http://www.haynesboone.com/ Haynes and Boone alerts for all practice groups. en-us Thu, 23 May 2013 11:05:15 GMT Thu, 23 May 2013 11:05:15 GMT The Supreme Court’s recent decision has seeded another patent protection feather in Monsanto’s increasingly large cap, in addition to providing guidance on application of the patent exhaustion doctrine in the case of self-replicating technology. http://www.haynesboone.com/Monsanto-Self-Replicating-Tech Publication de5db2a6-45c1-440b-bb81-1422bf7850b4 Thu, 23 May 2013 00:00:00 GMT The Federal Circuit released the results of its en banc hearing of a case involving the issue of what is patent eligible subject matter under section 101 of the Patent Act. http://www.haynesboone.com/CLS-Bank-v-Alice-Corporation Publication bf75abb9-e137-43ed-8541-d8bfe8b44bcb Thu, 16 May 2013 00:00:00 GMT Last week, a federal jury in South Carolina found that Tuomey Healthcare System, Inc. violated the Stark Law and the False Claims Act by submitting false claims for reimbursement to the United States, resulting in $39 million in damages to the government. http://www.haynesboone.com/False-Claims-Act-Verdict-Tuomey Publication 79c24637-db45-456a-818d-b2c7bbce6974 Wed, 15 May 2013 00:00:00 GMT On March 28, 2013, the Commodity Futures Trading Commission (“CFTC”) issued a final order exempting specified transactions by certain regional transmission organizations (“RTO”) and independent system operators (“ISO”) from all but the general anti-fraud and anti-manipulation prohibitions of the Commodity Exchange Act (“CEA”) and related CFTC regulations promulgated thereunder (“Exemptive Order”). http://www.haynesboone.com/Dodd-Frank-Update-CFTC-ISO-RTO-Exemptive-Order Publication 3eb34e8a-d7ab-4f19-b4a8-69847efde26a Wed, 15 May 2013 00:00:00 GMT On April 1, 2013, the U.S. Commodity Futures Trading Commission (“CFTC”) issued a final rule exempting swaps between certain affiliated entities from the clearing requirement under section 2(h)(1)(A) of the Commodity Exchange Act (“CEA”) and CFTC regulations (“Final Rule”). http://www.haynesboone.com/CFTC-Inter-Affiliate-Swap-Rule Publication 27c63702-135a-4fa9-9335-59da861e36b9 Fri, 10 May 2013 00:00:00 GMT In recent months, high profile M&A warranty claims and falling premiums have dramatically increased the utilization of "representations and warranty insurance" (RWI), also known as "warranty and indemnity insurance," in mergers, acquisitions and related transactions. http://www.haynesboone.com/Tips-for-Purchasing-Representations-and-Warranty-Insurance Publication e02b12b1-c5dd-497a-be0e-062086bd7f31 Mon, 06 May 2013 00:00:00 GMT If your company utilizes temporary workers supplied by a staffing agency, you may be a target of OSHA. On April 29, 2013, the Deputy Assistant Secretary of OSHA, Richard Fairfax, issued a memorandum to its Regional Administrators, entitled “Protecting the Safety and Health of Temporary Workers.” http://www.haynesboone.com/OSHA-Temporary-Worker-Safety Publication fe748b33-7e9f-4f9d-8e05-db07d249f6ed Thu, 02 May 2013 00:00:00 GMT On April 8, 2013, the Occupational Safety and Health Review Commission (“OSHRC” or the “Review Commission”) reversed an administrative law judge’s (“ALJ’s”) decision vacating a lockout/tagout (“LOTO”) citation issued to Otis Elevator Company (“Otis”). http://www.haynesboone.com/OSHRC-Labor-v-Otis Publication 44b186ec-6615-4e25-9591-43150ca4b6a3 Mon, 29 Apr 2013 00:00:00 GMT A jury in the Northern District of California has convicted David Nosal of violating the Computer Fraud and Abuse Act (“CFAA”) by accessing his former employer’s computer network without authorization to obtain confidential information for use in a competing business. http://www.haynesboone.com/California-Man-Convicted-of-Hacking Publication 53131173-51d5-4899-ae7f-01e500a7c4b2 Thu, 25 Apr 2013 00:00:00 GMT On April 16, 2013, in a 5-4 opinion, the United States Supreme Court decided whether an offer of judgment that fully satisfies the named plaintiff’s individual claim in a Fair Labor Standards Act (“FLSA”) action moots the plaintiff’s collective action claim. http://www.haynesboone.com/US-Supreme-Court-FLSA-Collective-Actions Publication 1f2982f2-c0cb-45bc-93d7-d1dbdedf5b1f Wed, 24 Apr 2013 00:00:00 GMT This week, the Ralph Lauren Corporation became the first company to obtain a non-prosecution agreement from the Securities and Exchange Commission in connection with a Foreign Corrupt Practices Act (“FCPA”) investigation. http://www.haynesboone.com/SEC-and-DOJ-Resolve-Parallel-FCPA-Investigations Publication 2ef1e42b-ad05-4907-a27f-e26ccd555e6f Tue, 23 Apr 2013 00:00:00 GMT On April 17, 2013, the Health and Human Services Office of Inspector General (OIG) released an Updated Provider Self-Disclosure Protocol (SDP), which replaces the original SDP published in 1998. http://www.haynesboone.com/OIG-Releases-Updated-Self-Disclosure-Protocol Publication ea8e6ce0-f48a-49a1-8b77-b684e27c7a9c Fri, 19 Apr 2013 00:00:00 GMT The computer hacking trial of David Nosal is under way in federal district court in