Finders May Pose Risk in Private Capital Raising
Entrepreneurs, company executives, and private equity fund sponsors often find themselves needing help when it comes to raising capital to fund the new enterprise. As a result, they often turn to friends, colleagues and others with experience raising capital. Often times, the person agreeing to help raise capital will agree to provide access to his or her contacts in exchange for a commission payment based upon the amount of capital raised.
Authors: Eric Smith, Parker Morrill
NIST Holds First Workshop on Executive Order Cybersecurity Framework
On April 3, 2013, the National Institute of Standards and Technology (NIST) held a workshop at the Department of Commerce in which it offered a sneak preview of the Cybersecurity Framework required under the recently issued Executive Order on critical infrastructure cybersecurity. The Workshop, held five days prior to the comment deadline for NIST's recently-issued Request for Information (RFI) on the Cybersecurity Framework, consisted of five panel discussions as well as several additional speakers and covered many of the varying considerations and perspectives that will play a role in the development of the Framework. This day-long event included detailed discussion of a number of issues related to the implementation of February's Cyber Executive Order (E.O. 13636).
Authors: Michael Baader, Jamie Barnett, Rear Admiral (Ret.), Dismas Locaria, Anthony Rosso, Brian Zimmet, Jason Wool, Sejal Shah
NIST Issues Request for Information, Begins Developing Cybersecurity Framework Under Recent Executive Order
On February 26, 2013, the National Institute of Standards and Technology issued a Request for Information entitled, "Developing a Framework to Improve Critical Infrastructure Cybersecurity." The RFI requests "information to help identify, refine, and guide the many interrelated considerations, challenges, and efforts needed to develop" a Cybersecurity Framework as mandated by Cybersecurity Executive Order 13636 issued by the Obama Administration on February 12, 2013.
Authors: Michael Baader, Jamie Barnett, Rear Admiral (Ret.), Raymond Shepherd, Anthony Rosso, Robert Smith, Brian Zimmet, Dismas Locaria, Andrew Bigart, Jason Wool, Sejal Shah, Amanda Blunt
Applicability of Amgen Decision Should be Very Narrow
When the Supreme Court issued its decision in Wal-Mart Stores, Inc. v. Dukes in 2011, defense lawyers hailed the case as a game-changer that would level the class action playing field in an arena that traditionally favoured plaintiffs with various presumptions promoting class certification. Trying to limit its impact, plaintiff lawyers argued that Dukes was limited to employment cases, but we have since seen it relied upon in all manner of antitrust, advertising, and other consumer protection class certification settings.
Authors: Thomas Gilbertsen
CFPB Initiative to Promote Student Loan Payment Plans
The Consumer Financial Protection Bureau, responding to the growing amount of student loan debt, initiated a request for information on February 27, 2013 "to determine options that would increase the availability of affordable payment plans for borrowers with existing private student loans." Comments must be received on or before April 8, 2013.
Authors: Jonathan Pompan
Fewer Military Controls and Streamlined Licensing for Exporters Are Expected: Are You in Compliance?
On March 8, 2013, the White House announced two important steps by the Administration to further its export control reform effort, which are expected to simplify licensing requirements for less sensitive items and establish stronger protections for items with higher national security implications.
Authors: Ashley Craig, Lindsay Meyer, Ariel Wolf
Implementation of Sequestration on Government Contracts
The President issued a Sequestration Order that requires federal agencies to make uniform percentage reductions in each separate item in their budgets. Under that Order, the agencies will be obliged to apply a mandatory percentage cut to each covered line item in their budgets, resulting by September 30 in equal reductions of roughly $42.7 billion each from Defense and civilian programs.
Authors: John Cooney, Paul Debolt, Scott Hommer, Robert Burton
Kirtsaeng v. John Wiley & Sons, Inc .: Supreme Court Holds that the First Sale Doctrine Applies Regardless of Where a Work is Manufactured
The Supreme Court ruled last week in Kirtsaeng v. Wiley, a case that centered on the tension between copyright law's first sale doctrine and the importation restriction found in 17 U.S.C. §602(a). The express question before the Court was whether the first sale doctrine applies to works manufactured outside the United States.
Authors: Matthew Farley, Krista Coons, Martin Saad
New Guidance Issued: Integrating the National Environmental Policy Act and Section 106 of the National Historic Preservation Act
On March 6, 2013, the Council on Environmental Quality and the Advisory Council on Historic Preservation jointly released a Handbook addressing integration of the National Historic Preservation Act and the National Environmental Policy Act in order to achieve more efficient reviews under NEPA. Businesses needing federal permits will have new options for completing the required federal reviews.
Authors: Gregory Braker, Kathryn Floyd, Margaret Strand, Jay Johnson, Amy McMaster
Northern District of Illinois Applies Morrison v. National Australia Bank Ltd. in Ruling Against SEC
The Northern District of Illinois recently handed down a decision that further interpreted the contours of the Supreme Court's 2010 decision in Morrison v. National Australia Bank Ltd., which held that Section 10(b) of the Exchange Act is not extraterritorial.
Authors: Nancy Grunberg, George Kostolampros, Hillary Profita
Party to a Swap Contract? CFTC Registration Rules Apply
Please note the April 10, 2013, deadline to register and obtain a Legal Entity Identifier, described in the advisory recently released by the Commodity Futures Trading Commission. LEI registration is required by CFTC reporting and recordkeeping rules adopted under the Dodd-Frank Act. For swap contracts in effect on or after April 25, 2011, each party to the contract (not just swap dealers and major swap participants) must register and obtain an LEI.
