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Articles by Daniel V. Duff
Highlights From The OFCCP And NILG Compensation Roundtable | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
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FDA Draft Guidance Medical Devices
On December 15, the U.S. Food & Drug Administration (FDA) issued “The Least Burdensome Provisions: Concept and Principles: Draft Guidance for Industry and Food and Drug Administration Staff.” In this document, the FDA stated its policy position that the “least burdensome principles” should apply consistently and widely to all activities for medical devices, both premarket and postmarket, to facilitate patients’ earlier and continued access to high-quality, safe and effective devices.
Mediaexpert v EUIPO
On 20 March 2013, the company Mediaexpert S.A. submitted the following word-figurative EU trademark to the EUIPO: for the following services in classes 35, 39 and 41: and the trademark was registered on 5 March 2014 under number 11674132 for all the services submitted. On 22 May 2014, the company Mediaexpert sp.
NJ Trustee Duty to Disclose
Are you currently serving as a trustee, or are you a beneficiary of a New Jersey trust? If so, then these rules may be applicable to you. Under New Jersey’s recently enacted Uniform Trust Code (UTC), new obligations are imposed on the trustees of irrevocable trusts to make certain disclosures to trust beneficiaries. The UTC was enacted in January 2016 and became effective on July 17, 2016. The UTC applies to all New Jersey trusts, including those created before the enactment of the UTC.
IDD Application Delays Proposed
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
France Enforcement Against Connected Toys
France’s data protection commissioner joins others in taking action against toymaker Genesis Toys related to its popular internet-connected toys My Friend Cayla and i-Que Robot. Last December, a number of consumer groups filed complaints with regulators in the U.S. and Europe raising privacy and security concerns about the toys.
Ledger Technology Feedback Statement Published
Following the publication of its discussion paper regarding the risks and opportunities, and characteristics of distributed ledger technology (DLT) in April 2017, the FCA’s feedback statement FS17/4 sets out responses received and the FCA’s next steps.
December 20 PTO Litigation
Listed below are all new filings before PTAB of petitions for inter partes review (IPR) and covered business methods review (CBM). Also listed are any newly-posted requests for ex partereexamination at the USPTO. This listing is current as of 9 AM on Wednesday, December 20, 2017.
Food Safety Research Announced USDA-FSIS
Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world.
IRS January 2018 Federal Rates
The Internal Revenue Service (IRS) publishes a monthly update to the applicable federal rates (AFRs) and 7520 rates. Planning professionals and their clients should take note of fluctuations in these rates and be mindful of planning opportunities that come with rate changes. The AFR is calculated by the IRS under Section 1274(d) of the Internal Revenue Code (the Code) and is used for many purposes.
Tax Reform Year End Planning
The tax bar is abuzz with the talk of tax reform. Clients are in modeling purgatory, trying to calculate its effects and plan for the future. Public accounting firms are suggesting how to accelerate deductions in 2017 to take advantage of the massive tax rate decline in 2018. Now more than ever, there are substantial economic incentives to accelerate deductions in 2017 and defer income until 2018.
National Futures Association Virtual Currency
Registered futures commission merchants, introducing brokers, commodity pool operators, and commodity trading advisors should implement procedures to comply with the new requirements. With the recent launch of virtual currency futures contracts, futures regulators are increasingly focusing on transactions in virtual currency and derivatives on virtual currencies.
California Clarifies Rest Break Requirements
Pursuant to Wage Orders promulgated by California’s Industrial Welfare Commission, most non-exempt employees in California are entitled to a paid 10 minute rest break for every 4 hours worked or major fraction thereof. In December 2016 the California Supreme Court clarified in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.
NLRB Abandons Micro-Unit
The National Labor Relations Board (NLRB) on Friday rolled back yet another Obama-era decision. The 2011 "micro-units" decision, Specialty Healthcare & Rehabilitation Center of Mobile (Specialty Healthcare), had expanded the "community-of-interest" test to define an appropriate bargaining unit in union representation cases.
OFCCP Scheduling Letter
Every compliance evaluation that the Office of Federal Contract Compliance Programs (OFCCP) conducts begins with a scheduling letter. The letter notifies the contractor that it has been selected for an audit and identifies the contractor establishment to be audited. The letter is accompanied by an Itemized Listing of data to be submitted to OFCCP for review concerning the contractor’s affirmative action compliance.
