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Employee Data Breach Leads to Vicarious Liability
The supermarket chain Morrisons, has been found to be vicariously liable for an employee’s data breach, in a decision which extends the scope of vicarious liability. A senior IT auditor at Morrisons, named Skelton, unlawfully copied confidential payroll data—to which he had access for limited legitimate purposes—and uploaded it to a file-sharing website. He then anonymously contacted several newspapers to alert them to the newly uploaded material.
HR1 Tax Cuts, Job Act
After last minute political and procedural hurdles were cleared, the Tax Cuts & Jobs Act (the "Tax Act") was passed December 20, 2017. The administration reportedly is working out the timing of signing the bill due to concerns about a variety of potential effects of enacting the new law prior to year end, but the bill is expected to be signed into law by President Trump very soon.
Wisconsin Class Action Lawsuit Changes
On December 21st, the Wisconsin Supreme Court entered an order adopting proposed amendments to Wisconsin’s class action procedures in state court actions, which are “intended to align [the state rule] with the federal class action rule, Fed. R. Civ. P. 23.” See In re proposed amendments to Wisconsin Statutes s.s. 803.08 and 426.110, Pet. No. 17-03 (entered Dec. 21, 2017), available here.
Tick, Tock...- NLRB
The National Labor Relations Board has always been known to be a political agency. However, the political nature of the Board has been heightened in the last several decades. First, the Board overturned the Obama Board’s ruling in Specialty Healthcare, which allowed “micro-units” of workers to unionize. In its decision, the current Board noted that Specialty Healthcare had given unions too much power to decide the make-up of a bargaining unit.
CFIUS Filings Perusa MEP Schroth
On December 21, 2017, in the District Court for the District of Columbia, the United States government filed a civil antitrust Complaint against TransDigm Group Inc., an Ohio based manufacturer of mechanical components for aircraft, alleging harm to competition for restraint systems used on commercial airplanes caused by TransDigm’s completed acquisition of SCHROTH Safety Products GmbH and substantially all the assets of Takata Protection Systems, Inc. from Takata Corporation.
Victory, Problem, or Paralysis?
The election of Cyril Ramaphosa as president of the African National Congress (ANC), and now the leading contender to become South Africa’s next president, was hailed as a “humbling rebuke” of South Africa’s President Jacob Zuma and a stark rejection of his policies, which have led to anemic economic growth, widespread corruption, and rising frustration in one of Africa’s most significant economies.
Alice Patent and Trademark Office
Adhering to its now-familiar two-step framework for determining patent eligibility under the Supreme Court of the United States’ 2014 decision in Alice, the US Court of Appeals for the Federal Circuit affirmed the district court’s judgment on the pleadings, finding all of the asserted claims invalid under 35 USC § 101 because the claims were directed to abstract ideas. Two-Way Media Ltd. v. Comcast Cable Communications, LLC, Case Nos. 016-2531; -2532 (Fed. Cir., Nov. 1, 2017) (Reyna, J).
Micron TC Heartland Patent Infringment
In remanding a case back to the district court, the US Court of Appeals for the Federal Circuit held that the Supreme Court of the United States’ 2017 decision in TC Heartland v. Kraft Foods qualifies as a change of law, and that an alleged infringer’s defense of improper venue was not waived by its earlier failure to raise that defense in motions filed before the TC Heartland decision issued. In re Micron Tech, Inc., Case No. 17-00138 (Fed. Cir., Nov. 15, 2017) (Taranto, J).
Perchville Trading Post Sixth Circuit
The US Court of Appeals for the Sixth Circuit concluded that summary judgment on the basis of the doctrine of res judicata was inappropriate because the two actions did not involve the same parties or their privies. AuSable River Trading Post, LLC v. Dovetail Solutions, Inc., Case No. 17-1283 (6th Cir., Oct. 23, 2017) (Donald, J).
Tax & Job Act Highlights
RETIREMENT PLAN PROVISIONS Provision Explanation of Current Provision Final Provision Re-characterization of contributions to traditional IRAs and Roth IRAs. IRA contributions to one type of IRA (either traditional or Roth) may be recharacterized as a contribution to the other type of IRA.
PTAB Federal Circuit SOP
In November 2017, the Patent Trial and Appeal Board (PTAB) issued Standard Operating Procedure (SOP) 9, explaining the procedures it will use to address remands from the US Court of Appeals for the Federal Circuit. The PTAB explained that it has established a goal to issue decisions on remanded cases within six months of its receipt of the Federal Circuit’s mandate.
