Warner Calls for ‘Thorough’ Probe of Nasdaq Glitch
Sen. Mark Warner (D-Va.) Aug. 23 urged Securities and Exchange Commission Chairman Mary Jo White to “undertake a thorough investigation” of a technology glitch at Nasdaq OMX Group Inc. that shut down securities trading a day earlier. Nasdaq halted all trading for several hours Aug. 22 after it experienced a computer error with respect to the pricing [...]
Courts, Rather Than IRS, May Be Arbiter Of Church Plan Exemption, Practitioners Say
Recent Internal Revenue Service rulings on the “church plan” status of retirement plans sponsored by large hospital systems, including a ruling apparently received by the Saint Peter’s Healthcare System Retirement Plan, indicate that the IRS is disinclined to modify its long-standing interpretation of church plan exemption under federal pension law, practitioners told BNA Aug. 23.
“This is an obvious setback for the St. Peter’s plan participants who were fighting for the IRS to go their way,” said Thomas E. Clark Jr., chief compliance officer at FRA PlanTools, a fiduciary consulting company.
Detroit Bankruptcy Judge to Consider Eligibility Objections, Swaps Dispute
LANSING, Mich.–Judge Steven W. Rhodes will hear arguments Oct. 23 on whether Detroit met the required criteria to file for bankruptcy protection (In re City of Detroit,Bankr. E.D. Mich., No. 13-53846).
Meanwhile, he is considering a bond insurer’s bid to block a settlement the city reached with bank creditors that would free up casino revenue for city pensions.
Attorney Told She Was ‘Not That Pretty’ Can Advance Sex Bias Claims Against City
A female attorney with the city of Evanston, Ill., whose superiors told her she was “not that pretty,” and that previous hires were “just gorgeous” and wore “tight sweaters” and “short skirts” can advance her sex bias claims against the city, a federal judge ruled Aug. 21 (Tober-Purze v. City of Evanston, N.D. Ill., No. 1:13-cv-01503, 8/21/13).
Evanston fired Elke Tober-Purze three days after learning that she had filed a complaint against the city with the Illinois Department of Labor. She alleged that the city discriminated against her on the bases of sex and age during her employment, and that her discharge was in retaliation for filing a complaint with IDOL.
Court Tosses Investor Suit Against Netflix Over Failure to Allege False Statements
The U.S. District Court for the Northern District of California Aug. 20 threw out a would-be securities class action alleging that Internet television and movie subscription service Netflix Inc.(NFLX) and certain of its officials made material misrepresentations about the prospects of a new “streaming-focus” model that led to a sharp decline in Netflix stock price after the alleged falsity of the statements was revealed (In re Netflix, Inc. Sec. Litig., N.D. Cal., No. 12-00225 SC, 8/20/13).
The court, in a ruling by Judge Samuel Conti, dismissed the plaintiffs’ claims based on their failure to plead false or misleading statements.
It said the plaintiffs “have had two opportunities to plead false statements, but in both cases they failed to do so.” As such, the court dismissed the complaint with prejudice.
No Likelihood of Confusion Between Kids’ ‘Yummi Bears,’ ‘Yummy Gummy’ Vitamins
Finding the registered “Yummi Bears” mark for children’s vitamins weak, and that mark and the “Yummy Gummy” mark dissimilar, the U.S. District Court for the Central District of California on Aug. 16 ruled against Yummi Bears’ manufacturer in a trademark infringement lawsuit (Hero Nutritionals LLC v. Nutraceutical Corp., C.D. Cal., No. 8:11-cv-01195-AG-MLG, 8/16/13).
The first word in the plaintiff’s Yummi Bear mark “is descriptive of the good-tasting nature of the product,” the court held, finding the mark conceptually weak. Moreover, in addition to the two parties in suit, numerous third parties sell children’s vitamins in gummy bear form.