California. The trial is being followed with interest in the business community because it is the latest development in a case that highlights an important split in the interpretation of the Computer Fraud and Abuse Act (“CFAA”) that has far-reaching ramifications with respect to liability–and protection for companies’ proprietary information. http://www.haynesboone.com/California-Computer-Hacking-Case Publication 362a2e52-8a2c-4248-9b4d-a93cab5678d3 Wed, 17 Apr 2013 00:00:00 GMT You are general counsel of a publicly-traded medical device company. Your company’s Board has identified a publicly-held X-ray and CT scan component manufacturer that it would like to acquire. The target is a Delaware corporation based in California, with additional manufacturing facilities in Utah and Kentucky; within the past three years, it has sold two mothballed manufacturing facilities. It sends salespeople to 15 different states, but due to its Internet presence, it ships components worldwide. It also provides support services for its component parts within the continental United States. http://www.haynesboone.com/environmental-due-diligence-how-much-diligence-is-due Publication 0b8d466c-e6c7-454b-989b-faceeed44b35 Fri, 12 Apr 2013 00:00:00 GMT Last week the Delaware Supreme Court held in Pyott v. Louisiana Municipal Police Employees’ Retirement System, ___ A.3d ___, 2013 WL 1364695 (Del. 2013), that a Delaware derivative complaint should have been dismissed after a California federal court entered a judgment dismissing essentially the same complaint brought by different stockholders for failure to plead demand futility. http://www.haynesboone.com/pyott-v-louisiana-municipal-employees-retirement-system Publication 8883fec2-63b1-4634-af29-34379b56bcf9 Thu, 11 Apr 2013 00:00:00 GMT On March 26, 2013, in the case of Teed v. Thomas & Betts Power Solutions, L.L.C., the Seventh Circuit, in an opinion written by Judge Posner, joined at least one other circuit court and a multitude of district courts across the country in extending the federal common law standard for evaluating successor liability to suits brought under the Federal Labor Standards Act (“FLSA”). http://www.haynesboone.com/weathering-seventh-circuit-expands-Application-of-Federal-Standard-for-FLSA Publication 59454767-7258-49b6-b28c-305d7149bf96 Thu, 11 Apr 2013 00:00:00 GMT Haynes and Boone, LLP’s Immigration Practice Group would like to inform employers of two recent immigration changes: (1)a revised Form I-9 for Employment Eligibility Verification by employers; and (2)a new Form I-94 Arrival/Departure Record procedure for foreign nationals upon entry to the United States. http://www.haynesboone.com/I-9-and-New-I-94-Procedure Publication d9c337d4-d08d-45ad-9bec-374f984c40a4 Tue, 09 Apr 2013 00:00:00 GMT This alert outlines the gift tax return requirement for 2012 transactions and the use of "defined value" gifts and sales. http://www.haynesboone.com/Transfers-in-2012-and-Future-Years Publication 1a4f36bb-851e-4d4f-bd61-5ae42d21fb9a Tue, 09 Apr 2013 00:00:00 GMT El 2 de abril de 2013, se publicó en el Diario Oficial de la Federación la Ley de Amparo, Reglamentaria de los artículos 103 y 107 de la Constitución Política de los Estados Unidos Mexicanos.On April 2, 2013, the Amparo Law, Regulatory of Articles 103 and 107 of the Constitution of the United Mexican Estates, was published in the Official Gazette of the Federation.  http://www.haynesboone.com/Nueva-Ley-de-Amparo--The-New-Amparo-Law Publication a06e39e8-30cb-4ad2-82b8-bcc25b275556 Mon, 08 Apr 2013 00:00:00 GMT Since the announcement of the investigation by the SEC of the CEO of Netflix, Inc. for a July 2012 Facebook post celebrating a company milestone, there has been considerable uncertainty as to whether companies can use social media outlets, like Facebook and Twitter, to communicate with investors without violating Regulation Fair Disclosure (“Regulation FD”). http://www.haynesboone.com/SEC-Regulation-FD-Social-Media-Disclosures Publication c291cbb5-7cc5-466e-9e34-bafe2ad9c3e3 Fri, 05 Apr 2013 00:00:00 GMT On March 26, 2013, the U.S. Court of Appeals for the Federal Circuit affirmed the U.S. Patent Office’s rejection of the claim of a design patent continuation application, bringing some degree of clarity to the practice of claiming a portion of a previously-claimed design while seeking priority to the filing date of the previously-claimed design. http://www.haynesboone.com/Federal-Circuit-in-re-Owens Publication b4af68ce-58d1-42b3-ab85-e7df58ace31c Thu, 04 Apr 2013 00:00:00 GMT The Commodities Futures Trading Commission (the “CFTC”), pursuant to its rulemaking authority under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) , has interpreted guarantees of swap agreements to fall under the definition of a swap... http://www.haynesboone.com/Non-ECP-Guarantors-and-ISDA-Mitigation-Tactics Publication 7a4236f3-ab4d-4c2e-a9ad-55028cb505ab Wed, 03 Apr 2013 00:00:00 GMT The Obama Administration has announced its intention of entering into negotiations with the European