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    2015 Best Places to Work logo | Washington DC

    Washington, DC

    1200 Seventeenth Street, NW
    Washington, DC 20036
    Tel.+1.202.663.8000
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    July 2015
    FCC Expands Reach of Telephone Consumer Protection Act
    Authors: Glenn S. Richards, Lauren Lynch Flick, Andrew D. Bluth, Amy L. Pierce
    On July 10, 2015, the FCC issued the agency’s long-awaited omnibus Declaratory Ruling and Order. The Ruling focuses largely on providing guidance, particularly for new and emerging technologies, with regard to what an autodialer is and when consent to use one is needed. The Ruling skews heavily on the side of protecting consumers from potentially unwanted calls while allowing some conditional exceptions for certain calls that may be beneficial to consumers. All businesses should immediately reevaluate their calling practices to ensure compliance with the new Ruling, as it is likely to escalate the continued upward trend in TCPA class action filings. Finally, the Ruling establishes that telecommunications providers can implement blocking technology. Therefore, all businesses should be alert to the potential for their calls to be blocked, including by error.
    July 2015
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Jessica T. Nyman

    Headlines:

    • Repetitive Children’s Programming Costs TV Licensee $90,000
    • It’s Nice to Be Asked: FCC Faults Red-Lighted Licensee’s Failure to Request STA
    • FCC Proposes $25,000 Fine for Hogging Shared Frequencies
    7/28/2015
    Proposed Regulations Target Management Fee Waivers
    Authors: C. Brian Wainwright, Brian M. Blum
    In the Federal Register for July 23, 2015, the Treasury Department published proposed regulations regarding the circumstances under which partnership allocations and distributions will be treated as disguised payments for services. These proposed regulations are aimed at attempts by investment fund managers to convert ordinary, management fee income into tax-favored long-term capital gains through the use of management fee waivers.
    7/23/2015
    Department of Labor Says Most Workers Are Employees Under FLSA: Ultimate Test is Economic Dependence
    Authors: Julia E. Judish, Erica N. Turcios
    On July 15, 2015, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued Administrator’s Interpretation No. 2015-1, adopting a very expansive interpretation of the definition of employees under the Fair Labor Standards Act (FLSA) under which many workers currently treated as independent contractors will need to be reclassified as employees. The Administrator’s Interpretation identifies the issue of a worker’s economic dependence as the most important factor in distinguishing between independent contractors and employees. The Administrator’s Interpretation puts employers on notice that “the FLSA covers workers of an employer even if the employer does not exercise the requisite control over the workers, assuming the workers are economically dependent on the employer.”
    7/21/2015
    Supreme Court Affirms FHA Disparate Impact Claims
    Authors: Deborah B. Baum, John Scalia, Julia E. Judish, David Stute
    Late last month, the Supreme Court handed down a significant decision affecting rights and obligations under the Fair Housing Act. The Court’s 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. makes clear that “disparate impact” (unintentional discrimination) claims are cognizable under the Fair Housing Act. While the decision’s full scope will be the subject of future federal court litigation, landlords, property managers, developers, lenders and others subject to the Fair Housing Act are well-advised to take affirmative steps to ensure that their policies and practices can withstand disparate impact claims of discrimination.
    July 2015
    Cable and Satellite Royalty Claims Due to the Copyright Royalty Board by July 31, 2015
    Authors: Scott R. Flick, Lauren Lynch Flick
    This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2014. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by Friday, July 31, 2015 at 5:00 pm (EDT).
    7/16/2015
    AAA Revises Construction Industry Arbitration Rules and Mediation Procedures
    Authors: William S. Hale, P.E., John R. Heisse, Clark Thiel, Robert B. Thum
    The American Arbitration Association (AAA) has revised its Construction Industry Arbitration Rules and Mediation Procedures (Rules), effective July 1, 2015. Although some changes are relatively modest, others expand the powers of the arbitrator and may alter traditional assumptions underlying the selection of arbitration as a dispute resolution process for construction projects.
    7/9/2015
    Second Circuit Develops “Primary Beneficiary” Test to Evaluate Unpaid Internships
    Authors: Julia E. Judish, Osama E. Hamdy
    On July 2, 2015, the U.S. Court of Appeals for the Second Circuit adopted a “primary beneficiary” test for evaluating whether unpaid interns are employees for purposes of the Fair Labor Standards Act (FLSA). Rejecting a six-factor test that the U.S. Department of Labor has used for over forty-five years, the Second Circuit held “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” The Second Circuit’s decision in Glatt. v. Fox Searchlight Pictures, Inc., vacated a district court judgment that two interns on the movie Black Swan had been improperly classified as unpaid interns rather than employees. The Second Circuit also held that, under the “primary beneficiary” standard, “the question of an intern’s employment status is a highly individualized inquiry,” and therefore vacated the district court's orders conditionally certifying a nationwide FLSA collective action and certifying a class of New York interns.
    7/7/2015
    The U.S. Department of Labor Moves to More Than Double Minimum Salary Levels
    Proposed changes may impact millions of exempt employees.
    Authors: Julia E. Judish, John Scalia, Paula M. Weber
    On July 6, 2015, the U.S. Department of Labor published a long-awaited Notice of Proposed Rulemaking (NPRM) to amend the Fair Labor Standards Act (FLSA) regulations implementing the exemption from minimum wage and overtime pay for executive, administrative, professional, outside sales and computer employees (known as the “white collar” or “EAP” exemptions). The proposed rule would more than double the minimum salary level required to meet the executive, administrative, or professional exemption, to $50,440 annually—much higher than any current state law requirement—with automatic increases in that threshold every year. The DOL estimates that of approximately 144.2 million wage and salary employees in the United States, 21.4 million are currently exempt EAP employees who would become eligible for overtime payments if the proposed rule goes into effect.
    July 2015
    2015 Second Quarter Issues/Programs List Advisory for Broadcast Stations
    Author: Scott R. Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by July 10, 2015, reflecting information for the months of April, May, and June 2015.
    July 2015
    2015 Second Quarter Children’s Television Programming Documentation
    Authors: Lauren Lynch Flick, Scott R. Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by July 10, 2015, reflecting programming aired during the months of April, May, and June 2015.
    7/1/2015
    New York City Bars Employers from Considering Criminal History before Extending a Job Offer
    Authors: Julia E. Judish, Kenneth W. Taber
    On June 29, 2015, Mayor de Blasio signed the Fair Chance Act, a new law that generally prohibits New York City employers from discriminating against job applicants with a criminal record and that prohibits inquiries about applicants’ criminal records before a job offer is extended. The law applies to all private-sector New York City employers with four or more employees. For purposes of calculating coverage, the Act includes individual independent contractors performing work for the employer, if those individuals do not themselves have employees. The law becomes effective on October 27, 2015, which is 120 days after the Mayor signed the bill into law.
    June 2015
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Jessica T. Nyman, Lori Panosyan*
    Headlines:
    • Educational FM Licensee Receives $8,000 Fine for Unauthorized Operation
    • FCC Cancels $6,000 Fine for Late Filings due to Licensee’s Inability to Pay
    • Blaming Prior Legal Counsel, Telecommunications Provider Pays $2,000,000 Civil Penalty
    June 2015
    Annual EEO Public File Report Deadline for Stations in California, Illinois, North Carolina, South Carolina, and Wisconsin
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations in California, Illinois, North Carolina, South Carolina, and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    6/24/2015
    EPA Aircraft GHG Emissions Regulations Take Flight
    Agency Announces Endangerment Finding for Aircraft Greenhouse Gas Emissions and Plans to Issue New Standards by 2018
    Authors: Matthew W. Morrison, Amanda G. Halter, Darin J. Smith, Bryan M. Stockton
    After tackling greenhouse gas (GHG) emissions from passenger vehicles and power plants, the Environmental Protection Agency (EPA) on June 10 announced its latest regulatory initiative—a GHG emissions standard for aircraft. EPA’s announcement comprised two related parts: 1) a long-expected endangerment finding for aviation engine GHG emissions; and 2) an Advanced Notice of Proposed Rulemaking (ANPR) describing the process for setting international aircraft GHG emissions standards. While EPA’s announcement has significant impact for aircraft manufacturers, airline companies, and corporate purchasers of aircraft, a final standard is not expected until at least 2018.
    June 2015
    Biennial Ownership Reports are due by August 1, 2015 for Noncommercial Radio Stations in California, North Carolina and South Carolina and Noncommercial Television Stations in Illinois and Wisconsin
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station’s respective license renewal filing deadline.
    6/23/2015
    DOL Invites Comments on Requirement That Bidders Disclose Employment Law Violations
    Author: Julia E. Judish
    President Obama’s Executive Order 13673, called the Fair Pay and Safe Workplaces Order, uses the prospect of gaining or losing an edge in winning government contracts to provide a powerful incentive for employers to comply with a broad range of employment laws. On May 28, 2015, the Department of Labor (DOL) published a Proposed Guidance on implementation of the Order and invited the public to submit comments by July 27, 2015. Because aspects of the proposed guidance create compliance burdens for government contractors and could unfairly place some government contractors at a disadvantage in the procurement process, the contractor community would be prudent to submit comments that may lead to changes in the final guidance.
    6/17/2015
    Don’t Wait Until It’s Too Late: Top 10 Recommendations for Negotiating Your Cyber Insurance Policy
    Author: James P. Bobotek
    As more and more companies of all sizes ranging across a wide spectrum of industries have been exposed to network and data security breaches in recent years, the market for insurance products dedicated to cover cyber risks has grown just as fast. With policies sold under names like “cyberinsurance,” “privacy breach insurance,” “media liability insurance” and “network security insurance,” the market for this coverage often seems chaotic, with premiums and terms varying dramatically from one insurer to the next.
    5/28/2015
    Strict Controls Proposed on the Export of Cybersecurity Items
    Authors: Brian E. Finch, Sanjay J. Mullick
    On May 20, 2015, the Commerce Department Bureau of Industry and Security (BIS) proposed to establish controls on the export of cybersecurity items. These items would be classified under new Export Control Classification Numbers (ECCNs) in Categories 4 and 5 of the Export Administration Regulations (EAR) that would be subject to Regional Stability (RS) controls, which require licenses for all countries except Canada and generally are not eligible for license exceptions. If the proposed rules are implemented, strict licensing requirements would be imposed on the export of these items, even those that companies may themselves legitimately seek to obtain to test how vulnerable their networks may be to cyberattacks.
    May 2015
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Jessica T. Nyman

    Headlines:

    • 404 Not Found: Missing Online Public File Documents Lead to $9,000 Fine
    • Wireless Providers Pay $158 Million to Settle Mobile Cramming Violations
    • Failure to Timely File License Renewal Application Results in $1,500 Fine
    May 2015
    Annual EEO Public File Report Deadline for Stations in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    5/11/2015
    DHS Breaks New Ground With Issuance of SAFETY Act Certifications for Advanced Cybersecurity Defense Systems
    Authors: Brian E. Finch, Aimee P. Ghosh
    FireEye’s MVX and DTI Technologies become the first cybersecurity products to earn certification as “Qualified Anti-Terrorism Technologies.”
    5/8/2015
    New York City Largely Bans Employers from Considering Consumer Credit History
    Authors: Kenneth W. Taber, Julia E. Judish, Keith D. Hudolin
    On May 6, 2015, New York City Mayor Bill de Blasio signed into law a bill barring employers in New York City from discriminating against employees and applicants based on their consumer credit histories. The exceptions to this new law are much more limited than the exceptions found in similar laws in other states. New York City employers need to review their employment policies to ensure that their employment policies and decisions do not give employees or applicants potential claims of “consumer credit history” discrimination.
    5/6/2015
    Can Regulation A+ Succeed Where Regulation A Failed?
    Authors: Robert B. Robbins, Amy M. Modzelesky

    On March 25, 2014, the Securities and Exchange Commission (SEC) adopted final amendments to Regulation A under the Securities Act of 1933, or what is now being referred to as Regulation A+.1 While much of the existing framework of Regulation A was preserved, Regulation A+ expands the prior exemption to allow an issuer to offer and sell up to $50 million of securities over a 12-month period in a public offering, without complying with the registration requirements of the Securities Act. Regulation A+ was adopted to implement the rulemaking mandate of Title IV of the Jumpstart Our Business Startups Act (or JOBS Act), which was signed into law in April 20122 and differs slightly from the amendments to Regulation A as proposed by the SEC in December 2013.3

    This White Paper summarizes the impetus for and most important provisions of Regulation A+, as well as the possible implications of the Final Rules.
    5/5/2015
    The Announcement of Criminal Charges against Lumber Liquidators Underscores the Need for Lacey Act Compliance
    Authors: Thomas G. Allen, William M. Sullivan, Jr.

    This alert was also published on Law360 on June 11, 2015.

    On Wednesday, April 29, 2015, Lumber Liquidators announced in its most recent 10Q that the United States Department of Justice plans to pursue criminal charges surrounding allegations the company illegally imported wood in violation of the Lacey Act, 16 USC § 3371 et seq. On the heels of this announcement, some leadership re-organization and disappointing earnings, Lumber Liquidator shares were trading as much as 20% lower.
    April 2015
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Jessica T. Nyman

    Headlines:

    • FCC Scuttles New York Pirate Radio Operator and Proposes $20,000 Fine
    • Failure to Properly Identify Children’s Programming Results in $3,000 Fine
    • Telecommunications Carrier Consents to Pay $16 Million To Resolve 911 Outage Investigation
    4/29/2015
    Unusual Bipartisanship Makes New Free Trade Agreements More Likely
    Authors: Stephan E. Becker, Elizabeth Vella Moeller
    Major new free trade agreements are on the horizon. For the past several years, the Obama Administration has been negotiating two new major free trade agreements: the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Partnership Agreement (TTIP). Because of divisions within the Democratic Party regarding trade agreements, previously it was uncertain whether the President could garner the support necessary to obtain Congressional approval. With both Houses of Congress now controlled by the Republican Party—which historically has supported trade agreements—the prospects for ultimate approval have significantly improved. Action on the TPP in particular is possible during 2015.
    4/24/2015
    Framework for Nuclear Agreement with Iran Announced—But Still a Long Way to Go
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman, Stephanie J. Rohrer
    On April 2, 2015 representatives of the United States, Britain, France, Germany, China and Russia (collectively, the “P5+1” countries) announced that they had agreed with the Islamic Republic of Iran on the Parameters for a Joint Comprehensive Plan of Action Regarding the Islamic Republic of Iran’s Nuclear Program (the “Parameters” or “Framework Agreement”). The Parameters establish a comprehensive framework regarding Iran’s nuclear energy industry and capabilities. The parties have not yet drafted the text of the final agreement and will continue to negotiate implementation details, probably until the June 30, 2015 deadline (with some indications that the deadline could be extended). Meanwhile, U.S., EU and UN sanctions will remain in place until Iran demonstrates verifiable compliance with the key terms of the agreement.
    April 2015
    FCC Suspends September 1, 2015 Deadline for LPTV and Translator Stations to Shift from Analog to Digital
    Author: Jessica T. Nyman
    The FCC’s Media Bureau announced that the September 1, 2015 deadline for Low Power TV and TV Translator stations to transition to digital will be suspended pending final action in the LPTV DTV rulemaking proceeding.
    4/22/2015
    New Executive Order Allows for Sanctions Related to Cybersecurity
    Authors: Brian E. Finch, Nancy A. Fischer, Aaron R. Hutman, Aimee P. Ghosh, Stephanie J. Rohrer
    On April 1, 2015, President Obama issued a groundbreaking Executive Order (E.O.) enabling the United States to sanction persons that have (1) participated in malicious cyber-enabled activities constituting a “significant threat to the national security, foreign policy, or economic health or financial stability of the United States,” or (2) misappropriated trade secrets for commercial or financial gain outside the United States. No sanctions have yet been imposed and it is unclear how the U.S. government will deploy this new regime. Nonetheless, applying economic sanctions to the U.S. cybersecurity response is a potentially powerful tool that can fill gaps in law enforcement and deterrence. It also is a tool that could be leveraged by companies that have fallen victim to damaging cyber-attacks or competitors using stolen trade secrets. Further, companies outside the United States will need to consider compliance measures to manage exposure to sanctions under these new rules.
    4/13/2015
    Supreme Court Allows Changes to Agencies’ Interpretive Rules without the Notice-and-Comment Rulemaking Process
    Authors: Kenneth P. Quinn, Jennifer E. Trock, Graham C. Keithley
    In March, the Supreme Court upheld an agency’s reversal of its own regulatory interpretation without requiring notice-and-comment rulemaking. Regulated entities now face considerable uncertainty in relying on agencies’ regulatory interpretations, even during enforcement actions. While the Court cautioned agencies from arbitrarily and capriciously changing their interpretations, particularly when the exiting interpretation is heavily relied upon, courts will likely continue to defer to the agency’s new interpretation.
    4/3/2015
    SEC Cracks Down on Confidentiality Provisions that Restrict Whistleblowers
    Authors: Kenneth W. Taber, John Scalia, Julia E. Judish, Keith D. Hudolin
    On April 1, 2015, the Securities and Exchange Commission (“SEC”) announced an enforcement action and corresponding settlement arising out of an employer’s confidentiality agreement. The SEC contended that the agreement improperly restricted the right of whistleblowers to disclose securities law violations to the SEC. The SEC’s actions underscore the importance of employers modifying their confidentiality agreements to ensure they are protecting legitimate confidentiality interests—without infringing on statutorily protected rights of employees to report misconduct.
    March 2015
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Jessica T. Nyman

    Headlines:

    • Deceptive Practices Yield Multi-Million Dollar Fines for Telephone Interexchange Carriers
    • LPFM Ads Cost $16,000
    • Multiple TV Station Licensees Face $6,000 Fines for Failing to File Children’s TV Programming Reports
    3/27/2015
    Court of Appeals to Directors of Nonprofits: “Nonprofit” Does Not Mean “No Risk for You”
    Authors: Bruce A. Ericson, Jerald A. Jacobs, Marley Degner
    The U.S. Court of Appeals for the Third Circuit recently upheld a $2.25 million jury verdict against the directors of a nonprofit nursing home, holding them personally liable for breach of their duty of care. Their sin? Failing to remove the nursing home’s administrator and CFO “once the results of their mismanagement became apparent.” While the court overturned a punitive damages verdict against five directors (the jury had found nine other directors liable for compensatory damages but not punitive damages), it upheld punitive damage awards of $1 million against the CFO and $750,000 against the Administrator. The decision, while unusual, illustrates that serving on a nonprofit board is not risk-free—even if, as in this case, the directors do not breach their duty of loyalty or engage in any self-dealing. In re Lemington Home for the Aged, 777 F.3d 620 (3d Cir. 2015).
    3/26/2015
    Antitrust “State Action” Exemption: North Carolina State Board of Dental Examiners v. Federal Trade Commission
    Authors: Jerald A. Jacobs, Alvin Dunn, Dawn Crowell Murphy
    On February 25, 2015, the U.S. Supreme Court issued its decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, holding that a regulatory board made up of market participants is exempt from federal antitrust laws under the “state action” doctrine only if it is actively supervised by the State, and the North Carolina State Board of Dental Examiners was not. Though no nonprofit organization was involved in the case, the decision could have implications for associations or other nonprofits that are delegated or act pursuant to any governmental authority.
    March 2015
    Biennial Ownership Reports are due by April 1, 2015 for Noncommercial Radio Stations in Texas and Noncommercial Television Stations in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station’s respective license renewal filing deadline.
    March 2015
    Annual EEO Public File Report Deadline for Stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    March 2015
    2015 First Quarter Issues/Programs List Advisory - Broadcast Stations
    Author: Scott R. Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2015, reflecting information for the months of January, February and March 2015.
    March 2015
    2015 First Quarter Children’s Television Programming Documentation
    Authors: Lauren Lynch Flick, Scott R. Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by April 10, 2015, reflecting programming aired during the months of January, February and March 2015.
    3/16/2015
    GSA May Abolish the Price Reduction Clause
    Authors: John E. Jensen, Clare M. Cavaliero
    On March 4, 2015, the U.S. General Services Administration (GSA) issued a proposed rule that could abolish the long-standing price reduction clause (PRC) from the GSA Schedule program. GSA is proposing to eliminate the clause and to use, instead, the submission of “transactional data reporting” to help achieve its goal of fair and reasonable pricing on all orders. The rule would require contractors to report transactional data for orders placed against GSA Federal Supply Schedule (FSS) and other GSA contracts. The proposed rule is designed to improve GSA’s ability to conduct meaningful price analysis and more efficiently and effectively validate fair and reasonable pricing. It is also intended to reduce the burden on contractors imposed by the current GSA PRC.
    2/23/2015
    DOE Issues the Part 810 Final Rule: Summary and Compliance Steps for Industry
    Authors: James A. Glasgow, Elina Teplinsky
    Today, the U.S. Department of Energy (DOE) issued the final rule amending its regulations at 10 C.F.R. Part 810 on “Assistance to Foreign Atomic Energy Activities” (“Part 810”). The rule takes effect on March 25, 2015. The rulemaking to amend Part 810, which the DOE has been undertaking since it published in the Federal Register a notice of proposed rulemaking (NOPR) seeking to amend Part 810 on September 7, 2011, constitutes the most substantial change to these foreign nuclear assistance regulations since 1986 and, arguably, in the history of Part 810.
    2/15/2015
    FAA Proposes Rules For Commercial Small Unmanned Aircraft Systems (sUAS) Operations (14 C.F.R. Part 107); White House Issues UAS Privacy Memorandum
    Authors: Kenneth P. Quinn, Jennifer E. Trock, Benjamin M. Berlin, Graham C. Keithley
    On February 15, 2015, the U.S. Federal Aviation Administration (FAA) proposed rules for the commercial operation of small unmanned aircraft systems (sUAS) weighing less than 55 pounds—a long-awaited step towards integrating commercial UAS flights such as precision agriculture, surveying, real estate photography, and utility and infrastructure inspections (e.g., electrical wires, pipelines, and bridges) into U.S. airspace. But the proposed rules leave prohibited other desired commercial uses (e.g., package delivery, spray operations and nighttime flights) and unanswered key safety, privacy, security, liability, and spectrum questions. Comments to the FAA’s rules are due April 24, 2015 and all affected parties, including businesses and industries hoping to use any-sized UAS, should take advantage of this opportunity to offer their views, concerns, and suggestions to shape the incipient regulatory framework for UAS.
    2/12/2015
    How to Fail in the Internet of Things
    Authors: Brian E. Finch, Roxane A. Polidora, Catherine D. Meyer, Lindsay A. Lutz, Philip Shecter
    Innovation is prized in the growing space of the Internet of Things (IoT). But an innovative product design is not enough, and potential pitfalls abound. As demonstrated in a report published by the Federal Trade Commission (FTC), privacy and security need to be at the forefront of developers’ minds. Here are five lessons on what not to do when developing a connected product.
    2/12/2015
    Will EPA Be Able to Avoid Regulating Existing Sources of Methane?
    Authors: Matthew W. Morrison, Nicholas M. Krohn
    The Obama administration recently announced plans to directly regulate methane gas emissions from oil and gas wells for the first time. A cornerstone of the regulations will be New Source Performance Standards (NSPS) for new and modified production sources. EPA has stated that it currently has no plans to regulate existing sources through Existing Source Performance Standards (ESPS). The Agency may soon discover, however, that certain legal and technical realities will force it to regulate existing sources earlier than it thinks.
    2/9/2015
    The Legal Landscape Rapidly Changes for D.C. Employers
    Authors: Julia E. Judish, Rebecca Carr Rizzo, Keith D. Hudolin

    This material was also published as a bylined article on Law360 on February 23, 2015.

