased reliance on 'temps' by organisations and companies operating in the UK coming out of the credit crisis plus the on-going scrutiny of permanent head count, you need to act now to understand the Regulations and what they mean for your business. <br><a href=http://www.paulhastings.com/assets/publications/1936.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1936PublicationMon, 20 Jun 2011 00:00:00 Z<p>In our June 2010 edition of Stay Current, we discussed the Hong Kong Court of Appeal’s decision in <em>FG Hemisphere Associates LLC v. Democratic Republic of Congo</em>, in which the Court of Appeal held that, while China continues to follow the absolute approach to sovereign immunity, its failure to impose its immunity doctrine on Hong Kong through legislation justified a finding that the common law restrictive immunity doctrine, which had been developed prior to the 1997 transformation of Hong Kong from a British overseas territory to a special administrative region of the People's Republic of China, continued to apply in Hong Kong. The decision was appealed to the Hong Kong Court of Final Appeal.</p> <p>On June 8, 2011, the Hong Kong Court of Final Appeal, in a 3-2 split, reversed that ruling and held that foreign states enjoy absolute immunity from suit in Hong Kong and that no exception from immunity for commercial activity or arbitration matters exists. The majority held that absent an explicit and unequivocal waiver of immunity—manifested by a voluntary submission to the jurisdiction of the forum state—a Hong Kong court cannot exercise jurisdiction over a foreign state. This long-awaited and significant decision aligns Hong Kong common law regarding immunity with the laws of the People’s Republic of China and, in so doing, discards a key component of pre-handover jurisprudence. Though <em>FG Hemisphere </em>resolved the split between the competing immunity doctrines, the resolution will undoubtedly engender concern for corporations and individuals doing or considering doing business with a foreign nation and/or from financing such undertakings in Hong Kong, as well as lead companies making foreign investments (particularly in Asia) to consider the suitability of Hong Kong as a potential forum for investor-state arbitrations, since the Court’s ruling will make it virtually impossible to seek judicial assistance in aid of arbitration against foreign states in Hong Kong. </p><br><a href=http://www.paulhastings.com/assets/publications/1934.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1934PublicationWed, 15 Jun 2011 00:00:00 ZIn a highly anticipated 5-4 decision, the Supreme Court resolved a split in the circuits and held that an investment adviser to a mutual fund could not be sued under Rule 10b-5 in a private action for incorrect or misleading statements in a mutual fund prospectus, even though the adviser may have prepared those statements. In so holding, the Court addressed the meaning of a fundamental element needed to plead a private securities fraud claim under Section 10(b) of the Securities Exchange Act of 1934: what constitutes “making a statement” sufficient to hold a party liable for any alleged misstatements or omissions. In holding that the “maker” of a statement can only be someone who has ultimate authority over and actually makes the statement, the Court found that only the fund (which is a separate legal entity), and not the investment adviser, can be deemed to “make” a statement in a fund prospectus. The Court’s opinion likely will have far-reaching implications for investment companies, advisors, investment banks, attorneys, accountants, and other service providers who are involved in the preparation of documents, such as prospectuses, that are publicly disseminated to investors. <br><a href=http://www.paulhastings.com/assets/publications/1932.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1932PublicationTue, 14 Jun 2011 00:00:00 ZThe Delaware Court of Chancery on May 20 rejected a challenge to the merger of Smurfit-Stone Container Corp. with Rock-Tenn Corporation. The challengers sought to delay the stockholder vote by claiming that a 50% cash / 50% stock merger was subject to strict judicial scrutiny under the Revlon line of cases and that for several factors, including failure to hold an auction either pre- or post-announcement, the court should enjoin the transaction. With respect to the first contention, the court agreed with the challengers and applied enhanced scrutiny to the “hybrid” merger. Despite applying an “enhanced scrutiny” standard, however, the court was unwilling to set aside decisions it found were made by informed, active and independent directors.<br><a href=http://www.paulhastings.com/assets/publications/1929.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1929PublicationMon, 13 Jun 2011 00:00:00 ZSince the United States Supreme Court’s 2005 holding in Dura Pharmaceuticals v. Broudo, 544 U.S. 336 (2005), legal minds have debated its scope, particularly whether “loss causation” must be proved by securities plaintiffs at the class certification stage. On June 6, 2011, the Court issued a narrow decision in <em>Erica P. John Fund Inc. v. Halliburton</em>, 09-1403, 2011 WL 2175208 (“Halliburton”), which directly addressed the issue. In a unanimous, but closely cabined opinion written by Chief Justice John Roberts, the Court reversed the decision of the Fifth Circuit, holding that securities plaintiffs need not prove loss causation at the class certification stage. <br><a href=http://www.paulhastings.com/assets/publications/1930.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1930PublicationMon, 13 Jun 2011 00:00:00 ZOn February 3, 2011, the PRC State Council (the “State Council”) promulgated the long awaited Circular on the Establishment of Security Review Mechanisms for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (《国务院办公厅关于建立外 国投资者并购境内企业安全审查制度的通知》) (the “State Council SR Circular”), which took effect on March 5, 2011. As a follow up to the State Council SR Circular, the Ministry of Commerce (“MOFCOM”) issued the Interim Provisions on Issues Related to the Implementation of the Security Review Mechanisms for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (《商务部实施外国投资者并购 境内企业安全审查制度有关事项的暂行规定》) (the “Interim SR Rules”) on March 4, 2011. <br><a href=http://www.paulhastings.com/assets/publications/1928.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1928PublicationFri, 10 Jun 2011 00:00:00 Z<p>In a case followed closely by the patent bar, the Supreme Court today unanimously affirmed the clear and convincing evidence standard of proof for patent invalidity determinations. <em>Microsoft Corp. v. i4i Ltd. P’ship</em>, No. 10-290 (S. Ct. June 9, 2011) (“Slip op.”).</p> <p>In an opinion by Justice Sotomayor, the Court found in favor of patentee i4i against Microsoft, which had argued that the lesser preponderance of the evidence standard of proof should apply in patent invalidity cases. Specifically, Microsoft had argued (1) that a defendant in an infringement action need only persuade the jury of an invalidity defense by a preponderance of the evidence; and, alternatively, (2) that the preponderance standard must apply at least when an invalidity defense rests on evidence that was never considered by the Patent Office.</p><br><a href=http://www.paulhastings.com/assets/publications/1927.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1927PublicationThu, 09 Jun 2011 00:00:00 ZCritics of the Foreign Corrupt Practices Act (“FCPA”), which prohibits U.S. individuals or businesses from bribing foreign officials to gain a commercial advantage, have long criticized the law’s broad scope, arguing that its vague terminology and lack of interpreting case law can leave international corporations operating in a grey zone with respect to who is and is not a “foreign official” covered by the law. In response to the U.S. government’s increasingly aggressive approach in prosecuting individuals for alleged FCPA violations, several defendants recently have taken a stand on this unsettled ground, challenging the government’s interpretation as a matter of law. While these challenges do not represent the first attack on the Department of Justice’s (“DOJ”) definition, they appear to be the first to elicit extensive judicial analysis on the topic. But rather than weaken the government’s authority, recent decisions have reinforced DOJ’s expansive construction of the term “foreign official,” placing employees of state-owned enterprises (“SOEs”) squarely within the FCPA’s scope. <br><a href=http://www.paulhastings.com/assets/publications/1926.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1926PublicationWed, 08 Jun 2011 00:00:00 Z<p>The Dodd-Frank Wall Street Reform and Consumer Protection Act signed into law in 2010 modified the definition of “accredited investor” under Regulation D under the Securities Act of 1933 (Securities Act), effective immediately. Since its adoption, Regulation D has been one of the primary means by which companies have raised capital through the sale of securities in the United States absent registration with the Securities and Exchange Commission (SEC).</p>Although Regulation D originated as an effort to assist small business capital formation and continues to play an important role in that arena, all sizes of companies use the registration exemptions in Regulation D.1 According to the SEC, for the 12 month period ended Sept. 30, 2010, the SEC received 17,292 initial filings for offerings under Regulation D, of which 16,027 claimed a Rule 506 exemption.2 Rule 506 of Regulation D permits companies to sell securities to an unlimited number of “accredited investors” and allows the companies to decide the type and amount of information to provide the accredited investors in the transaction as long as the information does not violate the antifraud prohibitions of the federal securities laws. <p></p>However, Rule 506 limits the number of non-accredited investors in a transaction to 35 and requires that companies provide this group of investors with detailed disclosure documents that are generally the same as those used in offerings registered with the SEC. Given the cost and expense incurred in preparing disclosure for non-accredited investors, companies seeking to raise capital in private placement transactions will often limit participation solely to accredited investors. The amendment to the definition of “accredited investor” pursuant to the Dodd-Frank Act is likely to reduce the number of persons who qualify as accredited investors under the federal securities laws and consequently change the landscape for private placement financings. <p></p><br><a href=http://www.paulhastings.com/assets/publications/1933.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1933PublicationTue, 07 Jun 2011 00:00:00 ZThe Patient Protection and Affordable Care Act amended the Internal Revenue Code to prohibit health care flexible spending accounts (FSAs) and health reimbursement arrangements (HRAs) from reimbursing expenses incurred after December 31, 2010 for non-insulin over-the-counter drugs or medicines purchased without a prescription. Accordingly, expenses incurred for medicines or drugs are reimbursable under such accounts only if the medicine or drug (1) requires a prescription, (2) is insulin, or (3) is available without a prescription and the reimbursement request is accompanied by a prescription.<br><a href=http://www.paulhastings.com/assets/publications/1924.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1924PublicationThu, 02 Jun 2011 00:00:00 Z<p>Signed into law July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act” or the “Act”) required implementation of almost all of its provisions through regulations to be promulgated by various agencies over the ensuing 18 months. This article discusses regulations proposed by the Board of Governors of the Federal Reserve System (the “board”) to implement the Remittance Transfer provisions of the Act.</p> <p>Remittance transfers are addressed in Section 1073 of the Dodd-Frank Act, which added a new Section 919 to the Electronic Funds Transfer Act (“EFTA”). This amendment provides significant new protections at the federal level to consumers sending funds to recipients located outside the United States. The Act requires that certain disclosures must be given to senders of funds, including the exchange rate as well as the fees and taxes that will be applied to the specific funds transfer and the date when the funds will be available to the designated recipient. The Act provides limited exceptions when exchange rates, fees and taxes may be estimated. The Act also provides error resolution rights and requires the Board to set standards for resolving errors, to establish recordkeeping requirements and to define consumers’ cancellation and refund rights. The Board has also proposed Official Commentary to provide guidance on compliance and model disclosure forms that would provide users a “safe harbor” for compliance purposes. The Board seeks comments on all aspects of the proposed regulations, commentary and model forms. </p> <p>The Board’s Notice of Proposed Rulemaking was issued on May 11, 2011. Rules must be finalized by January 21, 2012. The deadline for comments is July 20, 2011. The Board proposes that the new rules take effect one year after promulgation of the final rules, but requests comment on whether that date is appropriate. </p><br><a href=http://www.paulhastings.com/assets/publications/1919.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1919PublicationWed, 01 Jun 2011 00:00:00 ZThe Internal Revenue Service issued final regulations (the “Final Regulations”) addressing certain implications of leasing aircraft or vessels in foreign commerce. The Final Regulations apply to United States shareholders of controlled foreign corporations that derive income from the leasing of aircraft or vessels in foreign commerce, foreign corporations that are transferees of leased property, and also apply indirectly to foreign persons in connection with their qualification for benefits under an income tax treaty as a result of the active conduct of a trade or business. <br><a href=http://www.paulhastings.com/assets/publications/1920.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1920PublicationWed, 01 Jun 2011 00:00:00 Z<p>The ever-changing landscape for executive and director compensation places a premium on assuring that employers have suitable stock award plans at their disposal. For many employers, the need comes in the form of more shares, or broader flexibility in the types of available awards. There are many more subtle improvements that employers should consider with respect to their stock award programs, especially in view of escalating governance expectations across the globe. </p> <p><i>Reproduced with permission from Pension &amp; Benefits Daily, 105 PBD, 06/01/2011. Copyright&nbsp;&#169; 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http:// www.bna.com</i></p><br><a href=http://www.paulhastings.com/assets/publications/1923.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1923PublicationWed, 01 Jun 2011 00:00:00 ZIn a recent StayCurrent, we wrote about two major rulings in the ongoing dispute between the Chevron Corporation, a group of plaintiffs seeking compensation for alleged environmental damage resulting from oil exploration in the Ecuadorian rain forest, and the Republic of Ecuador itself. While those decisions have generated a great deal of attention and commentary, the first five months of 2011 have seen a number of other interesting decisions in the field of international dispute resolution. <br><a href=http://www.paulhastings.com/assets/publications/1917.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1917PublicationTue, 31 May 2011 00:00:00 ZOn May 25, 2011, the SEC held a public hearing on final rules implementing the SEC whistleblower program under the Dodd-Frank Act. The program is designed to incentivize individuals to bring high quality tips to the SEC to assist investigations of possible securities law violations. The Commission received 240 comments and 1300 form letters on the Proposed Rules. The final rules, adopted on Wednesday and scheduled to go into effect in 60 days, address “hot topics” such as internal compliance reporting; whistleblower status for attorneys, directors, compliance professionals, and auditors; retaliation protections; awards for culpable whistleblowers; and simplifying the process for making complaints. <br><a href=http://www.paulhastings.com/assets/publications/1915.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1915PublicationThu, 26 May 2011 00:00:00 ZThe Federal Circuit today issued its awaited en banc opinion in <i>Therasense, Inc. v. Becton, Dickinson and Co.</i>, Appeal No. 2008-1511, defining the substantive standards for the inequitable conduct defense. As expected, the Court “tightens the standards for finding both intent and materiality in order to redirect a doctrine that has been overused to the detriment of the public.” Slip op. at 24. For a detailed background of the <i>Therasense</i> case and description of the arguments, see our previous client alerts <a href="http://paulhastings.com/publicationDetail.aspx?PublicationId=1577">here</a> and <a href="http://paulhastings.com/publicationDetail.aspx?PublicationId=1757">here</a>. Chief Judge Rader authored the majority opinion, joined by Judges Newman, Lourie, Linn, Moore, and Reyna. Judge O’Malley concurred in order to express her preference for a looser materiality standard. Judge Bryson dissented, joined by Judges Gajarsa, Dyk, and Prost.<br><a href=http://www.paulhastings.com/assets/publications/1916.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1916PublicationWed, 25 May 2011 00:00:00 Z<p>Reverse triangular mergers are a popular deal structure used to acquire all of the outstanding equity interests of a target company. In a reverse triangular merger, the acquiror forms a subsidiary which is merged with and into the target company with the target company surviving the merger, and the target stockholders receive cash, acquiror stock, or a combination of cash and stock. The end result is the same as a pure stock purchase, but reverse triangular mergers offer the advantage of requiring only the approval of a majority in interest of stockholders (unless a higher percentage is required by the target company’s governing documents), subject to statutory appraisal and dissenter’s rights, instead of the approval of all stockholders (or at least a sufficient amount of shares to qualify for a follow-on short-form merger). </p> <p>Deal attorneys have long believed that a reverse triangular merger, like a stock purchase, does not involve an assignment of the target company’s assets and, therefore, does not trigger anti-assignment provisions in the target company’s contracts that restrict an “assignment by operation of law.” However, in a case of first impression, the Delaware Court of Chancery (the “Court”) in Meso Scale Diagnostics LLC v. Roche Diagnostics GMBH concluded that there was ambiguity regarding whether such a provision should apply in the context of a reverse triangular merger and denied defendants’ motion to dismiss, thus calling into question this long-held belief. </p><br><a href=http://www.paulhastings.com/assets/publications/1913.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1913PublicationTue, 24 May 2011 00:00:00 Z<p>On May 23, 2011, California Attorney General Kamala Harris announced the creation of a new Mortgage Fraud Task Force (“Task Force”) to address allegations of widespread fraud impacting the State of California. The objective of the 25-member Task Force (consisting of 17 lawyers and 8 special agents from the California Department of Justice) is to investigate and prosecute fraud and fraudulent lending practices at all levels, from origination through securitization. In deciding to form the Task Force, Attorney General Harris stated that “no case will be too big or too small to pursue.” </p> <p>The Task Force will focus on allegations of mortgage fraud in three major areas: (1) fraud involving mortgage-backed securities sold to the state or its pension funds; (2) fraudulent lending practices, including deceptive marketing and failure to fully disclose loan terms; and (3) scams by consultants, lawyers, and others who charged fees in connection with foreclosure proceedings and/or loan modifications without delivering on their promises. The Task Force will operate out of offices in Los Angeles, Fresno, San Francisco, and Sacramento. The Attorney General’s Office has expressed its intention to pursue all avenues available to the State to rectify harms caused by mortgage fraud, which the Attorney General contends was a significant contributing factor to the housing crash and is a continuing financial drag on the economy in the State of California. </p><br><a href=http://www.paulhastings.com/assets/publications/1914.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1914PublicationTue, 24 May 2011 00:00:00 ZAfter a number of fits and starts, and a multi-year rulemaking process, FINRA has proposed to significantly revise its investment company sales compensation disclosure rule, FINRA Rule 2830, in a way that would move revenue sharing disclosure from fund prospectuses and statements of additional information (“SAI”) to the point of sale and to the internet (or made available over the phone). Generalized disclosure of revenue sharing arrangements and associated conflicts would be required to be disclosed by the broker-dealer at the point-of-sale. Detailed disclosure of revenue sharing and other cash compensation arrangements would have to be maintained on an internet web site (or made available telephonically) and updated at least annually. <br><a href=http://www.paulhastings.com/assets/publications/1911.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1911PublicationWed, 18 May 2011 00:00:00 Z<p>On May 10, 2011, the Securities and Exchange Commission (“SEC”) provided notice of its intent to issue an order which will adjust certain dollar thresholds in Rule 205-3 of the Investment Advisers Act of 1940 (the “Advisers Act”), the rule which permits investment advisers to charge a performance fee to “qualified clients.” The SEC also proposed amending Rule 205-3 to (i) require adjustments of these dollar amount thresholds every five years and (ii) exclude a person’s primary residence from the test of whether a person has sufficient net worth to be considered a “qualified client.” </p> <p>The SEC has also proposed transition rules that would (i) apply the revised “qualified client” dollar thresholds prospectively, so that arrangements permissible at the time they were entered into are not later required to be renegotiated either as a result of this amendment or future inflation adjustments, and (ii) effectively “grandfather” clients of advisers who were not previously registered with the SEC but are now required to register as an investment adviser under Dodd-Frank. The SEC is accepting comment on the proposed inflation adjustment rule, the proposed treatment of primary residence in the calculation of net worth, and the proposed transition rules until July 11, 2011. </p><br><a href=http://www.paulhastings.com/assets/publications/1912.