Federal Circuit Presidio ATC
The US Court of Appeals for the Federal Circuit affirmed in part, reversed in part, vacated in part and remanded the district court’s findings of definiteness, grant of absolute intervening rights, denial of enhanced damages, award of lost profits and grant of permanent injunction. Presidio Components, Inc. v. American Technical Ceramics Corp., Case Nos. 16-2607; -2650 (Fed. Cir., Nov. 21, 2017) (Dyk, J).
Repatriation Transition Tax
While some of the international tax provisions set forth in the current federal tax bill are complex from a federal tax perspective, layering on state tax implications adds not only another layer of complexity, but also much uncertainty concerning the potential treatment of such provisions for state tax purposes. This analysis focuses on the implications of the repatriation transition tax (Repatriation Transition Tax) provisions and the global intangible low-taxed income (GILTI Tax) provisions.
Fintech Fight Against Money Laundering
Rob Gruppetta, Head of the Financial Crime Department at the UK Financial Conduct Authority (FCA), recently gave a speech at the FinTech Innovation in Anti-Money Laundering (AML) and Digital ID regional event, London about “Using artificial intelligence to keep criminal funds out of the financial system”. He considered whether machine learning and artificial intelligence (AI) techniques could help. Better transaction monitoring is not the only way AI can aid the fight against money laundering.
Google Not So Little Gift
Google has a gift for savvy law firm marketers looking for a way to leverage online reviews — an online tool called Small Thanks that lets you generate marketing materials using your Google reviews. And it’s all free. According to Google, consumers that see positive reviews in search results are 71% more likely to use a business, and listings that feature positive reviews get 360% more clicks to their websites.
SALT Deductions Tax-Preparations
The federal tax reform package recently approved by Congress (the Bill) contains a cap on the state and local tax deduction that may be claimed by individuals on their federal income tax returns. The Bill provides that an individual may claim up to $10,000 of state and local property taxes and either income or sales taxes. The cap expires on January 1, 2026.
Employee Benefits
President Trump signed H.R. 1 (formerly, the Tax Cuts and Jobs Act (the “Act”)) into law on December 22, 2017. The Act brings substantial changes to the area of executive compensation, particularly with regard to the deductibility of compensation under Section 162(m) of the Internal Revenue Code, and also makes minor changes in the employee benefits area. Some of these changes are highlighted below, along with the applicable effective dates.
Preemption 2 Cases, 1 Outcome
Two recent decisions from the Fourth and Fifth Circuits—with similar outcomes—have contributed further guidance and consistency on the issue of federal preemption with respect to state law claims pertaining to conversion and computer fraud, as well as unfair competition.
Australia E-3 Specialty Occupation
For Australian college students or professionals looking to work in the U.S., the E-3 visa offers a significantly preferable option to the H-1B. A: The E-3 is a visa category only for Australians going to the U.S. to work temporarily in a specialty occupation. A: The E-3 visa classification currently applies only to nationals of Australia, as well as their spouses and children. E-3 principal applicants must be going to the United States solely to work in a specialty occupation.
State Level Tax Changes
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.
Compressed Oxygen Cylinder Hazards
A recent Review Commission ALJ decision[1] vacating an OSHA citation could simply be viewed as one where OSHA failed to carry its burden of proof, but it might better be viewed as a reminder of a fire hazard that may not be adequately addressed by some facilities in properly storing, handling and using oxygen cylinders.
CA New Year Wage Increases
Beginning January 1, 2018, the new California minimum wage rate for employers with 26 or more employees will be $11.00 per hour and the new California minimum wage rate for employers with 25 or fewer employees will be $10.50 per hour. As we previously reported, effective January 1, 2017, the California state minimum wage began increasing yearly through January 1, 2022 for employers employing 26 or more employees.
Renewables and Tax Bill
On December 20, 2017, the U.S. House of Representatives voted to send the Tax Cuts and Jobs Act (the “Act”) to the president for his signature, which is the final step required to make the Act effective. What does the final bill mean for the renewable energy industry?
Tax Reform Private Activity Bonds
Participants in the municipal bond market are breathing easier after Congress passed sweeping changes to the American tax code without provisions under an earlier House bill that would have eliminated approximately 25% of the tax-exempt bond market by taxing interest earned on all private activity bonds (including 501(c)(3) bonds, exempt facility bonds, student loan bonds and mortgage bonds).
Non-Profit Tax Exempt Tax Bill
On December 20, 2017, the Senate and House of Representatives passed H.R. 1, known as the “Tax Cuts and Jobs Act” (“Tax Reform Bill”). President Trump is expected to sign the Tax Reform Bill by early January. The Tax Reform Bill would represent the most significant revision to the tax code in over thirty years. Our summary below highlights the key provisions in the Tax Reform Bill that will impact not-for-profit, tax-exempt organizations.