    District of Columbia employers now face and are soon to face a number of new laws affecting a wide range of issues, including wage payments, recording of hours worked, pregnancy accommodations, concealed weapons in the workplace, and the use of criminal background checks and drug testing during the hiring process. While most of the changes impose new requirements on employers, emergency legislation passed by the D.C. Council on February 3rd also contained a win for employers by changing existing D.C. law that had previously required that employers keep records of hours worked by both exempt and non-exempt employees. Employers must be aware of these new requirements, some of which require employers to change their current practices, and should carefully review their employee handbooks and other policies to ensure timely compliance.
    2/9/2015
    SEC Proposes New Exchange Act Regulations in Conformity with JOBS Act
    Author: Robert B. Robbins
    On December 18, 2014, the Securities and Exchange Commission (SEC) proposed new rules regarding the thresholds for registration, termination of registration and suspension of reporting under Section 12(g) of the Securities Exchange Act of 1934 (the “Exchange Act”)1 , as amended in 2012 by the JOBS Act. The SEC has requested that comments on the proposed rules be received by March 2, 2015.
    January 2015
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Jessica T. Nyman

    Headlines:

    • Individual fined $25,000 for Unauthorized “Chanting and Heavy Breathing” on Public Safety Station
    • Failure to Timely Request STA Results in $5,000 Fine
    • FCC Imposes $11,500 Fine for Intentional Interference and Station ID Violation
    1/28/2015
    HSR Thresholds Will Increase Slightly for Transactions in 2015
    Authors: Michael L. Sibarium, Aileen (Chuca) Meyer, Alvin Dunn, Jeetander T. Dulani
    On February 20, 2015, revised thresholds for the Hart-Scott-Rodino Act (“HSR”) will take effect. The thresholds determine whether parties involved in proposed mergers, consolidations, or other acquisitions of voting securities, assets, or unincorporated interests must notify the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) of a proposed transaction and comply with a mandatory waiting period before the transaction can be consummated.
    1/27/2015
    Recent Cases on Clean Air Act Preemption of Common Law Torts Upend Conventional Wisdom
    Authors: Matthew W. Morrison, Bryan M. Stockton

    This article was published in Environmental Law Reporter in April 2015.

    Two recent appellate-level decisions allowing state common law tort claims against an intrastate emitting source to avoid Clean Air Act (CAA) preemption have surprised many CAA litigators. The outcome in both Bell v. Cheswick 1and Freeman v. Grain Processing Corporation 2—as well as the Supreme Court’s recent denial of certiorari in both cases—was unexpected to many because the Supreme Court has held previously that the CAA preempts similar tort claims based on federal common law3. Stationary sources should be aware that some plaintiffs may be more inclined to attempt to raise state law tort claims, regardless of ultimate merit.
    1/26/2015
    A Boost for Business: Time to Reaffirm or Secure Terrorism Insurance
    Authors: Peter M. Gillon, Ashley E. Cowgill
    On January 12, 2015, President Obama signed into law H.R. 26, the Terrorism Risk Insurance Program Reauthorization Act of 2015 (TRIPRA of 2015), providing a federal backstop for insurance against risks of terrorism. TRIPRA extends until 2020 the Terrorism Insurance Program established under the Terrorism Risk Insurance Act (TRIA) of 2002, which expired at the end of 2014. The measure lifts a cloud of uncertainty that was proving difficult for property owners, especially in major metropolitan areas, as there was insufficient capacity in the private insurance market to meet their needs.
    1/20/2015
    Treasury and Commerce Departments Issue Regulations to Implement New Cuba Policy
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman, Stephanie J. Rohrer
    The Obama administration implemented its promised changes to U.S. sanctions and export controls for Cuba effective January 16, 2015. Although most trade and transactions still are prohibited, the revisions to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR) ease licensing requirements in a number of areas, including exports to and imports from Cuba of certain types of goods and services, telecommunications and Internet services, travel and travel services, financial services, remittances, and treatment of Cuban nationals in third countries.
    January 2015
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Delaware and Pennsylvania
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and locally originating LPTV stations licensed to communities in Delaware and Pennsylvania must begin airing pre-filing license renewal announcements on February 1, 2015. License renewal applications for all TV stations in Delaware and Pennsylvania are due by April 1, 2015.
    December 2014
    2015 Broadcasters’ Calendar
    Authors: Scott R. Flick, Lauren Lynch Flick, Jessica T. Nyman, Christine A. Reilly

    Items of Note in 2015

    I. Applications for Renewal of License: The three-year long license renewal cycle for broadcast stations in radio services (AM, FM, FM Translator, LPFM), which began on June 1, 2011, ended in 2014. The renewal cycle for television services (television, Class A, LPTV, TV Translator), which began on June 1, 2012, continues in 2015. The date on which a station's license renewal application is due depends on the state or territory in which its community of license is located. All licensees should familiarize themselves now with the dates associated with this important filing, including the dates on which public notice announcements must air in advance of the license renewal filing; the filing date itself, which is four months before the date of license expiration; and the dates on which post-filing announcements must air.
    December 2014
    2014 Fourth Quarter Children’s Television Programming Documentation
    Authors: Lauren Lynch Flick, Scott R. Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by January 10, 2015, reflecting programming aired during the months of October, November and December 2014.
    December 2014
    2014 Fourth Quarter Issues/Programs List Advisory for Broadcast Stations
    Author: Scott R. Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by January 10, 2015, reflecting information for the months of October, November and December 2014.
    12/29/2014
    Three Obstacles to EPA’s O3 Rule: Industry Opposition, Implementation, and Congressional Oversight
    Authors: Matthew W. Morrison, Bryan M. Stockton
    The U.S. Environmental Protection Agency (EPA) recently proposed revising the national air quality standard for ozone, the key pollutant in smog and regional haze. EPA acknowledges that the rule will cost billions of dollars each year to implement. Industry fears the additional regulatory costs, and environmentalists assert the rule does not restrict ozone enough. Select jurisdictions with high levels of background ozone, particularly Western states, will find it more difficult to reach attainment, and current mechanisms to account for naturally-occurring ozone spikes may prove inadequate. Republican leaders in the House and Senate have signaled their intention to oppose the rule in legislation. The EPA must navigate these complex issues as it prepares to finalize the rule by October 1, 2015.
    December 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Jessica Nyman

    Headlines:

    • Sponsorship Identification Violation Yields $115,000 Civil Penalty
    • $13,000 Increase in Fine Upheld for Deliberate and Continued Operation at Unauthorized Location
    • FCC Reduces $14,000 Fine for EAS and Power Violations Due to Inability to Pay
    12/22/2014
    The Second Circuit Sets New Hurdles for Insider Trading Convictions
    Authors: William M. Sullivan, Jr., Robert C.K. Boyd, Jay B. Gould

    This article was published in Law360 on January 6, 2015.

    Under the Second Circuit’s new ruling, prosecutors have two large hurdles they must clear to convict under securities laws. First, they must prove that a defendant knew that the source of inside information disclosed tips in exchange for a personal benefit. Second, the definition of “personal benefit” is tightened to something more akin to a quid pro quo exchange.
    12/22/2014
    U.S. Sanctions Legislation Targets Russia While EU and U.S. Expand Crimea Sanctions
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Elizabeth Vella Moeller, Stephanie J. Rohrer
    On December 18, 2014, President Obama signed into law the Ukraine Freedom Support Act of 2014. The statute requires sanctions to be imposed against Russian arms broker/exporter Rosoboronexport and government-owned companies which the President determines produce, transfer or broker sales of defense articles to Syria, Ukraine, Georgia or Moldova. It provides authority for the President to impose sanctions against foreign persons who make investments in “special Russian crude oil projects,” against foreign financial institutions that facilitate sanctioned activities, and against Gazprom if it is determined that Gazprom is withholding gas supplies to NATO countries, Ukraine, Georgia or Moldova. Upon signing the law, however, the President stated that he does not intend to implement any sanctions authorized by the statute at this time. Separately, the European Union (EU) announced the approval of additional sanctions related to business in Crimea and Sevastopol, and the U.S. government took similar but broader action with the President issuing a new Executive Order prohibiting transactions involving Crimea.
    12/18/2014
    A New U.S. Course for Cuba Relations: What Does It Mean for Business?
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Stephanie J. Rohrer
    President Obama made an unexpected announcement this week signaling a “new course” for Cuba after more than fifty years of comprehensive U.S. sanctions. Reestablishing diplomatic relations is a major change. In terms of business impact, however, the announcement signaled small openings and incremental extensions of existing licensing policy. Existing legislation mandates the embargo and codifies the Cuban Assets Control Regulations at 31 C.F.R. Part 515 (CACR), limiting what the President can accomplish without support from Congress. Thus, major changes to U.S. sanctions and export control policy will not happen in the short term. However, the President does have limited licensing discretion and the signaled changes may open business opportunities for certain exports markets including telecommunications, building materials, agricultural equipment, and certain goods for use by Cuban entrepreneurs. Simplification of existing travel authorizations as well as authorization for certain banking and credit card services are also planned. None of these anticipated changes will be effective until regulations are issued by the relevant U.S. agencies.
    12/3/2014
    U.S. and EU Extend Temporary Iran Sanctions Relief a Second Time
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Stephanie J. Rohrer
    The temporary and limited changes to U.S. and European Union (“EU”) sanctions policy for Iran, as agreed under the interim nuclear deal reached by Iran and the P5 + 1 countries, have been extended until June 30, 2015. Most U.S. and EU sanctions on Iran remain in place and will continue to be enforced. Until June 30, 2015, non-U.S. individuals and companies (unless U.S. owned or controlled) will not face U.S. sanctions enforcement if they engage in specified transactions relating to: (a) the export of Iranian petrochemical products, (b) the provision of goods and services for Iran’s auto industry, (c) the sale of gold and precious metals to or from Iran, and (d) the provision of insurance and transport services associated with sales of Iranian oil to six specified countries. The U.S. government has continued the favorable licensing policy for the provision of goods and services to Iran’s civil aviation industry by U.S. persons, U.S. owned/controlled foreign entities and non-U.S. persons. The U.S. also is taking steps to facilitate certain humanitarian and medical trade with Iran, payment of UN dues and support for Iranians studying abroad.
    November 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim

    Headlines:

    • $7,000 Fine for Late Renewal Application and Unauthorized Operation
    • Missing Wood Planks Around Tower Lead to $5,600 Fine
    • $39,000 Fine Upheld for Hearing Aid Compatibility Violations
    11/25/2014
    Convention on Supplementary Compensation: Liability Implications for the Nuclear Industry
    Authors: James A. Glasgow, Stephen L. Markus
    Now that Japan’s Diet, as of November 21, 2014, has approved Japan’s ratification of the Convention on Supplementary Compensation for Nuclear Damage (CSC) and implementing domestic legislation, Japan presumably will soon deposit its instrument of ratification with the International Atomic Energy Agency (IAEA). Ninety days following such action by Japan, the CSC will enter into force, since its requirement for entry into force (a minimum of five ratifying parties collectively having at least 400,000 MW(t) of installed nuclear generating capacity) will have been satisfied. While the additional compensation aspect of the CSC’s impending entry into force has attracted global attention, less consideration has been given to the CSC’s impact on the nuclear liability of sellers and purchasers of components, nuclear fuel and related technology and services for the construction and operation of nuclear power stations. This client alert provides our views concerning the most significant near-term implications of the CSC’s entry into force.
    11/20/2014
    Caught Between Laws: Challenges for Health Care Providers in Using Criminal History Information in Employment Decisions
    Authors: Julia E. Judish, Erica J. Kraus
    In an effort to increase protection for vulnerable patient populations, the Affordable Care Act (ACA) creates incentives for states to strengthen the employment background check programs available to long-term care providers. Many states have responded to these incentives by creating or enhancing background check programs, increasing the ability of long-term care providers to screen for individuals with certain types of criminal convictions and exclude them from employment. Although these programs may help long-term care providers to protect their patients and to select a qualified workforce, employment policies based on criminal record information may be in tension with recent Equal Employment Opportunity Commission (EEOC) guidance, even when such policies are based on exclusions mandated by state law. Employers, therefore, should carefully evaluate employment policies based on criminal history for the possibility of both state law consequences and federal civil rights liability.
    11/19/2014
    The Ninth Circuit Provides Clarity on ERA Whistleblower Protections.
    Authors: Daryl M. Shapiro, Timothy J. V. Walsh, Rebecca Carr Rizzo, Keith D. Hudolin
    On November 7, 2014, the Ninth Circuit issued its ruling in Tamosaitis v. URS Inc.1 and provided clarity on three key aspects of the whistleblower protections afforded under the Energy Reorganization Act (ERA), 42 U.S.C. 5801 et. seq. This decision has important implications for employers facing ERA whistleblower claims.
    11/19/2014
    Huerta v. Pirker: NTSB Rules that UAS Are “Aircraft” and Subject to FAA Prohibition on Careless and Reckless Operations
    Authors: Kenneth P. Quinn, Jennifer E. Trock, Benjamin M. Berlin, Graham C. Keithley
    On November 18, 2014, in a unanimous decision, the National Transportation Safety Board (NTSB) concluded that unmanned aircraft systems (UAS) are: (1) “aircraft” within the Federal Aviation Administration’s (FAA) statutory and regulatory definitions; and (2) prohibited from operation in a careless and reckless manner under FAA regulations. The decision represents a significant win for the FAA in its attempts to prohibit unlawful UAS operations, and a setback for commercial interests that were hoping to turn the Pirker battle into a broader war against the FAA’s ban on commercial use of UAS. The opinion reverses an NTSB Administrative Law Judge’s (ALJ) decision earlier this year that the UAS Pirker commercially operated was a “model aircraft” beyond the FAA’s authority.
    November 2014
    Biennial Ownership Reports are due by December 1, 2014 for Noncommercial Radio Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota and Noncommercial Television Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station’s respective license renewal filing deadline.
    November 2014
    Annual EEO Public File Report Deadline for Stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    November 2014
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in New Jersey and New York
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and locally originating LPTV stations licensed to communities in New Jersey and New York must begin airing pre-filing license renewal announcements on December 1, 2014. License renewal applications for all TV stations in New Jersey and New York are due by February 2, 2015.
    November 2014
    Annual DTV Ancillary/Supplementary Services Report Due for Commercial and Noncommercial Digital Television Stations
    Authors: Lauren Lynch Flick, Scott R. Flick
    All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2014.
    October 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim
    Headlines:
    • $86,400 Fine for Unlicensed and Unauthorized BAS Operations
    • Missing “E/I” Graphic for Children’s Television Programs Results in Fine
    • Multiple Rule Violations Lead to $16,000 in Fines

    October 2014
    2014 Third Quarter Issues/Programs List Advisory for Broadcast Stations
    Author: Scott R. Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by October 10, 2014, reflecting information for the months of July, August and September 2014.
    October 2014
    2014 Third Quarter Children’s Television Programming Documentation
    Authors: Lauren Lynch Flick, Scott R. Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2014, reflecting programming aired during the months of July, August and September 2014.
    10/6/2014
    Practical Implications of the JOBS Act Changes to Private Placements: Rule 506(c), Crowdfunding, and Reg A+
    Author: Robert B. Robbins
    Two key features of the JOBS Act – general solicitation in Rule 506 offerings, and the increased thresholds at which an issuer will be required to register a class of securities under the Securities Exchange Act of 1934 (the “1934 Act”) – when combined with certain advantages already enjoyed by issuers in Rule 506 offerings, open up an entirely new category of “publicly offered private offerings” that are largely exempt from substantive regulation at either the federal or state level, by issuers that will be able to avoid becoming public companies, for practical purposes, as long as they wish. Given the high costs and liability risks of operating as a publicly reporting company in the U.S., and the great advantages of being a Rule 506 issuer, this is a category that could prove to be very large, and very varied.
    9/29/2014
    U.S. Steps Up Sanctions and Export Controls Against Russia’s Defense Industry
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Stephanie J. Rohrer
    The United States recently expanded sanctions and export controls against the Russian defense sector. These designations and export control steps have implications for defense contractors, parts suppliers and brokers.
    September 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim

    Headlines:

    • Unenclosed and Unpainted Tower Leads to $30,000 in Fines
    • $20,000 Fine for Missing Issues/Programs Lists at Two Stations
    • Increased Fine for Intentional Interference and Unlicensed Transmitter Use
    9/26/2014
    FAA Grants Exemptions and Releases Guidance for Operation of Small Unmanned Aircraft Systems
    Authors: Kenneth P. Quinn, Jennifer E. Trock, Graham C. Keithley
    On September 25, 2014, the Federal Aviation Administration (FAA) approved six exemption requests for the use of small unmanned aircraft systems (sUAS) for television and movie filmmaking under strict conditions. Simultaneously, the FAA released guidelines for petitioners seeking FAA exemption approval to operate sUAS in the National Airspace System (NAS). The FAA’s exemptions and guidance serve as useful relief valves to address pent-up demand for commercial UAS, with 40 exemption requests in the pipeline, many of which are now likely to be granted in modified forms in the coming months, especially in the agricultural, chemical, university research, and utilities sectors. These latest exemptions are highly restrictive, and do not represent a comprehensive regulatory framework to address the many safety, privacy, and security issues raised by the widespread use of UAS. FAA, which has neither expertise nor authority regarding privacy, is expected to issue a more comprehensive, proposed rulemaking for sUAS before the end of the year.
    9/23/2014
    The Coming Qui Tam Tsunami: A New Threat to American Business
    Authors: Thomas C. Hill, Jeetander T. Dulani
    The most potent weapon in combatting corporate fraud against the U.S. government has been the False Claims Act (“FCA”). Under the FCA, the U.S. government may recover treble damages and civil fines for such fraud. Surprisingly, nearly 90 percent of these cases are now initiated under the FCA’s qui tam provision by private plaintiffs (known as relators) in the name of the United States. Relators have historically been whistleblowers with insider information, but their profile is rapidly changing. Complicating this emerging risk is the announcement by Assistant Attorney General Leslie R. Caldwell that all new qui tam complaints will be shared with the Criminal Division as soon as the cases are filed, so that DOJ can pursue parallel civil and criminal investigations. Companies can expect an increase in creative and complex qui tam cases, with DOJ lending its substantial resources to the growing plaintiffs’ bar.
    September 2014
    Biennial Ownership Reports are due by October 1, 2014 for Noncommercial Radio Stations in Iowa and Missouri and Noncommercial Television Stations in Alaska, American Samoa, Florida, Guam, Hawaii, the Mariana Islands, Oregon, Puerto Rico, Saipan, the Virgin Islands, and Washington
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station’s respective license renewal filing deadline.
    September 2014
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and locally originating LPTV stations licensed to communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must begin airing pre-filing license renewal announcements on October 1, 2014. License renewal applications for all TV stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont are due by December 1, 2014.
    September 2014
    Annual EEO Public File Report Deadline for Stations in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, the Mariana Islands, Missouri, Oregon, Puerto Rico, Saipan, the Virgin Islands, and Washington
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, the Mariana Islands, Missouri, Oregon, Puerto Rico, Saipan, the Virgin Islands, and Washington, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    8/29/2014
    OFAC Makes Important Update to Ownership/Control Guidance
    Authors: Stephan E. Becker, Nancy A. Fischer, Stephanie J. Rohrer
    On August 13, 2014, the Office of Foreign Assets Control (OFAC) issued new guidance on ownership/control for determining blocked parties. This represented the first significant update on this topic since February 14, 2008, and may have important practical implications for how companies conduct due diligence, assess whether potential business associates or customers are blocked under U.S. law, and determine when it is safe to deal in or transfer the property of such persons.
    August 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim

    Headlines:

    • Nonexistent Studio Staff and Missing Public Inspection File Lead to $20,000 Fine
    • Failure to Route 911 Calls Properly Results in $100,000 Fine
    • Admonishment for Display of Commercial Web Address During Children’s Programming
    8/8/2014
    Further European Union Sanctions Target Russia, Whilst Russia Retaliates
    Authors: Raymond L. Sweigart, Aaron R. Hutman, Steven P. Farmer, Stephanie J. Rohrer
    In response to the continuing situation in eastern Ukraine and Crimea, the European Union (EU) has adopted further significant sanctions against Russia. On 6 August 2014, Russia responded.
    8/7/2014
    Expanded Sanctions Target Russia’s Defense Industry
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman, Stephanie J. Rohrer
    The United States, European Union and Canada each took steps recently to expand sanctions against Russia, including the targeting of major defense companies and the addition of export controls. These designations and export control steps have implications for defense contractors and brokers.
    8/6/2014
    The ADA and Private Professional Certification
    Authors: Jerald A. Jacobs, Julia E. Judish, Dawn Crowell Murphy, Chris Leuchten
    Title III of the Americans with Disabilities Act (ADA), as amended, mandates that private entities offering examinations or courses related to certain applications, licensing, certification, or credentialing ensure that such exams and courses are accessible to individuals with disabilities or offer alternative accessible arrangements. Those involved with any aspect of credentialing examinations should pay careful attention to what aids or accommodations must be offered by law.
    8/6/2014
    FDA Draft Guidance Would Ease Regulatory Burdens for Certain mHealth Applications
    Authors: Erica J. Kraus, Kristi V. Kung
    On August 1, 2014, the Food and Drug Administration (FDA) released draft guidance that would exempt from premarket 510(k) review many low-risk medical devices—including certain mobile applications that can convert a cell phone into a medical device, such as a thermometer or a stethoscope. Although the guidance is not yet legally enforceable, the FDA also announced its intention not to enforce compliance with premarket review requirements for these devices and noted that it did not expect manufacturers to submit 510(k)s for these devices prior to adoption of a final rule or order. The FDA’s recognition that these devices are sufficiently well understood and do not present risks that require premarket review to ensure their safety and effectiveness—and its corollary decision to exercise enforcement discretion as to these devices—eases the regulatory burden on medical application developers and expands opportunities for continued development and dissemination of important mobile tools for improving patient care and physician practice.
    8/4/2014
    U.S. Bank v. Indian Harbor: Another Blow to the Restitution/Disgorgement Defense
    Authors: Peter M. Gillon, Vernon Thompson, Jr.
    In recent years, purchasers of D&O and professional liability insurance have been stunned to learn that their carriers have denied coverage for a wide range of claims on the theory that their policies do not cover loss that could be characterized as restitutionary in nature or where a judgment or settlement requires the insured to “disgorge” a sum of monies. Now, however, the tide may be turning against this overreaching practice. Although it is far too early to administer last rites to the “restitution/disgorgement defense,” a compelling opinion penned by Judge Paul Magnuson of the District of Minnesota, in U.S. Bank v. Indian Harbor Insur. Co., along with other recent court rulings, suggest that its expanding use has been severely curtailed. Applying Delaware law, the court flatly rejected insurers’ arguments that the defense precluded coverage under a professional liability policy for amounts the insured bank agreed to reimburse customers in a settlement over claims that the bank charged excessive overdraft fees. U.S. Bank v. Indian Harbor Insur. Co., Civ. No. 12-cv-3175 (PAM/JSM) (D. Minn. July 3, 2014).
    July 2014
    Biennial Ownership Reports are due by August 1, 2014 for Noncommercial Radio Stations in Illinois and Wisconsin and Noncommercial Television Stations in California, North Carolina, and South Carolina
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station’s respective license renewal filing deadline.
    July 2014
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and locally originating LPTV stations licensed to communities in Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan must begin airing pre-filing license renewal announcements on August 1, 2014. License renewal applications for all TV stations in Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan are due by October 1, 2014.
    July 2014
    Annual EEO Public File Report Deadline for Stations in California, Illinois, North Carolina, South Carolina, and Wisconsin
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations in California, Illinois, North Carolina, South Carolina, and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    7/28/2014
    New EEOC Developments Expand Employers’ Pregnancy Accommodation Obligations
    Authors: Julia E. Judish, Teresa T. Lewi
    For the first time in more than 30 years, on July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) overhauled its guidance on pregnancy discrimination issues—broadening anti-discrimination coverage and cautioning employers on their obligation to provide reasonable accommodations to employees with pregnancy-related conditions. The EEOC’s Guidance takes the position that, under multiple federal statutes, employers have broad accommodation and non-discrimination obligations with respect to pregnant employees, recently pregnant employees, and lactating employees. The EEOC Guidance signals an aggressive enforcement stance by the EEOC, and it conflicts with some federal court cases, although other federal courts have ruled consistently with the EEOC’s position. Just two weeks prior to the issuance of the EEOC Guidance, the U.S. Supreme Court granted a petition for certiorari in Young v. United Parcel Service, Inc., to address whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”), which was an amendment to Title VII of the Civil Rights Act of 1964, requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” Until the Supreme Court provides a definitive ruling on pregnancy non-discrimination and accommodation obligations, employers would be prudent to act in conformance with the EEOC Guidance.
    7/28/2014
    House of Representatives Passes SAFETY Act Amendment
    Clarifies that liability protections are available for cyber attacks
    Author: Brian E. Finch
    The U.S. House of Representatives took a major positive step towards increasing the nation’s cyber security posture today when, on a voice vote, it passed H.R. 3696, the “National Cybersecurity and Critical Infrastructure Protection Act.”
    July 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim
    Headlines:

    • Multi-Year Cramming Scheme Results in $1.6 Million Fine
    • Violation of Retransmission Consent Rules Leads to $2.25 Million Fine
    • $25,000 Fine for Failure to Respond to FCC

    July 2014
    Cable and Satellite Royalty Claims Due to the Copyright Royalty Board by July 31, 2014
    Authors: Lauren Lynch Flick, Scott R. Flick
    This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2013. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by Thursday, July 31, 2014 at 5:00 pm (EDT).

    July 2014
    2014 Second Quarter Issues/Programs List Advisory for Broadcast Stations
    Author: Scott R. Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by July 10, 2014, reflecting information for the months of April, May, and June 2014.
    July 2014
    2014 Second Quarter Children’s Television Programming Documentation
    Authors: Lauren Lynch Flick, Scott R. Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by July 10, 2014, reflecting programming aired during the months of April, May, and June 2014.
    June 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim

    Headlines:

    • Bad Legal Advice Leads to Admonishment for Public File Violations
    • $10,000 Fine for Tower Violation
    • Missing Emergency Alert System Equipment Results in $6,000 Fine
    May 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim

    Headlines:

    • FCC Proposes $11,000 Fine for Marketing of Unauthorized Device
    • $2,944,000 Fine for Robocalls Made Without Recipients’ Consent
    • Sponsorship Identification Complaint Leads to $185,000 Consent Decree
    • Premature Consummation of Transaction Results in $22,000 Consent Decree
    5/21/2014
    Proposed U.S. Department of Transportation Passenger Protection Rules Offer Opportunity for Travel Industry Comments
    Authors: Josh Romanow, Jennifer E. Trock, Justin J. Bintrim, Peter V. Nelson
    On May 21, 2014, the U.S. Department of Transportation (DOT) proposed new passenger protection rules for the airline and travel industries, which would add to DOT’s extensive “Enhancing Airline Passenger Protections” regulations issued in December 2009 and April 2011. The proposed rules would have a significant impact on marketing, operational, and distribution activities throughout the industry. The proposed rule has important implications for international airlines serving US markets, domestic airlines, ticket agents, tour operators, online travel agencies, and global distribution systems. Among other things, it would dramatically expand DOT’s jurisdiction over and impose significant new requirements on travel distributors, including internet search engines. Affected parties should take advantage of this opportunity to offer their views and concerns on what could become new, potentially burdensome restrictions on industry practices.
    5/20/2014
    Recent Decision Reminds Companies to Use Best Practices to Protect Their Internal Investigations
    Authors: Thomas C. Hill, Daryl M. Shapiro, Timothy J. V. Walsh, Rebecca Carr Rizzo
    The DC Circuit recently heard oral argument regarding a mandamus petition filed by defendants in a qui tam action. The case sheds light on the best practices that companies should utilize to increase the odds that the attorney-client and work product privileges will shield their internal investigation records.
    5/13/2014
    Recent Changes to New York Estate and Income Tax
    Authors: Elizabeth H.W. Fry, Christen Douglas
    On March 31, 2014, the New York State legislature passed and Gov. Andrew Cuomo signed into law the New York State 2014-2015 Budget Bill (the “New Law”), which contains a number of revisions to the New York State estate tax law and the laws governing the New York income taxation of trusts. Specifically, the New Law (1) gradually increases the New York State estate tax exemption amount over the next five years; (2) includes certain lifetime gifts as part of a decedent’s New York taxable estate; and (3) closes two perceived “loopholes” in New York’s income taxation of trusts in an effort to recapture income tax that New York was losing from certain resident trusts with non-resident trustees. By increasing the estate tax exemption amount, the New Law increases the number of estates that will pass free of New York State estate tax liability. Larger estates (as described below) will generally be subject to the same New York State estate tax liability as they were under the old law, unless they are required to include certain lifetime gifts as part of their taxable estates.
    5/13/2014
    Western Sanctions Expand as Tension in Ukraine Continues
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman, Stephanie J. Rohrer
    The United States, Canada and the European Union have designated a number of additional officials and companies as the unrest continues in eastern Ukraine. The United States also imposed sanctions on the head of Russian energy giant Rosneft and announced new export controls on shipments to Russia. Although sector-wide sanctions or broader measures against the Russian banking or energy industries have not yet been imposed, such measures remain under active consideration and further destabilization or Russian military action could trigger additional steps in the near future.
    May 2014
    Political Broadcasting Advisory
    Authors: Scott R. Flick, Clifford M. Harrington, Lauren Lynch Flick, Miles S. Mason, Richard R. Zaragoza, Paul A. Cicelski, John K. Hane, Christine A. Reilly, Andrew S. Kersting, Carly A. Deckelboim
    This Advisory provides a review of the FCC’s political broadcasting regulations.
    5/9/2014
    The U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule in EPA v. EME Homer City Generation, L.P., Paving the Way to Further Use of Cap-and-Trade Programs to Control Emissions of SO2 and NOx from Electric Power Plants.
    Authors: Peter H. Wyckoff, Michael R. Barr, Jeffrey A. Knight, Anthony B. Cavender, Matthew W. Morrison, Corrie L. Plant
    On April 24, the Supreme Court issued a 6-2 decision in EPA v. EME Homer City Generation, L.P., No. 12-1182, 134 S. Ct. 1584 (2014), upholding EPA’s latest version of a regional cap-and-trade program under the federal Clean Air Act (CAA) to control those electric power plant emissions of sulfur dioxide (S02) and nitrogen oxides (NOx) that contribute to interstate formation of fine particle and ozone (smog) pollution. Of first importance, the Court removed the doubt haunting such programs for more than 15 years that EPA has power under the CAA to set the cap for such a program primarily on the basis of costs of control, an element of fairness vital to willing participation. By doing so, the Court largely cleared the path for EPA to use a regional cap-and-trade program to implement the revised National Ambient Air Quality Standard (NAAQS) for ozone that EPA is expected to issue before the end of the Obama Administration. In addition, the Court’s decision gives insight into how it may resolve pending challenges to EPA’s regulation of greenhouse gas (GHG) emissions through its Prevention of Significant Deterioration (PSD) permitting program.
    May 2014
    Annual EEO Public File Report Deadline for Stations in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    May 2014
    Biennial Ownership Reports are due by June 2, 2014 for Noncommercial Radio Stations in Michigan and Ohio and Noncommercial Television Stations in Arizona, the District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.
    May 2014
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in California
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and locally originating LPTV stations licensed to communities in California must begin airing pre-filing license renewal announcements on June 1, 2014. License renewal applications for all TV stations in California are due by August 1, 2014.
    May 2014
    All Class A and Full-Power Television Stations Must Comply with Online Political File Requirements as of July 1, 2014
    Author: Christine A. Reilly
    Class A and Full-Power Television Broadcasters in All Markets Regardless of Network Affiliation and Market Rank Must Comply with the Online Retention of Political Programming Materials as of July 1, 2014
    April 2014
    FCC Enforcement Monitor
    Authors: Paul A. Cicelski, Carly A. Deckelboim
    Headlines:
    • FCC Proposes $12,000 in Fines for Contest Violations
    • $20,000 Fine for Unlicensed Operation and Interference
    • Violations of Sponsorship Identification and Indecency Rules Lead to $15,000 Consent Decree

    4/22/2014
    European Subsidiary Incurs Liability Under U.S. Cuba Sanctions for Travel Services
    Authors: Nancy A. Fischer, Aaron R. Hutman, Stephanie J. Rohrer
    On April 18, 2014, the Office of Foreign Assets Control (“OFAC”) announced a settlement of nearly $6 million with CWT B.V. (“CWT”) for violations of the Cuban Assets Control Regulations (“CACR”), 31 C.F.R. Part 515. CWT is a travel service company based in the Netherlands but majority owned by U.S. persons and consequently was subject to U.S. jurisdiction. CWT provided travel services to 44,430 persons traveling to and from Cuba in violation of the U.S. embargo.
    4/21/2014
    Expansion of Antitrust Enforcement Continues with Extradition
    Foreign Executive to Face U.S. Antitrust Charges
    Authors: Jhale Ali, Mark R. Hellerer, Fusae Nara, Jacob R. Sorensen
    On April 4, 2014, the Department of Justice’s Antitrust Division announced its first successful extradition of a foreign national to the United States on antitrust charges. Romano Pisciotti, a citizen of Italy, has been under indictment since 2010 based on his alleged involvement in a marine hose cartel that has produced a number of guilty pleas. While traveling through Germany on business, he was identified as a fugitive from United States justice, detained, and eventually extradited. Germany’s extradition of Mr. Pisciotti demonstrates both the increased willingness of the Division to pursue extradition and the increased risks posed to foreign executives, especially if they travel outside of their home countries while under indictment in the United States.
    4/18/2014
    Hon. Greg Laughlin Discusses Pillsbury’s Crisis Management Team
    Author: The Honorable Gregory H. Laughlin
    Senior Counsel Greg Laughlin describes the capabilities and experience of Pillsbury’s Crisis Management Team. Having dealt with crises in both the private sector and in government regulatory roles, our lawyers are equipped to move quickly in mobilizing the firm's global resources to guide clients experiencing crises of any type. They can also help an organization set up contingency plans in advance, to be deployed in the event of a crisis.
    4/18/2014
    Elizabeth Moeller Discusses Crisis Strategy Planning in Government Investigations
    Author: Elizabeth Vella Moeller
    Public Policy partner Elizabeth Moeller addresses the recent rise in the frequency and intensity of investigations by government entities at all levels. When clients turn to Pillsbury amid an official probe, our lawyers draw on their knowledge of investigative processes and players to provide guided and strategic counsel during what is often a trying time. They know how to act decisively -- but not recklessly -- in dealing with the authorities.
    April 2014
    Closed Captioning Quality Standards Go Into Effect April 30, 2014
    Authors: Clifford M. Harrington, Christine A. Reilly
    The FCC’s Recent Report and Order, Declaratory Ruling and Further Notice of Proposed Rulemaking Institutes a New Wave of Compliance Deadlines
    4/15/2014
    Pillsbury Senior Counsel Greg Laughlin Discusses the Future of Government Bailouts
    Author: The Honorable Gregory H. Laughlin
    Senior Counsel Greg Laughlin discusses the legislative steps being taken to prevent future large-scale government bailouts of distressed financial institutions. From implementation of the Dodd-Frank Act to the introduction of the PATH Act in the U.S. House of Representatives, efforts are underway to end bailouts by placing greater emphasis on private capital solutions that diminish the need for taxpayer dollars.
    4/15/2014
    Pillsbury Partner Elizabeth Moeller on a New Wave of Investment in Water Policy
    Author: Elizabeth Vella Moeller
    Public Policy partner Elizabeth Moeller discusses how recent and expected developments in U.S. water policy may lead to a new wave of investment spurred by public-private partnerships. With billions of dollars flowing to the EPA and Corp of Engineers to improve water quality, flood control, and hydro-electric power generation, as well as the expected passage of the Water Resources Development Act, we may soon see significant investments from private equity groups seeking to leverage the current political landscape into lucrative opportunities.
    4/15/2014
    President Takes Action Meant to Increase Pay Equity for Employees of Federal Contractors
    Authors: Julia E. Judish, Keith D. Hudolin
    On April 8, 2014, President Obama issued an Executive Order and a Presidential Memorandum aimed at “closing the persistent pay gap for women and minorities,” at least for employees of federal contractors and subcontractors. These two executive actions direct the Department of Labor to issue new regulations that will (i) prohibit government contractors from retaliating against employees and applicants for asking about, disclosing, or discussing their compensation with other workers, and (ii) require contractors to report summary compensation data for their employees, by sex and race, to the Department of Labor. By limiting the reach of these measures only to employers that are government contractors, President Obama was able to act on his own executive authority, without needing the cooperation of Congress. Government contractors comprise approximately a quarter of the U.S. workforce. Thus, these new regulations will directly affect a significant portion of employers, and may also have a ripple effect that extends even to wholly private-sector employers.
    4/1/2014
    U.S. and UK Take Modest Steps to Restrict Exports to Russia
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman, Stephanie J. Rohrer
    The Obama Administration has threatened to impose additional sanctions on Russia in response to the Ukraine crisis but so far has only blocked the assets of 32 individuals and one bank. Additionally, with little fanfare, the two primary U.S. agencies responsible for issuing export licenses announced that they have stopped processing applications for licenses to export or re-export products and technology to Russia. The United Kingdom is suspending existing licenses and will not process license applications to export to Russia products and services that are destined for military use in the Ukraine.
    3/31/2014
    FTC Expands Focus on Tracking and Use of Consumers’ Location Data
    In-store monitoring of shoppers’ mobile devices under scrutiny.
    Authors: Roxane A. Polidora, Catherine D. Meyer, Lindsay A. Lutz, Kristen E. Baker
    Over the past few years, the Federal Trade Commission (“FTC”) has provided guidance regarding mobile platforms and app providers’ practices of collecting data about consumers’ locations through their mobile devices, with a focus on transparency and notice to consumers. The FTC recently hosted a spring seminar on emerging consumer privacy issues that focused on a new type of mobile device tracking: brick-and-mortar businesses tracking consumer movements in or around their premises using signals from the consumer’s mobile device.
    March 2014
    2014 First Quarter Issues/Programs List Advisory for Broadcast Stations
    Author: Scott R. Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2014, reflecting information for the months of January, February, and March 2014.
    March 2014
    2014 First Quarter Children’s Television Programming Documentation
    Authors: Lauren Lynch Flick, Scott R. Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by April 10, 2014, reflecting programming aired during the months of January, February, and March 2014.
    3/25/2014
    Class Certification Properly Denied Where Individual Questions Predominated Under California’s Telephone Recording Statutes
    Authors: Brian D. Martin, Roxane A. Polidora, Richard M. Segal, Andrew D. Bluth
    The California Court of Appeal unanimously affirmed a trial court ruling denying class certification in a lawsuit filed under California’s Invasion of Privacy Act. The Court held that the determination of whether each potential class member had a reasonable expectation that his or her phone conversations would not be recorded would require too many individual fact inquiries to be treated on a class basis.
    3/24/2014
    Ukraine/Russia Sanctions Escalate
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman, Stephanie J. Rohrer
    Sanctions escalated at a rapid pace last week as western powers responded to the crisis in Ukraine and Russian’s annexation of Crimea. The United States, European Union (EU), Canada and Australia have implemented sanctions. The approaches and specific sanctions lists of these four jurisdictions overlap but have certain key differences. Following are the current contours of these sanctions (through March 23, 2014).
    3/20/2014
    An American Policyholder in London: English Choice of Law Clauses in United States Insurance Policies
    Authors: Raymond L. Sweigart, Jeffrey A. Kiburtz
    While certainly not the norm, it is not uncommon for insurance policies issued to companies based in the United States, particularly large commercial and excess policies brokered on the London Market, to contain choice of law and forum clauses specifying that the law of England and Wales governs and that any legal proceedings shall be brought in the English courts1. As one might expect from the birthplace of insurance and home to the best-known insurance market in the world, England does not have a reputation for law that is overtly favorable to policyholders and other insureds. Compounding the trepidation felt by some commercial insureds in these situations, many policies with English choice-of-law clauses also require that disputes be resolved via panels of typically-English insurance experts in confidential arbitration proceedings in London. On the other side, of course, there are many proponents of having complex insurance disputes resolved in London under English law, citing the certainty provided by even-handed rules of interpretation being applied by insurance experts in a confidential setting and the accordant ability of insurers to price risk more accurately.
    3/20/2014
    Government Contractors Face Expanded Affirmative Action Requirements
    Regulations relate to veterans and individuals with disabilities.
    Authors: Julia E. Judish, Maryelena Zaccardelli
    As its landmark initiative, the Obama Administration’s Office of Federal Contract Compliance Programs (“OFCCP”) issued expansive new regulations requiring government contractors to undertake greater efforts to employ veterans and individuals with disabilities. The regulations implement the Vietnam Era Veterans’ Readjustment and Assistance Act, as amended, (“VEVRAA”) and Section 503 of the Rehabilitation Act of 1973 (“Section 503”), which prohibit discrimination against and require affirmative action in employment for certain classes of veterans and for individuals with disabilities. The most controversial of the requirements – hiring benchmarks for veterans and utilization goals for individuals with disabilities – have an effective date that depends on the start date for each contractor’s affirmative action plan (“AAP”) year. Some provisions, however, go into effect on March 24, 2014, and the OFCCP encourages contractors to begin early implementation of other regulatory provisions.
    March 2014
    Biennial Ownership Reports are due by April 1, 2014 for Noncommercial Radio Stations in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee and Noncommercial Television Stations in Texas
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.
    March 2014
    Annual EEO Public File Report Deadline for Stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    March 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim
    Headlines:

    • FCC Proposes $40,000 Fine for Public Inspection File/License Renewal Violations
    • Short-Term License Renewal and Hefty Fine for Missing QIP Lists
    • $5,000 Fine for FM Station’s Failure to Maintain Minimum Operating Hours

    March 2014
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Arizona, Idaho, New Mexico, Nevada, Utah, and Wyoming
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and locally originating LPTV stations licensed to communities in Arizona, Idaho, New Mexico, Nevada, Utah, and Wyoming must begin airing pre-filing license renewal announcements on April 1, 2014. License renewal applications for all TV stations in these states are due by June 2, 2014.
    3/7/2014
    New Ukraine Sanctions Announced – U.S., EU and Canada Take Action
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman
    In response to political developments in the Ukraine and Russian military action in Crimea, the United States and European Union (EU) announced new sanctions on March 6, 2014. Canada issued its sanctions on March 5, 2014. The U.S. Executive Order authorized the Treasury Department to block the assets of persons determined to have engaged in certain destabilizing conduct or misappropriation of state assets in the Ukraine. The Executive Order also provided for the potential denial of visas. The United States has not yet made any designations under its sanctions and is not expected to do so immediately, but has issued anti-money laundering guidance concerning the accounts of eighteen members of the former Ukraine regime, including ex-President Viktor Yanukovych. The EU and Canada imposed an asset freeze against these former Ukraine regime officials.
    3/3/2014
    Final Federal Reserve Rules for Foreign Banking Organizations
    Authors: Rodney R. Peck, Joseph T. Lynyak, III

    This Alert describes the final regulations issued by the Federal Reserve Board (the “FRB”) on February 18, 2014, that radically modify the former requirements applicable to foreign banking organizations (“FBOs”) pursuant to the FRB’s Regulation K. The final rules (the “Final Rules”) impose various requirements on large FBOs that previously have been applied to large U.S. domestic bank holding companies and banks under the Dodd-Frank Act. In addition, however, the Final Rules also alter many of the former approaches to the regulation of FBOs in general, including the necessity for many FBOs to form “U.S. intermediate holding companies” for their U.S. operations.

    Regardless of the category an FBO falls into, the Final Rules present significant additional compliance burdens.
    February 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim

    Headlines:

    • FCC Limits License Renewal to Two Years and Assesses $4,000 Fine
    • $24,000 Consent Decree for Incomplete Public Inspection File
    • Hotels Cited for Exceeding Signal Leakage Limits in Aeronautical Bands
    2/19/2014
    U.S. Ex-Im Bank Opens for Business in Burma/Myanmar
    Authors: Christopher R. Wall, Michael P. Schumaecker, Aaron R. Hutman
    The U.S. Government has taken another important step in helping to reintegrate Myanmar (referred to as Burma for official purposes) into the global economy. On February 6, 2014, the Export-Import Bank of the United States (Ex-Im Bank) announced the opening of financial support for qualified short-term and medium-term U.S. export sales to Myanmar. Over the past 18 months, the United States has substantially removed sanctions on business with Myanmar and has expanded economic and trade support on a step-by-step basis in response to political and economic reforms. The recent announcement by Ex-Im Bank will play an important role in opening a new market for U.S. exports.
    2/18/2014
    Feds’ Reliance on Environmental Activism Underscores Need for Lacey Act Compliance
    Authors: William M. Sullivan, Jr., Thomas G. Allen, Benjamin J. Cote

    This alert was originally published in Volume 40, Number 5, April/May 2014 issue of Import/Export Wood Purchasing News.

    The search warrant recently executed by U.S. Customs and Fish and Wildlife Service agents on a Virginia-based flooring wholesaler surrounded allegations that the company had illegally imported wood in violation of the Lacey Act, 16 USC § 3371 et seq. It now appears that the federal investigation preceding this raid on two separate locations of the flooring company was based, in part, on an investigation conducted by an independent environmental activist group. This development bolsters three significant trends in Lacey Act enforcement that companies engaged in the purchase, manufacture or sale of wood products should take note of.
    2/11/2014
    “DPAs” Have Arrived in England: The Proof of the Pudding Is in the Eating
    Authors: Raymond L. Sweigart
    As noted in our previous Alert in September 2013, the UK Crime and Courts Act 2013 has now come into effect this month making deferred prosecution agreements (DPAs) available to the Director of the Serious Fraud Office (SFO) and the Director of Public Prosecutions (DPP) in suitable cases involving bribery, fraud, or other economic crime committed by business entities such as companies or partnerships. Individuals are not covered, and the procedure in England will differ somewhat from the DPA process that has been used in the United States for many years. Nevertheless, DPAs are generally anticipated as a welcome addition to a system suffering from a history of prosecution delays and backlogs predating the Bribery Act 2010.
    2/10/2014
    IRS Issues Long-Promised Guidance Following Historic Boardwalk Decision
    Author: Thomas D. Morton
    To welcome in the new year, the Internal Revenue Service (the “IRS”) issued Rev. Proc. 2014-12, 2014-3 I.R.B. 415, to provide administrative guidance to the federal historic tax credit industry in the aftermath of the Third Circuit’s decision in Historic Boardwalk Hall, LLC v. Commissioner, 694 F.3d 425 (3d Cir. 2012), cert. denied, 133 S.Ct. 2734 (2013). Rev. Proc. 2014-12 includes a safe harbor (the “Safe Harbor”) pursuant to which the IRS will not challenge the allocation of rehabilitation tax credits (“Historic Credits”) under Section 47 of the Internal Revenue Code of 1986, as amended (the “Code”), among partners in a partnership. Overall, the guidance is a good faith and useful attempt by the IRS to set reasonable Safe Harbor parameters while addressing its concerns with the deal structure in the Historic Boardwalk case. Unfortunately, it does also include some puzzling elements.
    1/30/2014
    HSR Thresholds Will Increase to Highest Levels for Transactions in 2014
    Authors: Michael L. Sibarium, Aileen (Chuca) Meyer, Alvin Dunn, Jeetander T. Dulani
    On February 24, 2014, revised thresholds for the Hart-Scott-Rodino Act (“HSR”) will take effect. The thresholds determine whether parties involved in proposed mergers, consolidations, or other acquisitions of voting securities, assets, or unincorporated interests must notify the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) of a proposed transaction and comply with a mandatory waiting period before the transaction can be consummated.
    January 2014
    Biennial Ownership Reports are due by February 3, 2014 for Noncommercial Radio Stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York and Noncommercial Television Stations in Kansas, Nebraska, and Oklahoma
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.
    January 2014
    Annual EEO Public File Report Deadline for Stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    1/29/2014
    DC Circuit Affirms Crucial FAA No Hazard Determination for Cape Wind Project
    Authors: Kenneth P. Quinn, Jennifer E. Trock, Osama E. Hamdy
    On January 22, 2014, the DC Circuit upheld the Federal Aviation Administration’s (FAA) 2012 determination of no hazard, clearing the final FAA hurdle to construction of the 130-wind turbine Cape Wind project in Nantucket Sound.
    January 2014
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Carly A. Deckelboim
    Headlines:

    • FCC Admonishes Television Stations for “Host-Selling” to Children
    • $7,500 Fine Imposed for Documents Missing From Public Inspection File
    • $17,000 Fine for Unauthorized Operation of a Radio Transmitter

    1/22/2014
    United States Implements Temporary Changes to Iran Sanctions under Interim Agreement
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman
    On January 20, 2014, the U.S. Treasury and State Departments took steps to implement temporary and limited changes to U.S. sanctions policy for Iran as agreed under the interim nuclear deal reached by Iran and the P5 + 1 countries. Most U.S. sanctions on Iran remain in place and will continue to be enforced. Between January 20 and July 20, 2014, non-U.S. individuals and companies (unless U.S. owned or controlled) will not face U.S. sanctions enforcement if they engage in specified transactions relating to the (a) export of Iranian petrochemical products, (b) provision of goods and services for Iran’s auto industry, (c) sale of gold and precious metals to or from Iran and (d) provision of insurance and transport services associated with sales of Iranian oil to six specified countries. The U.S. government also has adopted a favorable licensing policy in specified cases for the provision of goods and services to Iran’s civil aviation industry by U.S. persons, U.S. owned/controlled foreign entities and non-U.S. persons for transfer of U.S. goods or technology. The U.S. also is taking steps to facilitate certain humanitarian and medical trade with Iran, payment of UN dues and support for Iranians studying abroad.
    1/16/2014
    New York’s Non-Profit Revitalization Act
    Authors: Jerald A. Jacobs, Julia E. Judish, Dawn Crowell Murphy
    The New York Non-Profit Revitalization Act of 2013 (the “Act”) was signed into law December 18, 2013, and the bulk of its provisions will take effect July 1, 2014. As we reported in our previous alert on the subject, the goals of this legislative effort were to modernize the law and reduce administrative burdens on nonprofits, as well as to improve governance accountability and oversight.
    1/16/2014
    Insurance and the Polar Vortex: Recovering Losses from the Big Chill of 2014
    Authors: Peter M. Gillon, David T. Dekker, Joseph D. Jean, Geoffrey J. Greeves, Vincent E. Morgan, James P. Bobotek, Matthew D. Stockwell
    The first two weeks of 2014 ushered in an extraordinary weather disaster affecting most of the United States, causing extensive property damage and business interruption as a result of freezing temperatures. On January 3, 2014, a “Polar Vortex,” a circulating pattern of cold air originating in the Arctic north, was drawn south into the United States, bringing with it unusual frigid conditions, ice storms and snow. The big chill froze pipes and sprinkler systems, interrupted chemical manufacturing and disrupted transportation systems. In fact, all 50 states experienced freezing temperatures – even Hawaii. Temperatures were so cold that a polar bear kept at Chicago’s Lincoln Park Zoo was moved inside.
    1/8/2014
    Be Careful What You Look For: EPA Updates “All Appropriate Inquiries” Environmental Diligence Standard
    Authors: Norman F. Carlin, Jeffrey A. Knight, Alina J. Fortson, Joseph Ferranti
    On December 30, 2013, the U.S. Environmental Protection Agency (“EPA”) amended its “All Appropriate Inquiries” rule, which sets out the standard for environmental due diligence in commercial and industrial property transactions in order to qualify for certain defenses to liability under the federal “Superfund” law. The amended rule endorses ASTM standard E1527-13, which incorporates new requirements to report on vapor migration, review agency records as well as search databases, and distinguish controlled from historical conditions. Responding to objections that allowing a prior, less time-consuming and costly standard to remain in effect would cause confusion, EPA also announced that, in the near future, it will propose deleting the prior standard from the rule. Meanwhile, many purchasers and lenders are likely to require their sellers and borrowers to switch to the new standard in light of EPA’s announced intent.
    January 2014
    2013 Fourth Quarter Children’s Television Programming Documentation
    Authors: Lauren Lynch Flick, Scott R. Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by January 10, 2014, reflecting programming aired during the months of October, November, and December 2013.
    January 2014
    2013 Fourth Quarter Issues/Programs List Deadline for Broadcast Stations
    Author: Scott R. Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by January 10, 2014, reflecting information for the months of October, November, and December 2013.
    December 2013
    2014 Broadcasters’ Calendar
    Authors: Paul A. Cicelski, Scott R. Flick, Lauren Lynch Flick, John K. Hane, Clifford M. Harrington, Miles S. Mason, Christine A. Reilly, Richard R. Zaragoza, Andrew S. Kersting

    Items of Note in 2014

    1. Applications for Renewal of License: The three-year long license renewal cycles for broadcast stations in radio services (AM, FM, FM Translator, LPFM), which began on June 1, 2011, and for television services (television, Class A, LPTV, TV Translator), which began on June 1, 2012, continue in 2014. The date on which a station's license renewal application is due depends on the state or territory in which its community of license is located. All licensees should familiarize themselves now with the dates associated with this important filing, including the dates on which public notice announcements must air in advance of the license renewal filing; the filing date itself, which is four months before the date of license expiration; and the dates on which post-filing announcements must air.
    December 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in Delaware and Pennsylvania
    Authors: Lauren Lynch Flick, Scott R. Flick
    Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Delaware and Pennsylvania must begin airing pre-filing license renewal announcements on February 1, 2014. License renewal applications for these stations, and for in-state FM translator stations, are due by April 1, 2014.
    December 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Texas
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and certain LPTV stations licensed to communities in Texas must begin airing pre-filing license renewal announcements on February 1, 2014. License renewal applications for these stations and in-state TV translator stations are due by April 1, 2014.
    December 2013
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Paul A. Cicelski

    Headlines

    • FCC Cancels $20,000 Children’s Television Fine
    • Fine and Reporting Requirements Imposed for EEO Violations
    • Individual Fined $15,000 for Unauthorized Operation of a Radio Transmitter
    November 2013
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Paul A. Cicelski

    Headlines:

    • Multiple Indecency Complaints Result in $110,000 Payment
    • $42,000 in Fines for Excessive Power, Wrong Directional Patterns and Incomplete Public Inspection Files
    • Cable Operator Fined $25,000 for Children’s Programming Reports
    11/26/2013
    Interim Deal on Iran Sanctions Policy Involves Limited Changes
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman
    Despite some confusing media reports, the interim nuclear deal reached by Iran and the P5 + 1 on November 24, 2013 would change very little in U.S. and multilateral sanctions policy. These limited changes are still pending implementation by the United States, European Union (EU) and other jurisdictions. Companies as well as those active in energy markets should await implementation and moderate expectations.
    November 2013
    Annual EEO Public File Report Deadline for Stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    November 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in New Jersey and New York
    Authors: Lauren Lynch Flick, Scott R. Flick
    Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in New Jersey or New York must begin airing pre-filing license renewal announcements on December 1, 2013. License renewal applications for these stations, and for in-state FM translator stations, are due by February 3, 2014.
    November 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Kansas, Nebraska, and Oklahoma
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and certain LPTV stations licensed to communities in Kansas, Nebraska, and Oklahoma must begin airing pre-filing license renewal announcements on December 1, 2013. License renewal applications for these stations and in-state TV translator stations are due by February 3, 2014.
    November 2013
    Annual DTV Ancillary/Supplementary Services Report Due for Commercial and Noncommercial Digital Television Stations
    Authors: Lauren Lynch Flick, Scott R. Flick
    All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 2, 2013.
    November 2013
    Biennial Ownership Reports are due by December 2, 2013 for Noncommercial Radio Stations in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Vermont, and Rhode Island and Television stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.
    11/6/2013
    IRS Relaxes Use-or-Lose Rule for Health FSAs
    This article was originally published in Law360 on November 14, 2013.
    Authors: Marcus Wu, Lori Partrick
    On October 31, 2013, the Internal Revenue Service (“IRS”) issued guidance relaxing the Use-or-Lose Rule applicable to Health FSAs under employers’ cafeteria plans. Now an employer may amend its cafeteria plan to permit plan participants with unused Health FSA balances remaining at the end of a Plan Year to carry over up to $500 to reimburse qualified medical expenses incurred in the next Plan Year. Employers with calendar-year plans that want to adopt this carryover provision for unused Health FSA balances remaining at the end of 2013 will need to act quickly. Suggested steps for evaluating and implementing the new rules are provided below. Also, the Notice clarifies the scope of IRS regulations issued earlier this year permitting mid-year election changes under cafeteria plans with non-calendar year Plan Years.
    10/31/2013
    Preparing for Brazil's New Anti-Corruption Law: What In-House Counsel Should Know
    This article was originally published in Law360 on November 8, 2013.
    Authors: William M. Sullivan, Jr., Peter A. Baumgaertner, Paulo H. Varnieri, Kristen E. Baker, Ryan R. Sparacino
    Earlier this year, the Brazilian government approved a sweeping anti-corruption law known as the Brazilian Clean Companies Act ("BCCA" or "Act"), which is set to take effect on January 29, 2014. The new law provides for a wide range of administrative and legal penalties for violators, and is as broad as—if not broader than— the U.S. Foreign Corrupt Practices Act ("FCPA"). As Brazil’s economy continues to surge, and the Brazilian government continues to promote a vigorous anti-corruption agenda, companies that do business in Brazil must ensure that their policies and procedures are satisfactory. This advisory provides an overview of the anti-corruption enforcement risk in Brazil, summarizes the new law, compares it to the FCPA, and offers practical compliance suggestions for in-house counsel.
    October 2013
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Paul A. Cicelski