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1912PublicationWed, 18 May 2011 00:00:00 Z<p>The March 11, 2011 Tōhoku earthquake and tsunami, which the Japanese government formally named as the “Great Eastern Japan Earthquake” (Higashi Nihon Daishinsai) was undeniably a disaster of Biblical proportions. According to the U.S. Geological Survey, the 9.0 magnitude earthquake is the fourth largest in the world since 1900 and the largest in Japan since modern instrumental recordings began 130 years ago. Tens of thousands of people were killed, a comparable number are still missing or injured, and many more have been displaced from their homes. The earthquake and tsunami wrought tremendous devastation, including serious damage to the Fukushima Daiichi Nuclear Station. According to some reports, the damage to the Fukushima Daiichi Nuclear Station has released enormous amounts of radiation, more than 100,000 times as much as was released in the Three Mile Island nuclear incident in 1979. The Japanese government recently raised the severity rating of the nuclear accident to a 7 on the International Nuclear Event Scale, the highest severity level possible and the rating shared by the Chernobyl nuclear disaster in 1986. </p> <p>The economic fallout from the Great Eastern Japan Earthquake is likely to continue for some time. Some have estimated that the total cost of recovery exceeds several hundred billion dollars, making it the most costly natural disaster ever. In addition to damage to factories, offices, and infrastructure caused by the earthquake and tsunami, the radiation risk has rendered some factories and offices unusable. Similarly, because of damage to Japan’s electrical power capability in the affected region, other factories have had to shut down. A number of companies temporarily halted production in Japan in March. Even when production resumed, many factories had to operate at limited capacity because of parts shortages. Operation of factories at limited capacity will have ripple effects, even on companies that did not directly suffer damage from the Great Eastern Japanese Earthquake. Companies whose factories are operating at limited capacity will need fewer materials, parts, and components than they had anticipated needing before the earthquake. In turn, suppliers of those materials, parts, and components will want to reduce their purchases from their own suppliers. Additionally, business down the supply line, which require manufactured equipment or components from factories in the affected region, are not receiving the products or supplies they need to use in their operations or to complete products or projects for customers. The impact ultimately will extend all the way up and down the supply chain. </p><br><a href=http://www.paulhastings.com/assets/publications/1909.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1909PublicationThu, 12 May 2011 00:00:00 Z<p>The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”) transfers supervisory functions related to savings and loan holding companies (“SLHCs”) and their non-depository subsidiaries to the Board of Governors of the Federal Reserve System (“Board”) on July 21, 2011 (“Transfer Date”). On April 15, 2011, the Board proposed for comment a notice (“Notice”) of its intention to apply its consolidated supervisory program currently applicable to bank holding companies (“BHCs”), as enhanced by the Dodd-Frank Act, to SLHCs effective on the Transfer Date. Public comments on the Notice are due by May 23, 2011.</p> <p>The implications of the Notice should not be underestimated by SLHCs, because it contemplates an immediate integration of SLHCs into the Board’s BHC consolidated supervision program, including virtually all aspects of BHC--like regulation and supervision. As a result, SLHCs will be subject to new capital, source of strength, holding company exam rating system, and other existing (and new) BHC regulatory requirements. </p><br><a href=http://www.paulhastings.com/assets/publications/1910.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1910PublicationThu, 12 May 2011 00:00:00 Z<p>On April 27, 2011, in <em>AT&amp;T Mobility LLC v. Concepcion</em>, a sharply divided U.S. Supreme Court ruled that the Federal Arbitration Act (“FAA”) preempted California’s judicially created <em>Discover Bank</em> rule, which found waivers of class arbitration in most consumer contracts to be unconscionable and therefore unenforceable. Specifically, the Supreme Court held that the FAA prohibits states from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures. <em>AT&amp;T Mobility</em> reflects the ongoing commitment of the Supreme Court to ensure that the FAA preempts state laws or court rulings that are perceived to present an “obstacle” to the enforcement of private parties’ mutual consent to arbitrate in accordance with the terms of their written agreements. </p> <p>The <em>AT&amp;T Mobility</em> decision is not surprising. It was foreshadowed by the Supreme Court’s decision last year in <em>Stolt-Nielsen S.A. v. AnimalFeeds International Corp</em>., 599 U.S. ___, 130 S.Ct. 1758 (2010), in which the Court held that where an arbitration agreement is silent on the question of whether class action proceedings are authorized, the parties’ consent to class arbitration may not be inferred absent evidence of the parties’ intent or a governing rule of law authorizing that inference. Taken together, <em>Stolt-Nielsen</em> and <em>AT&amp;T Mobility</em> may well lead to the effective demise of class arbitrations unless those decisions are abrogated by federal legislation or subsequent Supreme Court decisions. For companies that seek to avoid the risk of class action lawsuits or arbitrations, <em>AT&amp;T Mobility </em>and <em>Stolt-Nielsen</em> indicate that properly drafted arbitration clauses can minimize, and perhaps even eliminate, that risk in many circumstances. </p><br><a href=http://www.paulhastings.com/assets/publications/1908.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1908PublicationWed, 11 May 2011 00:00:00 Z<p>Meeting a primary objective of Director Patricia Shiu’s initial regulatory agenda, on April 26, 2011, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice of Proposed Rule Making (the “Proposed Regulations”) substantially rewriting, and materially increasing the obligations of federal contractors to take affirmative action to employ and to advance in employment qualified protected veterans. 76 Fed. Reg. 23,358 (April 26, 2011). <a href="http://www.gpo.gov/fdsys/pkg/FR-2011-04-26/html/2011-8693.htm" target=_blank>See the proposed regulations here</a>. The most dramatic change is the requirement that contractors seek veteran status information from applicants and use a numerical analysis to determine whether they are hiring veterans at the expected or planned level. Other changes include: a radical expansion of the outreach requirement, a lengthening of the record retention period to five years, and a potential elongation of the temporal scope of a desk audit beyond that set forth in a scheduling letter. All in all, the Proposed Regulations, if not modified as a result of the notice and comment period, will make the affirmative action obligations with respect to veterans much more akin to those governing women and people of color, as opposed to the largely aspirational requirements with respect to the employment and advancement of veterans in the current regulations. </p> <p>There is a 60-day comment period for the Proposed Regulations, ending on June 27, 2011. We will keep you informed about developments with respect to the Proposed Regulations and are available to discuss their potential consequences and strategies to achieve compliance even as we await their final form.</p><br><a href=http://www.paulhastings.com/assets/publications/1906.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1906PublicationTue, 10 May 2011 00:00:00 Z<p>Edited by Paul Hastings' Employment Law Department partner Erika Collins and covering&nbsp;48 of the most significant international jurisdictions and economies, <i>The Employment Law Review</i> is intended to assist practitioners and human resources professionals to identify the issues and determine what strategic planning may be necessary as they encounter increased pressure to adopt global policies and practices.</p> <p>In the following chapter, Paul Hastings' <a href="http://www.paulhastings.com/professionalDetail.aspx?ProfessionalId=12919">Setsuko Ueno</a> discusses the unique employment issues in Japan.</p><br><a href=http://www.paulhastings.com/assets/publications/1800.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1800PublicationTue, 10 May 2011 00:00:00 Z<p>Edited by Paul Hastings' Employment Law Department partner Erika Collins and covering&nbsp;48 of the most significant international jurisdictions and economies, the second edition of <i>The Employment Law Review</i> is intended to assist practitioners and human resources professionals to identify the issues and determine what strategic planning may be necessary as they encounter increased pressure to adopt global policies and practices.</p> <p>The excerpt below contains the chapters contributed by Paul Hastings lawyers.</p><br><a href=http://www.paulhastings.com/assets/publications/1805.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1805PublicationTue, 10 May 2011 00:00:00 Z<p>Edited by Paul Hastings' Employment Law Department partner Erika Collins and covering&nbsp;48 of the most significant international jurisdictions and economies, <i>The Employment Law Review</i> is intended to assist practitioners and human resources professionals to identify the issues and determine what strategic planning may be necessary as they encounter increased pressure to adopt global policies and practices.</p> <p>In the following chapter, Paul Hastings' <a href="http://www.paulhastings.com/professionalDetail.aspx?ProfessionalId=445975">Patrick Shea</a> discusses the unique employment issues in the United States.</p><br><a href=http://www.paulhastings.com/assets/publications/1802.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1802PublicationMon, 09 May 2011 00:00:00 Z<p>Edited by Paul Hastings' Employment Law Department partner Erika Collins and covering&nbsp;48 of the most significant international jurisdictions and economies, <i>The Employment Law Review</i> is intended to assist practitioners and human resources professionals to identify the issues and determine what strategic planning may be necessary as they encounter increased pressure to adopt global policies and practices.</p> <p>In the following chapter, Paul Hastings' <a href="http://www.paulhastings.com/professionalDetail.aspx?ProfessionalId=105750">Jeremie Gicquel</a> discusses the employment issues in France.</p><br><a href=http://www.paulhastings.com/assets/publications/1798.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1798PublicationMon, 09 May 2011 00:00:00 Z<p>Edited by Paul Hastings' Employment Law Department partner Erika Collins and covering&nbsp;48 of the most significant international jurisdictions and economies, <i>The Employment Law Review</i> is intended to assist practitioners and human resources professionals to identify the issues and determine what strategic planning may be necessary as they encounter increased pressure to adopt global policies and practices.</p> <p>In the following chapter, Paul Hastings' <a href="http://www.paulhastings.com/professionalDetail.aspx?ProfessionalId=103209">Michael J. Downey</a> discusses the unique employment issues in Hong Kong.</p><br><a href=http://www.paulhastings.com/assets/publications/1799.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1799PublicationMon, 09 May 2011 00:00:00 ZIn a decision with broad implications for the use of pre-dispute arbitration agreements in a variety of contexts, the Supreme Court has held that courts cannot refuse to enforce an arbitration agreement because it does not permit the class-based arbitration of claims. In the decision, <em>AT&amp;T Mobility LLC v. Concepcion</em>, No. 09-893, 2011 WL 1561956, the Court held that states may not use state contract law principles as a means to impose limitations or requirements that “stand[] as an obstacle” to the unfettered use of arbitration agreements. Under <em>Concepcion</em>, obstacles of this sort will be suspect and ripe for challenge on Federal Arbitration Act preemption grounds. Paul Hastings will be sponsoring a teleconference in the coming weeks to discuss more fully the breadth of the decision and the steps employers should take as a consequence. <br><a href=http://www.paulhastings.com/assets/publications/1907.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1907PublicationMon, 09 May 2011 00:00:00 ZOver the past few years, reverse mergers have become an increasingly popular way for China-based companies to access U.S. equity markets. For many China-based companies, reverse mergers offer an attractive alternative to an Initial Public Offering (“IPO”), because reverse mergers are faster and less expensive than IPOs. According to a recent report, 159 China-based companies engaged in reverse mergers from 2007 through the first quarter of 2010, while only 56 China-based companies engaged in traditional IPOs during the same period. <br><a href=http://www.paulhastings.com/assets/publications/1903.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1903PublicationWed, 04 May 2011 00:00:00 Z在过去数年间，反向收购已日趋成为中资企业进入美国股权市场时普遍采用的一种操作模式。对于众多中资企业而言，反向收购相比首次公开发行（即“IPO”首发上市）能够提供另一种更富吸引力的选择，其原因在于反向收购比首发上市见效更快而费用更低。根据近期的某项报告，自2007年至2010年一季度为止，共有159家中资企业进行反购交易，而同期进行传统首发上市交易的中资企业仅有56家。<br><a href=http://www.paulhastings.com/assets/publications/1904.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1904PublicationWed, 04 May 2011 00:00:00 ZFaut-il se féliciter du nouveau régime instauré par la réforme de la garde à vue et des arrêts de la Cour de cassation, qui ont immédiatement suivi la promulgation de la loi ? Philippe Bouchez El Ghozi, avocat associé et Sylvie d'Arvisenet, Of Counsel, au sein du cabinet Paul Hastings se sont posé la question. <br><a href=http://www.paulhastings.com/assets/publications/1901.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1901PublicationTue, 03 May 2011 00:00:00 ZSovereign immunity, the principle derived from the ancient truism that the “king can do no wrong” and holding that nations are immune from the jurisdiction of other nations’ courts, is recognized by virtually every nation in the world. Despite the principle’s universality, however, its application differs across states. Some states extend sovereign immunity as a matter of comity, while others have codified the doctrine in their jurisdictional statutes. Some states, such as China, afford foreign states absolute immunity, while the majority of nations, including the United States, have adopted a more restrictive approach that immunizes foreign states from suit in connection with sovereign acts but leaves them subject to suit in connection with commercial acts.<br><br><br><em>This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.</em><br><a href=http://www.paulhastings.com/assets/publications/1902.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1902PublicationTue, 03 May 2011 00:00:00 ZSpurred by increasing public frustration over rising gasoline prices, on Thursday, April 21, 2011, the U.S. Department of Justice (“DOJ”) announced the creation of an “Oil and Gas Price Fraud Working Group.” The Oil and Gas Fraud Working Group (the “Working Group”) has been tasked with ensuring that American consumers are not victims of price gouging at the pump, either through price manipulation or fraud in the commodities market. In his memorandum announcing the formation of the Working Group, Attorney General Eric Holder declared that “where consumers are harmed by unlawful conduct that has the effect of increasing gas prices, state and federal authorities should take swift action.” <br><a href=http://www.paulhastings.com/assets/publications/1900.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1900PublicationMon, 02 May 2011 00:00:00 ZEarlier this month, as part of the Obama Administration’s effort to make the case that it will pursue individual high-level executives and CEOs in addition to the companies they run, the Office of the Inspector General, Department of Health and Human Services (“HHS-OIG”) informed the Chairman, CEO and President of Forest Laboratories Inc. (“Forest Labs”) that it intends to exclude him from doing business with the federal government. Such an exclusion of Forest Labs’ top executive could prevent Forest Labs from selling its drugs in connection with government programs such as Medicare, Medicaid and the Veterans Administration, which could amount to a corporate death sentence, unless the company drops the executive. One would think that the executive must have been found guilty of criminal activity, or found liable for misconduct in a civil lawsuit, but that is not the case. The executive has never been accused of or charged with any wrongdoing. <br><a href=http://www.paulhastings.com/assets/publications/1898.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1898PublicationFri, 29 Apr 2011 00:00:00 Z<p><strong>Updates to the Social Insurance Law</strong></p> <p>China's new national law on social insurance takes effect on July 1, 2011, and in order to satisfy the national government’s and the ACFTU’s goals, local jurisdictions such as the Municipality of Shanghai are issuing their own local rules to quicken the pace of unionization and collective bargaining by employers. On May 1, 2011, Labor Day in the People's Republic of China, the Shanghai Regulations on the Employee Representative Congress, promulgated last December by the Standing Committee of the Shanghai Municipal People’s Congress, come into effect. </p><br><a href=http://www.paulhastings.com/assets/publications/1899.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1899PublicationFri, 29 Apr 2011 00:00:00 Z15 avril 2011 : au moment où est publiée la loi du 14 avril 2011 relative à la garde à vue, destinée à entrer en vigueur au plus tôt le 1er juin 2011 et au plus tard le 1er juillet 2011, la Cour de cassation rend 4 arrêts imposant sans délai le droit à l'assistance effective d'un avocat, droit consacré par l'article 6, &#167; 1 de la Convention européenne de sauvegarde des droits de l'Homme et des libertés fondamentales.<br><a href=http://www.paulhastings.com/assets/publications/1896.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1896PublicationThu, 28 Apr 2011 00:00:00 Z<p>On February 25, 2011, the PRC legislature passed 49 amendments to the Criminal Law of the People’s Republic of China (“Criminal Law”). One such amendment – Amendment No. 8 of the Criminal Law – criminalizes the payment of bribes to non-PRC government officials and to international public organizations (the “Amendment”). Section XXIX of the Amendment, Revising Article 164 of the Criminal Law, states that:</p> <p>If an individual gives something of great value to an employee of a company, enterprise or other entity for improper gains and interests, such person shall be sentenced to a fixed-term imprisonment of no more than three years of criminal detention; if the amount of value involved is especially huge, the offender shall be sentenced to a fixed-term imprisonment of not less than three years but not more than ten years, and be concurrently subject to a fine. </p> <p>An individual who gives something of value to a foreign public official or official of an international public organization in pursuit of improper commercial interests shall be punished in accordance with the preceding paragraph of this Article. (Emphasis added.)</p> <p>If an entity commits crimes which fall into the preceding two paragraphs of this Article, the entity shall be subject to a fine and the chief person in charge who is directly liable for such offense as well as the other persons who are directly involved in the offense shall be punished according to the first paragraph of this Article. </p><br><a href=http://www.paulhastings.com/assets/publications/1894.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1894PublicationWed, 27 Apr 2011 00:00:00 Z<p>On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) into law, almost two years after the collapse of Lehman Brothers, which marked the beginning of a period of extreme stress and volatility in the global capital markets. The Dodd-Frank Act is comprehensive and affects almost all participants in our financial services and banking industries, including banks, depository institutions, holding companies, mortgage lenders, insurance companies, industrial loan companies, broker-dealers, investment advisers, hedge funds and other private investment funds, consumers and numerous federal agencies. Since the Dodd-Frank Act was passed, the Securities and Exchange Commission (the “SEC”) and various other agencies, including the Commodity Futures Trading Commission (the “CFTC”), the Federal Reserve Board (the “Federal Reserve”), and the Department of the Treasury, have been busy proposing rules to implement provisions of the Dodd-Frank Act. Meanwhile, private litigants and the SEC continue to sort through the aftermath of the financial disruption as evidenced by recent enforcement and private actions.</p> <p>This Report provides an update since our last <a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1752" target=_blank>Hedge Fund Report </a>in October 2010 and highlights recent developments, including the Dodd-Frank rulemaking, as well as recent civil and enforcement actions as they relate to the hedge fund industry. Paul Hastings attorneys are available to answer your questions on these and any other developments affecting hedge funds and their investors and advisers. </p><br><a href=http://www.paulhastings.com/assets/publications/1891.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1891PublicationMon, 25 Apr 2011 00:00:00 ZIn this edition of our UK Securities Law Update we look at the proposals contained in the HM Treasury's latest consultation paper on the reforms to the UK financial services regulatory architecture. We also discuss the amendment made to the Financial Services Authority's Code of Market Conduct following the recent decision of the European Court of Justice ("ECJ") in Spector Photo Group NV, the findings of the market study of equity underwriting conducted by the Office of Fair Trading ("OFT"), as well as the London Stock Exchange’s Alternative Investment Market's latest newsletter. Finally, we consider the proposed EU amendments to the Prospectus Directive and the Transparency Directive, as well as the new supervisory framework for financial services in Europe. <br><a href=http://www.paulhastings.com/assets/publications/1889.