Authors: Daniel Danello, Mitchell Kolkin
Ready for Comment: Transportation Agencies Propose New National Environmental Policy Act Categorical Exclusions
On February 28, 2013, the Federal Highway Administration and the Federal Transit Administration issued a Notice of Proposed Rulemaking to provide interested parties with the opportunity to comment on two new Categorical Exclusions under the National Environmental Policy Act.
Authors: Gregory Braker, Kathryn Floyd, Margaret Strand, Jay Johnson, Allison Foley, Megan Roberts-Satinsky
Supreme Court Closes a Loophole for Class Action Plaintiffs Who Want to Avoid Federal Court
On March 19, 2013, the Supreme Court held that a class action plaintiff cannot avoid federal jurisdiction under the Class Action Fairness Act by stipulating prior to class certification that he and the class will not seek damages exceeding $5 million in aggregate value. The central premise of the Court's ruling is that a proposed class representative cannot legally bind the absent members of a putative class before the class is certified.
Authors: Edward Boyle, Thomas Gilbertsen, Michael Hartmere, Jonathan King
Telemarketers Dial Quickly - TCPA Class Action Dismissed For Now
On March 12, 2013, Judge William F. Kuntz II of the Eastern District of New York entered a memorandum and order in Bank v. Independence Energy Group LLC, which sua sponte dismissed claims arising under the Telephone Consumer Protection Act, and its accompanying rules and regulations, for lack of subject matter jurisdiction.
Authors: Edward Boyle, Emilio Cividanes, Michael Hartmere, Stuart Ingis
The Antitrust Implications of Non-Compete Agreements
The Federal Trade Commission's recent settlement in In the Matter of Oltrin prohibiting use of a geographic non compete by two companies in the bulk bleach industry is a reminder that the antitrust agencies look closely at non-competes, especially when the parties to the non-competes have market power.
Authors: Lisa Jose Fales, Robert Davis, Andrew Bigart
The Impact of the Supreme Court's Recent Decision In Clapper v. Amnesty International USA on Privacy and Data-Security Litigation
On February 26, 2013, the Supreme Court decided Clapper v. Amnesty International USA, which clarified the standard to establish Article III standing for claims based on impending or future harm. The Supreme Court, in a 5-4 decision by Justice Samuel A. Alito, Jr., held that plaintiffs must demonstrate harm that is "certainly impending," not speculative, to satisfy the injury-in-fact requirement of standing.
Authors: Edward Boyle, Emilio Cividanes, Thomas Gilbertsen, Stuart Ingis, David Cinotti, Joeann Walker
The Supreme Court's Decision in Amgen Reshapes the Securities Class Certification Battlefield
On February 27, 2013, the U.S. Supreme Court issued one of the most highly anticipated securities law decisions in recent years in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds. The Court's decision clarified whether a plaintiff who brings a securities fraud class action under Section 10(b) of the Securities Exchange Act of 1934 and U.S. Securities and Exchange Commission Rule 10b-5 has an obligation to prove that the defendant's alleged misrepresentations and omissions are material in order to obtain class certification – and whether a defendant in such a case can rebut the "fraud-on-the-market" presumption of reliance by showing the lack of materiality of any alleged misrepresentation or omission.
Authors: Kostas Katsiris, Thomas Welling, Jr.
U.S. Customs Announces Major Changes in Wake of Sequestration Budget Cuts
With sequestration cuts now in effect, U.S. Customs and Border Protection Deputy Commissioner David Aguilar issued guidance over the weekend about CBP's revised operations. Like many other government agencies, CBP will be required to significantly reduce expenses during the remainder of 2013. In preparation for operating under sequestration, CBP has redirected resources toward only its most critical, core functions, and has discontinued or postponed certain important but less critical activities in an effort to reduce budget expenditures.
Authors: Ashley Craig, Lindsay Meyer, Elizabeth Lowe, Amanda Blunt, Matthew Rabinowitz
White House Releases Draft NEPA and CEQA Integration Handbook
On March 5, 2013, the Council for Environmental Quality and the California Governor's Office of Planning and Research released NEPA and CEQA: Integrating State and Federal Environmental Reviews for public review and comment. This draft handbook explains the key differences between the National Environmental Policy Act and the California Environmental Quality Act, provides a framework for agencies undertaking a joint NEPA/CEQA review to develop a Memorandum of Understanding, and addresses the role of the California Energy Commission licensing process for thermal power plant projects.
Authors: Monica Derbes Gibson, Douglas Emhoff, Margaret Strand, Melissa McLaughlin, Megan Roberts-Satinsky
Advertising News & Analysis
Highlights include a review of Obama's new FTC chairman, a recent warning letter issued on social media activity, and a review of the Supreme Court's Amgen Ruling.
Highlights include a review of FTC .com disclosure, a report on FTC mobile payments, a review of continuity marketing, and class action settlements.
Highlights include a review of a story in Adweek on collaboration between the advertising industry and the government, a discussion about price match guarantees, the possibility of advertisers generating tax revenues, and a review of FTC consent decrees.
Highlights include a review of the FTC comment period on proposed changes to EnergyGuide labels, Venable's Advertising practice nomination to Chambers USA, a review of the increase in top level domains, and a review of the Bank v. Independence Energy Group LLC case.
IP Buzz - March 2013
Highlights include a review of top level domain names, a review of the Kirtsaeng v. Wiley case, andvarious articles in electronicRetailer Magazine.
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