Phillies Get Limited Protective Order in TTAB Opposition Concerning ‘Teamphly’ Application
The Philadelphia Phillies, a Major League Baseball franchise that is opposing applications for “Greenphly” and “Teamphly” for insurance services, do not have to respond to requests for admissions concerning the team’s licensing practices with respect to registrations that were not asserted in the team’s Section 2(d) opposition, the Trademark Trial and Appeal Board held Aug. 19 (The Phillies v. Phila. Consol. Holding Corp., T.T.A.B., No. 91199364, 8/19/13)
IRS Also Scrutinized Progressive Groups As Shown in ‘BOLO’ Lists, Rep. Levin Says
Internal Revenue Service training materials relating to applications for tax-exempt status show that progressive groups were singled out for additional scrutiny the same way conservative groups were, House Ways and Means Committee ranking member Sander Levin (D-Mich.) said Aug. 20 after receiving the documents from the IRS.
The documents, previously submitted to the committee but now re-released with fewer redactions, include the names of Democratic-leaning “Emerge” organizations alongside progressive and tea party groups, Levin said. The documents were released Aug. 19 by IRS Acting Commissioner Daniel Werfel.
Counsel Disqualified From Representing Both Debtor and CEO Accused of Embezzlement
Counsel for a debtor’s former CEO who was alleged to have embezzled from the debtor was disqualified from representing both the CEO and the debtor July 23 by the U.S. District Court for the Eastern District of New York (Pergament v. Ladak, E.D.N.Y., No. 1:11-cv-02797-ARR-MDG, 7/23/13).
Judge Marilyn D. Go found that the evidence presented regarding an embezzlement counterclaim against the CEO, though scant, was sufficient to establish that it was possible the CEO would be liable to the debtor, and therefore the CEO’s counsel could not represent him in the counterclaim while also representing the debtor in the debtor’s bankruptcy.
Former Employee of Wells Fargo Loses Claims for Benefits, ERISA Interference
A former Wells Fargo & Co. employee challenging the company’s policy on work visas for foreign national employees failed to sustain his claims under the Employee Retirement Income Security Act, the U.S. District Court for the Northern District of California ruled in an opinion released publicly Aug. 19 (Karamsetty v. Wells Fargo & Co., N.D. Cal., No. 3:12-cv-01364-JCS, 8/19/13).
The employee resigned his position after learning that Wells Fargo had implemented a policy under which it would no longer be sponsoring employees’ applications for renewed work visas. When the former employee was denied severance benefits following his resignation, he brought a claim for ERISA benefits and for wrongful interference with protected benefits in violation of ERISA Section 510.
Gay Married Couples Lacking IRS Guidance Risk Paying More in Taxes, Analysts Say
Proceed with care. That’s what bankers, accountants, and wealth managers are telling same-sex couples considering financial changes because of the Supreme Court’s rejection of a federal law denying them benefits.
After years of fighting for equal tax-and-benefit treatment, married couples now await guidance on how the Internal Revenue Service and federal agencies will implement the ruling. Without it, those who file for tax refunds may end up paying more, not less.
With Cyber Threats to Financial Services, Questions Loom About Role of Regulation
Financial institutions are facing unrelenting threats from cyber criminals, industry participants told BNA in early August, but whether there is room for regulatory intervention is up for debate.
While financial regulators have taken notice of the looming dangers, some in the industry question whether rules would help insulate firms from cyber threats or simply impose additional regulatory burdens.
Judge Finds Nestle Had Honest Belief Fired Worker Used FMLA Leave to Golf, Eat
Nestle USA Inc. did not violate the Family and Medical Leave Act when it fired an Illinois warehouse worker suspected of misusing his intermittent FMLA leave to play golf and eat breakfast, among other things, the U.S. District Court for the Northern District of Illinois ruled Aug. 15 (Hamm v. Nestle USA, Inc., N.D. Ill., No. 12-02427, 08/15/13).