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1889PublicationFri, 15 Apr 2011 00:00:00 ZThe IRS has released Revenue Procedure 2011-29 which provides taxpayers with a safe-harbor for deducting a portion of certain success-based fees that are contingent on the closing of certain acquisition and reorganization transactions. Generally, a taxpayer is required to capitalize such fees. A current deduction for such fees is available only to the extent that the taxpayer has sufficient contemporaneous documentation that establishes the portion of the fee allocable to activities that do not facilitate the transaction. Practitioners have been expressing a wide variety of views as to how much of a typical investment banking fee is deductible with appropriate documentary evidence, with estimates varying from 30% to 90%. The new IRS safe-harbor provides taxpayers with the ability to currently expense 70% of such fees and should provide a significant cash flow benefit to financial sponsors and strategic investors with success-based fees. <br><a href=http://www.paulhastings.com/assets/publications/1886.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1886PublicationWed, 13 Apr 2011 00:00:00 Z<p>April means the first tranche of the year’s employment law changes come into force and the Coalition Government has been busy. We summarise the new laws, guidance, rates and limits to ensure you stay current.</p>1. Draft Guidance Published On Agency Workers Regulations<br>2. Guidance To Bribery Act Published<br>3. Micro &amp; Start Up Employers Three Year Exemption From Domestic Legislation<br>4. Additional Paternity &amp; Adoption Leave Rules Now In Force<br>5. Changes To Post-P45 Termination Payments &amp; Tax Treatment Of Childcare Vouchers<br>6. Equality Act 2010 Progress<br>7. Repeal Of Flexible Working Regulations Extension<br>8. No Extension Of Time Off For Study Or Training<br>9. Default Retirement Age Abolished<br>10. Statutory Compensation Limits And Statutory Benefit Rates For 2011 <br><a href=http://www.paulhastings.com/assets/publications/1881.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1881PublicationTue, 12 Apr 2011 00:00:00 Z<p>On April 8, 2011, Johnson &amp; Johnson (“J&amp;J”) entered into a deferred prosecution agreement (“DPA”) with the Department of Justice (the “DOJ”) and a consent decree (the “Consent Decree”) with the Securities and Exchange Commission (the “SEC” and, collectively, the “U.S. Government”) resolving criminal and civil liabilities for alleged violations of the Foreign Corrupt Practices Act (the “FCPA”) by wholly owned subsidiaries in Greece, Poland and Romania, as well as allegations relating to concerns with regard to the UN Oil for Food Program (the “OFFP”). Simultaneously, J&amp;J announced that it had reached a corresponding agreement with the United Kingdom Serious Fraud Office (the “SFO”) (collectively the DPA, Consent Decree and SFO resolution are referred to herein as “Settlements”). </p> <p>In the DPA, the U.S. Government cited: 1) J&amp;J’s voluntary disclosure, 2) its thorough internal investigation; 3) its cooperation with the U.S. Government; and 4) the substantial remedial measures undertaken by the company early on to improve its anticorruption compliance program as reasons for substantially reducing the monetary penalties assessed against the company, which were twenty-five percent below the minimum range as set out in the DPA from the U.S. Federal Sentencing Guidelines. </p> <p>This Alert outlines some of the unique components of the J&amp;J Settlements, including the close coordination between prosecutorial bodies in the United States and the United Kingdom, the additional compliance undertakings J&amp;J has committed to implement, and self-monitoring by J&amp;J during the three-year term of the DPA. </p><br><a href=http://www.paulhastings.com/assets/publications/1882.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1882PublicationTue, 12 Apr 2011 00:00:00 ZSection 941(b) of the Dodd-Frank Act, codified as new Section 15G to the Securities Exchange Act of 1934, requires six Federal agencies—the U.S. Department of the Treasury, Federal Reserve Board, Federal Deposit Insurance Corporation, U.S. Securities and Exchange Commission, Federal Housing Finance Agency, and Department of Housing and Urban Development (collectively, the “Agencies”)— jointly to prescribe regulations requiring increased credit risk retention for securitizers of asset-backed securities and limiting the hedging or transferring of securitizers’ retained risk. Section 15G generally requires securitizers of asset-backed securities (“ABS”) to retain an unhedged five percent economic interest in the credit risk of securitized assets, but authorizes several exemptions from the general risk retention requirement. These include an exemption for securities collateralized by “qualified residential mortgages,” which must be underwritten pursuant to specific standards established by regulation, as well as exemptions for certain other asset classes. <br><a href=http://www.paulhastings.com/assets/publications/1880.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1880PublicationMon, 11 Apr 2011 00:00:00 ZIn late 2010, the National Development and Reform Commission (“NDRC”) and the State Administration for Industry and Commerce (“SAIC”), two of the three key Anti-Monopoly Law Enforcement Authorities (“Enforcement Authorities”) in the People’s Republic of China (“PRC”), formally issued five (5) long-awaited implementing set of rules in relation to the enforcement of the PRC Anti-Monopoly Law (“PRC AML”), which respectively address the enforcement policies against pricing monopolies and prohibition of abuse of market dominance and monopoly agreements. <br><br>All these rules were announced during the first week of 2011 and took effect on February 1, 2011. It is worth noting that the PRC AML and these implementing rules are applicable to business activities occurring both within and outside the territory of China that may have the effect of eliminating or restricting competition in the China market. Multinational companies will need to pay close attention to the implementation and enforcement of these implementing rules and review their respective PRC-related business transactions carefully to ensure compliance, in particular, when restructuring their global purchase and supply channels or entering into business collaborations or setting pricing policies. <br><a href=http://www.paulhastings.com/assets/publications/1879.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1879PublicationFri, 08 Apr 2011 00:00:00 ZJoseph O'Malley, Bruce Wexler, Eric Dittmann, and Isaac Ashkenazi of the intellectual property practice group authored the following article, which appeared in <i>Intellectual Property Magazine</i>, on generic at-risk launches in the United States and their effects on pharmaceutical patent litigations. <br><a href=http://www.paulhastings.com/assets/publications/1877.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1877PublicationThu, 07 Apr 2011 00:00:00 ZFollowing 2010’s record year of Foreign Corrupt Practices Act (“FCPA”) enforcement, 2011 began steadily with four company and seven individual defendants – one of which included a blockbuster forfeiture – and with a flurry of litigation activity challenging DOJ’s prosecution theories and tactics. Individual defendants in various cases filed during 2009 and 2010 challenged long-standing definitions of key components of the FCPA. In total, there were four corporate settlements of U.S. Securities and Exchange Commission (“SEC”) charges, two of which also entered into deferred prosecution agreements with the U.S. Department of Justice (“DOJ”). There were also five guilty pleas, two sentencing decisions, and one settlement with the SEC by individual defendants. <br><a href=http://www.paulhastings.com/assets/publications/1878.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1878PublicationThu, 07 Apr 2011 00:00:00 Z<p>Payroll cards are an important solution for both employers and employees, particularly in today’s recovering economy. Electronic wage payment programs that utilize payroll cards allow employers to save a significant amount of money that can then be reinvested in the workforce.</p>Payroll cards also help to financially empower workers who do not have bank accounts and workers with limited access to traditional financial services (collectively referred to as “underserved” employees). In light of these benefits, interest in payroll cards continues to increase at a rapid pace. In fact, the Aite Group estimates that payroll card users will grow from 1.7 million in 2009 to 5.4 million in 2014. <p></p>At the same time, however, recent state legislative initiatives designed to formally recognize payroll cards have faced opposition from a number of consumer organizations. These groups express concerns that some employers may try to take advantage of their employees or that workers may unknowingly incur fees that eat away at their wages. However, these groups offer no concrete examples of this happening in the payroll card arena. <p></p>The consumer groups appear to recognize the benefits of payroll cards, but argue that payroll cards are largely unregulated and should not be considered a viable option without additional protections. Contrary to the groups’ suggestions, payroll cards are subject to state wage and hour laws and federal Regulation E, both of which contain significant consumer protections. The suggested revisions are not only unnecessary, but are so burdensome that many issuers and employers are likely to stop offering payroll cards altogether if they are adopted. In the end, the workers the consumer groups are seeking to protect are the ones that would suffer most. <p></p><br><a href=http://www.paulhastings.com/assets/publications/1876.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1876PublicationWed, 06 Apr 2011 00:00:00 ZThe Patient Protection and Affordable Care Act amended the Internal Revenue Code (“Code”) to generally mandate that employers report on Form W-2 the aggregate cost of employer-sponsored health care coverage (the cost of coverage that is non-taxable under Code Section 106 or would be non-taxable if provided by an employer) for most types of plans with respect to 2012 and beyond. The stated purpose of this reporting requirement is to provide employees with information on the value of employer-provided healthcare. Recently issued interim IRS guidance (Notice 2011-28) clarifies the reporting requirements. <br><a href=http://www.paulhastings.com/assets/publications/1875.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1875PublicationTue, 05 Apr 2011 00:00:00 Z<p>The Supreme Court recently decided the second of two retaliation cases that continued a long and nearly unbroken series of losses for employers. In both cases, the Court broadened the scope of employer’s potential exposure to claims of unlawful retaliation.</p> <p>In the first case, <em>Thompson v. North American Stainless, LP,</em> ___ U.S. ___, No. 09—291 (decided January 24, 2011), the Court held that third parties, who do not themselves engage in a protected activity, may nevertheless bring retaliation claims under Title VII of the Civil Rights Act of 1964. The decision arguably limits this new category of potential plaintiffs to employees with close relationships with the employee who engaged in the protected activity – a range of relationships the Court refused to define – but it plainly broadens the risks that an employer must consider whenever an employee engages in protected activity. And for now, the scope of that risk remains for further development in the lower courts.</p> <p>In the second case, <em>Kasten v. Saint-Gobain Performance Plastics Corp.,</em> ___ U.S. ___, No. 09—834 (decided March 22, 2011), the Court held that oral complaints of a violation of the Fair Labor Standards Act (“FLSA”) may constitute protected conduct under FLSA’s antiretaliation provision. The Court refused to decide a separate but related question, whether the FLSA’s anti-retaliation provision applies only to complaints made to the government. For now, at least, employers must consider internal complaints as possible predicates for retaliation claims. </p><br><a href=http://www.paulhastings.com/assets/publications/1873.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1873PublicationTue, 05 Apr 2011 00:00:00 Z<p>Two notable decisions were issued this month in the long-standing litigation campaign between Chevron Corporation, a group of Ecuadorian plaintiffs alleging environmental injuries from oil exploration and production activities in Ecuador, and the Republic of Ecuador. The decisions, summarized below, touch on several critical issues that arise predominantly in international litigation.</p> <p>Chevron’s epic legal battle with Ecuador concerning the environmental consequences of Texaco’s prior activities in that nation has been well-chronicled; it has been the subject of a feature-length film, several books, and a great deal of written commentary. While a full description of the case is beyond the scope of this update, some background is in order. </p><br><a href=http://www.paulhastings.com/assets/publications/1870.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1870PublicationMon, 04 Apr 2011 00:00:00 ZThe Department of Labor extended its non-enforcement period, until plan years beginning after December 31, 2011, for certain internal claims and appeals requirements under the Patient Protection and Affordable Care Act (PPACA) that apply to non-grandfathered group health plans. The internal claims and appeals requirements are among PPACA’s most significant and controversial changes. If a non-grandfathered plan fails to comply with these requirements in any respect – no matter how insignificant – claimants will be deemed to have exhausted their administrative remedies and may go directly to court. The extension of the non-enforcement period for some of these requirements is welcome news for employers; however, because this extension is likely the final delay, employers should be working diligently to comply with them. <br><a href=http://www.paulhastings.com/assets/publications/1871.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1871PublicationMon, 04 Apr 2011 00:00:00 Z<p>On March 31, the Department of Health and Human Services (“HHS”) and the Centers for Medicare and Medicaid Services (“CMS”) released the highly anticipated proposed rule under the Affordable Care Act of 2010 (commonly referred to as the “Healthcare Reform Law”) regarding the formation and operation of accountable care organizations (“ACOs”). The proposed rule, which will be published in the Federal Register on April 7, 2011, is the predecessor to the final rule that will be issued by HHS/CMS sometime after the 60 day public comment period (which began on March 31).</p> <p>In addition, because the proposed rule will necessitate certain changes to the current regulatory framework, CMS issued a joint notice related to waivers of the federal physician self-referral law, anti-kickback statute, and the civil monetary penalty law related to the Shared Savings Program (the “Program”); the FTC and DOJ also jointly issued a "Proposed Statement of Enforcement Policy Regarding Accountable Care Organizations Participating in the Shared Savings Program;" and the IRS issued a notice requesting comments regarding participation by tax-exempt organizations, including hospitals, in ACOs in the Program. </p><br><a href=http://www.paulhastings.com/assets/publications/1872.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1872PublicationMon, 04 Apr 2011 00:00:00 Z <img src="http://www.paulhastings.com/assets/images/banner_top_quarterly.jpg"> <h3><i>Antitrust and Competition</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1835" target=_blank>Cartel Regulation 2011 - Global Overview</a></li></ul> <h3><i><br>Complex Litigation and Trial</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1820" target=_blank><em>Kwikset Corp. v. Superior Court</em> Clarifies UCL Standing Requirements</a> </li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1856" target=_blank>Retailers in California Face New Scrutiny of Credit Card Transactions in Light of <i>Pineda v. Williams-Sonoma Stores, Inc.,</i> 51 Cal. 4th 524 (2011)</a></li></ul> <h3><i><br>Employment Law</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1808" target=_blank>U.S. Government Set to Impose Export Control Certification for Foreign Worker Visa Program - Are You Ready? </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1846" target=_blank>Federal and State Warn ACT Summary </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1865" target=_blank>EEOC Releases Final Regulations Significantly Expanding Coverage under the Americans with Disabilities Act</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1849" target=_blank>An Employment Decision Can Be Discriminatory Even If The Decision-Maker Has No Discriminatory Intent, Supreme Court Rules</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1837" target=_blank>Ninth Circuit Finding in Pharmaceutical Sales Reps Case is a Coup for Big Pharma</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=1845" target=_blank>New York’s New “Wage Theft” Law: What It Means, and What To Do Now </a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=1851" target=_blank>UK Employment Law: The Hot Topics</a></li></ul> <h3><i><br>ERISA and Global Benefits</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1850" target=_blank>The Swan Song of Schedule SSA to Form 5500</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1819" target=_blank>Final Say on Pay Rules - No Surprises, Other than from Shareholders</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=1853" target=_blank>Crossing the Pond . In Search of Better Executive Compensation Practices</a></li></ul> <h3><i><br>Finance and Restructuring</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1828" target=_blank>Game Changer: Second Circuit Finds "Gifting" By Secured Creditor to Old Equity Pursuant to Chapter 11 Plan Violates Absolute Priority Rule</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1847" target=_blank>UPDATE: The Insolvency Point of No Return for Securitisation Issuers </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1838" target=_blank>Changes In Bank Of Italy’s Requirements For Recognition Of Securitization Transactions</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1795" target=_blank>Electronic Money: New Authorisation Regime Effective In The United Kingdom (“UK”) From 9 February 2011</a></li></ul> <h3><i><br>Global Banking and Payment Systems</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1803" target=_blank>Implementing the Durbin Amendment: The Proposed Rule on Debit Network Interchange Fees and Rules </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1839" target=_blank>Time for a Change - the Thrift Charter and Strategic Considerations for Conversion</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1843" target=_blank>Federal Reserve Board Proposal Defines Parameters of FSOC "Systemically Significant" Designation</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId= 1826" target=_blank>Regulators Take Steps to Eliminate Differences in Thrift, Bank and Holding Company Reporting Requirements </a></li></ul> <h3><i><br>Global Compliance and Disputes</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1793" target=_blank>Quarterly FCPA Report: Fourth Quarter 2010 </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1842" target=_blank>FCPA and UK Bribery Act Risks Facing Financial Institutions</a></li></ul> <h3><i><br>Intellectual Property </i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1792" target=_blank>"25 Percent Rule" Axed for Patent Infringement Damages and Test for the Entire Market Value Rule Reaffirmed</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1814" target=_blank>Intellectual Property Outlook for 2011</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1858" target=_blank>Federal Circuit Applies Heightened Pleading Requirements To False Patent Marking Claims</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1815" target=_blank>FDA Requires Reformulation and Recertification by Generic - Results in Dismissal of Declaratory Judgment Action</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1862" target=_blank>Lapsing of Patent for Failure to Pay Maintenance Fees Held Not to Invalidate Terminal Disclaimer</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1821" target=_blank>Patent Reform, Including Supplemental Examination, Passes Today’s Senate Judiciary Committee Vote</a></li></ul> <h3><i><br>Investment Management</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1852" target=_blank>ILPA Private Equity Principles 2.0</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1818" target=_blank>SEC and CFTC Propose Private Fund Adviser Reporting Form</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1827" target=_blank>Section 13 SEC Reporting by Advisers and Brokers and Section 16 SEC Reporting by "Insiders" of Public Companies</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1824" target=_blank>CFTC Proposes Amendments to Compliance Obligations of CPOs and CTAs</a></li></ul> <h3><i><br>Mergers and Acquisitions</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1833" target=_blank>Outlook for 2011 of Merger Control in the EU: First Prohibition Decision in More Than Three Years</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1825" target=_blank>Delaware Chancery Court Confirms that Non-Signatory Shareholders are Bound to Terms of Merger Agreement</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1834" target=_blank><em>Roam-Tel Partners v. AT&amp;T Mobility Wireless Operations Holdings, Inc. </em></a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1836" target=_blank><em>Air Products v. Airgas</em>: Rumors of Death of the Poison Pill Have Been Greatly Exaggerated</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1866" target=_blank>Proposed Changes to the UK Takeover Regime </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1804" target=_blank>2011 Revised (Higher) Hart-Scott-Rodino Act Thresholds</a></li></ul> <h3><i><br>Real Estate</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1806" target=_blank>CMBS 2.0: The Future of European CMBS?