Union (“EU”) for a Transatlantic Trade and Investment Partnership (“TTIP”) aimed at achieving a substantial increase in transatlantic trade and investment between the world’s two largest economies. http://www.haynesboone.com/US-Solicits-Public-Comments-on-TTIP Publication d13d06a2-969e-4ffd-9ae3-65591a0de04b Tue, 02 Apr 2013 00:00:00 GMT On Wednesday, the Supreme Court held in a 5-4 opinion in Comcast Corp. v. Behrend, 569 U.S. ___ (2013), that a party seeking to maintain a class action must satisfy Rule 23’s requirements through evidentiary proof, even where such analysis may overlap with the merits of the underlying claim. http://www.haynesboone.com/Comcast-Corp-v-Behrend Publication cd39ace9-2485-4281-810d-a7481bcf37c2 Mon, 01 Apr 2013 00:00:00 GMT The Seventh Circuit recently reversed a $2.7 million damages award against a mortgage company accused of lying in applications for federal loan guarantees. See United States v. Anchor Mortg. Corp., 2013 WL 1150213 (7th Cir. Mar. 21, 2013). http://www.haynesboone.com/Treble-Damages-Under-FCA Publication 4d953220-e8ea-4587-841b-176d157c9943 Wed, 27 Mar 2013 00:00:00 GMT The U.S. Director of National Intelligence, James Clapper, advised the Senate Intelligence Committee this week that cyber attacks are the number one threat to national security. http://www.haynesboone.com/Cyber-Attacks-Threat-National-Security Publication 497bcd34-bd72-43d4-bda6-4a978ef8afc5 Thu, 14 Mar 2013 00:00:00 GMT The Exon-Florio Amendment gives CFIUS and the President the power to block or order divestitures before approving a "covered transaction," meaning any merger or takeover of a U.S. company that results in foreign control and that threatens to impair U.S. national security. http://www.haynesboone.com/CFIUS-China Publication 58bb8ad7-c91d-4761-9021-7b3152518054 Thu, 14 Mar 2013 00:00:00 GMT An increasing number of public companies - particularly banks and financial institutions - are disclosing cybersecurity incidents in their filings with the Securities and Exchange Commission. http://www.haynesboone.com/Public-Company-Disclosure-Cybersecurity Publication 9ad0145c-2311-455c-9324-1a12440f92c2 Tue, 12 Mar 2013 00:00:00 GMT Bankruptcy Code § 1129(a)(10) provides that in order for a plan proponent to “cram down” - i.e., force acceptance of - a plan of reorganization on a dissenting class of creditors, at least one impaired class of creditors must vote in favor of the plan. http://www.haynesboone.com/Weathering-Fifth-Circuit-Permits-Artificial-Impairment Publication 86ab25fc-e1ef-4fc0-9669-74eb727f0825 Thu, 07 Mar 2013 00:00:00 GMT Only the terms of the insurance policy itself - and not the provisions of an underlying indemnity contract - determine the scope of coverage afforded to an additional insured, provided that the insurance and indemnity provisions in the underlying indemnity contract are separate and independent from one another. http://www.haynesboone.com/Scope-of-Additional-Insured-Coverage Publication 0f211c8b-4e0d-453b-b608-d3b7dcdc00e5 Wed, 06 Mar 2013 00:00:00 GMT On February 27, 2013, the Supreme Court held in a 6-3 opinion in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U.S. ___ (2013), that securities fraud class action plaintiffs need not prove materiality at the class certification stage to invoke the fraud-on-the-market presumption of class-wide reliance. http://www.haynesboone.com/Amgen-v-Connecticut Publication 51c7f38e-6a51-4101-b04f-03144e54a3fc Mon, 04 Mar 2013 00:00:00 GMT A federal court jury in Illinois found that nursing home operator Momence Meadows fraudulently billed Medicare and Medicaid for “worthless services” and falsely certified compliance with health care laws and regulations, resulting in $28 million in damages to the government. http://www.haynesboone.com/False-Claims-Act-Momence-Meadows Publication 02f7e4c7-7720-4afa-a477-aa1a677c454b Mon, 04 Mar 2013 00:00:00 GMT The United States Supreme Court yesterday significantly limited the federal government’s ability to bring an action for civil penalties more than five years after the alleged misconduct occurred. http://www.haynesboone.com/Supreme-Court-Limits-Stale-Claims Publication 2b9753f8-a2e5-4f54-b3b8-d987e1d0f0fb Thu, 28 Feb 2013 00:00:00 GMT On Tuesday, February 19, 2013, information security firm Mandiant issued a report documenting computer security breaches at hundreds of organizations, allegedly resulting from a cyber-espionage campaign undertaken by elements of the Chinese government. http://www.haynesboone.com/Insurance-Coverage-Cyber-Attacks Publication e53f3fff-34fa-4009-9d77-bb498a84c9b3 Mon, 25 Feb 2013 00:00:00 GMT Pursuant to new rules and interpretations issued by the U.S. Commodity Futures Trading Commission (the “CFTC”) and the Securities Exchange Commission under the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with related rules, regulations and interpretations, the “Dodd-Frank Act”), a “swap” has been interpreted to include any guarantee of a swap. http://www.haynesboone.com/Credit-Agreement-Guarantees-Dodd-Frank-Compliant