    Headlines

    • Online Public File Violations and Failure to Respond Result in $14,400 Fine
    • Unlicensed Broadcast Operation Draws $7,000 Fine
    • Fines Continue for Class A Children’s Television Violations
    10/14/2013
    Looking Forward: Practical Implications of the JOBS Act Changes to Private Placements
    Author: Robert B. Robbins
    Two key features of the JOBS Act – general solicitation in Rule 506 offerings, and the increased thresholds at which an issuer will be required to register a class of securities under the Securities Exchange Act of 1934 (the “1934 Act”) – when combined with certain advantages already enjoyed by issuers in Rule 506 offerings, will open up an entirely new category of "publicly offered private offerings" that are largely exempt from substantive regulation at either the federal or state level, by issuers that will be able to avoid becoming public companies, for practical purposes, as long as they wish. Given the high costs and liability risks of operating as a publicly reporting company in the U.S., and the great advantages of being a Rule 506 issuer, this is a category that could prove to be very large, and very varied.
    10/9/2013
    SEC Proposes Pay Ratio Disclosures
    Authors: Justin J. Bintrim, Eric M. Green, Bradley A. Noojin
    The Securities and Exchange Commission (SEC) has proposed rules under the Dodd-Frank Act to require public companies to disclose the ratio of the annual total compensation of their principal executive officer (PEO) to the median annual total compensation of all employees (Proposed Rules).
    October 2013
    2013 Third Quarter Issues/Programs List Advisory for Broadcast Stations
    Authors: Scott R. Flick, Lauren Lynch Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by October 10, 2013, reflecting information for the months of July, August, and September 2013.
    October 2013
    2013 Third Quarter Children’s Television Programming Documentation
    Authors: Lauren Lynch Flick, Scott R. Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2013, reflecting programming aired during the months of July, August, and September 2013.
    10/3/2013
    New FCC Regulations to Take Effect Regarding Telemarketing Robocalls: All Businesses Marketing By Telephone or Text Must Prepare
    Authors: Lauren Lynch Flick, Andrew D. Bluth, Darcy L. Muilenburg
    On October 16, 2013, revised rules adding further restrictions on telemarketing “robocalls” (telemarketing calls or texts that are autodialed or prerecorded) take effect. The Federal Communications Commission (FCC) promulgated the rules pursuant to its authority under the Telephone Consumer Protection Act of 1991 (TCPA). The FCC announced the revisions in 2012 in an effort to provide greater protection for consumers against unwanted robocalls.1 Live operator calls are not subject to the new regulations.
    September 2013
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Paul A. Cicelski

    Headlines:

    • FCC Assesses Substantial Fine for Antenna Lighting Outage
    • Big Fines for Children’s Television Violations
    September 2013
    Tobacco Advertising Q&A
    Authors: Scott R. Flick, Paul A. Cicelski
    While it has been decades since Congress banned cigarette ads from the airwaves, broadcasters continue to ask for advice on whether they may air certain types of tobacco-related advertisements. In fact, questions in this area of law appear to be on the increase, particularly with the advent of “e-cigarette” advertising. In order to assist broadcasters in complying with tobacco advertising restrictions, we offer the following Q&A for tobacco-related spots.
    September 2013
    Biennial Ownership Reports are due by October 1, 2013 for Noncommercial Radio Stations in Alaska, American Samoa, Florida, Guam, Hawaii, the Mariana Islands, Oregon, Puerto Rico, Saipan, the Virgin Islands, or Washington and Noncommercial Television Stations in Iowa or Missouri
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.
    September 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and certain LPTV stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota must begin airing pre-filing license renewal announcements on October 1, 2013. License renewal applications for these stations and in-state TV translator stations are due by December 2, 2013.
    September 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in Connecticut, Maine, Massachusetts, New Hampshire, Vermont, and Rhode Island
    Authors: Lauren Lynch Flick, Scott R. Flick
    Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Connecticut, Maine, Massachusetts, New Hampshire, Vermont, or Rhode Island must begin airing pre-filing license renewal announcements on October 1, 2013. License renewal applications for these stations, and for in-state FM translator stations, are due by December 2, 2013.
    September 2013
    Annual EEO Public File Report Deadline for Stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Puerto Rico, Virgin Islands, Washington, Guam, Mariana Islands, American Samoa, and Saipan
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations located in the states listed above and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    August 2013
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Paul A. Cicelski

    Headlines:

    • FCC Catches GPS Jammer at Airport
    • $75,000 Consent Decree Adopted for Class A TV Violations
    8/28/2013
    State Department Publishes Interim Final Rule to Clarify Defense-Broker Requirements
    Authors: Christopher R. Wall, Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman
    Section 38(f) of the Arms Export Control Act requires the registration of brokers of defense articles and defense services, pursuant to regulations currently published in Part 129 of the International Traffic in Arms Regulations (“ITAR”). Although these regulations have been in place for decades, their scope and reach have not been clearly defined. New regulations published on August 26, 2013, are the culmination of a multi-year effort on the part of the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”) to clarify the brokering rules.
    August 2013
    FCC Sets September 20, 2013 as the Deadline for Payment of FY 2013 Annual Regulatory Fees
    Authors: Paul A. Cicelski, Tony Lin
    The FCC has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2013 must be received no later than September 20, 2013.
    August 2013
    FCC Commences E-Rate Program Overhaul
    Authors: Christine A. Reilly, Glenn S. Richards
    The August 20, 2013 Federal Register (“FedReg”) included a notice officially establishing the comment and reply cycle associated with the Federal Communications Commission’s (“FCC” or “Commission”) recently released Modernizing the E-Rate Program for Schools and Libraries Notice of Proposed Rulemaking (“NPRM”).1 According to the FedReg notice, comments are due September 16, 2013 and reply comments are due October 16, 2013. This is the Commission’s latest effort to modernize and streamline the E-Rate program.
    8/19/2013
    Did EPA Overstep in Applying Soil Vapor Intrusion Guidance to Commercial Buildings?
    Authors: Reza Zarghamee, Sheila McCafferty Harvey, Peter H. Wyckoff, Jeffrey A. Knight
    In April 2013, U.S. EPA’s Office of Solid Waste and Emergency Response issued two guidance documents on soil vapor intrusion. One addresses general soil vapor intrusion issues1, while the other is specific to petroleum vapor intrusion at leaking underground storage tank sites2. This alert focuses on the first one – the “2013 Guidance.” Although the 2013 Guidance was issued as “final,” U.S. EPA solicited public comments through June 24, 2013. The 2013 Guidance changes U.S. EPA’s basic approach to addressing soil vapor intrusion and raises important jurisdictional issues regarding the interplay between U.S. EPA and the U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”). These features of the 2013 Guidance underscore the need for careful legal attention to cleanup sites involving soil vapor intrusion, which has become an important factor in both remedy selection and toxic torts litigation.
    July 2013
    Annual EEO Public File Report Deadline for Stations in California, Illinois, North Carolina, South Carolina, or Wisconsin
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations licensed to communities in California, Illinois, North Carolina, South Carolina, or Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    July 2013
    Biennial Ownership Reports are due by August 1, 2013 for Noncommercial Radio Stations in California, North Carolina, or South Carolina and Noncommercial Television Stations in Illinois or Wisconsin
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.
    July 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in Alaska, American Samoa, Guam, Hawaii, the Mariana Islands, Oregon, Saipan, or Washington
    Authors: Scott R. Flick, Lauren Lynch Flick
    Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Alaska, American Samoa, Guam, Hawaii, the Mariana Islands, Oregon, Saipan, or Washington must begin airing pre-filing license renewal announcements on August 1, 2013. License renewal applications for these stations, and for in-state FM translator stations, are due by October 1, 2013.
    July 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Iowa and Missouri
    Authors: Scott R. Flick, Lauren Lynch Flick
    TV, Class A TV, and certain LPTV stations licensed to communities in Iowa and Missouri must begin airing pre-filing license renewal announcements on August 1, 2013. License renewal applications for these stations and in-state TV translator stations are due by October 1, 2013.
    7/17/2013
    New York AG Takes a Swipe at Payroll Cards
    Authors: Christine A. Scheuneman, Rebecca Carr Rizzo, Christine Nicolaides Kearns
    Employers and employees are increasingly turning to payroll cards, rather than paper paychecks, to pay and receive their payrolls. However, a class action was filed recently in Pennsylvania challenging certain practices and it has been reported that New York’s attorney general has initiated an inquiry about payroll card programs used to pay New York employees.
    7/8/2013
    Extort Me Not: Supreme Court Expands Protections for Permit Applicants Under the Takings Clause
    Authors: Wayne M. Whitlock, Stacey C. Wright, Donald A. Carr
    The high court’s decision in Koontz v. St. John’s River Water Management District extends the landmark decisions in Nollan and Dolan, which set standards on when an agency can condition a land use permit on the relinquishment of property. The 5-4 decision in Koontz extends those standards— which require an “essential nexus” and “rough proportionality” between the demands of an agency and the effects of the proposed land use—to conditional permit denials and monetary exactions.
    7/1/2013
    Supreme Court: Class Action Waiver Trumps Federal Statutory Right
    Authors: Paula M. Weber, Roxane A. Polidora, Sarah A. Good, Christine A. Scheuneman, Connie J. Wolfe, Ph.D., Amy L. Pierce, Ellen Connelly Cohen
    Continuing its string of recent pro-arbitration decisions, the U.S. Supreme Court handed down a decision enforcing class action waivers in arbitration agreements, even where the plaintiff’s cost of proceeding on an individual basis would exceed the potential recovery for vindicating a federal statutory right. The high court’s decision in American Express Co. v. Italian Colors Restaurant could impact class action litigation in a broad range of contexts, including employment, antitrust, securities, and consumer class action suits.
    June 2013
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Paul A. Cicelski
    Headlines:
    • FCC Issues Heavy Fines for Late-Filed Children’s Television Programming Reports


    • Motel with Multichannel Video Programming Distribution System is Cited for Excessive Cable Signal Leakage

    June 2013
    2013 Second Quarter Children’s Television Programming Documentation
    Authors: Scott R. Flick, Lauren Lynch Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by July 10, 2013, reflecting programming aired during the months of April, May, and June 2013.
    June 2013
    2013 Second Quarter Issues/Programs List Advisory for Broadcast Stations
    Author: Scott R. Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by July 10, 2013, reflecting information for the months of April, May, and June 2013.
    6/25/2013
    Admit It! SEC May Seek Admissions of Wrongdoing in Settlements
    Authors: Marc H. Axelbaum, Sarah A. Good, Emily M. Burkett, G. Derek Andreson
    The U.S. Securities and Exchange Commission (“SEC”) is poised to modify its “no-admit, no-deny” policy to seek more admissions of wrongdoing from defendants as a condition of settlement in enforcement cases. The change comes on the heels of recent criticism of the policy from two federal judges and a U.S. Senator and would result in potentially far-reaching consequences for companies, their directors, officers, and employees.
    6/20/2013
    Perspectives on Real Estate
    Author: James P. Bobotek
    This issue of Perspectives on Real Estate discusses what to look out for in order to ensure adequate coverage against property and business interruption losses in the wake of natural disasters.
    6/20/2013
    J.P. Morgan Decision Curtails the Phantom “Restitution Defense” to D&O Coverage
    Author: Peter M. Gillon

    This article originally appeared in The D&O Diary on June 18, 2013 as well as in Law360 on July 3, 2013.

    In a case closely watched by industry observers, the New York Court of Appeals, in J.P. Morgan Securities v. Vigilant Insurance Company, No. 113 (NY, June 13, 2013), issued an important ruling in the field of directors and officers liability insurance, curtailing to some extent insurers’ ability to use a phantom exclusion to deny coverage. Insurers increasingly have argued that their policies do not cover damages that can be characterized as restitutionary in nature, even where the policy may be silent on the issue. The contention is based on two theories: (1) that notwithstanding contract language providing coverage, the policy is unenforceable in that respect because in some states coverage for damages in the form of restitution (or disgorgement of ill-gotten gains) is unenforceable as a matter of public policy; and (2) from an economic standpoint, when a policyholder returns monies it has obtained improperly, there is no basis for coverage because the policyholder has not incurred any “Loss.”
    6/12/2013
    Health Care Reform Update: July 31 Fee Deadline for Most Self-Insured Plans
    Authors: Mark Jones, Howard L. Clemons, Justin Krawitz
    The IRS has released a revised version of Form 720 “Quarterly Federal Excise Tax Return” for sponsors of self-insured health plans to pay annual fees imposed under the Affordable Care Act. The fee for 2013 is $1 per covered life, which is due on July 31, 2013, for calendar-year plans.
    6/10/2013
    New U.S. Sanctions Designations Target Airlines and Lessors in Europe and Asia
    Authors: Nancy A. Fischer, Josh Romanow, Aaron R. Hutman

    This article was originally published in International Trade Law360 and Public Policy Law360 on June 18, 2013.

    The United States has added three airlines from Europe and Asia, as well as two individual airline executives and 13 aircraft, to the list of Specially Designated Nationals (SDNs) due to the airlines’ support for Iran Air and Mahan Air of Tehran. The sanctions designations were based on U.S. Executive Orders with extraterritorial jurisdiction over parties who support certain sanctioned persons like Iran Air/Mahan Air – the newly sanctioned companies and executives were not U.S. nationals, no activity took place in the United States, and jurisdiction was not based on U.S. content in the aircraft. This highlights an additional risk area for aircraft operators, manufacturers and lessors of all nationalities.
    6/6/2013
    EPA’s New "Institutional Controls" Guidance May Raise Issues in Cleanups and Transactions
    Authors: Reza Zarghamee, Sheila McCafferty Harvey, Peter H. Wyckoff
    The U.S. Environmental Protection Agency recently issued two guidelines with far-reaching implications for real estate transactions involving contaminated sites, including sites owned by the Department of Defense. The guidelines focus on so-called "institutional controls" governing the cleanup of such sites under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601, et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901, et seq., and other federal statutes and programs (e.g., the Brownfields Program). State, local and tribal authorities are likely to follow the guidelines.
    05/31/2013
    Perspectives on Real Estate
    Author: Geoffrey J. Greeves
    This issue of Perspectives on Real Estate discusses what to look out for in order to ensure adequate coverage against property loss.
    5/29/2013
    United States Issues Final Investment Reporting Requirements for Burma/Myanmar
    Authors: Aaron R. Hutman, Christopher R. Wall

    This article was originally published in International Trade, Securities, Private Equity and Public Policy Law360 on June 11, 2013.

    On May 23, 2013, the U.S. State Department issued final “Responsible Investment Reporting Requirements” for Burma (also known as Myanmar). The long-awaited final rule confirms that U.S. persons will be required to submit: (a) detailed annual reports for new investment in Myanmar exceeding $500,000, parts of which will be made available for public review; and (b) investment notification for any new investment with Myanma Oil and Gas Enterprise (MOGE) pursuant to an agreement or exercise of rights under such an agreement. U.S. businesses and individuals investing directly in Myanmar or indirectly via funds, joint ventures or participation in companies will need to monitor the flow of their capital into Myanmar to identify when reports to the State Department are required, ensure that they have access to the information required as part of the annual reports, and be aware of what information may be made public.
    May 2013
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Paul A. Cicelski
    Headlines:
    • FCC Establishes New Enforcement Policy for Student-Run Noncommercial Radio Stations
    • CB Radio Owner Receives Fine for Harmful Interference and Lack of Responsiveness
    May 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in California
    Authors: Lauren Lynch Flick, Scott R. Flick
    Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in California must begin airing pre-filing license renewal announcements on June 1, 2013. License renewal applications for these stations, and for in-state FM translator stations, are due by August 1, 2013.
    May 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Illinois and Wisconsin
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and certain LPTV stations licensed to communities in Illinois and Wisconsin must begin airing pre-filing license renewal announcements on June 1, 2013. License renewal applications for these stations and in-state TV translator stations are due by August 1, 2013.
    5/13/2013
    Model Notices of Health Insurance Options –Employers Must Distribute by October 1, 2013
    Author: Howard L. Clemons
    The U.S. Department of Labor has issued model notices for informing existing employees and new hires of health coverage options which will be available through the new marketplace of state and federally supported health insurance exchanges. To comply and distribute the appropriate notice to current employees by the October 1, 2013, deadline an employer needs to have determined whether its plans provide minimum value and are affordable to the recipient employee under the employer shared responsibilities provisions of the Affordable Care Act (“ACA”). The Department of Labor also released an updated model notice for informing plan participants of COBRA health care continuation coverage rights.
    5/13/2013
    Foreign Authorities Are Cracking Down on Corruption
    Source: The National Law Journal
    Authors: William M. Sullivan, Jr., Stephen S. Asay, Ryan R. Sparacino
    May 2013
    Biennial Ownership Reports are due by June 3, 2013 for Noncommercial Radio Stations in Arizona, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, Washington, D.C., West Virginia, or Wyoming and Noncommercial Television Stations in Michigan or Ohio
    Authors: Scott R. Flick, Lauren Lynch Flick
    The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.
    May 2013
    Annual EEO Public File Report Deadline for Stations in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, Washington, D.C., West Virginia, or Wyoming
    Authors: Scott R. Flick, Lauren Lynch Flick
    This Broadcast Station Advisory is directed to radio and television stations licensed to communities in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, Washington, D.C., West Virginia, or Wyoming, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    5/1/2013
    Employers May Be Able to “Pick Off” Named Plaintiffs in FLSA Collective Actions
    Authors: Julia E. Judish, Keith D. Hudolin
    In its April decision in Genesis Healthcare Corp. v. Symczyk, the U.S. Supreme Court buttressed employers’ efforts to “pick off” named plaintiffs in collective actions for unpaid wages brought under the Fair Labor Standards Act (“FLSA”) with early offers of judgment that would satisfy only the named plaintiff’s individual claims. Whether this strategy will work for employers, however, depends ultimately upon how the lower courts interpret this opinion.
    April 2013
    FCC Enforcement Monitor
    Authors: Paul A. Cicelski, Scott R. Flick
    Headlines:

    • Assignment of Paired AM Stations Denied by the FCC


    • Use of Illegal Cell Phone Jammers Leads to Fines in Excess of $125,000

    4/26/2013
    Compliance World Tour China—Webcast
    Authors: Thomas M. Shoesmith, William M. Sullivan, Jr., (Henry) Hong Liu
    This webcast looks at the compliance and regulatory risks of doing business in China, and will discuss:
    • Challenges and risks of doing business in China’s heavily regulated economy
    • US anti-corruption enforcement efforts in China and new local anti-corruption laws
    • Other common challenges that US compliance departments might encounter in China, such as intellectual property related risks, varying standards of legal protection for employees, etc.