</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1794" target=_blank>Blueprint 2010-2011: The Los Angeles Planning Department Announces Major New Reorganization and New Staff Assignments</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1812" target=_blank>Effects of and Reactions to Governor Brown's Proposal to Eliminate Redevelopment Agencies</a> </li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1859" target=_blank>Deadline Fast Approaching for Submission of New York City Building Energy Use Benchmarking Data</a></li></ul> <h3><i><br>Securities Litigation and Enforcement</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1813" target=_blank>SEC Adopts First of ABS Disclosure Regulations</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1863" target=_blank>Supreme Court Rejects Bright Line Test of "Statistical Significance" for Materiality in Securities Claims</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1811" target=_blank>SEC Implements New Cooperation Program With Historic First Non-Prosecution Agreement</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1796" target=_blank><em>What Ashcroft v. Iqbal </em>Means for Securities Pleading Standards </a></li></ul> <h3><i><br>Tax</i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1832" target=_blank>Treasury Issues Proposed Regulations Expanding the Definition of Publicly Traded Property </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1816" target=_blank>Eliminating Enterprise Zones in California: An Analysis of the Proposed Budget and Its Effects on California Businesses</a></li></ul> <h3><i><br>Telecommunications and Media </i></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1807" target=_blank>FCC Adopts Controversial Net Neutrality Rules Governing Broadband Internet Access Services</a></li></ul>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1885PublicationFri, 01 Apr 2011 00:00:00 ZHuawei Technologies Inc., the world’s second largest maker of telecom equipment and one of China’s leading global companies, is no stranger to the scrutiny applied by the U.S. Government to foreign investments in U.S. technology companies. In 2008, Huawei’s proposed investment in U.S. network security company 3Com was thwarted when objections were raised by the Committee on Foreign Investment in the United States (“CFIUS”), an interagency body that reviews foreign takeovers of U.S. businesses for national security reasons. In mid-2010, CFIUS scuttled another proposed investment by Huawei, this time in mobile communications companies 2Wire and Motorola. In each case, reports cited suspected ongoing ties between Huawei’s founder and CEO Ren Zhengfei and Chinese military and intelligence agencies, charges that Huawei strongly denies. <br><a href=http://www.paulhastings.com/assets/publications/1868.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1868PublicationThu, 31 Mar 2011 00:00:00 Z<p>As noted in our March 17 issue of <em><a href="http://www.paulhastings.com/publicationdetail.aspx?publicationId=1859" target=_blank>Stay Current</a></em>, New York City’s Local Law 84 establishes a deadline of May 1, 2011 for owners of covered buildings to submit energy use data to U.S. EPA’s Energy Star Portfolio Manager Benchmarking Tool. However, in response to a number of requests, the Mayor’s Office of Long Term Planning and Sustainability (“OLTPS”) has announced that “for at least three months after May 1, 2011,” it “has every expectation” that no penalty will be assessed for failure to meet this deadline.</p> <p>The OLTPS announcement, obviously, falls short of an iron-clad guaranty of enforcement leniency. But it does go a long way to relieving the pressure on those building owners who are not able to meet the May 1 deadline. </p> <p>We will continue to keep you posted on further developments with respect to implementation of Local Law 84. If you have any questions concerning these developing issues, please do not hesitate to contact any of the following Paul Hastings New York lawyers. </p>David J. Freeman<br>1.212.318.6555<br><a href="mailto:davidfreeman@paulhastings.com">davidfreeman@paulhastings.com</a><br><br>Jesse Hiney<br>1.212.318.657<br><a href="mailto:jessehiney@paulhastings.com">jessehiney@paulhastings.com</a><br><br>David J. Spielman<br>1.212.318.6491<br><a href="mailto:davidspielman@paulhastings.com">davidspielman@paulhastings.com</a><br><br><a href=http://www.paulhastings.com/assets/publications/1869.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1869PublicationThu, 31 Mar 2011 00:00:00 Z<p>The United Kingdom’s Ministry of Justice today published its highly anticipated official guidance on the Bribery Act 2010 (the “Act”) and announced that the Act will come into force after a three-month notice period, on 1 July 2011. The guidance endorses a pragmatic approach to risk-based compliance and leans heavily on prosecutorial discretion to ensure that the Act’s broad language does not impede the conduct of legitimate business. </p> <p>The official guidance from the Ministry of Justice (“MOJ Guidance”) includes statutory guidelines, illustrative case studies and a quick start guide for the broad range of United Kingdom and global organizations subject to the Act. In conjunction with the MOJ Guidance, the Director of the Serious Fraud Office and the Director of Public Prosecutions also released Joint Prosecution Guidance (“Joint Prosecution Guidance”), which instructs prosecutors on enforcing the Act. </p> <p>The MOJ Guidance published today follows an eight-week public consultation held in autumn 2010 and addresses a number of concerns raised by businesses, interest groups, and anti-corruption organizations regarding the Act. Clients should be aware of the following key aspects of both sets of guidance. </p><br><a href=http://www.paulhastings.com/assets/publications/1867.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1867PublicationWed, 30 Mar 2011 00:00:00 ZOn Sept. 21, 2010, a federal court of appeals reversed the July 2009 decision of a lower court and reinstated an insider trading case brought by the Securities Exchange Commission (SEC) against Mark Cuban, the internet billionaire and owner of the Dallas Mavericks. The lower court’s decision was significant because it appeared to conflict with the traditional interpretation of U.S. insider trading laws. Although the case appears far from over, the appeals court’s decision reaffirms the need for public companies, their agents and other market participants to follow certain guidelines when communicating and receiving material, non-public information regarding proposed financings and other significant transactions.<br><a href=http://www.paulhastings.com/assets/publications/1883.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1883PublicationTue, 29 Mar 2011 00:00:00 ZThe New York Wage Theft Prevention Act (WTPA) takes effect 0on April 9, 2011. The new law, part of a lame-duck legislation package signed by former Governor David A. Paterson in December 2010, amends the New York Labor Law in a number of significant respects. The WTPA modifies Articles 6, 7, and 19 on the Labor Law, most notably by: (1) increasing by fourfold the amount of liquidated damages an employee or the Commissioner of Labor can recover in an action for unpaid wages, (2) amplifying employers' existing notice and wage statement requirements, and (3) expanding both the substantive protections and the remedies available to employees under the anti-retaliation provisions of the Labor Law.<br><a href=http://www.paulhastings.com/assets/publications/1874.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1874PublicationMon, 28 Mar 2011 00:00:00 Z<p>Last week, the Equal Employment Opportunity Commission (the “EEOC”) released its final <em>Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended</em> (the “Final Regulations”), and accompanying Interpretive Guidance. The Final Regulations confirm and amplify the expanded Americans with Disabilities Act (“ADA”) coverage contemplated by the Americans with Disabilities Act Amendments Act of 2008 (the “ADAAA”).</p> <p>The ADAAA, which became effective on January 1, 2009, amended the language of the original ADA, substantially expanding the statute’s coverage. Among its many new provisions, the ADAAA granted the EEOC broad rulemaking authority to interpret the meaning of the term “disability” and to issue updated regulations interpreting the ADA. </p><br><a href=http://www.paulhastings.com/assets/publications/1865.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1865PublicationMon, 28 Mar 2011 00:00:00 Z<p>The Takeover Panel (the “Panel”) has issued its eagerly-awaited consultation paper setting out the details of its proposed changes to the UK takeover regime.</p> <p>The paper follows the Panel’s review last year of certain fundamental aspects of the UK takeover regime, which in turn followed the highly politicised debates arising out of Kraft’s takeover of Cadbury in early 2010. Whilst some of the more controversial proposals initially put forward in the original consultation (such as disenfranchisement of certain shareholdings and raising the offer acceptance threshold) are not being taken forward, the changes arising out of that review and as now set out in detail in the recent paper will significantly alter many aspects of UK market practice once introduced.</p> <p>Although the paper that has been released is a consultation paper, we do not expect that there will be any significant changes or deviations from the position now proposed by the Panel, other than points of drafting or detail. The consultation period ends on 27 May 2011 and we expect the changes will take effect in the second half of 2011. </p><br><a href=http://www.paulhastings.com/assets/publications/1866.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1866PublicationMon, 28 Mar 2011 00:00:00 ZOn March 17, 2011, the District of New Jersey (Judge Chesler) issued an important decision regarding the doctrine of obviousness-type double patenting (“OTDP”), holding that when a patent is terminally disclaimed to the expiration date of an earlier-expiring patent and the earlier patent lapses due to failure to pay maintenance fees, the terminal disclaimer may still be effective to obviate OTDP. <br><a href=http://www.paulhastings.com/assets/publications/1862.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1862PublicationWed, 23 Mar 2011 00:00:00 ZOn March 22, 2011, the Supreme Court of the United States issued a decision in the matter of <i>Matrixx Initiatives, Inc., et al. v. Siracusano, et al.,</i> No. 09-1156. The unanimous decision, written by Justice Sotomayor, rejected a bright line test of statistical significance to determine when information must be disclosed to investors under the securities laws.<br><a href=http://www.paulhastings.com/assets/publications/1863.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1863PublicationWed, 23 Mar 2011 00:00:00 ZAs part of The Stock Exchange of Hong Kong Limited’s (the “Stock Exchange”) environmental friendly initiative to reduce the requirement for printed materials within the confines of the existing regulatory framework, on 25 November 2010 the Stock Exchange and the Securities and Futures Commission (the “SFC”) jointly published their consultation conclusions to allow, among other things, issuers of equity securities and debentures to issue paper application forms in public offers without being accompanied by paper listing documents if they comply with the relevant class exemption conditions under the Companies Ordinance (Cap. 32 of the Laws of Hong Kong) (“CO”), otherwise known as the “Mixed Media Offer” or “MMO”.<br><a href=http://www.paulhastings.com/assets/publications/1864.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1864PublicationWed, 23 Mar 2011 00:00:00 Z<p>The deadline for submission of energy benchmarking data for most large buildings in New York City is just around the corner. The due date, May 1, 2011, was established by Local Law 84 when it was enacted in 2009 as a component of New York City’s Greener, Greater Buildings Plan. </p> <p>Benchmarking requirements apply to (i) any building that exceeds 50,000 gross square feet, (ii) two or more existing buildings on the same tax lot that together exceed 100,000 gross square feet, and (iii) two or more buildings held as condominiums that are governed by the same board of managers and together exceed 100,000 gross square feet.</p><br><a href=http://www.paulhastings.com/assets/publications/1859.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1859PublicationThu, 17 Mar 2011 00:00:00 ZToday, the Federal Circuit issued its decision in <em>In re BP Lubricants USA Inc</em>., Misc. Dkt. No. 960 (Fed. Cir. 2011), holding that the heightened pleading requirements for fraud and mistake apply to false patent marking claims. In particular, the court found that “Rule 9(b)’s particularity requirement applies to false marking claims and that a complaint alleging false marking is insufficient when it only asserts conclusory allegations that a defendant is a ‘sophisticated company’ and ‘knew or should have known’ that the patent expired.” <em>BP Lubricants</em>, slip op. at 2. <br><a href=http://www.paulhastings.com/assets/publications/1858.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1858PublicationTue, 15 Mar 2011 00:00:00 Z<p>Every day, hundreds of thousands of consumers use credit cards to pay for goods and services in California. In connection with these transactions, it has become almost routine for retailers to ask consumers to provide their ZIP code. A recent California Supreme Court decision, however, <em>Pineda v. Williams-Sonoma</em>, has captured the attention of the California business community by calling this practice into question.</p> <p>In<em> Pineda</em>, decided on February 10, 2011, a unanimous California Supreme Court held that collecting ZIP codes from cardholders during a credit card transaction violates California’s Song-Beverly Credit Card Act of 1971 (“the Credit Card Act”). The Credit Card Act prohibits companies from requesting and recording “personal identification information” during a credit card transaction, with certain limited exceptions. The Supreme Court’s ruling broadly impacts all businesses in California that accept credit cards and request personal identification information during a consumer transaction. Nonetheless, the Court’s sweeping announcement is narrowed by four statutory exceptions, which were not at issue in <em>Pineda</em>. This alert summarizes the <em>Pineda</em> opinion and analyzes some of the open questions surrounding credit card transactions given the Credit Card Act’s statutory exceptions. </p><br><a href=http://www.paulhastings.com/assets/publications/1856.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1856PublicationMon, 14 Mar 2011 00:00:00 Z<p><strong>At a Glance</strong></p> <p>This Stay Current flags the latest employment law and employment related developments affecting UK Employers. Undoubtedly, the issue of retirement and age discrimination is shaping up to be this year’s hot topic but others are not far behind.</p> <p><strong>TABLE OF CONTENTS</strong></p>1. Employers have until 5 April 2011 to retire employees automatically at age 65<br>2. Time-off for training will not apply to employers with less than 250 employees<br>3. Additional paternity and adoption leave and pay ‘kicks-in’ on 3 April 2011<br>4. Employees of a business in administration will always transfer under TUPE<br>5. ECJ rules insurance sector gender exclusion unlawful<br>6. Minor errors in industrial action formalities less likely now to stop UK strikes<br>7. U-turn on bank bonus issue 8. More enforcement of UK data protection laws <br><a href=http://www.paulhastings.com/assets/publications/1851.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1851PublicationThu, 10 Mar 2011 00:00:00 ZIn January 2011, the Institutional Limited Partners Association, a private equity industry association (“ILPA”), released an updated version of its Private Equity Principles, setting forth its recommendations for private equity fund best practices and principles (the “Updated Principles”). ILPA initially released its Private Equity Principles in September 2009 (the “Original Principles”) to encourage discussions between limited partners and general partners of private equity funds regarding key principles of such funds. During 2010, ILPA solicited feedback from general partners and limited partners in order to refine the Original Principles. With the Updated Principles, ILPA has sought to clarify and expand on certain concepts in the Original Principles. This Client Alert summarizes some of the substantive revisions that ILPA made in the Updated Principles to the Original Principles. <br><a href=http://www.paulhastings.com/assets/publications/1852.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1852PublicationThu, 10 Mar 2011 00:00:00 Z<p align=right>Originally published by <em>The Corporate Governance Advisor </em>&#169; 2010 http://www.thecorporatecounsel.net/home/</p> <p><br>Across the globe, executive compensation remains in the headlines, and hot in the sights of politicians, legislators, and governmental regulators. There has not been any shortage of finger-pointing at bad practices, nor pressure for quick adoption of best practices. From the United States to the European Union (E.U.) and the United Kingdom, a convergence is occurring as companies refine and improve not only “what” executive compensation they provide, but also the “how” and the “why” behind their decisions. The same best and worst practices are being acknowledged worldwide, even though the discussion that follows is focused on the pond known as the North Atlantic. </p><br><a href=http://www.paulhastings.com/assets/publications/1853.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1853PublicationThu, 10 Mar 2011 00:00:00 Z<p>When a manager makes an employment decision without considering the protected characteristics of those involved, we would ordinarily think that, almost by definition, a plaintiff could not make out a claim of intentional discrimination. But what if the pure-hearted manager relied in part on information provided by another manager who harbored a secret bias? Does the “unbiased” decision thereby become the fruit of a poisonous tree and a basis for employer liability?</p> <p>That thorny problem divided the lower federal courts for years. Twice, the Supreme Court granted certiorari to set rules for dealing with so-called “cat’s paw” cases, but in both instances, the cases settled before a decision could be rendered.</p> <p>Last week, however, the Supreme Court held in Staub v. Proctor Hospital that an employer may be liable when an adverse action is taken by an otherwise unbiased decision-maker if biased information from another supervisor “proximately caused” the action.</p> <p>The Court struck down the most restrictive (or employer friendly) formulation of the “cat’s paw” theory that had previously been adopted in the lower courts, but left many questions unanswered about how the doctrine will work in practice. The Court addressed the issue in a case involving the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), a statute that is rarely the subject of litigation, but the opinion will almost certainly be cited as precedent in cases arising under Title VII and at least some other federal nondiscrimination statutes. </p><br><a href=http://www.paulhastings.com/assets/publications/1849.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1849PublicationWed, 09 Mar 2011 00:00:00 ZPlan administrators of 401(k), pension and other retirement plans subject to ERISA section 203’s vesting requirements have long been required to file Schedule SSA (identifying separated participants having deferred vested benefits) with their Form 5500s in order to satisfy their reporting obligations under Internal Revenue Code (Code) section 6057(a). In particular, Schedule SSA required plan administrators to report if an employee separated from employment with vested benefits, no part of which were paid during that year, transferred into the plan during the plan year with vested benefits under another plan that become payable under the plan (e.g., a plan merger), no part of which were paid during that year, or previously was reported on a Schedule SSA, but is no longer entitled to those deferred vested benefits. The Department of Labor recently amended Form 5500 to eliminate the requirement to include Schedule SSA with the 5500 for plan years commencing after December 31, 2008.<br><a href=http://www.paulhastings.com/assets/publications/1850.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1850PublicationWed, 09 Mar 2011 00:00:00 Z<p>Employers nationwide have been grappling with reductions in force and related legal challenges in ongoing attempts to stabilize their workforces amid economic unpredictability. The federal Worker Adjustment and Retraining Notification (WARN) Act and its state analogs (mini-WARN Acts) require that employers give notice to certain employees sixty days in advance of a plant closing or mass layoff at a single site of employment, but it is often difficult to parse and decode the many technical requirements of these statutes. </p> <p>This publication offers a brief summary of federal and state notice requirements for layoffs. While no substitute for the careful analysis required under the WARN Act, these reference materials identify important issues that employers and attorneys should monitor and can help employers decide when to call on the assistance of experienced outside counsel. </p><br><a href=http://www.paulhastings.com/assets/publications/1846.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1846PublicationTue, 08 Mar 2011 00:00:00 Z<p>On 7 March 2011, the Court of Appeal delivered judgment on an appeal and a cross-appeal from a decision of the Chancellor of the High Court in the case of BNY Corporate Trustee Services Ltd v Eurosail UK 2007-3BL PLC &amp; Ors [2010] EWHC 2005.</p> <p>Both the appeal and cross-appeal concerned questions of interpretation with respect to the terms of interest bearing notes, due 2027 and 2045 (the “Notes”) issued by Eurosail-UK 2007-3BL plc (the “Issuer”), and more specifically, the effect a post enforcement call option agreement (“PECO”) has on the determination of a securitisation issuer’s solvency. </p><br><a href=http://www.paulhastings.com/assets/publications/1847.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1847PublicationTue, 08 Mar 2011 00:00:00 Z<p>The U.S. Senate today passed the patent reform bill, S. 23, now named the “America Invents Act.” As we reported in our February 2011 Client Alert, the bill contains several important provisions impacting U.S. patent law, including adding a “supplemental examination procedure” that can be used to cure potential inequitable conduct, moving to a “first to file” system, and adding post-grant review procedures.