2018 Minimum Wage Increase
In 2018, the federal minimum wage will remain at $7.25 per hour for non-tipped employees and $2.13 per hour for tipped employees. The following table summarizes the statewide minimum wage increases that have been announced for 2018, along with the related changes to the maximum tip credit permitted and minimum cash wage allowed for tipped employees: Employers may also be affected by local minimum wage ordinances with heightened requirements and exceptions to statewide minimum wage obligations.
CBI Survey UK EAT Feeds
A survey carried out by the CBI published earlier this week shows that 90% of the 299 employers spoken to thought that the removal of Employment Tribunal fees would either probably or definitely lead to an increase in weak and misguided claims. Yikes. But is it true? That there will be an increase in claims is indisputable. Apparently just over 3,000 single cases were filed in August 2017, an increase of 124% over July (when the fees were effectively abandoned) and 109% on the same month last year.
State AGs Opioid Class Actions
At this point, it’s not really ground-breaking news that America has a problem with opioid drugs. By way of anecdote, when I became a federal prosecutor in 2011, the last heroin case that had been prosecuted in the Nashville U.S. Attorney’s office was in the early-1990s; although, to be fair, there were then lots of what we called “pill” cases involving opioids.
AL Pregnancy FMLA Case 11th Circuit
The U.S. Court of Appeals for the Eleventh Circuit has affirmed a jury verdict in favor of a former Alabama police officer on her pregnancy and Family and Medical Leave Act (FMLA) claims. , No. 16-13003 (11th Cir. Sept. 7, 2017). The Eleventh Circuit held that the Pregnancy Discrimination Act (PDA) bars bias against breastfeeding mothers and affirmed an award of $161,319.92 plus costs and attorneys’ fees to the plaintiff.
Payment Service Regulator Change Rules
The Payment Services Regulator (PSR) has published its decision to require the operator of the Bacs payment system, of which the Direct Debit scheme is a part, to change its rules to help clients switch Facilities Management (FM) service providers. Direct Debit FM service providers enable organisations which aren’t specifically approved or sponsored as Bacs service users to nevertheless use Direct Debits to collect money from customers.
Risks Rewards Remote Medicine
Sick days are built in to nearly every workforce. As employers are aware, depending on an employee’s position and the duration of his or her time off, sick time may slow production or delay deadlines. On the flip side, employees want to work for employers that empathize with employees’ health needs and, further, offer a good benefits package to absorb some healthcare-related costs.
2nd IDD Policy Statement FCA
As the implementation date for the Insurance Distribution Directive (IDD) approaches, the FCA has published the second of its three policy statements on the implementation of IDD, PS17/27. This policy statement contains near-final amendments to the FCA’s rules to enable firms to be able to prepare based on the substance of what the final versions are expected to look like.
Cyber Threats Who's Protected?
When a retailer or merchant purchases a broad cyber insurance policy to cover hacks or breaches of its point of sale systems, it could be forgiven for thinking that its insurance policy would cover the costs of fraudulent charges and card replacement costs – which can represent the majority of damages generally incurred in a payment card incident – demanded by the payment processor or the card brands.
IRS Limited 409(a) Relief
The Internal Revenue Service (the “IRS”) has issued Notice 2017-75 (the “Notice”), which provides certain limited relief from the strict requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), in order to pay income taxes on deferrals attributable to services performed before 2009 that are required to be included in gross income under Section 457A[1].
Re-registration DMCA Agents Required
Retailers that allow website users to generate and post content on their websites are required to reregister their Digital Millennium Copyright Act (DMCA) agents with the US Copyright Office by the end of the year in order to continue receiving protection under the DMCA’s safe harbor provision. This edition of Morgan Lewis Retail Did You Know?
USITC Remedy Solar Cell Section 201
At the end of January 2018, President Trump will decide whether to impose tariffs and quotas on imports of solar cells and modules, as the US solar industry braces for the worst, and continues to lobby against the recommended tariffs.