    4/22/2013
    Hospitals Face Mandatory Affirmative Action Obligations Incorporated by Operation of Law Into Their Federal Subcontracts
    Authors: Julia E. Judish, Daniel S. Herzfeld
    In UPMC Braddock v. Harris, the U.S. District Court for the District of Columbia upheld the U.S. Department of Labor’s Arbitration Review Board decision treating hospitals as government subcontractors subject to the equal opportunity clauses traditionally required to be flowed-down to federal government subcontractors, because those hospitals provided medical services to federal employees enrolled in an HMO plan offered by a federal agency. This court decision strikes new ground by incorporating affirmative action obligations into a subcontract by operation of law, even where the prime contract at issue expressly purported to exempt the hospitals from such coverage. In light of this decision, many hospitals (and other vendors) that traditionally have not considered themselves “subcontractors” subject to federal affirmative action requirements may now be subject to Department of Labor (“DOL”) enforcement, depending on the nature of the services they provide to federal prime contractors.
    4/16/2013
    Doing Business in the U.S. - Focus on Chinese Companies
    Authors: Stephan E. Becker, Benjamin J. Cote, Nancy A. Fischer, Jeffrey R. Gans, Kimberly A. Harshaw, Kirke M. Hasson, Aaron R. Hutman, David A. Jakopin, Michael G. Lepre, Michael S. McNamara, Jerry W. Ross, Susan P. Serota, Thomas M. Shoesmith, Woon-Wah Siu, Glenn Q. Snyder, C. Brian Wainwright, Lu Wang, Reza Zarghamee, Louis A. Bevilacqua, Keith D. Hudolin, Christine Nicolaides Kearns, Jerry W. Ross, Joseph R. Tiano, Jr.
    “Doing Business in the U.S.” is a practical, introductory guide for non-U.S. businesses interested in doing business in the United States. The guide, authored by numerous Pillsbury attorneys, is an initiative of the firm’s China Practice Group, and the authors frequently use Chinese business or Chinese regulations as examples. However, the book may also be useful for other non-U.S. businesses.
    March 2013
    FCC Enforcement Monitor
    Authors: Paul A. Cicelski, Scott R. Flick
    Headlines:

    • Delay in Providing Access to Public Inspection File Leads to Fine


    • FCC Fines Broadcaster for Antenna Tower Fencing, EAS and Public Inspection File Violations

    March 2013
    2013 First Quarter Children’s Television Programming Documentation
    Authors: Lauren Lynch Flick, Scott R. Flick
    The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by April 10, 2013, reflecting programming aired during the months of January, February, and March 2013.
    March 2013
    2013 First Quarter Issues/Programs List Advisory for Broadcast Stations
    Author: Scott R. Flick
    The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2013, reflecting information for the months of January, February, and March 2013.
    3/20/2013
    Rhode Island Cleans Up Problematic Superfund Precedent That Undermined Federal Settlements
    Authors: Sheila McCafferty Harvey, Thomas G. Allen, Liz Lord
    The U.S. District Court for the District of Rhode Island has vacated its 2010 summary judgment decision in Ashland Inc. v. GAR Electroforming, 729 F. Supp. 2d 526 (D.R.I. 2010), just days after receiving an amicus memorandum by the United States in support of a motion to vacate filed by United Technologies Corporation (UTC).
    3/15/2013
    Obama Administration Moves Forward With Export Control Reform
    Authors: Christopher R. Wall, Stephan E. Becker, Benjamin J. Cote
    On March 7 and 8, 2013, President Obama took two important steps to further U.S. export control reform. First, the President notified Congress of the proposed transfer of certain items relating to aircraft and gas turbine engines from the jurisdiction of the State Department’s International Traffic in Arms Regulations (ITAR), which govern the export of military products and technology, to the Commerce Department’s Export Administration Regulations (EAR), which governs the export of commercial products and technology. The President also issued an Executive Order reallocating regulatory authorities under the Arms Export Control Act (AECA) to facilitate the shifts in jurisdiction.
    March 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Michigan or Ohio
    Authors: Lauren Lynch Flick, Scott R. Flick
    TV, Class A TV, and certain LPTV stations licensed to communities in Michigan or Ohio must begin airing pre-filing license renewal announcements on April 1, 2013. License renewal applications for these stations and in-state TV translator stations are due by June 3, 2013.
    March 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in Arizona, Idaho, New Mexico, Nevada, Utah, or Wyoming
    Authors: Lauren Lynch Flick, Scott R. Flick
    Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Arizona, Idaho, New Mexico, Nevada, Utah, or Wyoming must begin airing pre-filing license renewal announcements on April 1, 2013. License renewal applications for these stations, and for in-state FM translator stations, are due by June 3, 2013.
    March 2013
    Annual EEO Public File Report Deadline for Stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, or Texas
    Authors: Lauren Lynch Flick, Scott R. Flick
    This Broadcast Station Advisory is directed to radio and television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, or Texas and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    March 2013
    Biennial Ownership Reports are due by April 1, 2013 for Noncommercial Radio Stations in Texas and Noncommercial Television Stations in Delaware, Indiana, Kentucky, Pennsylvania, or Tennessee
    Authors: Lauren Lynch Flick, Scott R. Flick
    The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.
    3/11/2013
    Federal Court Sets Guidelines for Denying Attorney-Client Privilege on Communications
    Authors: Julia E. Judish, Stephen S. Asay
    Hiring a lawyer for a general counsel role – either in-house or by retaining outside counsel to perform that role – can benefit organizations in countless ways. Unlike outside attorneys who are consulted on a piecemeal basis, corporate or general counsel are very familiar with the organization’s operations, leadership, and goals. Because they are often privy to and included in discussions of key business decisions and developments, they can ground their legal advice on a thorough understanding of the organization and its history. That intimate connection to the organization’s business life, however, operates as a double-edged sword. As some court decisions illustrate, the regular inclusion of general counsel in business communications can strip communications with corporate counsel of the presumption that they are protected by attorney-client privilege.
    3/6/2013
    Critical Insurance Coverage Issues Emerging in the Wake of Sandy
    Authors: James P. Bobotek, Peter M. Gillon, Geoffrey J. Greeves, Vincent E. Morgan
    On January 16, 2013, an unprecedented gathering of thought leaders occurred, bringing together senior claim advisors from some of the leading insurance brokers, law firms, consultants, and forensic accountants. The purpose of the meeting was to catalogue and analyze the most significant coverage issues currently being confronted by businesses as a result of Superstorm Sandy. The most salient issues discussed are memorialized in this report.
    2/28/2013
    Private Equity: Blindsided by the FCPA — Hedging Against Anti-Corruption Deal Risk
    Authors: Marc H. Axelbaum, Ryan R. Sparacino, Christopher M. Zochowski, James Kelly, G. Derek Andreson

    This article was published in Competition Law360, International Trade Law360, Private Equity Law360, Securities Law360 and White Collar Law360 on March 1, 2013.

    Until a few years ago, private equity firms enjoyed relative insulation from regulatory scrutiny of overseas acquisitions and the operations of multi-national portfolio companies. No longer is that the case. Spurred by the unfounded belief that PE firms are not invested in compliance or the conduct of their portfolio companies, the DOJ and SEC are now training their attention on how PE firms exert oversight and control over their portfolios, with a particular emphasis on FCPA issues. PE firms should prepare for this new scrutiny by taking proactive measures to demonstrate both their awareness and their commitment to earning profits on a level playing field. Most importantly, PE firms must recognize that these efforts are not about appeasing regulators, but go directly to maximizing return on investment.
    February 2013
    FCC Enforcement Monitor
    Authors: Scott R. Flick, Paul A. Cicelski
    Headlines:

    • FCC Takes Action against Intentional Interference and Unlicensed Operations


    • FCC Assesses $25,000 Fines for Unresponsiveness

    2/7/2013
    EEOC Takes Aim at Employee Releases That Bar Assisting Others With Their Own EEOC Charges
    Authors: Julia E. Judish, Keith D. Hudolin
    Employers have routinely asked employees who sign separation or settlement agreements to agree that they will not encourage or assist other employees in filing lawsuits or charges, subject to the caveat that the employee may of course testify truthfully in response to legal process. Until recently, field offices of the U.S. Equal Employment Opportunity Commission regularly approved settlement agreements that included such provisions. Now, however, the EEOC has targeted these kinds of provisions. The agency adopted a new national Strategic Enforcement Plan (“SEP”) on December 17, 2012, instructing its field offices to reject such provisions as impermissible barriers to the EEOC’s investigation and enforcement efforts. In light of the new enforcement drive, employers should review their standard release agreements to ensure they will pass muster under the EEOC’s new initiative.
    2/4/2013
    NY State Appellate Court Sides with Airlines, Dismisses Tarmac Delay-Related Claims
    Authors: Eric Fishman, Anne C. Lefever, Bradley A. Noojin
    The Second Department in Biscone v. JetBlue Airways Corporation recently dismissed airline passengers’ tort claims against an airline based on the failure to provide food, water and facilities during an 11-hour tarmac delay, on the basis that federal law preempts most private causes of action relating to the provision of air carrier services. While airlines still may face enforcement actions and incur civil penalties, the Second Department’s decision signals that New York state courts are following the majority of federal courts that have broadly interpreted the degree to which federal aviation laws preempt state law claims. Given that most delay-related private lawsuits are multimillion-dollar class actions, this decision is a positive development for domestic and international air carriers that operate flights in the United States.
    1/18/2013
    DOE Issues New “Strategy” for Nuclear Waste Management and Disposal
    Authors: Jay E. Silberg, Anne Leidich
    On January 11, 2013, the Department of Energy (“DOE”) issued its response to the recommendations of the Blue Ribbon Commission on America’s Nuclear Future regarding next steps for spent nuclear fuel management and disposal in the United States. As expected, the DOE “strategy” sets out “broad steps” to be taken in the future, rather than near-term actions. Indeed, most of DOE’s recommendations will require new legislation prior to implementation.
    1/16/2013
    American Taxpayer Relief Act of 2012
    Authors: Jennifer Jordan McCall, Elizabeth H.W. Fry, Melinda B. Barker, Kim T. Schoknecht, Ellen K. Harrison, Hiram Powers-Heaven
    On New Year’s Day 2013, to avoid the so-called “fiscal cliff,” Congress passed the American Taxpayer Relief Act of 2012 (“2012 Act”). The 2012 Act raises taxes on some taxpayers while retaining most of the provisions enacted by the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA,” generally referred to as the “Bush tax cuts”) and the two-year extension of EGTRRA enacted at the end of 2010. Most of the changes introduced by the 2012 Act relate to income tax; however, there are important changes to the gift, estate, and generation-skipping transfer tax provisions as well.
    1/14/2013
    HSR Thresholds Will Increase to Highest Levels for Transactions in 2013
    Authors: Michael L. Sibarium, Aileen (Chuca) Meyer, Alvin Dunn, Jeetander T. Dulani
    On February 11, 2013, revised thresholds for the Hart-Scott-Rodino Act (“HSR”) will take effect. The thresholds determine whether parties involved in proposed mergers, consolidations, or other acquisitions of voting securities, assets, or unincorporated interests must notify the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) of a proposed transaction and comply with a mandatory waiting period before the transaction can be consummated.
    January 2013
    Broadcast Station EEO Advisory
    Author: Lauren Lynch Flick
    This Broadcast Station Advisory is directed to radio and television stations licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
    January 2013
    Biennial Ownership Reports are due by February 1, 2013 for Noncommercial Radio Stations in Kansas, Nebraska, and Oklahoma and Noncommercial Television Stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York
    Author: Lauren Lynch Flick
    The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.
    January 2013
    Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in Texas
    Author: Lauren Lynch Flick
    Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Texas must begin airing pre-filing license renewal announcements on February 1, 2013. License renewal applications for these stations, and for in-state FM translator stations, are due by April 1, 2013.
    12/17/2012
    A Year-End Update on the UK Bribery Act
    Authors: Raymond L. Sweigart
    Although 2012 did not bring a major prosecution, it was not without note-worthy events. The UK Serious Fraud Office (SFO), on top of the withdrawal of previous Bribery Act guidance and the publication of new guidelines in October, has put out new supplemental guidance on self-reporting financial crimes. These new guidelines require companies that self-report to the SFO to submit full details of their internal investigations into any wrongdoing, as well as supporting evidence such as emails, documents, banking or financial evidence, and witness statements. These requirements may appear onerous, but they underscore the significance that the SFO attaches to self-reporting and the detailed focus they expect businesses to display in dealing with compliance and wrongdoing.
    10/25/2012
    Deferred Prosecution Agreements To Be Adopted in United Kingdom
    Author: Raymond L. Sweigart
    On Tuesday 23 October 2012, UK Justice Minister Damian Green announced government plans after additional public consultations to legislate adoption of U.S.-style deferred prosecution agreements (DPAs) for corporate crime. Following an initial consultation held last summer, the government has now concluded that DPAs will provide prosecutors with an effective tool to tackle increasingly complex issues and to “ensure that more unacceptable corporate behaviour is dealt with including through substantial penalties, proper reparation to victims, and measures to prevent future wrongdoing.”
    October 2012
    FCC Releases Proposals for Broadcast Spectrum Incentive Auctions
    Authors: Paul A. Cicelski, Scott R. Flick
    The FCC released its long-awaited Notice of Proposed Rulemaking (NPRM) to begin the process of auctioning and repurposing broadcast television spectrum for mobile broadband use. Comments are due on December 21, 2012, and reply comments are due on February 19, 2013.
    10/16/2012
    Drawing the Line Online: Employers’ Rights to Employees’ Social Media Accounts
    Authors: Julia E. Judish, Thomas N. Makris, Amy L. Pierce, James G. Gatto
    With the unprecedented popularity of social media, employees have increasingly used LinkedIn and other online forums to network for business and social purposes. When the line between personal and business use is blurred, litigation may ensue. A federal court recently ruled that an employer did not violate federal computer hacking laws by accessing and altering its recently departed CEO’s LinkedIn account, but that the former CEO could proceed to trial on her state law misappropriation claim. In addition, California, Illinois, and Massachusetts recently joined Maryland in enacting laws prohibiting the practice of requesting access to prospective employees’ password-protected social media accounts.
    10/12/2012
    U.S. Companies Now Can Be Liable for Actions of Subsidiaries That Violate Iran Sanctions Rules
    Authors: Stephan E. Becker, Aaron R. Hutman
    On October 9, 2012 President Obama issued an Executive Order (“E.O.”) implementing several provisions of the Iran Threat Reduction and Syria Human Rights Act of 2012 (“Iran Threat Reduction Act”). Most significantly, the E.O. applies to foreign subsidiaries of U.S. persons for the first time most of the sanctions rules that apply to U.S. persons or persons in the United States. Further, the E.O. makes the U.S. parent subject to penalties for violations of the subsidiary. However, such penalties will not apply where the U.S. parent divests or terminates business with the subsidiary by February 6, 2013. It will be important for U.S. companies with non-U.S. subsidiaries to assess whether these affiliates are engaging in prohibited activities vis-à-vis Iran and determine whether U.S. parent needs to take action prior to the divestment date.
    10/10/2012
    UK Bribery Act: Serious Fraud Office Publishes Revised Rules
    Author: Raymond L. Sweigart
    As noted in our Alert on Oct. 1, 2012 and presaged by the withdrawal of previous guidance, new rules published Oct. 9 by the UK Serious Fraud Office (SFO) have opted for stricter language. The SFO now says that it will prosecute under the Bribery Act based primarily on the statute itself rather than on previous, more lenient and somewhat subjective guidance principles issued after the new law was introduced in July 2011. The newly announced policy had been predicted by many observers based on promises to tighten up enforcement made by the current director, David Green QC, on his appointment this past May. The new rules cover the SFO’s approach to corporate hospitality, facilitation payments and self-reporting. 
    10/10/2012
    First NLRB Decisions on Social Media Give Employers Cause to Update Policies, Practices
    Authors: Rebecca Carr Rizzo, Christine Nicolaides Kearns, Ellen Connelly Cohen 
    The National Labor Relations Board (“NLRB”) recently issued its first two rulings on employer social media policies and its first ruling on an employee’s termination due to posts on Facebook. These rulings are significant for all employers – not just those with unionized workforces – because they provide guidance regarding what social media behaviors will be deemed protected activity under the National Labor Relations Act (“NLRA”) and, therefore, what employers can and cannot regulate in their policies and practices.
    10/1/2012
    Bribery Act Prosecutor Withdraws Guidance; Whither SFO Enforcement, Self-Reporting?
    Author: Raymond L. Sweigart
    We previously noted in our 17 May 2012 publication that Directorship of the UK Serious Fraud Office ("SFO") had passed to David Green QC. Mr. Green joined the SFO from private practice, where he was a barrister specializing in serious crime issues. He also previously served as the first director of the UK's Revenue and Customs Prosecutions Office. Upon taking office Mr. Green promised to re-examine the relationship between prosecution and civil settlement and focus on strategically significant cases. This emphasis suggested a departure in approach from that of Mr. Green’s predecessor, Richard Alderman. It now appears that Mr. Green is out to fulfill his promises.
    9/27/2012
    Foreign Airlines Permitted to Hold Equity Stakes in Indian Carriers
    Authors: Stephen B. Huttler, Kenneth P. Quinn, Jennifer E. Trock, Sonakshi Jha
    On September 20, 2012, the Government of India notified the public that it has undertaken a series of reforms relating to foreign investments in the country, including allowing foreign airlines to hold up to 49 percent foreign direct investment ("FDI") in Indian airlines. This decision, coupled with significant cuts on the taxes on overseas corporate borrowers, may lure foreign investors toward India, although Indian airlines face formidable financial pressures. The move comes at a time of renewed focus on liberalizing airline ownership laws in the U.S. and Europe.
    September 2012
    Abu Dhabi Oil & Gas Update: Investment Protection
    Authors: Stephan E. Becker, Christopher D. Gunson
    The United Arab Emirates and the Emirate of Abu Dhabi do not have any domestic laws to protect foreign investors from nationalization or expropriation, but the UAE is a signatory on a number of bilateral investment treaties and international conventions. Investment protection and legal recourse are important factors to consider when reviewing any investment opportunity. Governing law and dispute resolution provisions in oil and gas sector agreements have developed over time.
    9/25/2012
    FinCEN is Shaping Rules on Customer Due Diligence: Opportunity for Banks Oct. 5 in NYC
    Authors: Aaron R. Hutman, Joseph T. Lynyak, III
    The U.S. Treasury Department is preparing a Proposed Rule to clarify, and potentially expand, requirements for financial institutions to conduct customer due diligence and assess beneficial ownership. FinCEN (Financial Crimes Enforcement Network) has announced a Roundtable Discussion on October 5, 2012 in New York. Requests to attend must be made no later than September 28 with space limited. FinCEN published its Advance Notice of Proposed Rulemaking on March 5, 2012 and closed comments on June 11, 2012. For Financial Institutions seeking input on this important rulemaking, the October 5th Roundtable offers a strategic opportunity to influence the Proposed Rule.
    9/5/2012
    SEC Proposes Rules Eliminating Prohibition Against General Solicitation and General Advertising in Certain Private Placements
    Authors: Robert B. Robbins, Louis A. Bevilacqua, Joseph R. Tiano, Jr.
    On April 5, 2012, the Jumpstart Our Business Startups Act (the JOBS Act) was signed into law by President Obama with strong bipartisan support. The JOBS Act directed the Securities and Exchange Commission (SEC) to amend Rule 506 of Regulation D under the Securities Act of 1933 to permit general solicitation or general advertising in unregistered offerings made under Rule 506, provided that all purchasers of the securities are accredited investors. The SEC proposed rules on August 29, 2012 to implement that requirement.
    7/28/2010
    FCC Sets August 31, 2010 Deadline for Payment of FY 2010 Annual Regulatory Fees
    Authors: Scott R. Flick, Christine A. Reilly
    The FCC has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2010 must be received no later than August 31, 2010.

    June 22, 2015
    Companies Facing Cyberattacks from Nation-States Need Better Legal Protection
    Source: Wall Street Journal's CIO Journal
    Author: Brian E. Finch
    Furious. Incensed. Appalled. Those are just a few of the less colorful adjectives being used to describe Washington’s reaction to the ever-expanding hack of the U.S. Office of Personnel Management. “Fuming” has been used so many times it’s a wonder that smoke alarms are not constantly blaring on Capitol Hill.
    6/11/2015
    The FIFA Scandal: The Long Foot of American Justice
    Source: Bloomberg BNA's Big Law Business
    Author: Matthew Oresman
    Envelopes of cash. Vote rigging. Wiretapped recordings in 5-star hotel rooms. A dramatic early morning police raid coordinated between the FBI and Swiss law enforcement. An episode of the Sopranos? No, but it is a day in the life of FIFA.
    6/10/15
    Keep Calm and Carry on with Nuclear Power, Part II
    Source: The Hill
    Author: Jeffrey S. Merrifield

    A little over two weeks after the 2011 accident at the Fukushima Daiichi nuclear power plant in Japan, I wrote a column for The Hill, “Keep calm and carry on with nuclear power,” in which I stated:

    Now is not the time for rash judgments about America’s nuclear power stations, which produce one-fifth of all electricity. Give the NRC [Nuclear Regulatory Commission] time to study the still unfolding events, inspect capabilities at U.S. plants and develop commonsense, yet protective measures that will maintain U.S. leadership in safe nuclear energy technology and operation.
    May 20, 2015
    Securing Finance for Nuclear Projects
    Source: Project Finance International
    Authors: Elina Teplinsky, Vincent C. Zabielski
    The resurgence of new nuclear power plant construction in the past decade, dubbed the nuclear renaissance, has faced several challenges, including political hesitancy in some markets to move forward with new projects after the Fukushima Daiichi accident of 2011, protracted licensing and construction schedules, and the difficulty in emerging markets of arranging for proper infrastructure to support nuclear power programmes. One of the principal challenges, however, to truly reviving the growth of nuclear power, has been obtaining adequate financing of the substantial capital cost of nuclear construction.
    May, 2015
    Federal Employment Law Changes for Government Contractors in 2014—What Every Contractor Should Know—Part II
    Source: Government Contracting Law Report
    Authors: John E. Jensen, Julia E. Judish
    In 2014, through new Executive Orders, directives to the Department of Labor, and new regulatory action, the Obama Administration used its executive authority to implement changes to employment practices in the government contracting community. In the first part of a two-part article, which appeared in last month’s Pratt’s Government Contracting Law Report, the authors explained changes in pay equity, and prohibiting discrimination on the basis of sexual orientation and gender identity. This second part of the article focuses on actions expanding employment opportunities for veterans and individuals with disabilities.
    May, 2015
    Framework for Nuclear Agreement with Iran Announced—But Still a Long Way to Go
    Source: WorldECR
    Authors: Stephan E. Becker, Nancy A. Fischer, Aaron R. Hutman, Christopher R. Wall, Stephanie J. Rohrer
    On April 2, 2015 representatives of the United States, Britain, France, Germany, China and Russia (collectively, the “P5+1” countries) announced that they had agreed with the Islamic Republic of Iran on the Parameters for a Joint Comprehensive Plan of Action Regarding the Islamic Republic of Iran’s Nuclear Program (the “Parameters” or “Framework Agreement”). The Parameters establish a comprehensive framework regarding Iran’s nuclear energy industry and capabilities. The parties have not yet drafted the text of the final agreement and will continue to negotiate implementation details, probably until the June 30, 2015 deadline (with some indications that the deadline could be extended). Meanwhile, U.S., EU and UN sanctions will remain in place until Iran demonstrates verifiable compliance with the key terms of the agreement.
    5/1/2015
    The Supreme Court’s Ruling on Antitrust Immunity for State Regulatory Boards: North Carolina State Board of Dental Examiners v. FTC
    Source: American Health Lawyers Association
    Authors: Michael L. Sibarium, Hashim M. Mooppan, Melissa Westman-Cherry
    This AHLA program discusses the Supreme Court’s most recent decision addressing the scope of the State Action Doctrine that immunizes certain conduct from antitrust scrutiny. The speakers also address the practical ramifications of Court’s recent decision for licensing boards throughout the country.
    4/24/2015
    War in Cyberspace
    Source: Fox Business
    Author: Brian E. Finch
    The steady stream of cyberattacks targeting U.S. companies compels the private sector to develop enterprisewide prevention, mitigation, and response strategies. Companies now implement multilayered strategies to stop as many cyberattacks as possible from penetrating their outer defenses. When those efforts fail, they rely on plans to minimize and recover from losses. As an embedded part of that strategy, many industries use cyber insurance to minimize financial losses.
    April, 2015
    Federal Employment Law Changes for Government Contractors in 2014—What Every Contractor Should Know—Part I
    Source: Government Contracting Law Report
    Authors: John E. Jensen, Julia E. Judish
    In 2014, through new Executive Orders, directives to the Department of Labor, and new regulatory action, the Obama Administration used its executive authority to implement changes to employment practices in the government contracting community. In this first part of a two-part article, the authors explain changes in pay equity, and prohibiting discrimination on the basis of sexual orientation and gender identity. The second part of the article, which will be featured in an upcoming issue of Pratt’s Government Contracting Law Report, will focus on actions expanding employment opportunities for veterans and individuals with disabilities.
    3/16/2015
    Internet of Things is Not Immune from Internet Pitfalls
    Source: Law360
    Author: Brian E. Finch
    Investors, analysts, and tech enthusiasts alike are abuzz about the opportunities surrounding the “Internet of Things.” The IoT represents the next frontier of Internet-connectable devices, with everything from watches and wristbands to refrigerators and light bulbs all being able to connect seamlessly to the Internet and interact with other devices.
    March 16, 2015
    Q&A with Todd Canni
    Source: PubKLaw
    Authors: Todd J. Canni
    As someone who has been on the inside of a government suspension debarment program and now regularly represents contractors, including individuals, facing debarment, what do you see as some of the more significant problems with agency practices?
    3/4/2015
    Unsafe Code at Any Speed?
    Source: Fox Business
    Author: Brian E. Finch

    Though I am loathe to associate myself to Ralph Nader, a cybersecurity discussion recently brought to mind his seminal work, Unsafe at Any Speed.