</p> <p>We mentioned in our previous alert that several amendments to S. 23 had been circulating in the Judiciary Committee, including one that would have eliminated S. 23’s provisions regarding supplemental examination. We understand that several proposed amendments were again circulating during the full Senate’s consideration. </p><br><a href=http://www.paulhastings.com/assets/publications/1848.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1848PublicationTue, 08 Mar 2011 00:00:00 Z<p>The New York Wage Theft Prevention Act (the “WTPA”) takes effect on April 9, 2011. The new law, part of a lame-duck legislation package signed by former Governor David Paterson in December 2010, amends the New York Labor Law in a number of significant respects. The WTPA modifies Articles 6, 7, and 19 of the Labor Law, most notably by: (1) increasing by fourfold the amount of liquidated damages an employee or the Commissioner of Labor can recover in an action for unpaid wages, (2) amplifying employers’ existing notice and wage statement requirements, and (3) expanding both the substantive protections and the remedies available to employees under the anti-retaliation provisions of the Labor Law.</p> <p>This client alert summarizes the most meaningful of the Labor Law amendments in the WTPA and presents an immediate action plan for compliance. </p><br><a href=http://www.paulhastings.com/assets/publications/1845.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1845PublicationMon, 07 Mar 2011 00:00:00 ZÀ la suite de la volonté du président de la République d'introduire des jurés populaires dans les tribunaux correctionnels, le garde des Sceaux a lancé, courant janvier 2011, une concertation pour préparer cette réforme destinée à renforcer le lien entre le peuple souverain et sa justice pénale. Ce projet de réforme, annoncé pour que la loi puisse être votée d'ici à l'été 2011, est en effet présenté comme visant à casser certains automatismes et à enrichir la prise de décision du juge professionnel d'un nouveau regard : <em>&#171; ainsi, c'est le peuple qui pourra donner son avis sur la sévérité de la réponse à apporter à des comportements qui provoquent l'exaspération du pays &raquo;</em>1. Désignés comme les <em>&#171; juges sans robe &raquo;</em> par les magistrats professionnels, leur immixtion dans la procédure correctionnelle est pourtant perçue par certains comme une défiance à leur égard.<br><a href=http://www.paulhastings.com/assets/publications/1860.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1860PublicationTue, 01 Mar 2011 00:00:00 ZLe projet de réforme introduisant des jurés populaires dans les tribunaux correctionnels, annoncé pour être voté d’ici l’été prochain, est présenté comme visant à casser certains automatismes et à associer le citoyen à la prise de décision du juge pénal. Désignés comme les <em>&#171; juges sans robe &raquo;</em> par les magistrats professionnels, leur immixtions dans la procédure correctionnelle est pourtant perçue par certains comme une défiance à leur égard.<br><a href=http://www.paulhastings.com/assets/publications/1861.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1861PublicationMon, 28 Feb 2011 00:00:00 ZTitle I of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“DFA”) extends the purview of federal bank regulators beyond the traditional supervision of insured depository institutions and their holding companies to include oversight of systemically significant nonbank financial companies. Key to this new regulatory process is establishment of the Financial Stability Oversight Council (“FSOC”), pursuant to Section 111 of the DFA. The FSOC is chaired by the Secretary of the Treasury, and its voting members include the heads of the principal banking regulatory authorities. Its principal responsibilities include identifying risks to the financial stability of the U.S., promoting market discipline, and responding to emerging threats to the U.S. financial system. The FSOC is also responsible for determining which nonbank financial companies are deemed “systemically significant” and, thus, subject to regulation by the Federal Reserve Board (“FRB”). Pursuant to Section 113 of the DFA, the criteria for making this determination are established by the FRB. <br><a href=http://www.paulhastings.com/assets/publications/1843.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1843PublicationFri, 25 Feb 2011 00:00:00 ZThe financial crisis increased regulatory scrutiny both from an investigative and a legislative perspective. The Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) are investigating financial institutions for violations of securities laws, the Foreign Corrupt Practices Act (FCPA), anti-money laundering rules, and similar regulations. Although financial institutions historically have not been targets of FCPA enforcement, lending practices and management of certain financial instruments can lead to liability, especially in this heightened regulatory and enforcement environment. Accordingly, financial institutions must institute anti-bribery compliance programs, consistent with the recommended government standards and building off of their current anti-money laundering procedures, to avoid falling prey to this complex regulatory framework.<br><br><a href=http://www.paulhastings.com/assets/publications/1842.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1842PublicationThu, 24 Feb 2011 00:00:00 ZWhile a new regulatory framework for the U.S. banking system continues to emerge in the wake of the Dodd-Frank Wall Street Reform and Consumer Protection Act (DFA), the future impact of the DFA reforms remains unclear. There are hundreds of regulations to be written by the various federal agencies required to implement the legislation. Nonetheless, the banking industry and broader financial services sectors have begun the arduous task of preparing for and anticipating the changes mandated by the legislation. The DFA significantly impacts all players in the banking industry, but thrifts and their holding companiesare faced with unique considerations with respect to how the law affects their future business operations. This article addresses these issues, including the business and legal considerations applicable to thrifts and savings and loan holding companies (SLHCs), as well as the longer term viability and retention of the federal thrift charter.<br><a href=http://www.paulhastings.com/assets/publications/1840.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1840PublicationWed, 23 Feb 2011 00:00:00 Z<p>The Bank of Italy has recently published an amended version of the “New Regulations for Prudential Supervision of Banks” (the “Regulations”). </p> <p>Most of the innovations introduced in the Title II, Chapter 2, Part 2, of the Regulations, entitled “Credit Risk Mitigation Techniques and Securitization Transactions - Securitization”, (the “Securitization Supervisory Rules”) are intended to implement in Italy the new Article 122a of the Capital Requirements Directive which requires, inter alia, that EU regulated credit institutions (i) may only invest in asset-backed securities in respect of which the originator, sponsor or original lender of the securitization will retain, on an ongoing basis, a net economic interest of not less than 5% in respect of certain specified credit risk tranches or asset exposures and (ii) comply with certain continuing due diligence duties in respect of the securitization transaction in which they have invested. </p> <p>The Bank of Italy has taken this opportunity to also reform the minimum requirements for the recognition of securitization transactions for regulatory capital purposes. This Client Alert is intended to provide a preliminary analysis of such new requirements. </p><br><a href=http://www.paulhastings.com/assets/publications/1838.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1838PublicationTue, 22 Feb 2011 00:00:00 ZThe Dodd-Frank Wall Street Reform and Consumer Protection Act (“DFA”) is having a significant impact throughout the financial services industry, but its effects are particularly acute for the U.S. thrift industry. In particular, significant changes in the regulation of thrifts and their holding companies pose unique considerations with respect to how the law affects their future business operations. In light of these changes, the most important question for thrifts and their parent holding companies (“SLHCs”) is whether it makes business sense to continue to operate as a thrift in light of the few remaining advantages – and mounting disadvantages – of the thrift charter relative to a commercial bank charter. This article examines the business and legal considerations applicable to thrifts and SLHCs, as well as issues regarding the longer-term viability and retention of the thrift charter. <br><a href=http://www.paulhastings.com/assets/publications/1839.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1839PublicationTue, 22 Feb 2011 00:00:00 Z<img src="http://www.paulhastings.com/assets/images/on_point_header.jpg"> <p>News and insights from our Global Banking and Payment Systems practice</p> <h3>Stay Current</h3> <p><a title=http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1803 href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1803" target=_blank>Implementing the Durbin Amendment</a></p> <p><a title=http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1688 href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1688" target=_blank>Whistleblowers who report securities violations resulting in monetary sanctions over $1 million may get 10-30% of the total recovery</a></p> <p><a title=http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1685 href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1685" target=_blank>Dodd-Frank represents the most important and comprehensive piece of financial system reform legislation since the reforms following the Great Depression </a></p> <p><strong>To read all of our Dodd-Frank StayCurrents, <a title=http://www.paulhastings.com/PracticeArea_Publications.aspx?PracticeAreaId=110 href="http://www.paulhastings.com/PracticeArea_Publications.aspx?PracticeAreaId=110">click here</a>.</strong></p> <h3>Our Professionals</h3> <p>With professionals experienced in both bank regulatory and banking system matters, we bring a unique perspective that is unmatched by any other law firm. We help clients navigate the most complex transactions and changing regulations affecting the industry. Our lawyers include former regulators who are actively engaged with the regulatory community. They include:</p> <ul class=inpageList> <li>the former Deputy General Counsel and Acting General Counsel of the U.S. Treasury Department's Office of Thrift Supervision; <li>a former senior lawyer in the Chief Counsel's Office of the Office of Thrift Supervision in both the Business Transactions and Enforcement divisions; <li>the former Special Counsel, Managing Director of External Affairs, and Assistant Chief Counsel at the U.S. Treasury Department's Office of Thrift Supervision; and <li>a former senior lawyer with the Securities and Exchange Commission in the Division of Corporate Finance. </li></ul><br> <p><strong>To learn more about our professionals, <a title=http://www.paulhastings.com/PracticeArea_Professionals.aspx?PracticeAreaId=110&amp;SortAlpha=True href="http://www.paulhastings.com/PracticeArea_Professionals.aspx?PracticeAreaId=110&amp;SortAlpha=True">click here</a>.</strong></p> <table width="100%"> <tbody> <tr> <td style="BORDER-BOTTOM: #710700 2px solid; BORDER-LEFT: #710700 2px solid; BORDER-TOP: #710700 2px solid">&nbsp;</td> <td style="BORDER-BOTTOM: #710700 2px solid; BORDER-TOP: #710700 2px solid; BORDER-RIGHT: #710700 2px solid"> <h3>Recent Client Success </h3> <p>Advised <strong>Guardian Life</strong> on the voluntary dissolution of its subsidiary depository institution, Guardian Trust Company.</p> <p>Advised <strong>Harleysville National Corporation</strong> on bank regulatory matters in connection with its recent acquisition by First Niagara Financial Group.</p> <p>Advised <strong>Citigroup</strong> in connection with $12.5 billion divestiture of global property investment management platform pursuant to the Volcker Rule.</p> <p>Advised several major U.S. retail securities brokerage firms on bank regulatory matters related to deposit sweep programs.</p> <p>Advising various payment systems companies on non-traditional and emerging payment systems, including mobile payment networks and establishment of virtual currencies.</p> <p>Regularly advise private equity firms on acquisitions and investments in banking organizations and payment systems companies.</p> <p>Advising various payment systems companies on entry into China and other foreign markets.</p></td></tr></tbody></table><br><br><a href="http://www.paulhastings.com/FrankDoddEvents.aspx"><img border=0 src="http://www.paulhastings.com/emailgraphics/Dodd_Frank_Stay_Ahead_Banner_020311.gif"></a> <p>The Dodd-Frank Act, the most profound restructuring of financial regulation since the Great Depression, will have broad and lasting impact on the financial services industry.</p> <p>For your convenience, we have created a calendar listing the impacts to the various constituencies by date, title, and bill section. </p> <p><strong>Be sure to <a title=http://www.paulhastings.com/FrankDoddEvents.aspx href="http://www.paulhastings.com/FrankDoddEvents.aspx" target=_blank>visit this page</a> to keep up with the implementation of this important legislation.</strong></p> <h3>What Others are Saying</h3> <p><strong><i>Chambers USA 2010</i></strong> touts this group as having "the quality of personnel to match its clients' needs at every level. With the added advantage of being able to interact with partners in commercial practices throughout the firm's national and international offices, the team is hard to beat."<br><br>Paul Hastings clients tell <strong><i>Chambers USA 2010</i></strong> that "Having such a high-quality law firm on your side enables lenders really reduces the risk of a situation; the team provides excellent advice."</p> <p><strong><i>The</i></strong> <strong><i>Financial Times</i></strong> ranked Paul Hastings as one of the five law firms in its <a title=http://www.paulhastings.com/NewsDetail.aspx?NewsId=13735 href="http://www.paulhastings.com/NewsDetail.aspx?NewsId=13735" target=_blank>"US Innovative Lawyers"</a> report. They commended our Financial Services practice for our representation of Citigroup Inc. in its sale of Citi Property Investors to Apollo Global Management and for our representation of PHH Corporation in the TALF extension." </p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1895PublicationTue, 22 Feb 2011 00:00:00 Z<p>Both federal and state governmental agencies are strongly emphasizing diversifying our energy generation portfolios by encouraging greater reliance on renewable energy resources. Because many viable renewable resource sites (especially solar, wind and hydro) are located far from the existing grid, interconnecting a renewable energy resource to the grid could trigger the need for tens of millions -- and in some cases, hundreds of millions -- of dollars in interconnection/transmission costs, which could be prohibitive for many projects. The Federal Energy Regulatory Commission (FERC) -- the federal agency that has jurisdiction over most disputes in this area -- is considering in different proceedings various objections to how these costs are allocated to such projects.</p> <p>&#169; 2011 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P. in the Vol. 4, No. 2 edition of the Bloomberg Law Reports - Sustainable Energy. Reprinted with permission. Bloomberg Law Reports&#174; is a registered trademark and service markof Bloomberg Finance L.P.</p><br><a href=http://www.paulhastings.com/assets/publications/1841.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1841PublicationMon, 21 Feb 2011 00:00:00 ZOn February 15, 2011, in <i>Air Products and Chemicals, Inc. v. Airgas, Inc., et al</i>, Chancellor Chandler of the Court of Chancery of the State of Delaware upheld the Airgas board’s use of a poison pill to block a structurally non-coercive, all-cash, all-shares, fully financed tender offer directed to the corporation’s stockholders, even after a full year had gone by since an earlier Air Products offer was made public, the staggered incumbent board had already lost one election contest, and the stockholders arguably were fully informed as to the target board’s views on the inadequacy of the offer. The case highlighted a classic governance battle over whether in such a context the board gets to decide when and if the corporation is for sale, or whether the stockholders must be given the chance to decide whether to take the offer. While finding that a board cannot “just say no” to such an offer, the Court confirmed that a board found to be acting in good faith, after reasonable investigation and reliance on outside advisors, and which articulates and convinces the Court that a hostile tender offer poses a legitimate threat to the corporate enterprise, may address that perceived threat by blocking the tender offer and forcing the bidder to elect a board majority that supports its bid. The Court, while expressing misgivings about the state of the law and the ongoing utility of the pill in this particular context, found that the Airgas board met its Unocal burden to articulate a legally cognizable threat (the inadequate price, coupled with the fact that a majority of Airgas’s stockholders likely would tender into the offer) and implemented defensive measures that fall within the range of reasonable responses to such a threat.<br><a href=http://www.paulhastings.com/assets/publications/1836.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1836PublicationFri, 18 Feb 2011 00:00:00 ZOn February 14, 2011, the United States Court of Appeals for the Ninth Circuit handed employers (and particularly pharmaceutical manufacturers) an important Fair Labor Standards Act (“FLSA”) victory, concluding that defendant (and Paul Hastings client) SmithKline Beecham Corporation’s (“GSK”) pharmaceutical sales representatives (“PSRs”) were “outside sales” employees, and thus properly classified as exempt from the FLSA overtime-pay requirements. (<a href="http://www.ca9.uscourts.gov/datastore/opinions/2011/02/14/10-15257.pdf" target=_blank>Click here for the decision</a>). In doing so, the Ninth Circuit explicitly rejected the views of Department of Labor’ expressed in an amicus brief filed in support of the plaintiffs’ appeal. In holding that PSRs are exempt outside salespeople, the Ninth Circuit also disagreed with the Second Circuit’s interpretation of the same FLSA exemption in an earlier case. <i>In re Novartis Wage &amp; Hour Litigation</i>, 711 F.3d 141 (2d Cir. 2010). This division of authority sets the stage for potential review by the United States Supreme Court.<br><a href=http://www.paulhastings.com/assets/publications/1837.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1837PublicationFri, 18 Feb 2011 00:00:00 Z<p>It is not uncommon for the equity of private companies to be held by a small group of controlling shareholders, with the remaining equity interests being held by a number of minority shareholders who are often the company’s founders or management. In the context of venture capital-backed companies or private equity portfolio companies, the occurrence of such splits in equity ownership is commonplace. Despite this commonplace equity picture, interesting questions regarding the rights of the minority shareholders often arise in the context of a merger of the company approved only by the controlling shareholders. There is often uncertainty in the minds of deal counsel as to whether the minority shareholders are bound by the actions of a shareholders’ representative appointed by the controlling shareholders in a merger agreement to handle disputes regarding earn-outs, other post-closing adjustments or indemnification claims. On September 20, 2010, the Delaware Court of Chancery (the “Court”) issued its opinion in Aveta Inc. v. Cavallieri (the “Opinion”) which held, in part, that minority shareholders indeed are bound by such a provision contained in a merger agreement even under circumstances where such shareholders did not sign the deal documents or vote on or approve the transactions contemplated thereby.</p> <p>In addition to providing valuable guidance in structuring merger transactions, particularly in the context of a target company with a large number of minority shareholders, the decision reflects the Court’s willingness to ensure that the parties to a merger agreement receive the benefit of their bargain. </p><br><a href=http://www.paulhastings.com/assets/publications/1825.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1825PublicationFri, 18 Feb 2011 00:00:00 Z<p>Delaware law has long provided that minority stockholders of a corporation that is undergoing a merger are generally entitled to an appraisal by the Delaware Court of Chancery (“Court”) of the fair value of their shares. The appraisal remedy is intended to provide stockholders of a Delaware corporation who believe the price being paid in a merger is inadequate with an independent judicial determination of the fair value of their shares.</p> <p>Section 262 of the Delaware General Corporation Law (the “DGCL”) sets forth very specific procedures for stockholders to follow in order to “perfect” or exercise their appraisal rights. In situations where the proposed merger will be submitted for approval at a stockholders meeting – a “long-form” merger – the corporation must notify each stockholder of his appraisal rights at least 20 calendar days prior to the meeting, as well as provide a copy of the appraisal rights statute to each stockholder. Any stockholder electing to demand appraisal must either vote against the merger or refrain from voting on the merger, and must give the corporation a written demand for appraisal of his shares prior to the stockholder vote on the merger. In the context of a “short-form” merger where no stockholder vote is required for the merger to become effective, one of the constituent corporations or the surviving or resulting corporation must notify the stockholders within 10 days of the effective date of the merger that appraisal rights are available. The stockholders then have 20 days to demand in writing an appraisal of their shares. Within 120 days after the effective date of the merger, the stockholders who properly perfected their appraisal rights may file a petition in the Court demanding a determination of the value of their stock. </p><br><a href=http://www.paulhastings.com/assets/publications/1834.