Cryptocurrency Payment Legal Ramifications
As cryptocurrencies surge in value and enter mainstream consciousness, an increasing number of employers may consider compensating their employees with bitcoin, ether, or other cryptocurrencies. While a cryptocurrency compensation scheme may proliferate everyday usage of these currencies and attract tech-savvy labor talent to organizations, it may also put an employer at risk of wage and hour violations, and implicate additional regulatory regimes such as the securities laws.
Taxpayers BarredPrepayment of Taxes
The final tax reform bill expected to pass this week not only curtails the deduction for state and local income taxes and property tax, but also eliminates individuals’ ability to claim an itemized deduction by prepaying their 2018 state and local income taxes in 2017. Both the U.S. House and Senate tax reform bills eliminated the deduction for state and local income taxes and capped the deduction for property tax at $10,000 per year.
NLRB Employer-Friendly Precedent
Last week, the National Labor Relations Board issued four decisions that provide evidence of the current Board's agenda to chip-away at the Obama-era precedent, as well as insight into a Board that now has a Republican majority and is expected to be more employer-friendly than the NLRB of previous years.
IRC Section 162(m) Changes
We expect that the Tax Cuts and Jobs Act (“the Act”) will be signed into law by the end of this week. The Act would make significant changes to Section 162(m) of the Internal Revenue Code, all of which would be effective for taxable years beginning on and after January 1, 2018. These changes potentially affect all awards payable in and after 2018, unless the company takes action now. Eliminates the current exception for performance-based compensation (and the separate exception for commissions).
EU General Data Protection Regulation
One of the most striking changes to EU privacy law under the EU’s General Data Protection Regulation (which goes into effect May 25, 2018) is the very strict approach to user consent. For many years, companies operating in the EU (as elsewhere) have relied heavily on user consent to achieve compliance with the relevant data protection and direct marketing laws.
Athletes Biometric Data Ownership
More than ever before, biometric data, a term often used broadly to refer to metrics related to human characteristics, is being collected at a faster pace. Devices of all kinds are now able to able to track and store data such as fingerprints, heartrate, and other potentially sensitive data. This tracking can be accomplished through a variety of mechanisms including smartphones, watches, and fitness tracking bands of all kinds.
NLRB Decisions Setting Tone
The National Labor Relations Board (NLRB) released several significant decisions last week affecting all employers and their obligations under the National Labor Relations Act (NLRA). First, the NLRB overruled Lutheran Heritage and established a new standard for determining whether facially neutral workplace policies unlawfully interfere with Section 7 rights.
Deductions Annual Bonuses Stock Units
Included in both the Senate and House tax reform bills is a reduction in the corporate tax rate from 35% to 20% (but, it appears the reconciled bill includes a corporate tax rate of 21%). The Senate plan cuts the corporate tax rate effective in 2019 and the House plan in 2018. The rate and effective date are still being negotiated by the tax bill conferees.
Miscimarra Lessens Employer Bargaining Obligation
On the eve of Chairman Philip Miscimarra’s departure, the National Labor Relations Board (NLRB) remained busy. In Raytheon, the board undid another Obama-era decision that reversed decades of NLRB precedent.
Hearst Interns Primary Beneficiaries
Several former interns of the Hearst Corporation, one of the world’s largest magazine publishers, were just that: unpaid interns, not employees entitled to minimum wage or overtime under the FLSA, the Second Circuit has held. Wang v. Hearst Corp., 2017 U.S. App. LEXIS 24789 (2nd Cir. Dec. 8, 2017). The Second Circuit has jurisdiction over New York, Connecticut and Vermont. Each of the five plaintiffs worked at one of Hearst’s magazines in an unpaid internship.
CFIUS International Filings
In 2016, AppLovin Corporation, a mobile advertising company, agreed to be sold to China based private equity firm Orient Hontai Capital, “a subsidiary of Orient Securities Capital Investment Company Limited, which is wholly-owned by Orient Securities Company Limited.” (See AppLovin Press Release, Orient Hontai Capital Takes a Majority Stake in AppLovin, Sept.
Enhanced Justification Citation Modifications Penalty Reductions
In recent months, Federal Mine Safety and Health Review Commission judges have been rejecting settlement agreements and denying settlement motions with more frequency due to a lack of justification for proposed citation modifications and penalty reductions. In most cases, settlements between mine operators and the Department of Labor (DOL) were approved by the Administrative Law Judges (ALJs or Judges) with little hesitation due to judicial efficiency.