TN Nonimmigrant Status Guidance USCIS
On November 20, 2017, United States Citizenship and Immigration Services (USCIS) issued a policy memorandum clarifying that the TN definition of “economists.” On December 17, 1992, the presidents of the United States and Mexico, and the prime minister of Canada entered into the North American Free Trade Agreement (NAFTA). NAFTA created “special economic and trade relationships” between these countries.
UK FCA Increased Manager Responsibility
Firms should establish implementation teams, create project plans, design procedures, and take several other measures to prepare for the new rules. The UK Financial Conduct Authority (FCA) has published three more consultation papers (CPs) detailing the proposed transitional arrangements to extend the Senior Managers & Certification Regime (SMCR) to all regulated firms and insurers in the UK. The window for providing comments to the FCA ends on February 21, 2018.
FAQ EU Fund Managers
The General Data Protection Regulation (the “GDPR”) comes into force automatically in each of the European Union Member States (“EU”) on 25 May 2018. Data protection regulation is not new, with the GDPR building on what is currently in place across the EU. The GDPR, however, seeks to align and bolster the data protection regime across the EU. This FAQ sets out some of the key questions that EU fund managers should be considering to assess how the GDPR may impact them.
Minnesota Minneapolis Minimum Wage Increase
Minimum wage rates for most employees in Minnesota will increase on January 1, 2018. Both the state of Minnesota's automatic minimum wage hike and a new minimum wage ordinance for workers in the city of Minneapolis will take effect on that date. The statewide minimum wage will increase by $.15 per hour for most employees. The minimum wage rate for a "large employer," which is defined as an employer with an annual gross revenue of $500,000 or more, will go from $9.50 per hour to $9.65 per hour.
Final Tax Bill Analysis
Earlier today, both the House and the Senate passed the Tax Cuts and Jobs Act of 2017 (the final bill). With the signature of President Donald J. Trump, it will become law. The tax legislation represents the biggest overhaul to the U.S. tax system since the tax reform enacted in 1986 under President Ronald Reagan. Our previous alerts have closely tracked and compared the bills as they were proposed and moved through the House and Senate.
Compounders Who Skirt FDA
Is it true? According to Allergen, it’s not. The statement in question is a claim made for a compounded drug. These drugs are not fully tested and approved by the FDA, combine active ingredients with FDA-approved drugs, and then claim superiority to them. Now it sits in the form of two lawsuits filed in California by Allergen against two of its competing compounders.
NLRB Handbook Workplace Policies
Recently, we reported that the “new” National Labor Relations Board (“NLRB” or the “Board”) has commenced the anticipated roll back of decisions and procedures rendered by the Obama Administration’s NLRB. On Friday, December 15, 2017, the NLRB issued another important decision with far-reaching implications for all employers.
November 2017 Labor Developments
John Ring, a management-side labor and employment attorney, reportedly is undergoing background checks to become President Donald Trump’s nominee to fill the seat on the National Labor Relations Board that Chairman Philip Miscimarra vacated on December 16. Whether Ring will be the Administration’s nominee is uncertain, but his name is at the top of a short list of contenders for the seat.
2018 CA Leave Disability Laws
Parental Leave: California will expand parental leave to small employers. Current law requires that employers with 50 or more employees within 75 miles grant up to 12 weeks of unpaid leave to eligible employees who request time off to bond with a newborn child or a child placed in the employee’s home for foster care or adoption. Effective January 1, California will extend this leave entitlement to employees who work for an employer with 20 or more employees within 75 miles.
HIPAA Compliance Security Threats
As we look back on 2017, one message is clear: don’t be a Scrooge when it comes to HIPAA compliance. With ever-evolving security threats and unrelenting enforcement, regulated entities must maintain a spirit of compliance that lasts the whole year through. It is in that spirit – and with apologies to Charles Dickens – that our HIPAA year in review is brought to you by the ghosts of HIPAA Past, HIPAA Present and HIPAA Yet to Come. 2017 continued to be haunted by large-scale data breaches.
Congress Passes Tax Reform Bill
With the affirmative vote in the House today, both Houses of Congress have now passed a final version of the Tax Cuts and Jobs Act, clearing the legislation for President Trump’s signature. President Trump is widely expected to sign the legislation into law, although White House officials have now raised the prospect that the Act may not be signed until January. This significant legislation will impact nearly every sector of the U.S. economy and U.S. individual taxpayers in all income brackets.
Tax Cuts and Jobs Act Section 11045
Under current law, individuals and trusts may claim itemized deductions for certain miscellaneous expenses. Deductible miscellaneous itemized expenses include amounts paid for the production of income and for the management of property held for the production of income. Examples include investment advisory fees and trustee commissions.