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1834PublicationThu, 17 Feb 2011 00:00:00 Z<p>The number of countries across the globe that actively pursue cartel enforcement continues to increase, and more countries are imposing significant fines on corporations and creating criminal enforcement programmes. In 2010, massive fines were imposed in three crossborder price-fixing investigations involving TFT-LCD, international air cargo and refrigerator compressors.</p> <p>In this overview, the authors discuss the global trend towards criminalizing cartel behavior. </p> <p>Reproduced with permission from Law Business Research. This article was first published in <i>Getting the Deal Through</i> - Cartel Regulation 2011, (published in 2011; contributing editor: Martin Low QC). For further information please visit www.GettingTheDealThrough.com</p><br><a href=http://www.paulhastings.com/assets/publications/1835.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1835PublicationThu, 17 Feb 2011 00:00:00 ZA significant issue facing global corporations is the potential for liability created by "accidental expatriates" -- employees who travel overseas on what are intended to be brief business trips or short assignments. They are usually not included in their organization's global mobility expatriate programs, and whose time overseas is extended long enough or cumulates over time to bring about potential violations of host country immigration, tax and Social Security laws. Recently, the instances of accidental expatriates are on the rise. There are several reasons for the increase in these types of employees.<br><a href=http://www.paulhastings.com/assets/publications/1844.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1844PublicationThu, 17 Feb 2011 00:00:00 Z<p>For just the 21st time in the 20-year history of EU merger control and the first time in more than three years, the European Commission has prohibited a proposed merger outright. On January 26, 2011, the Commission prohibited, on the basis of the EU Merger Regulation, a proposed merger between Greece’s two largest airlines: Aegean Airlines and Olympic Air. The Commission considered that the merger would have resulted in a quasi-monopoly on the relevant air transport market since, together, the two carriers control more than 90% of the Greek domestic market. </p> <p>This is the first prohibition decision since the Ryanair/Aer Lingus case in 2007, which also concerned the air transport market.</p> <p>These two most recent prohibition decisions show striking similarities, in that in both cases the proposed merger involved airlines that operated out of a hub in a national capital: Dublin in the case of the 2007 decision, Athens in the case of the 2011 decision. </p><br><a href=http://www.paulhastings.com/assets/publications/1833.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1833PublicationTue, 15 Feb 2011 00:00:00 ZOn January 6, 2011, the Treasury Department and the Internal Revenue Service (the “IRS”) issued proposed regulations (the “Proposed Regulations”) amending the current rules for classifying property as publicly traded for purposes of determining the issue price of a debt instrument. The issue price of a debt instrument has important income tax consequences. For example, the difference between the issue price and the stated redemption price at maturity, commonly known as the face value of the debt, measures whether there is any original issue discount (“OID”) on the instrument. Additionally, a debt-for-debt exchange involving publicly traded property (including a significant modification of existing debt) may result in a reduced issue price for the new debt, which generally would produce cancellation of indebtedness income for the issuer, a loss for the holder whose basis is greater than the issue price of the new debt, and OID that generally must be accounted for by both the issuer and the holder of the new debt.<br><a href=http://www.paulhastings.com/assets/publications/1832.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1832PublicationMon, 14 Feb 2011 00:00:00 ZOn February 3, 2011, the Office of Thrift Supervision (“OTS”) and its future successors ─ the Office of the Comptroller of the Currency (“OCC”), the Federal Deposit Insurance Corporation (“FDIC”), and the Federal Reserve Board (“FRB”) (collectively, the “Agencies”), announced proposed changes to the reporting requirements currently applicable to savings associations, or “thrifts”, and their parent holding companies (“SLHCs”). The announcement marks one of the first steps ─ in many more expected to come ─ toward the anticipated homogenization of the regulation of thrifts and SLHCs with their commercial bank and bank holding company (“BHC”) counterparts.<br><a href=http://www.paulhastings.com/assets/publications/1826.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1826PublicationWed, 09 Feb 2011 00:00:00 Z<p>Under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), advisers and brokers who exercise investment discretion over accounts which hold exchange-traded equity securities may be required to file acquisition and ownership reports with the Securities and Exchange Commission (the “SEC”) in certain circumstances. These reports, which are required by Section 13 of the Exchange Act, may be filed on Schedule 13D, Schedule 13G and/or Schedule 13F, each of which are discussed in more detail below. A firm (and in some cases its “controlling persons”) will likely have a Section 13 reporting obligation if, as of December 31, 2010, the firm: </p> <ul> <li>managed discretionary accounts (including accounts managed for insiders) that, in the aggregate, held more than 5% of the voting, equity securities of any SEC-reporting company, closed-end fund or insurance company, as described further below (a Section 13(d) or Section 13(g) reporting obligation); or </li> <li>managed discretionary accounts holding, in the aggregate, equity securities with a market value of $100 million or more (a Section 13(f) reporting obligation). </li></ul><br><a href=http://www.paulhastings.com/assets/publications/1827.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1827PublicationWed, 09 Feb 2011 00:00:00 Z<p>The concept of “gifting” in the chapter 11 plan context has been discussed for years. It often arises when secured creditors who have a lien on all, or substantially all, of a borrower’s assets seek to take control of the borrower. The enterprise value of the borrower is less than the amount of the secured debt, so unsecured creditors and old equity are out-of-the-money. Nonetheless, to ensure a peaceful and relatively smooth transition, the secured creditors offer a “tip” to old equity, essentially out of their own recoveries, by turning over a small portion of value to the former owners and bypassing unsecured creditors. This “gifting” practice became quite common and has been approved by a number of courts over the years, although some courts have called the practice into question. A recent decision by the Second Circuit Court of Appeals appears to have brought the practice to a screeching halt, at least in chapter 11 cases filed in the Second Circuit. </p> <p>In an appeal arising in the chapter 11 case of <em>In re DBSD North America, Inc</em>., a panel of the Second Circuit overturned, on February 7, 2011, an order issued by Judge Gerber of the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) confirming a plan of reorganization that contemplated just such a “gifting” transaction. On an appeal brought by an unsecured creditor, the panel held, in a 2-to-1 decision, that such a plan of reorganization violated the absolute priority rule and could not be confirmed. The ruling is a game changer because it bars a common practice (at least in the Second Circuit) and has the potential to change the dynamics of chapter 11 plan negotiations among secured creditors, unsecured creditors and equity holders. </p><br><a href=http://www.paulhastings.com/assets/publications/1828.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1828PublicationWed, 09 Feb 2011 00:00:00 ZOn January 26, 2011, the U.S. Commodity Futures Trading Commission (the “CFTC”) proposed amendments to the compliance obligations of commodity pool operators (“CPOs”) and commodity trading advisors (“CTAs”) that, among others, would rescind or modify several CFTC registration exemptions and exclusions commonly relied upon by private investment fund sponsors (the “Amendments”). The CFTC separately proposed the Amendments shortly after the announcement of its joint proposal with the U.S. Securities and Exchange Commission (the “SEC”) to adopt Form PF as mandated by certain provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The CFTC believes that the Amendments are necessary in order to oversee participants in the commodity futures and derivatives markets effectively in light of the recent economic turmoil and are consistent with the spirit of the Dodd-Frank Act. <br><a href=http://www.paulhastings.com/assets/publications/1824.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1824PublicationFri, 04 Feb 2011 00:00:00 ZOn January 25, 2011, the SEC issued final rules (“Final Rules”) implementing “Say on Pay,” “Say on Frequency” and “Say on Parachute” requirements for companies with SEC-registered securities (“Companies”). Meanwhile, the early returns from the first spate of 2011 shareholder meetings suggest that shareholders are not merely rubber-stamping their approval, and that they want annual Say on Pay votes regardless of management proxy statement recommendations. We discuss the Final Rules below, along with insights from recent shareholder meetings. <br><a href=http://www.paulhastings.com/assets/publications/1819.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1819PublicationThu, 03 Feb 2011 00:00:00 ZIn the past two years, the California Supreme Court has issued important decisions interpreting California’s Unfair Competition Law (California Business and Professions Code sections 17200, et seq. the (“UCL”)), a law almost universally invoked in California consumer class actions. Two years ago, the Court decided <em>In re Tobacco II Cases,</em> and held that the representative plaintiffs(s) in a UCL class action needed to plead and prove standing by a showing of “actual reliance” for claims brought under the UCL’s fraud and false advertising prongs. Last week, the Court addressed <em>Kwikset Corp. v. Superior Court (Benson), </em>a case again interpreting the UCL’s standing requirement in false advertising cases. In <em>Kwikset</em>, the Court held that “plaintiffs who can truthfully allege that they were deceived by a product’s [‘Made in the U.S.A.’] label into spending money to purchase [a] product, and would not have purchased it otherwise” have standing to sue under the UCL regardless of the fact that the product worked as promised and regardless of the fact that the plaintiff would be ineligible for restitution. This alert summarizes <em>Kwikset</em> and analyzes the practical implications in consumer UCL litigation that may arise as this important body of law develops in the future. <br><a href=http://www.paulhastings.com/assets/publications/1820.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1820PublicationThu, 03 Feb 2011 00:00:00 Z<p>The U.S. Senate Judiciary Committee today favorably reported the <a href="http://www.paulhastings.com/assets/pdfs/S23.pdf" target=_blank>patent reform bill, S. 23</a>. We understand that the vote was 15 Yes, 0 No, and 2 Pass. The bill contains several important provisions impacting U.S. patent law, including adding a “supplemental examination procedure” that can be used to cure potential inequitable conduct, moving to a “first to file” system, adding judicial gatekeeper provisions for damages, and adding post-grant review procedures. </p> <p>Of particular potential interest to innovative pharmaceutical companies was the fact that an amendment that had been circulating to strike S. 23’s provisions regarding supplemental examination – GRA11047 – was not introduced. </p><br><a href=http://www.paulhastings.com/assets/publications/1821.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1821PublicationThu, 03 Feb 2011 00:00:00 Z<p>On January 25, 2011 and January 26, 2011, the U.S. Securities and Exchange Commission (the “SEC”) and the U.S. Commodity Futures Trading Commission (the “CFTC,” and collectively with the “SEC,” the “Commissions”) jointly proposed the adoption of Form PF (the “Proposal”) to implement certain provisions of Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The information to be collected on Form PF is intended to assist the Financial Stability Oversight Council (the “FSOC”) in monitoring the potential systemic risks posed by private funds. </p> <p>The proposed SEC rule would require SEC registered investment advisers that advise one or more “private funds” (“Private Fund Advisers”) to report certain risk, leverage and financial information regarding those private funds on the newly created Form PF. The proposed CFTC rule would require Private Fund Advisers that are also registered as commodity pool operators and/or commodity trading advisors with the CFTC to file Form PF in respect of any private funds advised by such dual registrants.</p> <p>Under the Proposal, information reported on Form PF would remain confidential, although the information would be available to the Commissions generally, including for the purposes of rulemaking, examinations, investigations and investor protection efforts. Form PF would be filed electronically through a yet-to-be determined system. </p><br><a href=http://www.paulhastings.com/assets/publications/1818.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1818PublicationWed, 02 Feb 2011 00:00:00 Z<p>The proposed budget for the State of California (the “Proposed Budget”), which was released on January 11, 2011 by Governor Jerry Brown, calls for the elimination of State Enterprise Zones (“EZs”). EZs are economically distressed areas that have been targeted for economic development and revitalization. Businesses that locate within EZs are eligible for certain state tax benefits, including hiring credits, wage credits, credits for sales taxes paid on purchases of certain machinery, exclusions of interest earned on qualifying loans to businesses, and expensing of qualified business investments. Currently, there are 42 EZs located throughout California. Though the designations are generally for a 15-year period, some EZs have recently received extensions. The Proposed Budget would eliminate all EZ and similar tax incentives for tax years beginning on or after January 1, 2011.</p> <p>As with other aspects of the Proposed Budget, the elimination of EZs is extremely controversial. At a time when unemployment in California is at near-record highs, business owners across California are concerned that they will lose benefits afforded to businesses in EZs, and many are projecting higher business costs. Although there is no way to know how the proposal to eliminate EZs will ultimately fare, it is reasonable to expect the proposal to undergo several changes over the next few months and possibly be challenged in court.</p><br><a href=http://www.paulhastings.com/assets/publications/1816.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1816PublicationTue, 01 Feb 2011 00:00:00 ZOn January 20, 2011, the Securities and Exchange Commission (“SEC”) voted on two sets of rules for asset-backed securities (“ABS”). The Commission approved both rules implementing aspects of section 943 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). One rule affects disclosure by adding a requirement that ABS issuers disclose the history of demands they received and repurchases made related to outstanding asset-backed securities. The second rule addresses issuer review of the underlying assets. All registered offerings of asset-backed securities after December 31, 2011 must comply with these rules.<br><a href=http://www.paulhastings.com/assets/publications/1813.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1813PublicationMon, 31 Jan 2011 00:00:00 ZIn the coming year we anticipate, as we have in the past few years, a series of decisions that have great potential to impact intellectual property law and the way we advise our clients. This article highlights some of the cases pending and which we are monitoring, as each presents an important intellectual property issue for decision. The article also addresses other important court decisions from 2010 that will affect the intellectual property landscape in 2011 and beyond. Lastly, we take a look at a continuing trend in the intellectual property marketplace and some key legislation.<br><a href=http://www.paulhastings.com/assets/publications/1814.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1814PublicationMon, 31 Jan 2011 00:00:00 Z<p>On January 18, 2011, the United States District Court for the District of New Jersey, in <em>Paddock Laboratories, Inc. v. Ethypharm, S.A.</em>, an unpublished opinion, dismissed a declaratory judgment claim brought by an ANDA applicant because the FDA had required the ANDA applicant to reformulate its product and recertify to an Orange Book-listed patent. </p> <p>Paddock submitted an ANDA seeking approval to market a generic version of Antara&#174; (fenofibrate) capsules. <em>Paddock Labs., Inc. v. Ethypharm, S.A.</em>, Civ. No. 09-3799, 2010 WL 149860 at *3. Paddock’s ANDA had initially contained a Paragraph IV certification to Orange Book-listed Patent No. 7,101,574 (“the ’574 patent”). <em>Id.</em> Paddock then provided notice of its Paragraph IV certification to Ethypharm, which did not sue for patent infringement within the statutory 45-day period and obtain a 30-month stay of FDA approval of Paddock’s ANDA. <em>Id.</em> Following expiration of the 45-day period, Paddock filed a declaratory judgment action against Ethypharm seeking a ruling that Paddock’s proposed generic product did not infringe the ’574 patent. <em>Id.</em> Ethypharm moved to dismiss. <em>Id.</em> at 1. </p><br><a href=http://www.paulhastings.com/assets/publications/1815.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1815PublicationMon, 31 Jan 2011 00:00:00 ZOn December 20, 2010, the Securities and Exchange Commission (“SEC” or the “Commission”) announced that it entered into a non-prosecution agreement with children’s clothing marketer Carter’s, Inc. (“Carter’s”) related to allegations that a former Carter’s executive engaged in financial fraud and insider trading. The Carter’s non-prosecution agreement is the first of its kind since the SEC announced the creation of new “cooperation tools” last January designed to encourage individuals and companies to provide greater assistance in SEC investigations and enforcement actions. The SEC’s decision to enter into the Carter’s non-prosecution agreement potentially signifies a new trend in rewarding companies for prompt, voluntary, and thorough cooperation with the Commission – an option that has long been at the disposal of federal prosecutors, but, until recently, has not been exercised by the SEC’s Division of Enforcement.<br><a href=http://www.paulhastings.com/assets/publications/1811.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1811PublicationFri, 28 Jan 2011 00:00:00 ZOn January 11, 2011, Governor Jerry Brown released his proposed budget (the “Proposed Budget”) for the State of California (the “State”) for 2011. One particularly significant cut included in the Proposed Budget is the elimination of redevelopment agencies (“RDAs”). RDAs are state agencies that are intended to stimulate development in blighted areas by financing the development with revenue created from increased property tax revenues generated by the increase in property values following the redevelopment of a site (i.e., tax increment financing). The Proposed Budget would eliminate all RDAs throughout the State and, after paying off existing RDA debts, would redirect all property tax revenue funds that RDAs would otherwise have received to cities, counties, schools and special districts to be used for public services.<br><a href=http://www.paulhastings.com/assets/publications/1812.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1812PublicationFri, 28 Jan 2011 00:00:00 Z香港交易及结算所有限公司全资附属公司香港联合交易所有限公司（“联交所”）于2011 年1 月21 日就建议修订上市发行人合资格地产收购及成立合营公司的规定刊发咨询总结。这些修订进一步增加了上市地产公司增加土地储备的灵活性，及毋须在计划合组房地产合资寻求股东的批准，修订会于2011 年2 月1 日生效。<br><a href=http://www.paulhastings.com/assets/publications/1810.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1810PublicationThu, 27 Jan 2011 00:00:00 ZThe Federal Communications Commission (the “FCC” or “Commission”) recently released an Order in a notice and comment rulemaking proceeding imposing regulatory requirements on both fixed and wireless communications service providers who provide broadband access to the Internet. Preserving the Open Internet; Broadband Industry Practices, Report and Order, GN Docket No. 09-191, WC Docket No. 07-52, FCC 10-201 (rel. Dec. 23, 2010). The regulations, which are commonly referred to as the “Net Neutrality” or “Open Internet” rules, were adopted in a politically charged atmosphere on a 3 to 2 vote along party lines, and are certain to generate ongoing debate, legal challenges and, perhaps, Congressional attention. In the meantime, communications service providers, as well as providers of “edge” services (content, application, service and equipment providers and manufacturers) and investors in telecommunications networks and technologies need to factor the Net Neutrality regulations into their business plans. <br><a href=http://www.paulhastings.com/assets/publications/1807.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1807PublicationThu, 27 Jan 2011 00:00:00 ZAfter a brief three-month grace period, U.S. Citizenship and Immigration Services (USCIS) will soon begin requiring that petitioners certify compliance with U.S. export control regulations on Form I-129, Petition for a Nonimmigrant Worker. The certification will apply to four classes of I-129 petitions: (1) H-1B; (2) H-1B1 Free Trade petitions for specialty occupation workers who are nationals of Singapore or Chile; (3) L-1; and (4) O-1A. The change applies to all petitions postmarked on or after February 20, 2011. <br><a href=http://www.paulhastings.com/assets/publications/1808.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1808PublicationThu, 27 Jan 2011 00:00:00 Z<p>The almost moribund European CMBS market has seen little issuance since 2007. As of the date of this article, only three issues have come out of Europe bringing the total CMBS issuance for 2010 to less than &#8364;3 billion. That’s a far cry away from the &#8364;100 billion plus figures that was seen at the height of the market.