Publication 2a0e82a1-8a94-49c3-84dc-56d585a47ae0 Thu, 21 Feb 2013 00:00:00 GMT For the first time, Texas rules permit a motion to dismiss. On February 12, the Texas Supreme Court released the final version of Texas Rule of Civil Procedure 91a, which (1) establishes procedures for dismissal of civil claims, and (2) provides for the mandatory award of attorneys’ fees to the prevailing party. http://www.haynesboone.com/New-Texas-State-Court-Rules Publication b83ae711-33bb-4828-9417-2eca1d38a76b Tue, 19 Feb 2013 00:00:00 GMT President Obama recently signed an executive order focused on improving the security of the nation’s infrastructure from cyber attack. http://www.haynesboone.com/Cybersecurity-Executive-Order Publication f087e0ce-44ad-4e70-806f-05955f63d8bd Tue, 19 Feb 2013 00:00:00 GMT The National Labor Relations Board (“NLRB” or “Board”) began 2013 as it began 2012, facing questions regarding whether a quorum of its members had been constitutionally appointed. http://www.haynesboone.com/NLRB-Roundup-2-18-13 Publication d61ec1fb-47a6-4ee1-abc3-77604d8e6af1 Mon, 18 Feb 2013 00:00:00 GMT On January 23, 2013, the Federal Financial Institutions Examination Council (FFIEC) issued a notice for comment on its proposed guidance, Social Media: Consumer Compliance Risk Management Guidance. http://www.haynesboone.com/Proposed-FFIEC-Guidelines-Social-Media Publication 9a59b0c7-b305-4b6d-bc1a-ba78b482af21 Thu, 14 Feb 2013 00:00:00 GMT After several years of legislative effort in Mexico, particularly in the area of tax, a structure has been established that now makes it attractive for companies to issue, and investors to acquire, securities based on a beneficial interest in an Infrastructure and Real Estate Trust (known by its Spanish acronym “FIBRA”). http://www.haynesboone.com/Infrastructure-Real-Estate-Trust-Mexico-FIBRA Publication df06228b-c3a3-4a42-8b7e-f36b8673140e Wed, 13 Feb 2013 00:00:00 GMT On January 31, 2013, the Bankruptcy Court for the District of Delaware in In re Indianapolis Downs, LLC declined to designate the votes of parties to a post-petition restructuring support agreement (i.e., a lock-up agreement), instead confirming the Debtors’ Modified Second Amended Joint Plan of Reorganization (the “Plan”) based on the votes of such parties. http://www.haynesboone.com/Weathering-Post-Petition-Restructuring-Support-Agreement Publication 8552199c-5969-4742-880d-d2a0a7e89bb8 Wed, 13 Feb 2013 00:00:00 GMT News Alert and Webinar Announcement: Brazil’s President Dilma Roussef recently authorized the 11th Oil and Gas Bid Round. http://www.haynesboone.com/Brazil-Announces-11th-Oil-and-Gas-Bid-Round Publication 69618145-db59-4dfe-8e9a-3ef8dc81421f Tue, 12 Feb 2013 00:00:00 GMT Haynes and Boone, LLP’s Immigration Practice Group reminds employers with a need for Cap-Subject H-1B petitions - those petitions that are subject to the annual numerical limit - that the filing window for Fiscal Year 2014 is about to open. http://www.haynesboone.com/H-1Bs-for-2014 Publication 0d226d6a-a2dd-4d4b-b31c-c96ca1bb79c8 Wed, 06 Feb 2013 00:00:00 GMT Sometimes, litigants are forced to reevaluate their strategy mid-course. Occasionally, a plaintiff in a pending trademark infringement action faces a cancellation counterclaim that poses a real threat to the plaintiff’s trademark. http://www.haynesboone.com/Already-v-Nike-Covenant-Not-to-Sue Publication 506f4fd0-ff64-4a2e-ae1c-3af0b3542ab6 Wed, 06 Feb 2013 00:00:00 GMT The Public Company Accounting Oversight Board (“PCAOB”) recently issued Auditing Standard No. 16, Communications with Audit Committees (“Standard 16”), to provide a framework for the discussions that an auditor must undertake with the audit committee of its public company clients. http://www.haynesboone.com/PCAOB-Auditing-Standard-No-16 Publication ac41d19e-a227-463c-8b1b-3ab6b6749641 Thu, 31 Jan 2013 00:00:00 GMT Under the Patient Protection and Affordable Care Act (“PPACA”), an employer that employs an average of at least 50 full-time and full-time equivalent employees (a “Large Employer”) during 2013 may be subject to a penalty in 2014 if the Large Employer fails to offer “minimum essential coverage” to all but 5 percent (or, if greater, five) of its full-time employees (“No Coverage Penalty”). http://www.haynesboone.com/Employer-Penalties-Healthcare-Coverage Publication 3f1eb6d5-2dc4-480e-8860-0b8b49f341b7 Wed, 30 Jan 2013 00:00:00 GMT On January 14, 2013 the United States and Spain signed a new protocol amending the existing income tax treaty between the United States and Spain that was signed on February 22, 1990. The Protocol modernizes the Treaty to conform with the existing treaty policies of both the Unites States and Spain. http://www.haynesboone.com/Income-Tax-Treaty-US-Spain Publication c0dfe341-754f-47e2-9800-6a05c53305b0 Tue, 29 Jan 2013 00:00:00 GMT The long awaited Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Regulation amendments (the “Changes”) to incorporate the changes made by Health Information Technology for Economic and Clinical Health (HITECH) in 