Practitioner Contributions

The Americans with Disabilities Act (ADA) was enacted in 1990 to provide civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. The ADA guarantees equal opportunity and equal access for individuals with disabilities in public accommodations, recreational facilities, employment, transportation, state and local government services, and telecommunications.

A rising tide lifts all boats. Storm surge, however, can leave those boats on dry land and dry land inundated. What about a rising storm surge? Does such a thing even make sense?

The Justice Department recently sent a strong signal to financial institutions when it secured a $200 million settlement from Deutsche Bank AG and a $1 billion settlement from Bank of America based on allegations under the False Claims Act (FCA). While the Justice Department has been using the FCA to recover tens of billions of taxpayer dollars from the health care and pharmaceutical industries over the past two decades, it only recently started using this tool against financial institutions.

In a forthcoming, full-length article,1 I describe how federal courts in recent years have cut back on the availability of class action lawsuits. These courts have tightened the requirements for almost every element of class certification under Rule 23. This case law undermines the compensation, deterrence, and efficiency functions of the class action device. In this article, I discuss my major conclusions.

Title VII of the The Dodd-Frank Act Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”) requires persons that are swap dealers and major swap participants to register with the Commodity Futures Trading Commission (“CFTC”) and persons that are security-based swap dealers and major security-based swap participants to register with the Securities Exchange Commission (“SEC”, and together with the CFTC, the “Commissions”).

Imagine that your client’s co-defendant and his attorney agree to share information with you and other co-defendants in the context of a joint defense relationship. Pursuant to that agreement, the co-defendant sits down for a series of interviews with you, with his own attorney present, wherein he relates certain exculpatory information about both himself and your client.

t is generally understood that patents are central to the Hatch-Waxman1 legislative and regulatory scheme that created an abbreviated approval pathway for generic small molecule drugs. The Biologics Price Competition and Innovation Act of 2009 (BPCI Act),2 a subtitle of the Patient Protection and Affordable Care Act (“Affordable Care Act),3 which was signed into law on March 23, 2010, and which amends Section 351 of the Public Health Services Act (PHS Act) (codified as 42 U.S.C. 262) creates what is widely viewed as an abbreviated approval pathway for biological products (biosimilars and interchangeables) that will be implemented over a 10-year transition period ending March 23, 2020.

A couple of months ago I wrote about valuation. This month I want to address the use of tools afforded practitioners by the Bankruptcy Code that can be useful in negotiating a plan in a Chapter 11 case.1 The relationship between value and negotiation of a plan is obvious: the value of a debtor’s estate in liquidation and as a going concern forms the better part of the factual framework for negotiation, and an understanding of value is a necessary prerequisite for any competent negotiation.

If you are in the benefits industry (and perhaps even if you are not) and have not been living in a cave for the past several years, you know that the deadline for a service provider to disclose his or her compensation from working with a retirement plan is July 1 of this year. This has been something of a combination of Chicken Little (“The sky is falling!”), the Emperor’s New Clothes (“There’s nothing there! My broker is stripped naked!”) and business optimism (“Let’s make lemonade out of lemons, shall we?”).

The Ohio Supreme Court will soon determine whether a county sheriff may notify an interested party to a foreclosure action of an impending sheriff’s sale by directing the party to monitor a website for sale information, even when the party’s address is ascertainable.1 The court’s prior decision in Central Trust Co. v. Jensen clearly holds that interested parties are entitled to receive actual notice in this circumstance.

Byron Dorgan (D-N.D.) served 18 years in the U.S. Senate and 12 years in the U.S. House of Representatives. Prior to joining Arent Fox LLP, where he serves as senior policy adviser and co-chair of the firm’s Government Relations department, he was a member of the Senate leadership for 14 years, first as assistant Democratic floor leader and then as chairman of the Democratic Policy Committee. Dorgan was a senior senator on the Appropriations, Energy, and Commerce committees in the Senate and chairman of key subcommittees on Aviation, Energy and Water, and Indian issues.

James Hunter is a Government Relations director at Arent Fox in Washington, D.C. Before joining the firm, Hunter spent more than three years as the director of government affairs for the General Aviation Manufacturers Association (GAMA). Prior to his position at GAMA, he served for nearly six years in the office of Sen. John Kerry (D-Mass.), spending substantial time as a legislative assistant responsible for transportation, Homeland Security, and labor policy.

In BlackRock Financial Management Inc.1 v. Segregated Account of AMBAC Assurance Corp., the Second Circuit held that the Class Action Fairness Act of 2005 (“CAFA”) did not permit removal to federal court of a securities-related “mass action” filed in state court.2 Defendants (and occasionally plaintiffs) in securities cases sometimes rely on CAFA to remove class actions and mass actions to federal court.

In its Clayton Act § 7 challenge to the proposed merger between AT&T and T-Mobile, Sprint included a novel argument regarding the proposed transaction’s effect on its access to wireless handsets and, thus, its continued viability as a competitor in the wireless services market. See Sprint Compl. at 45-49, Sprint Nextel v. AT&T, No. 1:11-cv-01600 (D.D.C. filed Sept. 6, 2011).

On April 9, the U.S. Court of Appeals for the Fourth Circuit handed down its decision in Rosetta Stone Ltd. v. Google Inc.1 At issue in the appeal was whether Google’s sale of “Rosetta Stone” keywords for use in Google’s AdWords advertisements constituted primary (direct) or secondary (contributory/vicarious) trademark infringement or diluted Rosetta Stone’s trademarks.

While the 24-hour news cycle has long left behind the Deepwater Horizon explosion on April 20, 2010 that resulted in 11 deaths and the largest oil spill in United States history, the government continues to investigate whether BP violated federal law in the days following the catastrophe by understating the amount of oil gushing from the well deep below and misleading the public and investors about the success of its well-capping efforts.

The growth of new forms of social media is creating new opportunities—and risks—for businesses that existing corporate antitrust and competition law compliance policies may not address.

In my experience, what I would describe as reactionary laws are bad laws. In other words, when Congress runs across a particularly unforeseen problem, it has a habit of over-legislating in an effort to solve that problem. I’m not saying that every bill that is written this way is bad, or that even among the bad bills that the entirety of every bill is bad, but reactionary bills tend to have some horrible provisions. Perhaps this is why we are burdened with Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

In its December 2011 decision, Wagner v. Jones, the U.S. Court of Appeals for the Eighth Circuit for the first time held that a public employer violates the First Amendment to the U.S. Constitution when it uses an employee or applicant for employment’s political affiliation as a factor in its employment decisions.1 In the process, the Eighth Circuit articulated an important protection for federal, state, and local government employees against unmeritorious, capricious employment decisions.

Capping a multi-year effort, the U.S. Securities and Exchange Commission (“SEC”) has given final approval to an effort by the Financial Industry Regulatory Authority (“FINRA”) to revamp its rules regarding communications with the public. The new FINRA Communications Rules not only restructure existing rules, but also include substantive changes that will impact FINRA member firms. This article will provide an overview of those new FINRA Communications Rules applicable to FINRA member firms relating to communications involving registered investment companies and will suggest various “practice points” for firms to consider.

Insurance brokers and investment banks have at least one thing in common: they are both facing increasing scrutiny by regulators related to the sufficiency of their anti-bribery compliance programs and their compliance with anti-bribery laws, including the U.S. Foreign Corrupt Practices Act (“FCPA”). The FCPA prohibits giving anything of value to foreign government officials to influence their official acts.