    For those of you unfamiliar with Nader’s book, it documented serious if not fatal design flaws in the Chevrolet Corvair, as well as serving as an indictment generally of the automobile industry. The main thrust of the book was that auto makers put driver and pedestrian safety at the bottom of their priority list, focusing more on costs and appearance.
    3/04/2015
    An Analysis of Current Laws and Regulations Affecting the Securities and Futures Industries
    U.S. Sanctions on Russia
    Source: The Review of Securities & Commodities Regulation
    Author: Stephan E. Becker
    The partial sanctions program that the U.S. has imposed on Russia is enabled by a complex web of statutes, executive orders, and implementing regulations. It includes new types of restrictions that have not previously been interpreted. The author describes the elements of the regime and the difficulties of compliance. He concludes that uncertainties in the program may discourage companies from engaging in transactions not expressly prohibited, thus giving the sanctions a broader reach than their actual legal scope.
    3/3/2015
    How Data Diets Can Improve Cyber Health
    Source: Wall Street Journal's CIO Journal
    Author: Brian E. Finch
    The vast majority of data held by most companies has little or no business value—including drafts, duplicates, personal communications, even data or documents held over from spun-off companies or inherited from buildings they’ve purchased. At best, this type of data lacks productive value. At worst, this data can embarrass a company or lead to financial loss if it is ever exposed. In either case, retaining this data glut leaves companies maintaining an increased “cyber perimeter” and spending more and more time monitoring their larger infrastructure, as well as trying to use increasingly sophisticated tools to detect patterns that are indicative of the loss of information.
    March 2015
    Implications of the CSC for suppliers
    Source: Nuclear Engineering International Magazine
    Author: James A. Glasgow
    The article discusses the detail and implications of a new convention on compensation for nuclear damage.
    2/12/2015
    Defending Data Post-Anthem
    Source: Huffington Post
    Author: Brian E. Finch
    Companies, especially health care providers and insurers, should take measures to prepare for further cyber attacks.
    2/5/2015
    Export Control Reforms Will Boost US-India Defense Trade
    Source: Law360
    Authors: Sanjay J. Mullick, Graham G. Wisner, Moushami P. Joshi, Benjamin J. Cote

    This article was originally published on Law360 on February 5, 2015.

    On the eve of President Obama’s trip to India, the U.S. Department of Commerce Bureau of Industry and Security removed export license requirements to India for a broad range of items with homeland security applications. BIS indicated it undertook this step as part of a series of rulemakings to “further transform our bilateral export control cooperation to realize the full potential of the strategic partnership between the two countries.”1 U.S. and Indian firms stand to benefit from these reforms, which will help expand cross-border trade in the defense and homeland and security sectors.
    1/7/2015
    IT Workers of the World Unite!
    Source: Fox Business
    Author: Brian E. Finch

    CISOs and CIOs, this is your big your chance. Seize it.

    The Sony Pictures data breach could well be a curse for many of you, but it is also a golden opportunity. You’ll never again have such a great chance to call attention to your needs, much less your challenges.
    12/22/2014
    Obstacles to CSC for Nuclear Damage
    Source: World Nuclear News
    Author: James A. Glasgow

    This article was originally published on World Nuclear News on December 22, 2014.

    The New Year will likely bring a sea change to the international regime of financial protection for nuclear incidents.

    Some governmental and industry stakeholders have great expectations for the Convention on Supplementary Compensation for Nuclear Damage (CSC)1. They have long predicted that it will create a new safe harbor for nuclear vendors and enhanced protection for members of the public.
    12/22/2014
    Mr. President, Show the Movie
    Source: Huffington Post
    Author: Brian E. Finch
    President Obama, never one to mince words, was quite emphatic in his disappointment over Sony Picture’s decision to not release “The Interview,” the movie at the heart of North Korea’s alleged decision to launch a destructive cyber-attack against an American company.
    12/18/2014
    Stand Up, Sony!
    Source: Huffington Post
    Author: Brian E. Finch
    I find it more than a little ironic that as we wring our collective hands over the interrogation tactics used by the U.S. intelligence community, we are sitting idly by while attackers unknown are torturing and holding hostage an American company.
    12/11/2014
    Why Cybersecurity Must Be Defined By Process, Not Tech
    Source: Wall Street Journal's CIO Journal
    Author: Brian E. Finch

    This article was originally published in The Wall Street Journal's CIO Journal on December 11, 2014.

    As cyber-attackers grow more sophisticated, the best and most realistic cyber defense strategy for CIOs is process-based.

    Perhaps the most challenging question associated with cybersecurity is determining whether “enough” security has been implemented. For CIOs, risk managers, directors and officers, this is no abstract question. The inability to get cybersecurity “right” will certainly lead to losses, including possible job losses.
    12/4/2014
    Looking at Supplementary Compensation for Nuclear Damage
    Source: Law360
    Author: James A. Glasgow
    Now that Japan’s Diet, as of Nov. 21, 2014, has approved Japan’s ratification of the Convention on Supplementary Compensation for Nuclear Damage (“CSC”) and implementing domestic legislation, Japan presumably will soon deposit its instrument of ratification with the International Atomic Energy Agency. Ninety days following such action by Japan, the CSC will enter into force, since its requirement for entry into force (a minimum of five ratifying parties collectively having at least 400,000 MW(t) of installed nuclear generating capacity) will have been satisfied.
    12/2/2014
    5 Questions for the New Defense Secretary
    Source: Fox Business
    Author: Brian E. Finch

    This article was originally published on Fox Business on December 2, 2014.

    “Revolving door” is a favorite pejorative term associated with the Washington job market. It refers to the cycle of lawyers, lobbyists, and policymakers that leap between private sector jobs and mid to high-level bureaucratic or legislative spots. Many, such as the President, decry this “plague” as creating a culture of coziness that devalues the interests of Joe Taxpayer.
    11/21/2014
    Cyber Neologisms Likely Headed for the Dictionary
    Source: Fox Business
    Author: Brian E. Finch

    This article was originally published on Fox Business on November 21, 2014.

    I am fascinated by the idea of creating new words out of thin air. It is an interesting concept that slang such as “selfie” and “ginormous” can officially become part of the English language.

    Given that, I have come up with some new words (and phrases) to try and capture some of what is going on in the world of cybersecurity. With that, in no particular order, I give you my official list of cyber neologisms:
    11/15/2014
    A Reality Check on Intellectual Property Concerns
    Source: The Hindu
    Author: Moushami P. Joshi

    This article was originally published in The Hindu on November 15, 2014.

    The Working Group on Intellectual Property can serve as a platform where real time solutions to meet India’s need for low-cost medicines can be addressed.
    11/12/2014
    Five Cyber Security Takeaways from the Mid-Term Elections
    Source: The Huffington Post
    Author: Brian E. Finch

    This article was originally published on The Huffington Post on November 12, 2014.

    While not a much-discussed topic during campaign season, federal policy on cyber-security will likely see some material changes as a result of a Republican-controlled Senate. Just how significant those changes will be has yet to be determined, but here are some thoughts on probable outcomes:
    11/5/2014
    The Truth About Cyber Threat Information Sharing
    Author: Brian E. Finch

    This article was originally published on Fox Business on November 5, 2014.

    Everywhere you turn, someone is calling for increased cyber threat information sharing: Congressional members, former Congressional members, former Executive branch officials, learned experts, my Aunt Selma (but not Patty).

    Enough. I’m sick of hearing about it.
    10/24/2014
    The Season of Panic
    Source: Fox Business
    Author: Brian E. Finch

    This article was originally published on Fox Business on October 24, 2014.

    I will never truly understand Washington’s obsession with naming “Czars” to address crises. First off, why the heck would anyone ever want a title named after an imperial dynasty whose hallmarks included immense repression and institutional Anti-Semitism? Let’s also not forget the inbreeding and resulting genetic defects (Hemophilia anyone?)
    10/15/2014
    Americans Increasingly Blasé Over Data Breaches
    Source: Fox Business
    Author: Brian E. Finch

    This article was originally published on Fox Business on October 15, 2014.

    If you have gotten to the point where you read about yet another data breach and thought “ho hum,” you are not alone. It is hard not to feel that way – it seems as if basically every place you might shop or do business is suffering from a data breach. These hacks run the gamut of the consumer spectrum, from discount stores and sandwich shops to some of the most respected luxury chains and high profile banks.
    10/8/2014
    Good Counsel: Share Member Information with Care
    Four caveats for putting exhibitors in touch with your members
    Source: Associations Now
    Author: Dawn Crowell Murphy

    This article was originally published by Associations Now on October 8, 2014.

    As you prepare for your events involving exhibitors or sponsors, you will likely encounter questions about how they can connect with your members and attendees. These companies are paying for the opportunity to participate in your activities and gain access to your audience. This may include obtaining your membership lists and members’ and attendees’ contact information.
    10/2/2014
    How Directors Can Mitigate Cyber Risk with the SAFETY Act
    Source: National Association for Corporate Directors
    Authors: Brian E. Finch, Sarah A. Good

    This article was originally published by the National Association for Corporate Directors on October 2, 2014.

    There is no shortage of advice on cyber security measures available to corporate directors. What’s missing from many discussions about cybersecurity however is an exploration of what measures are available to minimize a company’s exposure to litigation and financial loss in the aftermath of a cyberattack. This is due in part to the fact that, as of this writing, there is no established cybersecurity baseline directors can point to in order to demonstrate that their actions were reasonable or in line with a standard of care. Fortunately, there’s the SAFETY Act, a federal safe harbor law administered by the Department of Homeland Security that can establish a record of appropriate cybersecurity measures, thereby relieving many concerns associated about whether a company is doing enough to protect itself from cyber threats.
    9/30/2014
    Watch Your (Supply) Tail
    Source: The Huffington Post
    Author: Brian E. Finch

    This article was originally published on The Huffington Post on September 30, 2014.

    “My logisticians are a humorless lot,” Alexander the Great once commented. “They know if my campaign fails, they are the first ones I will slay.”

    Wow. Here I thought I had worked or some tough bosses in my day, but yikes.
    9/11/2014
    CIOs Spur Revenue Generation Through Smart Cybersecurity
    Source: The Wall Street Journal's CIO Journal
    Author: Brian E. Finch

    This article was originally published in The Wall Street Journal's CIO Journal on September 11, 2014.

    Today as companies increasingly realize the value of strong cybersecurity, those CIOs who successfully implement an effective cybersecurity system should be viewed as a critical part of the revenue generation effort. An effective CIO who maintains a robust cyber risk management program will not only help ensure efficient operations, but will also play a role in crossing cybersecurity thresholds established by customers that would otherwise serve as a barrier to entry.
    8/26/14
    A Needed Review
    Source: The Huffington Post

    This article was originally published on The Huffington Post on August 26, 2014.

    As previously hinted at, President Obama has ordered a review of a Defense Department program that distributes surplus military equipment to state and local law enforcement agencies. This review, triggered by the civil disturbances in Missouri, will examine not only whether the equipment distribution was appropriation, but also whether proper training and oversight has concurrently been administered. In all likelihood, the review will expand to examine whether other federal programs, including the $2 to $3 billion in grants handed out annually by the Department of Homeland Security, have resulted in an “over-militarization” of police departments across the country.
    8/22/2014
    Views on Right to be Forgotten, Big Data and Global Sourcing
    This article was originally published in Bloomberg BNA’s Privacy Law Watch on August 22, 2014.
    Source: Privacy Law Watch
    Author: Brooke L. Daniels
    In a landmark ruling, the European Court of Justice—the European Union’s top court—held that data subjects in the EU have the right to compel Google Inc. and other Internet search engines to remove search results linking to websites containing personal information about them.
    8/19/2014
    English Contract Law and Oral Contracts - Your Word May Still Be Your Bond
    Author: Raymond L. Sweigart
    Verbal contracts have their place in English law
    Whether it was American movie mogul Samuel Goldwyn or the Australian/Irish politician Bryan O’Loghlen who first said, ‘A verbal contract isn’t worth the paper it’s written on’, with all due respect, they did not have this quite right and recent case law confirms they actually had it quite wrong, at least under English law. A contract forms once the parties have, to all outward appearances, agreed the same terms on the same subject matter, normally through offer and acceptance (Air Studios (Lyndhurst) Limited T/A Entertainment Group v Lombard North Central PLC [2012]). However, many who negotiate commercial contracts often assume that there is a further requirement of formality and they are not bound unless and until the agreement is reduced to writing and signed by the parties. This is not true, oral contracts most certainly exist, and they are certainly enforceable with a few exceptions, and have been for a very great number of years.
    8/14/2014
    What Do I Need to Know and When Do I Need to Know It?
    This article was originally published in the Huffington Post on August 14, 2014.
    Author: Brian E. Finch
    Another day, another big hack discovered. According to reports from the New York Times, the Wall Street Journal, and numerous other publications, a small group of cyber criminals based out of Russia were apparently able to collect around 1.2 billion usernames and passwords from more than 400,000 websites globally. The company that identified the hack, Hold Security, estimates that this hack is impacts more than 500 million people. Think about it: nearly one in ten people worldwide were apparently impacted by this attack. If true, wow.

    7/30/2014
    There Oughta Be A Law (Well, Maybe)
    Source: FoxBusiness.com
    Author: Brian E. Finch
    This article was originally published on FoxBusiness.com on July 30, 2014.
    7/22/2014
    The Admiral Sets A Good Course
    This article was originally published on The Huffington Post on June 20, 2014.
    Authors: Brian E. Finch
    Admiral Mike Rogers, the new leader of the National Security Agency and Cyber Command at the Defense Department, certainly has taken a different approach from his predecessor, General Keith Alexander. Right out of the gate, Admiral Rogers noted that the NSA had a public image issue and that it had lost some of its credibility with the American public.

    6/24/2014
    Rethinking Cyber Defense
    Source: Fox Business.com
    Authors: Brian E. Finch
    This article was originally published on Fox Business.com on June 20, 2014.
    6/23/2014
    Using Words To Battle Cyber Losses
    This article was originally published in the Wall Street Journal: CIO Journal on June 23, 2014.
    Author: Brian E. Finch
    Words matter when it comes to cybersecurity.

    6/5/2014
    Circles and the Internet of Things
    Source: Fox Business
    Author: Brian E. Finch

    This article was originally published on Fox Business on June 5, 2014.

    Growing up, the sacred text in our house was Consumer Reports, a/k/a “Consumers”. Nary a television, home appliance, or automobile could be purchased without consulting the infallible guide to what was worth some hard earned dollars.
    June 2014
    The For-Profit Entity's Guide to Doing Business with Nonprofit Organizations
    Source: ACC Docket
    Authors: Jerald A. Jacobs
    This article was originally published in the June 2014 issue of ACC Docket, published by the Association of Corporate Counsel.
    5/15/2014
    The World Needs a 21st-Century Arsenal of Democracy
    Source: Fox Business
    Author: Brian E. Finch

    This article was originally published on Fox Business on May 15, 2014.

    Poland, Estonia, Latvia, and Lithuania cannot look back with much comfort on the promise of Western assistance in the face of military aggression.
    May 2014
    Cuba Embargo Continues to Present Risks for Travel Cos.
    Source: Law360
    Authors: Nancy A. Fischer, Aaron R. Hutman, Stephanie J. Rohrer
    This article was originally published in Law360 on May 9, 2014.
    5/8/2014
    Banding Together for Cyber Defense
    Source: Wall Street Journal's CIO Journal
    Author: Brian E. Finch

    This article was originally published in the Wall Street Journal’s CIO Journal on May 8, 2014.