2009 as part of the American Recovery and Reinvestment Act and by the Genetic Information Nondiscrimination Act (“GINA”) were recently released. http://www.haynesboone.com/HHS-Amendments-to-HIPAA Publication b4703ea0-3bdc-415d-8a6d-d72765084f6f Fri, 25 Jan 2013 00:00:00 GMT On December 5, 2012, EPA issued revised enforcement guidance to assist agency personnel in exercising enforcement discretion regarding the treatment of tenants under Superfund’s bona fide prospective purchaser (BFPP) defense. http://www.haynesboone.com/New-EPA-Guidance-Tenant-Liability-under-Superfund Publication 673b534d-1702-4832-82bf-97a34fa6a053 Fri, 25 Jan 2013 00:00:00 GMT On January 4, 2013, the United States District Court for the Northern District of Illinois, Eastern Division (the “District Court”) issued a Memorandum Opinion and Order that seems demonstrably at odds with the majority of cases analyzing the § 546(e) safe harbor provision. http://www.haynesboone.com/Weathering-Grede-v-FCStone Publication 53a4573b-7409-4b63-8519-23a786bdcb2e Thu, 24 Jan 2013 00:00:00 GMT The Federal Trade Commission (FTC) announced its annual revisions to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) jurisdictional thresholds effective on February 11, 2013. http://www.haynesboone.com/HSR-Annual-Revisions-2013 Publication f8c220fc-bc4d-4217-84f4-16661f9567d8 Fri, 18 Jan 2013 00:00:00 GMT After all of the sand had run out of the hourglass, Congress finally passed (and the President signed) a compromise tax bill to avoid very substantial income tax increases on taxpayers with income under $400,000 ($450,000 for joint filers). http://www.haynesboone.com/American-Taxpayer-Relief-Act-2012 Publication d71036fd-56d6-43c3-969e-467cd91628d5 Wed, 09 Jan 2013 00:00:00 GMT Coming as a surprise to some, the European Parliament approved rules creating a Unified Patent Court and a Unitary Patent on December 11, 2012, after lengthy consideration. http://www.haynesboone.com/One-Patent-to-Rule Publication 8bb4401e-908e-42e9-ae81-198cfc71c638 Thu, 20 Dec 2012 00:00:00 GMT End users will be relieved to know that compliance dates for business conduct and documentation rules related to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) have now been delayed until May 1, 2013. http://www.haynesboone.com/ISDA-Protocol-Compliance-Deadlines-Delayed Publication cf47fdfb-02dd-4aa0-affc-bca61f8e44ac Tue, 18 Dec 2012 00:00:00 GMT In light of a recent federal court order, companies – especially those at risk of False Claims Act suits – should revisit their protocol for handling communications with in-house counsel. http://www.haynesboone.com/Federal-Judge-Orders-Disclosure-of-Emails-with-In-House-Counsel-in-FCA-Case-12-05-2012 Publication 9ea89e0f-39e2-400f-8985-50900e1b5ed3 Wed, 05 Dec 2012 00:00:00 GMT On November 30, 2012, the long-awaited amendments to the Mexican federal labor law were published in the Official Gazette of the Federation (Diario Oficial de la Federación). The primary purpose of this set of reforms is to promote job creation and to attempt to regularize labor relationships that arise informally. http://www.haynesboone.com/Amendments-Mexican-Federal-Labor-Law Publication 55849b14-1e42-4161-aa3e-00f4065ee61f Mon, 03 Dec 2012 00:00:00 GMT You are general counsel of a publicly traded medical device company that has begun the diligence process on your company’s target, a publicly held x-ray and CT scan component manufacturer. This alert outlines diligence concerns related to tax issues. http://www.haynesboone.com/State-Taxes-Lurk-as-Trap Publication f0592b92-bc99-4bc7-bd55-6452e62d44fa Fri, 30 Nov 2012 00:00:00 GMT On November 20 and 27, 2012, the International Swaps and Derivatives Association, Inc. (“ISDA”) filed two letters with the Commodity Futures Trading Commission (“CFTC”) requesting an extension of compliance dates for certain new business conduct, portfolio reconciliation and swap trading relationship documentation requirements issued by the CFTC pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). http://www.haynesboone.com/ISDA-Protocol-Compliance-Deadlines Publication ab263617-ad97-4f2b-bd09-e7ada2d55c0b Fri, 30 Nov 2012 00:00:00 GMT On November 28, 2012, the United States Court of Appeals for the Fifth Circuit published an opinion affirming the bankruptcy court’s ruling that the Mexican Plan of Reorganization (the “Concurso Plan”) of the Mexican glass-manufacturing company, Vitro, S.A.B. de C.V., approved by the Federal District Court in Mexico, should not be enforced under Chapter 15 of United States Bankruptcy Code The United States Bankruptcy Court for the Northern District of Texas (the “Bankruptcy Court”) concluded that... http://www.haynesboone.com/vitros-concurso-plan Publication 979bd7b7-8315-4462-83a3-028f101a065d Wed, 28 Nov 2012 00:00:00 GMT On November 14, 2012, the Department of Justice and the Securities and Exchange Commission released the much-anticipated Resource Guide to the U.S. Foreign Corrupt Practices Act (the “Guide”). http://www.haynesboone.com/DOJ-and-SEC-FCPA-Guide