</p> <p>This low volume of issuance appears to be a bit of a paradox within commercial real estate finance. For one, banks are not originating at anywhere near the levels they had done in heydays of the CMBS market; by all accounts, many of the banks have simply shut their doors to real estate finance. However, at the same time, pension funds, insurance companies and other fixed income investors continue to look for suitable fixed income products to meet their liability driven investment requirements. There have been numerous conferences with pension fund and insurance investors on panels saying that they want to see issuance of new real estate bonds. We’ve seen this sort of thing before in the U.S. markets back at the end of the savings and loan crisis. At that point, CMBS came in and saved the day by opening up the larger capital markets to real estate investment at a time when banks were no longer in the real estate lending business. However, this time things are different; part of the problem is that the investor market is much more cautious now, given that some CMBS structures have not performed as well as others. </p><br><a href=http://www.paulhastings.com/assets/publications/1806.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1806PublicationWed, 26 Jan 2011 00:00:00 Z<p>The Signed into law July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act” or the “Act”) required implementation of almost all of its provisions through regulations to be promulgated by various agencies over the ensuing 18 months. As the agencies work through the administrative process to craft these implementing regulations, the affected providers of financial services and their customers are seeing the anticipated impacts become more concrete, while through this process they are afforded an opportunity to participate in shaping the regulatory environment that will affect them immediately and well into the future. Stakeholders’ participation, by submitting comments directly to the Board of Governors of the Federal Reserve System (the “Board”) or by working with trade groups to do so, provides an important means for achieving legislative and regulatory objectives without undue disruption of markets and services. </p> <p>The so-called Durbin Amendment, entitled “Reasonable Fees and Rules for Payment Card Transaction,” added Section 1075 to the Act. It requires the Board to prescribe standards for “reasonable” interchange fees payable to certain debit card issuers in connection with debit card purchases and to limit certain payment network rules and practices that restrict merchants’ ability to prescribe the processing routing of debit transactions to the issuer for settlement. The Board has responded by publishing a detailed proposed rule with accompanying explanation. The bottom line is that for covered transactions, the proposed maximum interchange fee initially will be 12 cents. This article outlines the Notice of Proposed Rulemaking issued by the Board on December 16, 2010 (the “Proposed Rule”). The regulation would establish a new Federal Reserve Regulation II (“Reg II”). </p> <p>The Act sets a deadline of nine months from the date of enactment for adoption of final regulations implementing the “reasonable fee” and fraud control adjustments. This deadline expires on April 21, 2011. However, the fee regulation provisions of EFTA Section 920 take effect on July 21, 2011. The Board is proposing effective dates for rules implementing the prohibition of routing restrictions to take effect either October 1, 2011 or January 1, 2013, depending on which of the proposed alternative proposals for network rules is adopted. Comments on the Proposed Rule must be submitted to the Board by February 22, 2011. </p><br><a href=http://www.paulhastings.com/assets/publications/1803.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1803PublicationTue, 25 Jan 2011 00:00:00 ZThe annual revised jurisdictional and filing fee thresholds under the Hart‐Scott‐Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), have been announced by the Federal Trade Commission (the “FTC”). Due to an increase in gross national product over the past government fiscal year, the new thresholds have also increased. The increased thresholds will become effective on February 24, 2011, and will apply to all covered transactions that close on or after that date.<br><a href=http://www.paulhastings.com/assets/publications/1804.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1804PublicationTue, 25 Jan 2011 00:00:00 Z<p>Edited by Paul Hastings' Employment Law Department partner Erika Collins and covering 37 of the most significant international jurisdictions and economies, <i>The Employment Law Review</i> is intended to assist practitioners and human resources professionals to identify the issues and determine what strategic planning may be necessary as they encounter increased pressure to adopt global policies and practices.</p> <p>In the following chapter, Paul Hastings' Christopher Walter and Helena Laughrin discusses the unique employment issues in the United Kingdom.</p><br><a href=http://www.paulhastings.com/assets/publications/1801.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1801PublicationMon, 24 Jan 2011 00:00:00 Z<p></p>In <em>Ashcroft v. Iqbal</em>, the Supreme Court clarified that plaintiffs must plead a "plausible" claim to survive a motion to dismiss under Federal Rule of Civil Procedure 8. But how does the <em>Iqbal </em>Rule 8 "plausibility" standard impact securities cases that also are subject to other pleading standards under Rule 9 and the Private Securities Litigation Reform Act (SPLRA)? Although <em>Iqbal </em>may be a latecomer to the securities pleading standards, it nonetheless is the governing pleading standard for key elements of securities claims. <p></p><br><a href=http://www.paulhastings.com/assets/publications/1796.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1796PublicationMon, 24 Jan 2011 00:00:00 Z<p>Edited by Paul Hastings' Employment Law Department partner Erika Collins and covering 37 of the most significant international jurisdictions and economies, <i>The Employment Law Review</i> is intended to assist practitioners and human resources professionals to identify the issues and determine what strategic planning may be necessary as they encounter increased pressure to adopt global policies and practices.</p> <p>In the following chapter, Paul Hastings' <a href="http://www.paulhastings.com/professionalDetail.aspx?ProfessionalId=100862">K. Lesli Ligorner</a> discusses the unique employment issues in China.</p><br><a href=http://www.paulhastings.com/assets/publications/1797.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1797PublicationMon, 24 Jan 2011 00:00:00 ZOn 21 January 2011, The Stock Exchange of Hong Kong Limited (the “Exchange”), a wholly-owned subsidiary of Hong Kong Exchanges and Clearing Limited, published Consultation Conclusions on proposed changes to the rules relating to listed issuers’ property acquisitions and formation of joint ventures. The changes, which will come into effect on 1 February 2011, further expand the flexibility given to listed property developers to increase their land banks and enter into joint ventures to develop properties without the need to seek shareholder approval.<br><a href=http://www.paulhastings.com/assets/publications/1809.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1809PublicationFri, 21 Jan 2011 00:00:00 ZOn 19 January 2011, the new Electronic Money Regulations (SI 2011/99) (the “Regulations”) were laid before Parliament to implement a new authorisation and prudential supervisory regime in the UK under the Second Electronic Money Directive (Directive 2009/110/EC) (“2EMD”) for certain persons issuing electronic money (other than banks and building societies).<br><a href=http://www.paulhastings.com/assets/publications/1795.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1795PublicationFri, 21 Jan 2011 00:00:00 ZThe Los Angeles Department of City Planning recently announced a major reorganization to better align the department’s resources for processing development applications and performing long-range community planning. Developed in response to significant budget cuts in the City of Los Angeles, the plan, entitled “Blueprint 2010-11, Doing More With Less,” seeks to create a more efficient planning process and improve service to developers and the public. As part of the implementation of Blueprint 2010-11, the Planning Department recently released its new organization chart. <br><a href=http://www.paulhastings.com/assets/publications/1794.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1794PublicationWed, 19 Jan 2011 00:00:00 ZThe fourth quarter of 2010 concluded a record year in FCPA cases and clearly demonstrated the U.S. Enforcement Agencies’ emphasis on conducting industry-wide sweeps with respect to the Foreign Corrupt Practices Act (“FCPA”). Notably, the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) settled long-running and wide-ranging investigations of companies in the oil and gas sector involving improper payments made both directly and indirectly through freight forwarders. These investigations led the DOJ and SEC to set new records in FCPA enforcement for the largest number of corporations settling FCPA actions with the Agencies at one time and for some of the largest fines imposed in an FCPA action. <br><a href=http://www.paulhastings.com/assets/publications/1793.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1793PublicationTue, 18 Jan 2011 00:00:00 ZOn January 4, 2011, the Federal Circuit affirmed a district court’s grant of a new damages trial for Microsoft in a patent infringement action, finding that the 25% rule of thumb to calculate damages was “a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation.” <em>Uniloc USA, Inc. v. Microsoft Corp., Nos</em>. 2010-1035, 2010-1055 (Fed. Cir. Jan. 4, 2011). In addition, the Federal Circuit found that the plaintiff's use of the entire market value rule to “check” its damages calculation was unwarranted, rejecting the proposition that the entire market value can be used as long as the royalty percentage is “low enough.” This decision has significant implications for patent infringement damages, marking the end of the debate over the blanket applicability of the 25% rule in reasonable royalty analyses and confirming that patentees must demonstrate that the patented feature forms the “basis for customer demand” or “substantially creates the value of the component parts” of a product in order to obtain damages based on the entire market value of the accused products.<br><a href=http://www.paulhastings.com/assets/publications/1792.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1792PublicationThu, 06 Jan 2011 00:00:00 Z<img src="http://www.paulhastings.com/assets/images/banner_top_quarterly.jpg"> <h3><em><br>Antitrust and Competition </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1778" target=_blank>New Rules Applicable to Distribution Agreements: A New Competition/Antitrust Challenge for Suppliers in the EU?</a> </li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1772" target=_blank>What Price Cooperation? The Ever Increasing Cost of Global Antitrust Cases </a></li></ul> <h3><em><br>Banking and Financial Institutions </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1744" target=_blank>Further Developments in the Operation of the ECB Repo Facility </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1737" target=_blank>UK Securities Law Update - Q3, 2010 </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1828" target=_blank>Game Changer: Second Circuit Finds “Gifting” By Secured Creditor to Old Equity Pursuant to Chapter 11 Plan Violates Absolute Priority Rule </a></li></ul> <h3><em><br>China Matters </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1734" target=_blank>China Matters: Technology Companies Operating in Asia Remain a Focus for FCPA Enforcement </a></a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1759" target=_blank>China Matters: What's Next for Foundations in China? </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1770" target=_blank>China Matters: New Rules Reiterate Existing Restrictions on the Acquisition of Real Estate in China </a></li></ul> <h3><em><br>Employment Law </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1730" target=_blank>A Lunch Break from the Meal Period Law: Certain California Workers Now Exempted </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1745" target=_blank>Adrift in a Sea of Disclosure: New DOL Rules Require Disclosure of Plan Fees to Participants </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1751" target=_blank>DOL Proposes New ERISA Rule to Expand the Definition of "Fiduciary" </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1781" target=_blank>New DOL Proposed Regulations Require Additional Disclosures for QDIAs and Target Date Retirement Funds</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1776" target=_blank>The EEOC Has Issued Final Regulations Implementing GINA</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1747" target=_blank>The SEC Issues Proposed Rules on Dodd-Frank’s Executive Compensation Shareholder Approval Rules</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1761" target=_blank>Health Care Reform Requires Action in 2010: Action Items Employers Must Implement Before Year-End</a></li></ul> <h3><em><br>Healthcare </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1731" target=_blank>CMS' New Self-Referral Disclosure Protocol </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1735" target=_blank>Healthcare Industry Reps Provide Input to Federal Regulators on How Best to Accommodate ACOs</a></li></ul> <h3><em><br>International Dispute Resolution </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1750" target=_blank>A Comparison of the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1784" target=_blank>Comments on the Whistleblower Program of the Dodd-Frank Act</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1729" target=_blank>Quarterly FCPA Report: Third Quarter 2010 </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1688" target=_blank>Dodd-Frank Act Provides Rewards for Whistleblowers Who Report FCPA Violations</a> </li></ul> <h3><em><br>International Arbitration</em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1723" target=_blank>The European Union Adopts Restrictive Measures Against Iran </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1736" target=_blank>Second Circuit Holds Corporations Not Liable Under Alien Tort Statute </a></li></ul> <h3><em><br>Investment Management </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1774" target=_blank>SEC Proposes Rules to Implement Dodd-Frank Act Regulation of Private Investment Funds and their Managers </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1752" target=_blank>Hedge Fund Report - Summary of Key Developments - Fall 2010 </a> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1769" target=_blank>EU Alternative Investment Fund Managers Directive - Implications for non-EU based Alternative Investment Fund Managers </a></li></li></ul> <h3><em><br>Intellectual Property </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1783" target=_blank>District of Delaware Allows Generic Drug Manufacturers to "Carve Out" Two AstraZeneca Patents Claiming FDA-Approved Uses of Crestor </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1726" target=_blank>FDA Revokes Final ANDA Approval, Determining That a Preliminary Injunction Extends the 30 Month Stay </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1786" target=_blank>Federal Circuit's Prometheus Decision Reaffirms Patentability of Methods of Treatment </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1790" target=_blank>Federal Circuit Vacates Injunction Against Generic Drug Manufacturer, Determining That A Settlement Agreement Term Is Ambiguous</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1757" target=_blank>Today’s En Banc Oral Argument in Therasense: The Federal Circuit Wrestles With How Much To Reform Inequitable Conduct</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1791" target=_blank>Crucial Biotech Patentability Question in Myriad Case</a></li></li></ul> <h3><em><br>Mergers and Acquisitions </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1743" target=_blank>Delaware Supreme Court Affirms NOL Poison Pill Under Unocal </a></li></ul><br> <h3><em>Real Estate </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1749" target=_blank>The California Air Resources Board Sets Ambitious Greenhouse Gas Emissions Reduction Targets Under SB 375 </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1746" target=_blank>New Law Strengthens Cal/OSHA's Enforcement Authority </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?publicationId=1753" target=_blank>California Enacts Landmark Energy Storage Law </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1732" target=_blank>California’s Latest Attempt to Streamline the California Environmental Quality Act</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1780" target=_blank>Passage of Proposition 26 Alters Future of Regulatory Fees in California</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1777" target=_blank>City Brownfields Program Aims To Accelerate Site Cleanup</a></li></ul> <h3><em><br>Securities and Capital Markets </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1725" target=_blank>The SEC Adopts Final Proxy Access Rules</a></li></ul><br> <h3><em>Securities Litigation and Enforcement </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1775" target=_blank>FASB Postpones Changes to Loss Contingency Disclosure Requirements Amid Widespread Criticism </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1768" target=_blank>Delaware Court Holds That Creditors Lack Standing to Pursue Derivative Claims On Behalf of Insolvent LLCs</a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1773" target=_blank>SEC Continues to Prosecute Regulation Fair Disclosure Violations </a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=1771" target=_blank>Pleading and Proving Loss Causation: Litigating Securities Fraud in a Post-Dura World</a></li></ul> <h3><em><br>Tax </em></h3> <ul class=inpageList> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1788" target=_blank>New Two-Year Gift, Estate And GST Tax Law Enacted </a></li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1785" target=_blank>Congress Passes Tax Legislation Affecting Regulated Investment Companies</a> </li> <li><a href="http://www.paulhastings.com/publicationDetail.aspx?PublicationId=1740" target=_blank>New Law Creates Zero Percent Effective Tax Rate for Certain Qualified Small Business Stock </a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=1787" target=_blank>Certain Gulf Opportunity Zone Tax Incentives Extended through 2011</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=1782" target=_blank>Renewable Energy Cash Grant in Lieu of Tax Credit Program Extended through 2011</a></li> <li><a href="http://www.paulhastings.com/PublicationDetail.aspx?PublicationId=1789" target=_blank>Certain Exceptions to Subpart F Income Are Extended for Two Additional Years Under The Tax Relief Act of 2010 </a></li></ul>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1829PublicationSat, 01 Jan 2011 00:00:00 ZOn December 17, 2010, President Barack Obama signed into law H.R. 4853, the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “Act”), extending the Bush tax cuts for all income levels for two years. In addition, the Act extends important exceptions to the Subpart F anti-deferral regime that had expired in 2009 and that are the subject of this client alert.<br><a href=http://www.paulhastings.com/assets/publications/1789.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1789PublicationWed, 29 Dec 2010 00:00:00 ZOn December 22, 2010, the Federal Circuit vacated an injunction preventing Sun Pharmaceutical Industries, Ltd. and Caraco Pharmaceutical Laboratories, Ltd. (collectively “Sun”) from manufacturing and selling a generic oxaliplatin product. Sanofi-Aventis v. Sandoz, Inc., No. 2010-1338 (Fed. Cir. Dec. 22, 2010). The district court’s injunction was based on the entry of a contested “consent judgment” resulting from a settlement agreement between Sanofi-Aventis, Sanofi-Aventis U.S. LLC, and Debiopharm S.A. (collectively “Sanofi”) and Sun. In vacating the injunction, the Federal Circuit ruled that the term “decision(s) enjoining” in the settlement agreement was objectively ambiguous, and that the district court erred in entering a contested “consent judgment” without first determining the parties’ obligations under the terms of the settlement agreement after a full and fair hearing. <br><a href=http://www.paulhastings.com/assets/publications/1790.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1790PublicationWed, 29 Dec 2010 00:00:00 Z<p>On December 17, 2010, President Obama signed into law a two-year tax compromise for gift, estate and GST taxes. This unprecedented two-year window provides a significant opportunity for wealth transfer at a reduced tax cost. Clients should consider taking advantage of the new gift, estate and GST tax laws in 2011 and 2012 as there is no certainty that such laws will be extended beyond their current expiration date of December 31, 2012. </p> <p>This Paul Hastings Client Alert focuses on the changes to the gift, estate and GST tax law under the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “2010 Tax Relief Act”) signed into law by President Obama on December 17, 2010.</p> <p>Although most actions can or should be deferred to 2011 or 2012, certain actions may require completion by December 31, 2010. </p><br><a href=http://www.paulhastings.com/assets/publications/1788.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1788PublicationThu, 23 Dec 2010 00:00:00 ZThe recently enacted Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “Act”), extends a number of tax incentives that were enacted in the Gulf Opportunity Zone Act of 2005 (the “GO Zone Act”). Generally, the GO Zone Act sought to provide tax relief to spur the recovery of Louisiana, Mississippi and Alabama after Hurricane Katrina. The Act extends the following GO Zone Act provisions through 2011: Increased Rehabilitation Tax Credits, Increased State Low-Income Housing Tax-Credit Ceiling, GO Zone Bonds, and Bonus Depreciation. <br><a href=http://www.paulhastings.com/assets/publications/1787.