Purple Communication 9th Circuit
On Dec. 19, the National Labor Relations Board (NLRB) asked the U.S. Court of Appeals for the Ninth Circuit to affirm its ruling in the controversial Purple Communications decision. Purple Communications, you might remember, was a 2014 decision that overturned the Register Guard standard for employee use of company email for nonwork purposes.
Akamai Standards Clarified
The court’s ruling potentially expands the possible circumstances where the standard could be met. In Travel Sentry v. Tropp, the US Court of Appeals for the Federal Circuit expanded the scope of direct infringement under divided infringement. It vacated a district court summary judgment of no infringement after the district court misapplied the court’s Akamai V’s framework for divided infringement. See generally Akamai Techs, Inc. v. Limelight Networks, Inc. (Akamai V), 797 F.3d 1020 (Fed. Cir.
Online Esports Trends Insights
Leveraging its long history and extensive experience in all aspects of the sports arena, the Foley Sports Industry Team is actively immersed in the booming esports industry. Our Esports Insights and Trends will be a recurring post which is designed to deliver to esports industry insiders and watchers up-to-date information on the latest trends and developments in the fast-moving world of esports.
Text-Messaging Targeting
There is something magical about shopping during the holidays. Those who favor the bustle of malls will enjoy elaborate window displays and the familiar sights and sounds of the season. And those who favor shopping while snug in their beds will use websites and apps to have gifts wrapped and shipped to their homes or convenient brick-and-mortar locations.
Chapter 40B Zoning Restrictions
In a rare limitation on the broad scope of Massachusetts’ affordable housing law, the state’s top court ruled that amendments by a local board to municipally owned deed restrictions are not covered by the law. In the case of 135 Wells Avenue, LLC v. Housing Appeals Committee et al, the Massachusetts Supreme Judicial Court considered in November whether the statute governing affordable housing, Mass.
Supreme Court American Pipe Decision
Earlier this month, the U.S. Supreme Court granted certiorari to China Agritech, Inc., a fertilizer manufacturer, from the Ninth Circuit’s decision in Resh v. China Agritech, Inc., 857 F.3d 994 (9th Cir. 2017). In reviewing Resh, the Court will consider whether its American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974) ruling tolls statutes of limitation to allow previously absent class members to bring a subsequent class action outside of the applicable limitations period.
NY Scheduling Regulations Call In Expansion
The New York State Department of Labor has issued new, proposed regulations regarding “just-in-time,” “call-in,” and “on-call” pay – or pay required when an employer unexpectedly cancels a covered employee’s shift or calls them into work, or requires them to be on-call.
GDPR Blockchain Q&A
Blockchain involves various computers that are located in different states around the world so that the jurisdictions and applicable laws are questionable and assumingly not known to the parties using the blockchain technology. In principle a blockchain is a distributed ledger, that can be defined as a replicated, shared, and synchronized digital data structure maintained by consensus algorithm and spread across multiple locations, countries, and/or institutions.
Ninth Circuit Case Insight Government Action Bar
When is a new qui tam lawsuit derivative of a lawsuit in which the government has already intervened? The US Court of Appeals for the Ninth Circuit answered that question on December 1, 2017, when it decided United States ex rel. Bennett v. Biotronik, Inc. In doing so, the Ninth Circuit addressed the “government action bar” contained in 31 U.S.C. § 3730(e)(3), which states that a relator may not bring a qui tam suit “based upon allegations or transactions which are the subject of a civil suit . . .
Vendor Personnel Outsourcing
When a company outsources, it is looking to engage a third party to provide a service—not to assume risks with respect to the third party’s personnel.
Loot Box Disclosure Requirements
Apple just announced a number of changes to its App Store Review Guidelines, including the requirement that apps offering “loot boxes” or other mechanisms that provide randomized virtual items for purchase must disclose the odds of receiving each type of item to customers prior to purchase. This comes as the incredibly successful monetization mechanic of loot boxes has come under scrutiny as we have addressed in our prior posts on Are Loot Boxes An Illegal Gambling Mechanic?
Food Safety Data 2017 Released by 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.
WI SB 459 Pollution Regulations
A proposed bill introduced by Wisconsin state senators (Sen. Stroebel, Sen. Craig, Sen. Nass, and Sen. Kapenga) aims to greatly influence regulation of pollutants regulated only under state law (non-federal regulations) in Wisconsin. First, the proposed bill requires the Wisconsin Department of Natural Resources (DNR) to identify and repeal all administrative rules promulgated by the DNR that relate to the regulation of air pollutants not already regulated under federal law.
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