Publication eb6f5960-8f07-43f4-8bda-397bc140c9b2 Tue, 20 Nov 2012 00:00:00 GMT The U.S. Patent and Trademark Office (“PTO”) has been improperly calculating patent term adjustment (“PTA”) for some patents, specifically, in cases where prosecution of the underlying application involved the filing of a Request for Continued Examination (“RCE”) more than three years after the application filing. http://www.haynesboone.com/Improper-PTO-Calculations Publication dd151210-2999-4805-b3e5-439b100cd9ce Wed, 14 Nov 2012 00:00:00 GMT A federal court recently held that two investment funds are not jointly and severally liable for a bankrupt portfolio company’s withdrawal liability to a multiemployer pension plan disagreeing with a 2007 opinion by the Appeals Board of the Pension Benefit Guaranty Corporation (the “PBGC”). http://www.haynesboone.com/Investment-Funds-Not-Liable-for-Pension-Plan-Withdrawal-Liability Publication e6e972bc-e767-4118-a7a1-1c14125005d0 Wed, 07 Nov 2012 00:00:00 GMT Meteorologists dubbed Hurricane Sandy a “perfect storm” or “superstorm” long before it even made landfall on the East Coast, and Sandy lived up to those terms. http://www.haynesboone.com/Maximizing_Coverage_After-Superstorm Publication 078800d5-aeef-4f8f-be94-cd320890be4c Wed, 31 Oct 2012 00:00:00 GMT The U.S. Securities and Exchange Commission (the “SEC”) recently adopted a new EDGAR Filer Manual, which provides that effective October 15, 2012, emerging growth companies under the Jumpstart Our Business Startups Act (“JOBS Act”) must now use EDGAR to submit confidential draft registration statements. http://www.haynesboone.com/EDGAR-Submissions-Draft-Registration-Statements-New-JOBS-Act-FAQ Publication 23671c4d-2c19-4729-acd8-181bd4c9b033 Fri, 26 Oct 2012 00:00:00 GMT You are general counsel of a publicly-traded medical device company. Your company’s Board has identified a publicly-held x-ray and CT scan component manufacturer that it would like to acquire. The target is a Delaware corporation based in California, with additional manufacturing facilities in Utah and Kentucky; within the past three years, it has sold two mothballed manufacturing facilities. It sends salespeople to 15 different states, but due to its Internet presence, it ships components worldwide. It also provides support services for its component parts within the continental U.S. http://www.haynesboone.com/DealThink-Case-Study Publication a2d0d7f5-f8e5-4e77-b8b5-d3bb33b1d9f2 Thu, 18 Oct 2012 00:00:00 GMT With election fever in full swing, you might expect governing to take a back seat to politics. However, on September 28, 2012, President Obama signed Senate Bill 3245 into law. Senate Bill 3245 renews four U.S. Department of Homeland Security-administered programs, including E-Verify and the EB-5 Regional Center program. http://www.haynesboone.com/E-Verify-and-EB-5-Regional-Center-Program Publication 112c65c8-173c-4b14-a15b-dc85f1f202d2 Wed, 17 Oct 2012 00:00:00 GMT A Haynes and Boone Newsletter highlighting current issues in Intellectual Property Law. http://www.haynesboone.com/The-IP-Beacon-October-2012 Publication 9eb94094-43fb-405f-9de5-5051c3690339 Fri, 12 Oct 2012 00:00:00 GMT As required pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act and the final rule issued by the U.S. Securities and Exchange Commission (the “SEC”) in June 2012, the New York Stock Exchange (the “NYSE”) and NASDAQ each issued proposed rules on the independence of compensation committees and their advisers on September 25, 2012. The proposed rules are subject to approval by the SEC. http://www.haynesboone.com/NYSE-and-NASDAQ-Compensation-Committee-Independence Publication 07c99692-8688-4d88-83f5-da696584b4ab Thu, 11 Oct 2012 00:00:00 GMT On August 27, 2009, several amendments to the Mexican Commercial Code were published in the Federal Official Gazette (“DOF”), with the purpose of creating the Movable Guarantees Sole Registry (“Registro Único de Garantías Mobiliarias,” hereinafter referred to as the “RUG”), as a section of the Public Registry of Commerce dependent of the Ministry of Economy. http://www.haynesboone.com/Mexican-Movable-Gurantees-Sole-Registry Publication 5bcdcfc4-3da5-414b-a608-0c23b081ef3e Tue, 02 Oct 2012 00:00:00 GMT The Securities and Exchange Commission (the “SEC”) has implemented Congress’ initiative to use disclosure requirements of U.S. securities laws to inhibit the ability of armed groups in the Democratic Republic of the Congo to fund their activities through the exploitation of trade in conflict minerals. http://www.haynesboone.com/Disclosing-Use-of-Conflict-Minerals Publication aaafde99-48a2-40ba-9e60-7f55b962171b Mon, 24 Sep 2012 00:00:00 GMT After great delay since its passage in 2010, this fall energy companies and other companies that use swaps as hedges, like insurance, to mitigate commodity risk associated with their business (“End Users”) must start complying with The Dodd–Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). http://www.haynesboone.com/Commercial-End-Users-Compliance-with-Dodd-Frank Publication