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1787PublicationWed, 22 Dec 2010 00:00:00 Z<p>On December 17, 2010, The U.S. Court of Appeals for the Federal Circuit decided <em>Prometheus Laboratories, Inc. v. Mayo Collaborative Services, et al., </em>on remand from the Supreme Court. See No. 2008-1403 (Fed. Cir. Dec. 17, 2010). Read the decision here. </p> <p>The Federal Circuit held that Prometheus's patents claiming methods for determining the optimal dosages of thiopurine drugs to treat certain diseases were directed to statutory subject matter pursuant to 35 U.S.C. &#167; 101. The Court reversed and remanded the district court's grant of summary judgment of invalidity under &#167; 101. </p> <p>The Court's decision followed Supreme Court precedent in interpreting &#167; 101 as broadly encompassing "any new and useful process, machine, manufacture or composition of matter." See 35 U.S.C. &#167; 101. The Court reaffirmed the propriety of the "machine-or-transformation" test as one means by which to determine statutory subject matter under &#167; 101 in light of <em>Bilski v. Kappos</em>, 130 S. Ct. 3218 (2010). Notably, the Court held that Prometheus's asserted claims "are in effect claims to methods of treatment, which are always transformative when one of a defined group of drugs is administered to the body to ameliorate the effects of an undesired condition." <em>See Prometheus</em>, slip op. at 17. </p><br><a href=http://www.paulhastings.com/assets/publications/1786.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1786PublicationTue, 21 Dec 2010 00:00:00 ZOn December 15, 2010, the United States District Court for the District of Delaware granted a motion to dismiss nine related patent infringement actions intended to block Defendant generic drug manufacturers from marketing the cholesterol-lowering drug rosuvastatin calcium, marketed as Crestor&#174;. <em>AstraZeneca Pharmaceuticals LP, et al. v. Apotex Corp., et al</em>., Nos. 10-338, 10-339, 10-340, 10-341, 10-342, 10-343, 10-344, 10-345, 10-346, 10-584, slip. op. (D. Del. Dec. 15, 2010). In a consolidated opinion and order, Judge Robert B. Kugler held that AstraZeneca Pharmaceuticals LP and related Plaintiffs did not have standing to bring infringement claims under 35 U.S.C. &#167; 271(e)(2) based on two patents claiming FDA-approved methods of using rosuvastatin calcium. Based on Defendants’ abbreviated new drug applications (“ANDAs”) that overlapped with some but not all of Plaintiffs’ Orange Book-listed patents, the Court held that there was no case or controversy because Defendants sought to manufacture and market the drug for FDA-approved indications that are not covered by any claim of Plaintiffs’ asserted patents. <br><a href=http://www.paulhastings.com/assets/publications/1783.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1783PublicationMon, 20 Dec 2010 00:00:00 Z<p>The comment period prior to issuance of rules related to the Whistleblower Incentives and Protection Program (“Whistleblower Program”) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) ended on December 17, 2010. Over 250 companies and dozens of law firms, including Paul Hastings, submitted comments to the SEC concerning the proposed rules for the Whistleblower Program. Paul Hastings advocated for changes designed to strengthen internal reporting mechanisms, further corporate cooperation with the SEC, avoid undermining the benefits of internal investigations and the application of evidentiary privileges, and better align the new rules with existing federal employment statutes regarding whistleblower protections and obligations. </p> <p>In anticipation of the implementation of the Whistleblower Program, companies must strengthen internal compliance programs to promote a culture of compliance from the top down, to make their reporting procedures more accessible to employees of good faith who want to use them, to protect privileged communications from misuse by putative whistleblowers, and to ensure credible reports or suspicions of misconduct are timely investigated and if substantiated, are remediated promptly. The timely documentation of employee performance problems is especially critical. The proposed regulations make clear that whistleblower status is conferred to a whistleblower even for a report of a “potential” violation, and the regulations leave questions unanswered about whether a whistleblower who personally engages in culpable conduct, but is not convicted of a crime, still holds protected status as a whistleblower, potentially rendering disciplinary action against the employee difficult. </p> <p>We will continue to monitor and report developments in this area and remain available to assist you in modifying your compliance programs. </p><br><a href=http://www.paulhastings.com/assets/publications/1784.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1784PublicationMon, 20 Dec 2010 00:00:00 Z<p>The Regulated Investment Company Modernization Act of 2010 (the “Act”) was passed by Congress on December 15, 2010 and sent to President Obama for signature. The provisions of the Act are summarized below. The Act will provide significant relief and flexibility for registered investment companies that intend to qualify for the beneficial tax treatment granted to regulated investment companies (“RICs”) under Subchapter M of the Internal Revenue Code of 1986, as amended, as well as for their advisors and administrators. In anticipation of the implementation of the Act, RICs should review the new rules and consider whether strategic or practical changes may be in order, particularly with respect to: </p> <ul class=inpageList> <li>Dividend reinvestment plan discounts and fee and expense allocation arrangements (in light of the repeal of the “preferential dividend” prohibition); </li> <li>Capital loss planning (including the potential to increase tax-free returns of capital to shareholders by maximizing capital loss utilization);</li> <li>Pass-through of tax-exempt interest income and foreign tax credits in a RIC “fund of funds” structure; and </li> <li>Simplified reporting requirements for distributions to shareholders.</li></ul><br><a href=http://www.paulhastings.com/assets/publications/1785.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1785PublicationMon, 20 Dec 2010 00:00:00 ZOn December 17, 2010, President Obama, as part of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, signed into law a one-year extension of the popular renewable energy cash grant in lieu of tax credit program established by Section 1603 of the American Recovery and Reinvestment Tax Act of 2009. To qualify for a cash grant under the extended program, a taxpayer must place “specified energy property” in service in 2009, 2010, or 2011, or after 2011 if construction begins in 2009, 2010, or 2011 provided such property is placed in service by the end of 2012 (for wind projects), 2013 (for closed- and open-loop biomass, geothermal, landfill gas, municipal solid waste, qualified hydropower, and marine and hydrokinetic facilities), or 2016 (for solar projects).<br><a href=http://www.paulhastings.com/assets/publications/1782.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1782PublicationFri, 17 Dec 2010 00:00:00 Z<p>Two weeks ago, the Department of Labor (“DOL”) issued proposed regulations that, if finalized, would require plan fiduciaries of defined contribution plans with participant-directed investments to provide additional disclosures to an estimated 43.6 million participants regarding target date retirement or similar funds that are designated investment alternatives. The regulations also would expand the type of information that must be furnished to participants for qualified default investment alternatives (“QDIAs”), particularly QDIAs that are target date funds.</p> <p>Part I of this Client Alert provides historical background regarding target date retirement funds and why the DOL believes additional rulemaking in this area is necessary, part II provides an overview of the proposed regulation’s requirements and compares them to similar proposed regulations issued by the Securities and Exchange Commission (“SEC”), and part III recommends actions plan fiduciaries should take now in light of the proposed regulations. </p><br><a href=http://www.paulhastings.com/assets/publications/1781.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1781PublicationThu, 16 Dec 2010 00:00:00 ZOn November 2, 2010, California voters approved Proposition 26, an initiative that broadens the definition of “taxes” to include many regulatory fees currently imposed by the State of California and its municipalities. This change will make enactment of regulatory fees more difficult by requiring a supermajority vote of the State Legislature or, in the case of local fees, direct voter approval. The regulatory fees affected by Proposition 26 fund many of California’s environmental and other regulatory programs, and they include fees imposed in 2010.<br><a href=http://www.paulhastings.com/assets/publications/1780.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1780PublicationWed, 15 Dec 2010 00:00:00 Z<p>Gerald Flattmann, a partner in the intellectual property practice group, talks with Bloomberg Law's Lee Pacchia about the Myriad Genetics case and recent patent law developments that may signal a shift in the way courts view patents on human genes. </p> <p><a href="http://www.bloomberg.com/news/2010-12-15/flattmann-sees-crucial-biotech-patentability-question-correct-.html" target=anotherwindows>Click here to listen to the podcast on the Bloomberg Law website.</a></p>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1791PublicationTue, 14 Dec 2010 00:00:00 Z<p>Earlier this year, the new EU Vertical Block Exemption Regulation and the accompanying new Vertical Restraints Guidelines entered into force. Their scope of application covers all agreements between economic operators at different economic levels: these are so-called “vertical” agreements entered into between a supplier and a distributor which have an economic effect within the European Union (suppliers from outside of the EU who export goods to distributors within the EU fall within the scope of the New Block Exemption Regulation). </p> <p>The new rules have generated considerable discussion with regard to their application. Although the principles of the New Block Exemption Regulation are simple and straightforward (ten articles), the New Guidelines are quite detailed and often involve complex legal and economic reasoning (46 pages, in the version published in the Official Journal of the European Union). The New Guidelines explain how the New Block Exemption Regulation will be applied by the European Commission (Directorate-General for Competition, “DG COMP”) in a myriad of practical situations. </p><br><a href=http://www.paulhastings.com/assets/publications/1778.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1778PublicationFri, 03 Dec 2010 00:00:00 ZThe Financial Accounting Standards Board (“FASB”) has proposed significant amendments to Accounting Standards Codification Topic 450 (“ASC 450”), previously known as Statement of Financial Accounting Standards No. 5, which governs the disclosure of certain loss contingencies. According to FASB, the purpose of these revised standards is to enable financial statement users to understand the nature of loss contingencies, their potential magnitude, and their potential timing (if known). The proposed changes, which were published for comment on July 20, 2010 in an Exposure Draft (“Exposure Draft”), however, would significantly change the current loss contingency disclosure obligations of public and private companies by lowering the disclosure threshold and requiring the disclosure of additional qualitative and quantitative information. While these revised standards still seem to be under consideration, FASB recently postponed their implementation indefinitely amid widespread criticism.<br><a href=http://www.paulhastings.com/assets/publications/1775.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1775PublicationMon, 29 Nov 2010 00:00:00 Z<p>The Genetic Information Nondiscrimination Act of 2008 (“GINA”) was signed into law on May 21, 2008, and it is codified at 42 U.S.C. &#167;&#167; 2000ff et seq. Title II of GINA contains its employment-related provisions, which prohibit using genetic information in the employment context, restrict employers and other covered entities from requesting, requiring, or purchasing genetic information, and strictly limit the disclosure of such information. </p> <p>Under GINA’s Title II, the Equal Employment Opportunity Commission (“EEOC”) was required to issue regulations implementing the law. On March 2, 2009, the EEOC published proposed regulations, on which it received public comment over a two-month period. On November 9, 2010, the EEOC issued its final regulations, which incorporate and respond to the comments and which will become effective on January 10, 2011. These long-awaited final regulations address areas of uncertainty that have troubled employers since the enactment of GINA, although they still leave some practical questions unanswered. </p><br><a href=http://www.paulhastings.com/assets/publications/1776.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1776PublicationMon, 29 Nov 2010 00:00:00 ZThe Securities and Exchange Commission recently settled enforcement actions against Office Depot, Inc. and two of its former top executives for violating or causing violations of Regulation Fair Disclosure (“Regulation FD”). According to the SEC, Office Depot, and its then CEO and CFO, selectively signaled to analysts and institutional investors that the company would not meet analysts’ earnings estimates for the second quarter of 2007. These selective disclosures began nearly one week before the company publicly disclosed negative sales and earnings information and were accomplished through a “wink and nod” type of approach, rather than direct statements about the company itself. Indeed, according to the SEC’s allegations, Office Depot did not directly state that it would not meet analysts’ estimates, but rather made references to recent public statements of comparable companies regarding the impact of the slowing economy on their earnings, and reminded analysts about its own cautionary public statements earlier in the year. These calls, which were allegedly designed to encourage analysts to revise their estimates downward, had their desired effect – analysts promptly lowered their quarterly estimates.<br><a href=http://www.paulhastings.com/assets/publications/1773.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1773PublicationTue, 23 Nov 2010 00:00:00 ZOn November 19, 2010, the Securities and Exchange Commission (the “SEC”) proposed a series of new rules and other regulatory changes (the “Proposed Rules”) designed to implement a number of significant changes applicable to private investment funds and their managers imposed by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). <br><br>This Alert summarizes the aspects of the Proposed Rules that are most significant to private investment funds and their managers. <br><a href=http://www.paulhastings.com/assets/publications/1774.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1774PublicationTue, 23 Nov 2010 00:00:00 Z<p>Following a period of extensive negotiation between European legislators and lobbyists from the alternative investment fund industry, the Alternative Investment Fund Managers Directive (the “Directive”) was finally approved by the European Parliament on 11 November 2010. The Directive encompasses a harmonized regime for the authorisation of all alternative investment fund mangers established within the EU (“EU AIFM”) together with the imposition of certain operational and transparency requirements on such managers. The Directive also has important implications for managers of alternative investment funds that are based outside of the EU (“non-EU AIFM”) and intend to market their alternative investment funds (“AIFs”) to EU investors or manage EU AIFs.</p> <p>The Directive has been subject to a high degree of politicised debate not least in relation to the constraints that were originally placed on the ability of non-EU AIFMs to market their funds to European investors in earlier drafts of the Directive. It is with this in mind that this alert focuses on the scope and the extent of the Directive’s effect on non-EU AIFMs who will look to market their fund products to European investors. While the focus of this alert relates to the marketing issues for non-EU AIFMs, this alert will also briefly summarize the future legislative process of the Directive and make reference to some of the broader implications of the Directive on EU AIFMs (which may become relevant to non-EU AIFMs in the future). </p><br><a href=http://www.paulhastings.com/assets/publications/1769.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1769PublicationWed, 17 Nov 2010 00:00:00 ZOn November 4, 2010, the Ministry of Housing and Urban-Rural Development (<strong>MOHURD</strong>) and the State Administration of Foreign Exchange (<strong>SAFE</strong>) jointly issued Circular 186, which reiterates several existing restrictions applicable to the acquisition of real estate by foreign investors. In addition, Circular 186 strengthens the implementation of certain of these restrictions.<br><a href=http://www.paulhastings.com/assets/publications/1770.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1770PublicationWed, 17 Nov 2010 00:00:00 ZOn November 3, 2010, in <em>CML V, LLC v. Bax, et al.,</em> (C.A. No. 5373-VCL), 2010 Del. Ch. LEXIS 220 ("<em>CML</em>"), Vice Chancellor Laster of the Court of Chancery of the State of Delaware held that unlike in the corporate context, where creditors may pursue derivative claims on behalf of insolvent corporations, creditors lack standing to pursue derivative claims on behalf of Delaware limited liability companies ("LLCs"), even in insolvency.<br><a href=http://www.paulhastings.com/assets/publications/1768.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1768PublicationMon, 15 Nov 2010 00:00:00 Z<p>Lack of transparency and the wait for new regulations have some companies looking for other options to broaden their social impact in China.</p> <p><strong>Quick Glance </strong></p> <ul class=inpageList> <li>Though the need for foundations is great in China, PRC regulations on charitable giving are underdeveloped, making it difficult for foreign foundations to give away money.</li> <li>Until new regulations are issued, foreign companies and foundations can apply to set up a foundation in China after finding PRC sponsors and jumping through hoops.</li> <li>Many foreign companies resort to establishing a special fund to operate under the auspices of an existing PRC foundation. </li></ul><br><a href=http://www.paulhastings.com/assets/publications/1759.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1759PublicationWed, 10 Nov 2010 00:00:00 ZToday, the Federal Circuit sitting en banc heard oral argument in <i>Therasense, Inc. v. Becton, Dickinson &amp; Co.</i> The appeal focuses on the legal standards for proving the defense of inequitable conduct, and particularly the tests for proving materiality and intent and to what extent intent may be found based on materiality. The oral argument presented an opportunity not only for the Court to hear from the lawyers, but also and perhaps more importantly for the individual judges to debate one another about their respective views through their questions to the lawyers.<br><a href=http://www.paulhastings.com/assets/publications/1757.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1757PublicationTue, 09 Nov 2010 00:00:00 ZCalifornia Governor Schwarzenegger recently signed landmark legislation designed to increase the use of large-scale energy storage systems. Under the bill, AB 2514, utilities will have targets to procure grid-connected energy storage systems as soon as 2015. The bill is one of the nation’s first laws on energy storage systems and is expected to benefit producers of intermittent energy sources such as solar and wind power. <br><a href=http://www.paulhastings.com/assets/publications/1753.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1753PublicationTue, 02 Nov 2010 00:00:00 Z<p>On October 21, 2010, the Department of Labor (the “DOL”) issued a new proposed regulation (the “Proposed Rule”) that would expand the categories of persons who would be deemed to be fiduciaries subject to the Employee Retirement Income Security Act of 1974 (“ERISA”). The Proposed Rule would re-write and expand the scope of the current 35-year old regulation (the “Current Rule”) that delineates when a person becomes a fiduciary by reason of providing “investment advice” for a fee or other compensation with respect to plan assets. </p> <p>In issuing the Proposed Rule, the DOL noted that the retirement plan industry has changed significantly in the 35-year period since the Current Rule was adopted, the most significant trend being the growth of participant-directed defined contribution plans, along with the expectations of plan officials and participants and beneficiaries to receive investment advice that is free from conflicts of interest. The broadened definition is also intended to improve DOL’s ability to enforce ERISA violations against investment advisers by reducing the amount of time and resources required to establish that an investment adviser is a fiduciary under the Current Rule. </p><br><a href=http://www.paulhastings.com/assets/publications/1751.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1751PublicationFri, 29 Oct 2010 00:00:00 Z<p>In response to nearly unprecedented disturbances and failures in the global capital markets in late 2008 and 2009, the Obama Administration, lawmakers and regulators proposed a variety of significant legal and regulatory reforms that would have the potential to change the nature of financial services regulation in the United States and beyond. These efforts culminated in the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), the single most important and comprehensive piece of financial system reform legislation since the myriad reforms following the Great Depression. Meanwhile, Congress, the Internal Revenue Service (the “IRS”), the Securities and Exchange Commission (the “SEC”) and private litigants have been busy creating new tax rules and sorting through the aftermath of the financial disruption as evidenced by recent enforcement and private actions.</p> <p>This report provides an update since our last report in March 2010 (available here) and highlights recent developments, particularly the Dodd-Frank Act, as they relate to the hedge fund industry. Paul Hastings attorneys are available to answer your questions on these and any other developments affecting hedge funds and their investors and advisers. </p><br><a href=http://www.paulhastings.com/assets/publications/1752.pdf>Click here for a PDF of the full text</a>http://www.paulhastings.com/publicationDetail.aspx?publicationID=1752PublicationFri, 29 Oct 2010 00:00:00 Z<p>The U.S. is the global leader in enforcing anti-corruption legislation, while the U.K. has compared unfavorably in prosecutin