Debt, Delinquencies Generally Decrease But Student Loans Problematic, Report Says
U.S. consumers slightly reduced their indebtedness in the second quarter of 2013, but foreclosures rose and student loan indebtedness and payment delinquencies increased during the period, as did bankruptcy notations on credit reports, the Federal Reserve Bank of New York said in its quarterly report on household credit released Aug. 14.
Overall, indebtedness and payment delinquencies associated with U.S. consumers declined during the second quarter. Aggregate debt was reduced by about $78 billion to $11.15 trillion. Report data on student loan and foreclosures, however, were not as positive.
Prior License Agreement Not Needed To Pursue Reasonable Royalty Damages
Reasonable royalty damages are available in a trademark infringement case, despite a trademark owner not having prior licensing agreements with a third party and thus there being no established royalty rate, the U.S. District Court for the Northern district of Georgia ruled Aug. 5 (ITT Corp. v. Xylem Grp., L.L.C., N.D. Ga., No. 1:11-cv-03669-WSD, 8/5/13).
Denying a motion for partial summary judgment, the court determined that a trademark owner may show the value of the intellectual property taken by a reasonable royalty rate because allowing reasonable royalty damages in patent and copyright cases, but not trademark infringement cases would allow an infringer of this type of intellectual property to unfairly capitalize on its infringing conduct.
DOJ’s Pursuit of Hedge Fund SAC Raises Interesting Legal Issues, Expert Says
SAN FRANCISCO–The Department of Justice’s recent indictment of SAC Capital Advisors LP and its separate action seeking civil forfeiture are based on “very unusual facts,” and raise interesting legal questions, Stanford law professor Joseph Grundfest said Aug. 11.
Grundfest–a noted securities law expert and a Securities and Exchange Commissioner from October 1985 to January 1990–noted for example that the case marks the first time DOJ has used money laundering as a strategy for pursuing insider trading.
Democrats Hopeful on Bipartisan Tax Reform Bill, Remain Unsure About Draft From Camp
House Ways and Means Committee Democrats remain uncertain about forthcoming legislation to overhaul the tax code from Chairman Dave Camp (R-Mich.), a legislative aide on the minority side said Aug. 13.
Majority staff is taking this month to draft a tax reform bill to mark up in September or October, but Democrats on the panel are unsure whether it will be bipartisan. They are hopeful the language will mirror outreach from across the aisle to date, said Arthur Mandel, legislative director for Rep. Bill Pascrell (D-N.J.), a Ways and Means member.
Patent on Taclonex Psoriasis Treatment Improperly Rejected in PTO Reexamination
The Patent and Trademark Office is no different from a district court in the requirement to assess objective indicia of nonobviousness in a patent reexamination proceeding, the U.S. Court of Appeals for the Federal Circuit ruled Aug. 12 (Leo Pharm. Prods., Ltd. v. Rea, Fed. Cir., No. 2012-1520, 8/12/13).
The court reversed the decision of the Board of Patent Appeals and Interferences, eight times using the word “hindsight” to characterize the board’s faulty obviousness analysis.
Bar Tip Pool Including Security Guards Is Permissible Under FLSA, Court Rules
A tip-pool arrangement at Coyote Ugly saloons that forces female bartenders to share tips with male security guards does not violate the Fair Labor Standards Act because the security guards have sufficient contact with customers to be deemed employees in an occupation that “customarily and regularly receives tips,” the U.S. District Court for the Middle District of Tennessee ruled Aug. 8 (Stewart v. CUS Nashville, LLC, M.D. Tenn., No. 11-342, 8/8/13).
Bank Had to Offer Mortgage Modification To Debtors Who Completed Trial Period Plan
A bank was contractually liable to offer its customers a mortgage modification after they successfully completed the requirements of their trial period plan, the U.S. Court of Appeals for the Ninth Circuit held Aug. 8 (Corvello v. Wells Fargo Bank NA, 9th Cir., No. 11-16234, 8/8/13).
The per curiam opinion was guided by the Seventh Circuit’s opinion in Wigod v. Wells Fargo Bank, NA, 673 F.3d 547 (7th Cir. 2012).