bfefefa2-f7a4-420d-933f-19beece81701 Tue, 18 Sep 2012 00:00:00 GMT It is not uncommon in class actions for parties to reach a settlement that provides non-monetary relief to the plaintiffs and a payment of attorneys’ fees to class counsel. In August, however, a California federal court denied preliminary approval of such a settlement. http://www.haynesboone.com/Recovering-Attorneys-Fees-Non-Monetary-Class-Action Publication 11cb5cae-d669-41d6-b77f-ac28828ae31d Thu, 13 Sep 2012 00:00:00 GMT In the next year, companies that work in the development of oil, natural gas or minerals will have to publicly make new disclosures of payments of $100,000 or more made to governments. The $100,000 threshold is on a project-by-project basis, and will require companies to provide details of the type and amounts of payments made. http://www.haynesboone.com/SEC-Requires-New-Disclosures-Resource-Extraction Publication ec90b829-c3ef-406d-bf41-57cb02b74fc1 Thu, 13 Sep 2012 00:00:00 GMT On August 29, 2012, the Securities and Exchange Commission released proposed rules to permit general advertising and solicitation in certain private placement offerings as required by the recently enacted JOBS Act. The proposed rules permit issuers to advertise in connection with Rule 506 private placement offerings so long as the securities are sold only to accredited investors. http://www.haynesboone.com/Proposed-Rules-Permit-Advertising-Rule-506-Offerings Publication ffcc3470-74b7-4cfe-b6df-01e6530028ba Fri, 07 Sep 2012 00:00:00 GMT You are the general counsel of a public company. The CEO walks into your office one day and says that the board of directors has identified a merger target for the company, a public company incorporated in Delaware, but time is of the essence. The CEO asks you what the differences are between one-step and two-step mergers. http://www.haynesboone.com/Dealthink-One-Step-or-Two-Step-Mergers Publication ba3101e1-6324-4a11-846a-0457e85df791 Fri, 17 Aug 2012 00:00:00 GMT In Securities and Exchange Commission v. Bartek, the Fifth Circuit held that the federal “catch all” statute of limitations for government enforcement actions - 28 U.S.C. § 2462 - begins to run when the violation occurs, not when the government discovered the violation. http://www.haynesboone.com/SEC-Claims-Against-Bartek-Untimely Publication e8f2d2bd-8437-4fa7-9f3d-0020ab64c2bd Wed, 15 Aug 2012 00:00:00 GMT In a recent decision, the Second Circuit Court of Appeals considered the issue of stock price rebounds in reviving a securities fraud class action suit that had been dismissed by the district court for failure to adequately allege an economic loss as a matter of law. http://www.haynesboone.com/Price-Rebounds-Loss-Causation Publication a17beba5-5bad-4f24-bb5d-6772511286da Tue, 14 Aug 2012 00:00:00 GMT The Bankruptcy Code provides a number of “safe harbors” for forward contracts and other derivatives. These provisions exempt derivatives from a number of Bankruptcy Code provisions, including portions of the automatic stay, restrictions on terminating executory contracts, and the method for calculating rejection damages. http://www.haynesboone.com/Weathering-Fifth-Circuit-Safe-Harbor Publication 1d34387f-8e57-434c-9968-adf301b88d92 Tue, 14 Aug 2012 00:00:00 GMT The issue of whether particular inventions include “patent eligible” subject matter under § 101 of the patent statute has become highly controversial in recent years, raising questions with high economic stakes and profound legal and philosophical implications. Twice the Supreme Court has entered the fray, first in Bilski v. Kappos in 2010, and earlier this year in Mayo Collaborative Services v. Prometheus Laboratories, Inc. http://www.haynesboone.com/Federal-Court-Decisions-Patentability Publication 6d30e42d-7f26-4e68-881a-02f1e2ad5597 Fri, 03 Aug 2012 00:00:00 GMT This week, the Eleventh Circuit Court of Appeals rejected an expert witness’ event study as insufficient to demonstrate loss causation at trial in a securities fraud class action. http://www.haynesboone.com/Bancorp-Loss-Causation Publication 6b01ec7e-3ed2-4b4a-8e70-8685e473b1ca Fri, 27 Jul 2012 00:00:00 GMT Pursuant to statutory changes enacted in its 2011 Sunset Review, the TCEQ has created a website that allows companies and persons subject to its regulations to review the agency’s proposed compliance history rating, for a 30-day period prior to that rating being made available to the public. http://www.haynesboone.com/TCEQ-Compliance-History Publication 442eecdc-7278-4687-8e91-f3fcde9172b9 Thu, 26 Jul 2012 00:00:00 GMT You are the general counsel of a public company. One day, the CEO asks you how the “HSR Act” affects the company. This alert provides an overview. http://www.haynesboone.com/DealThink-Hart-Scott-Rodino-Basics Publication ac45648d-71ad-4666-a416-08c10abb1a46 Wed, 25 Jul 2012 00:00:00 GMT On July 9, 2012, the Seventh Circuit decided in Sunbeam that the rejection of a trademark license by a bankrupt trademark licensor does not deprive the trademark licensee of its right to continue