    When discussing how companies can cooperate on cyber security, talk often revolves around information sharing. Yet while there’s value in the notion that companies and governments could freely share important threat data such as malware signatures and indicators of compromise, it’s not the last word on cooperative cyber defense. Opportunities exist now for CIOs to band together with other internal executives and similarly situated companies in the form of risk-pooling mechanisms to increase their defenses and better mitigate risk.
    March 2014
    From a Sea of Data to Actionable Insights: Big Data and What it Means for Lawyers
    Source: Intellectual Property & Technology Law Journal
    Authors: John L. Barton, Michael Murphy
    This article was originally published in 26 Intellectual Property & Technology Law Journal No. 3, March 2014, at 8.
    2/27/2014
    Remain Vigilant: Managing Cybersecurity Risks in Third-Party Outsourcing Relationships
    Source: Corporate Compliance Insights
    Authors: Meighan E. O'Reardon, Aaron M. Oser
    This article was originally published on February 27, 2014 and is reprinted with permission from Corporate Compliance Insights.
    January 2014
    Don’t Settle a Preference Case on the Basis of Unpaid New Value
    Source: Pratt's Journal of Bankruptcy Law
    Authors: Patrick J. Potter, Dania Slim, Jerry L. Hall
    This article was originally published in the January 2014 issue of Pratt's Journal of Bankruptcy Law.
    December 2013
    United States Anti-Money Laundering Efforts in 2013
    Source: E-Finance & Payments Law & Policy
    Authors: Raymond L. Sweigart, Aaron R. Hutman, Stephanie J. Rohrer
    This article was originally published in the December 2013 issue of E-Finance & Payments Law & Policy.
    December 2013
    Big Data and Cloud Solutions: Implications for Sourcing
    Source: Practical Law
    Authors: John L. Barton, Michael Murphy
    This article was originally published in Practical Law Company's "Outsourcing Multi-Jurisdictional Guide 2013/14."
    12/18/2013
    Reduce the Risk of Your Information-Sharing Program
    Source: American Society of Association Executives
    Authors: Alvin Dunn
    This article was originally published in the American Society of Association Executives’ Association Law & Policy newsletter on December 18, 2013.
    Winter 2013
    Impact of Supreme Court Pro-Employer Title VII Decisions Blunted by State Laws
    Source: Employee Relations Law Journal
    Authors: Julia E. Judish, Ellen Connelly Cohen, Keith D. Hudolin
    This article was originally published in Vol. 39, No. 3, Winter 2013 issue of Employee Relations Law Journal.
    11/15/2013
    U.S. Sanctions Update
    Remaining Sanctions Manageable
    Source: Thai-American Business
    Authors: Aaron R. Hutman, Christopher R. Wall
    This article was originally published in Volume 5/2014 of Thai-American Business, a journal by the American Chamber of Commerce in Thailand.
    Fall 2013
    Recent Developments in Property Insurance Coverage Litigation
    Source: Tort Trial & Insurance Practice Law Journal
    Authors: James P. Bobotek
    This article was originally published in Tort Trial & Insurance Practice Law Journal, Fall 2013 (49:1).
    Fall 2013
    New Amendments to UCC Article 9 Now Effective in Most Jurisdictions
    Source: The Real Estate Finance Journal
    Authors: Thomas Klaus Gump, George P. Haley, Lynn A. Soukup
    This article was originally published in the Fall 2013 issue of The Real Estate Finance Journal.
    September 2013
    Insurance Coverage Law Report: Hurricane Season is Here - Is Your Insurance Program Ready for the Next Storm?
    Source: Insurance Coverage Law Report
    Authors: James P. Bobotek
    This article was originally published in the September 2013 issue of Insurance Coverage Law Report.
    9/30/2013
    100 Years of the Tax Code: 100 Tax Quotes
    Source: Tax Notes
    Authors: Jeffery L. Yablon
    Pillsbury tax partner Jeffery Yablon authored an article that was published in Tax Notes, the leading publication for tax professionals. Entitled "100 Years of the Tax Code: 100 Tax Quotes," the article presents quotes from the 10th edition of his book, "As Certain As Death: Quotations About Taxes."
    October 2013
    Dealing with Civil Investigative Demands from the CFPB: Rules, Response, and Practice Considerations
    Source: The Banking Law Journal
    Authors: Rebecca Tierney, Joseph T. Lynyak, III
    This article was originally published in the October 2013 issue of The Banking Law Journal.
    9/11/2013
    Minimizing Anti-Corruption Deal Risk While Maximizing Returns on Venture Capital Investments
    Source: The FCPA Report
    Authors: Thomas M. Shoesmith, Marc H. Axelbaum, Ryan R. Sparacino, G. Derek Andreson
    More and more, venture capital firms are investing in start-ups seeking to expand internationally or with nascent cross-border operations in place. Such investments offer opportunities for lucrative returns but also carry significant anti-corruption risk that VC firms are often ill-equipped to manage. For many businesses, managing anti-corruption risk is a necessary cost center. But VC firms are uniquely positioned to use that risk to drive a better deal and gain greater control over management and direction of the business.
    2013
    The Oil and Gas Year - Abu Dhabi 2013
    Including an interview with David Cynamon and Chris Gunson
    Source: The Oil and Gas Year
    Authors: David J. Cynamon, Christopher D. Gunson
    An in-depth annual review of the oil and gas industry, this year's edition focused on Abu Dhabi. It contains articles, interviews, market analyses, resources, projects and more from the industry's leading voices. This issue includes an interview with Pillsbury partner David Cynamon and senior associate Chris Gunson discussing prospects for new entrants to the Abu Dhabi onshore sector, how companies bidding on Abu Dhabi National Oil Company’s concessions can assess economic benefits of project participation and how to maximize onshore concession tenders.
    September 3, 2013
    Should Statutory Damages Be Covered? Many Courts Say Yes
    Source: Law360
    Authors: David L. Beck, Rene L. Siemens
    This article was originally published in Law360 on September 3, 2013.
    8/27/2013
    CFIUS Issues in China
    Source: International Financial Law Review
    Authors: Christopher R. Wall
    Through the Committee on Foreign Investment in the U.S. (CFIUS), the president has authority to review and investigate transactions involving the acquisition of a U.S. business by a foreign entity. He is also permitted to investigate the effect of these transactions on national security.
    August 2013
    Employers May Be Able to 'Pick Off' Named Plaintiffs in FLSA Collective Actions
    Source: Employee Benefit Plan Review
    Authors: Julia E. Judish, Keith D. Hudolin

    This article was originally published in the August 2013 issue of Employee Benefit Plan Review.

    In its recent decision in Genesis Healthcare Corp. v. Symczyk, the U.S. Supreme Court buttressed employers’ efforts to “pick off” named plaintiffs in collective actions for unpaid wages brought under the Fair Labor Standards Act (FLSA) with early offers of judgment that would satisfy only the named plaintiff’s individual claims. Whether this strategy will work for employers, however, depends ultimately upon how the lower courts interpret this opinion.
    August 14, 2013
    Contractors Beware—COFC Endorses Clandestine Debarment System
    Source: The Government Contractor
    Authors: Todd J. Canni
    The U.S. Court of Federal Claims recently endorsed the Government’s use of secret “blacklists” to debar contractors where justified by “national security” concerns. Under this new clandestine debarment system, field contracting personnel— not the agency suspension debarment official (SDO)—can debar a contractor and deem the “blacklist” classified to avoid having to disclose the debarment to the contractor. In this system, the blacklisted contractor, unaware of its ineligibility, continues to submit proposals, wasting time and resources, never to secure an award.
    June 2013
    Mobile Privacy Practices: Recent California Developments Indicate What's to Come
    Source: Computer Law Review International
    Authors: James Chang, Meighan E. O'Reardon, James G. Gatto
    This article was originally published in the June 2013 issue of Computer Law Review International (CRi).
    Summer 2013
    New Tax Increases Make Deferral of Compensation a (More) Valuable Benefit for Many Employees
    Source: Employee Relations Law Journal
    Authors: Howard L. Clemons
    This article describes how the new additional Medicare tax, tax on net investment income, higher marginal tax rates, and phase-out and reductions of personal exemptions and itemized deductions make the use of compensation deferral techniques a potentially significant benefit to employees.
    5/15/2013
    Gays and Conservatives Both Have Exemption Battles With the IRS
    Source: Journal of Taxation of Exempt Organizations
    Authors: Jeffery L. Yablon
    Given the recent news about alleged political bias at the Internal Revenue Service against certain conservative groups, this article, written in 1998 by Pillsbury partner Jeffery Yablon, provides a timely analysis on allegations of bias by the IRS and considers how existing tax rules can be made less vague and subjective.
    4/16/2013
    Ownership Limits Shackle Local Broadcasting
    Source: TVNewsCheck
    Author: John K. Hane
    In this article, Pillsbury communications counsel John Hane argues that “unless it can find a way to make all of the other players in the television industry smaller, the FCC should throw off archaic broadcast ownership regulations that skew the market against the only television service that is free to Americans who don’t want to pay.”
    4/15/2013
    101 Tax Quotes for Tax Day
    Source: Tax Notes
    Authors: Jeffery L. Yablon
    To recognize Tax Day, partner Jeffery Yablon has compiled a collection entitled “101 Tax Quotes for Tax Day.” The quotes presented are from the 10th edition of his book As Certain As Death: Quotations About Taxes, which will be published by Tax Analysts in 2015.
    April 2013
    The U.K. Bribery Act, Year One
    Source: Security Management
    Authors: Raymond L. Sweigart
    Companies that conduct business in the United Kingdom should review their existing anticorruption programs in light of the U.K. Bribery Act.
    April 2013
    Preparing Living Wills for Bank Holding Companies and Depository Institutions: An Update
    Source: The Banking Law Journal
    Authors: Rodney R. Peck, Joseph T. Lynyak, III
    This article discusses recent developments from the Federal Reserve Board and the Federal Deposit Insurance Corporation regarding the preparation of living wills for bank holding companies and banks required to comply by July 1, 2103 or December 31, 2013.
    March 2013
    Coverage for "Rip and Tear" Costs: A Case Law Survey
    Source: American Bar Association
    Authors: Melissa C. Lesmes, John C. Bonnie, Charles E. Stauber, H. Eric Hilton

    This article was originally published by the American Bar Association in March 2013.

    You say “covered consequential loss”, I say “non-covered inflicted injury”: The developing law of coverage for “rip and tear” damages in construction defect litigation.
    3/12/2013
    A Modest Proposal: The Discount and Refund-or-Donate Policy
    Source: Taxation of Exempts
    Author: Jeffery L. Yablon
    Despite all of the jokes to the contrary, lawyers as a professional group are remarkably charitable. Unlike plumbers, doctors, electricians, pharmacists, and the myriad of other regulated professionals who enjoy a government-granted monopolistic right to provide services to the public, many lawyers—especially those at large firms—regard themselves as having an obligation to provide services at no cost to worthy individuals and causes. This is known as “pro bono” work, a shortening of the Latin phrase pro bono publico—“for the public good.”
    March 2013
    Offers, Sales and Resales of Securities Under Section 4[a](1-1/2) and Rule 144A
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Private Placements and Offers, Sales and Resales of Securities Under Section 4[a](1-1/2) and Rule 144A at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Structuring Best Efforts Offerings and Closings Under Rule 10b-9
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Private Placements and Structuring Best Efforts Offerings and Closings Under Rule 10b-9 at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Securities Offerings to Employers Consultants and Advisors Under Rule 701
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Private Placements and Securities Offerings to Employers Consultants and Advisors Under Rule 701 at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Offerings Under Regulation S
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Private Placements and Offerings Under Regulation S at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Rescission Offers Under Regulation D
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Rescission Offers Under Regulation D at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Private Trading Platforms for Restricted Securities
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Private Trading Platforms for Restricted Securities at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Looking Forward: Practical Implications of the JOBS Act Changes to Private Placements
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Private Placements at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Installment Payments in Public and Private Offerings
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Private Placements and Installment Payments in Public and Private Offerings at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Private Placements in Mergers and Acquisitions
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Private Placements in Mergers and Acquisitions at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Due Diligence in Private Placement Offerings
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Regulation D Offerings and Due Diligence in Private Placement Offerings at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    March 2013
    Ethics and Professional Responsibility For Attorneys in Securities Transactions
    Source: The American Law Institute Continuing Legal Education
    Author: Robert B. Robbins
    Pillsbury attorney, Bob Robbins presented on Fundamentals of Securities Regulation and Ethics and Professional Responsibility for Attorneys in Securities Transactions at The American Law Institute Continuing Legal Education conference on March 14-16, 2013.
    February 7, 2013
    Next TV Standard Must Be Truly Universal
    Source: TVNewsCheck
    Author: John K. Hane
    What if you could buy a 50-inch television, mount it anywhere in your house, and receive dozens of channels on it for free and without any futzing around? What if most or all broadcast signals, in their native form, were easily receivable on tablets and smartphones?
    2013
    U.S. Energy Regulation, Development & Finance
    Source: Getting the Deal Through
    Reprinted by
    permission of Law Business Research from the following publications: Project Finance 2013, Oil Regulation 2012, Gas Regulation 2012, Electricity Regulation 2011
    Authors: Robert A. James, Michael S. Hindus, Philip Jonathan Tendler, Stella Pulman

    Energy partners Robert A. James, Michael S. Hindus and Philip J. Tendler, counsel Julie Hutchings Mayo and senior associate Stella Pulman have contributed to the Getting the Deal Through series for several years. In this second edition of our pieces, we present the thought leadership of Pillsbury lawyers across the entire fuel spectrum—oil and gas on one hand, and nuclear, renewable, gas and coal power generation on the other—and across the private and public-private partnership (PPP) approaches to project development and finance for infrastructure as well as energy facilities.

    The U.S. energy and infrastructure sectors have undergone dramatic change since 2006, the year of Pillsbury’s first contribution to the GTDT publications. Natural gas production and reserves have increased largely from shale and other unconventional sources, which have reinvigorated the petrochemical sector; challenged the prospects of power generation from coal, nuclear and renewable sources; and turned talk of LNG imports into talk of potential exports and gas as a more widespread transportation fuel. Oil production has increased in the Midwest, which faces obstacles for new and increased means of transportation, and the federal agencies regulating offshore oil leases and safety have been completely transformed after the Macondo accident. Power generators must as ever monitor the changing political drivers of policymakers and agencies, with higher renewable procurement standards being more concentrated in the Northeast and the West Coast and new generation projects often needing to coordinate with plans for greater local and regional transmission. A common thread is the greater need for investments in infrastructure of all types, including private finance and PPPs to cope with the constraints on public funding.
    11/26/2012
    Association Law Handbook: A Practical Guide for Associations, Societies and Charities. 5th Edition.
    Author: Jerald A. Jacobs
    Written by Pillsbury partner and leader of Pillsbury's Nonprofit Organizations practice, Jerald Jacobs, this handbook contains everything legal and executive management professionals need to know about association law and outlines it in simple terms, making it fully accessible and easy to understand. At the end of every chapter is a resource guide that shows where to find additional books, articles, cases, laws, regulations, and more. Recently updated to reflect the latest developments in nonprofit law, this edition provides all the information a nonprofit needs to stay in full compliance.
    October 2012
    Nuclear Export Controls
    A Comparative Analysis of National Regimes for the Control of Nuclear Components and Technology
    Authors: James A. Glasgow, Elina Teplinsky, Stephen L. Markus
    Commercial nuclear companies that export goods and services from the United States have long pointed to the U.S. nuclear export control system as a major competitive disadvantage as they compete with their counterparts in nuclear supplier nations such as the Russian Federation, Japan, the Republic of Korea (ROK) and France.
    September - October 2012
    International Trade Obstacles to Fukushima Recovery
    Authors: Yukinori Machida, Elina Teplinsky
    In the wake of the devastating earthquake and tsunami that crippled Japan’s Fukushima Daiichi nuclear power facility in March 2011, the international nuclear industry not only has studied the incident and begun to apply lessons learned, but also has actively provided supplies and assistance to support the recovery efforts of Tokyo Electric Power Co. (TEPCO). Within days of the disaster, experts from the nuclear industries of the United States and other countries arrived in Japan and began to assist TEPCO with recovery measures. In addition to sending expert volunteers, the industry has contributed a wide array of critical supplies, including safety equipment, radiation-monitoring devices and robotic surveillance systems.
    10/15/2012
    Presidential Quotes About Taxes
    Source: Tax Notes
    Authors: Jeffery L. Yablon
    Jeffery Yablon authored an article that was published in Tax Notes, the leading publication for tax professionals. Entitled "Presidential Quotes About Taxes," the article presents quotes from the 10th edition of his book, "As Certain As Death: Quotations About Taxes." The individuals quoted are all past presidents.
    Winter 2011
    Minimizing the Impact of the National Environmental Policy Act on Public-Private Ventures
    Source: Real Estate Finance Journal
    Authors: Jeffrey A. Knight, William A. Wilcox Jr.
    In this article, Pillsbury Environment, Land Use & Natural Resources senior associate William A. Wilcox, Jr. and partner Jeffrey A. Knight address the impact of the National Environmental Policy Act (NEPA) on public-private ventures (PPVs). They demonstrate that early planning and coordination is essential in order to make use of opportunities to streamline and expedite the NEPA review process for PPV projects while ensuring adequate protections against legal challenges.
    10/17/2011
    The Cynical and the Hopeful: Quotations About Tax Reform
    Source: Tax Notes
    Authors: Jeffery L. Yablon
    Jeffery Yablon authored an article that was published in Tax Notes, the leading publication for tax professionals. Entitled "The Cynical and the Hopeful: Quotations About Tax Reform", the article presents quotes about tax reform selected from the 10th edition of his book, "As Certain As Death: Quotations About Taxes." The individuals quoted range from Dave Barry to Dick Cheney.
    September, 2011
    Comments on the Wartime Contracting Commission’s Recommendations on Suspension and Debarment
    Source: Service Contractor
    Authors: Todd J. Canni
    In February 2011, the Commission on Wartime Contracting in Iraq and Afghanistan issued its second interim report to Congress entitled “At what risk? Correcting over-reliance on contractors in contingency operations,” which, in part, found that agencies are not suspending and debarring companies or individuals as frequently as is necessary and that several changes to the government- wide suspension and debarment (S&D) system are necessary to increase activity. Subsequent news articles on the report only intensified the commission’s criticisms. The Federal Times’ story entitled, “Wartime Panel: Get Tougher on Bad Contractors,” concluded, “Federal agencies are too lenient in dealing with companies accused of ripping off the government...,” and “agencies routinely let companies off the hook when they are accused—and even convicted—of wrongdoing.” These stories naturally leave the public with a negative impression of the overall S&D system.
    Summer 2011
    A "Work In Progress" - The Evolving U.S.- India Defense Supply Relationship
    Source: American Bar Association's India Law News
    Authors: Sanjay J. Mullick
    Sanjay Mullick co-authors this article, discussing the evolving U.S.- India defense supply relationship, its transformation and challenges.

    April/May 2010
    FAPIIS In Your Future
    Source: Off the Shelf
    Authors: Todd J. Canni
    The Federal Awardee Performance and Integrity Information System, or “FAPIIS,” takes effect on April 22, 2010. Responding to heightened Congressional concerns regarding the performance and integrity of companies receiving federal contracts, FAPIIS is intended to enhance the government’s ability to prevent non-responsible contractors from receiving contract awards. FAPIIS will serve as a “one-stop” repository containing all data reflecting on a contractor’s responsibility. Contracting officers, in fulfilling their obligation to make a responsibility determination prior to contract award, will be required to review the FAPIIS data pertaining to the contractor. That information will include: contracting officers’ non-responsibility determinations; default terminations; defective pricing determinations; administrative agreements with suspension and debarment officials; contractor criminal convictions, civil liability, and adverse administrative actions involving a finding of fault and liability in connection with the award or performance of a government contract; and certain settlements in criminal, civil, or administrative proceedings. The Civilian Agency Acquisition Council and Defense Acquisition Regulations Council believe that arming contracting officers with this information will “significantly enhance the Government’s ability to evaluate the business ethics and quality of prospective contractors competing for Federal contracts and to protect taxpayers from doing business with contractors that are not responsible sources.” (See FR 14059, March 23, 2010, available at: http://edocket. access.gpo.gov/2010/2010-6329. htm). Responsibility for providing and updating the data in FAPIIS will rest, at least in part, on contractors, who may be required to certify their compliance with the new rule.
    February, 2010
    Decoding the Buy American Regime
    Source: Contract Management
    Authors: Todd J. Canni
    The phrase “Buy American” resonates with most of us, especially in light of congress’s recent enactment of the American Recovery and Reinvestment Act (ARRA), which was hailed as the elixir needed to cure the ailing economy by preserving and creating American jobs.
    Spring 2009
    Shoot First, Ask Questions Later
    An Examination and Critique of Suspension and Debarment Practice under the FAR, Including a Discussion of the Mandatory Disclosure Rule, the IBM Suspension and Other Noteworthy Developments
    Source: Public Contract Law Journal
    Author: Todd J. Canni
    Suspension and debarment are tools employed by the Government to protect itself from nonresponsible government contractors. These tools play an essential gatekeeper function and are designed to prevent dishonest and incompetent contractors from remaining inside the potentially lucrative government-contracting arena. Although necessary and effective tools, current practice, as proscribed under the Federal Acquisition Regulation (FAR), authorizes agencies to proceed on a “shoot fi rst, ask questions later” basis. Given that there are thousands of suspension and debarment actions each year, the consequences of this practice can be far-reaching and harm not only government contractors but also the agencies that depend on these contractors and the suspension and debarment system as a whole.1
    3/21/2008
    Arming Government Contractors with a Statutory Defense Against Speculative Qui Tam Actions
    Source: Washington Legal Foundation
    Author: Todd J. Canni
    Qui tam actions play a vital role in the government procurement process. By encouraging private citizens to report fraud perpetrated against the U.S. government, the law serves as a deterrent and keeps dishonest contractors in check. While the qui tam plaintiff receives a percentage of any recovery, the bulk of recovered funds are returned to their rightful owner, the Government. When distilled to this basic premise, qui tam actions under the False Claims Act (“FCA”) are largely an unobjectionable concept.
    Fall 2007
    Who's Making False Claims, the Qui Tam Plaintiff or the Government Contractor?
    A Proposal to Amend the FCA to Require That All Qui Tam Plaintiffs Possess Direct Knowledge
    Source: Public Law Contract Journal
    Author: Todd J. Canni
    Although qui tam actions under the False Claims Act (FCA) are not universally favored, they play a vital role in the government procurement process.2  By encouraging private citizens to uncover and report fraud perpetrated against the U.S. Government, the law serves as a deterrent and keeps dishonest contractors in check. Moreover, while the qui tam plaintiff receives a percentage of any recovery, the bulk of recovered funds are returned to their *2 rightful owner, the Government. When distilled to this basic premise, qui tam actions are largely an unobjectionable concept.

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