In re Micron and In re Cray Proper Venue
Further to our ongoing coverage of the post-TC Heartland patent litigation landscape, a pair of recent and interesting cases from Texas and Delaware further evolved this important venue-related jurisprudence. On November 22, 2017, in Intellectual Ventures II LLC v. FedEx Corp. et al., Case Number 2:16-cv-00980 (E.D. TX Nov.
Privacy Shield 1st Joint Review
In relation to the first annual Joint Review of the EU-U.S. Privacy Shield Framework, the Article 29 Data Protection Working Party (WP29), an independent European advisory body on data protection and privacy, issued its findings on November 28, 2017. The EU-U.S. Privacy Shield Framework provides a method for companies to transfer personal data to the U.S. from the EU in a way that is consistent with EU Law.
Washington Salmon Farm
Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world.
US Accept Entrepreneur Rule Applicants
The US Citizenship and Immigration Services will accept applications to comply with a recent court order, but will work concurrently to publish rules to rescind the program entirely. The US Citizenship and Immigration Services (USCIS) announced on December 14 that it will take steps to implement the International Entrepreneur Rule (IER) in compliance with a December 1 ruling from the US District Court for the District of Columbia. In National Venture Capital Association v.
Financial Ombudsman Service Overruled
In recent judicial review (“JR“) proceedings, R (on the application of Kelly ) (Claimants) v Financial Ombudsman Service & Shawbrook Bank (Interested Party) (2017), the High Court quashed a Financial Ombudsman Service (“FOS”) decision to dismiss a husband and wife’s complaint involving a lender and the interested party bank (“IPB”). The Court decided that the FOS had misunderstood the nature of the complaint and therefore had acted irrationally.
7th Circuit Leave of Absence
Employers, at least those in Illinois, Indiana and Wisconsin, have finally been given clear guidance regarding how much leave an employee should be given when he or she is unable to perform the essential functions of his or her job due to a disability.
Story for Tax Reform
Over the last six weeks, my colleagues have posted numerous insightful posts about the various tax bills’ impact on tax-advantaged bonds (see here, here and here). For our readers who have been entirely consumed by those provisions of the bill, I thought it would be helpful to highlight some of the other provisions of the joint House/Senate tax bill released on December 15. Thus, below is a very brief summary of some of the other noteworthy provisions in the 503 page joint tax bill.
December 19 PTO Litigation
Listed below are all new filings before PTAB of petitions for inter partes review (IPR) and covered business methods review (CBM). Also listed are any newly-posted requests for ex partereexamination at the USPTO. This listing is current as of 10 AM on Tuesday, December 19, 2017. Trial Number – IPR2018-00321 Filing Date – 12/18/2017 Patent # – 9,659,314 Title – METHOD AND APPARATUS FOR TAGGING NETWORK TRAFFIC USING EXTENSIBLE FIELDS IN MESSAGE HEADERS Patent Owner – BRIDGE AND POST, INC.
UK Offenders Publicized
Over one in five companies in the FTSE All Share index received at least 20% shareholder votes against a resolution at their 2017 AGM, or chose to withdraw a resolution. And executive pay remains a key issue for investors, with 38% of resolutions that in 2017 received significant votes against or were withdrawn related to annual remuneration reports, remuneration policies or other remuneration related resolutions.
ASIC Fintech Cooperation Canadian Regulators
The Australian Securities & Investments Commission (ASIC) has announced a new Cooperation Agreement with the Canadian Securities Administrators (CSA), a year after entering into a similar agreement with the Ontario Securities Commission.
CFPB Whistleblower Alleges Falsification
A former CFPB examiner has written U.S. Attorney General Jeff Sessions claiming that CFPB officials falsified examination reports in connection with a CFPB examination of ACE Cash Express that led to the CFPB extracting $10 million of restitution and penalties from ACE. At the time the CFPB forced ACE to enter into this consent order, even in the absence of any allegations of fraud on the part of the CFPB, we sharply criticized the CFPB for its treatment of ACE.
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