to use the trademark, and disagreed with the 1985 Fourth Circuit decision in Lubrizol that held to the contrary. http://www.haynesboone.com/Weathering-the-Storm-Sunbeam Publication 8af7625e-67d0-47ec-94e5-482d9a00a38f Tue, 17 Jul 2012 00:00:00 GMT Employers who consider arrest and conviction records when making employment decisions should be aware that the Equal Employment Opportunity Commission (the “EEOC”) has issued new enforcement guidance regarding the issue. http://www.haynesboone.com/New-EEOC-Guidance Publication 63157eed-547d-4018-a689-23b965763a2e Fri, 13 Jul 2012 00:00:00 GMT On Friday, June 29, 2012, the Texas Supreme Court denied a petition for mandamus relief in In re XL Specialty Insurance Company and Cambridge Integrated Services, Group, Inc., No. 10-0960 (Tex. June 29, 2012), clarifying the scope of the joint defense and common interest privilege doctrines under Texas law. http://www.haynesboone.com/Texas-Supreme-Court-Clarifies Publication 055eca3c-d74c-423d-9dbc-8d166d8b084e Mon, 09 Jul 2012 00:00:00 GMT As required under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), on June 20, 2012, the U.S. Securities and Exchange Commission (SEC) approved a rule that directs national securities exchanges to adopt listing standards for public company boards of directors and compensation advisers. See Release Nos. 33-9330 and 34-67220. http://www.haynesboone.com/SEC_Directs_National_Exchanges Publication 2764f2cc-da88-4401-9a14-55718ccb005c Thu, 28 Jun 2012 00:00:00 GMT On June 13, 2012, the United States Bankruptcy Court for the Northern District of Texas (the “Bankruptcy Court”) published an opinion ruling on whether the Mexican Plan of Reorganization (the “Concurso Plan”) of the Mexican glass-manufacturing company, Vitro, S.A.B. de C.V., approved by the Federal District Court in Mexico, should be enforced under Chapter 15 of United States Bankruptcy Code. http://www.haynesboone.com/Weathering-Vitro-Opinion Publication 4dbea531-7ae1-42f2-af96-a2609e72815d Wed, 20 Jun 2012 00:00:00 GMT The state of Georgia will soon join a growing number of jurisdictions enacting False Claims Act statutes with far-reaching implications. The “Georgia Taxpayer Protection False Claims Act” authorizes the state attorney general and private citizens to seek civil penalties and treble damages on behalf of the state and any local government that pays a false or fraudulent claim to any individual or entity. http://www.haynesboone.com/Risk-of-FCA-Liability Publication 4072858f-a058-4ae5-92d4-396e00e4fcda Tue, 19 Jun 2012 00:00:00 GMT The Federal Trade Commission (the “FTC”) announced last week that it was amending its Franchise Trade Regulation Rule, entitled “Disclosure Requirements and Prohibitions Concerning Franchising” (the “FTC Franchise Rule”) to increase certain monetary thresholds necessary to meet three exemptions under the Rule. http://www.haynesboone.com/FTC-Franchise-Rule Publication 3589910d-82d5-4e18-8e28-4720133f8b4d Mon, 18 Jun 2012 00:00:00 GMT On Monday, June 11, 2012, the Supreme Court granted a writ of certiorari in Connecticut Retirement Plans and Trust Funds v. Amgen Inc., 660 F.3d 1170 (9th Cir. 2011) to clarify the standards for certifying a class in a securities fraud suit under the fraud-on-the-market theory. http://www.haynesboone.com/Supreme-Court-Class-Certification Publication 62ec7367-3841-40c6-9bd6-2dc0443449bd Fri, 15 Jun 2012 00:00:00 GMT After several delays, ICANN has published the list of generic top level domain (“gTLD” or “string”) applicants and the gTLDs they have applied for. http://www.haynesboone.com/ICANN-Announces-New-gTLDs Publication cd0d8384-46ed-4c2f-bcd1-05c5030622b2 Thu, 14 Jun 2012 00:00:00 GMT Recent technological innovations and advancements in drilling and completion techniques have led to an unprecedented expansion of natural gas production by large and midsize exploration and production companies. This expansion created competition for wild cat acreage as well as producing properties, putting lessors and co-owners (the “non-operators”) at a distinct advantage in negotiating the terms of leases, farmout agreements and joint operating agreements (“JOAs”). http://www.haynesboone.com/Non-Operator-Rights Publication c7e965eb-d6de-4bc3-8ff6-f4b2bb81ef02 Wed, 13 Jun 2012 00:00:00 GMT In recent public speeches and correspondence, senior officials at the Securities and Exchange Commission (the “SEC”) have provided details regarding an examination strategy that will be applied to newly-registered investment advisers. http://www.haynesboone.com/SEC-Announces-Examination-Strategy Publication 17d49c69-69ff-46a5-966d-0514c6d0a3d2 Wed, 13 Jun 2012 00:00:00 GMT In what it described as "an easy decision," the U.S. Supreme Court issued its eagerly anticipated decision in RadLAX Gateway Hotel, LLC et al. v. Amalgamated Bank on May 29, 2012. The high court's 8-0 ruling, delivered by Justice Scalia, held that a Chapter 11 bankruptcy cramdown plan providing for the sale of a secured creditor’s collateral free and clear of the secured creditor's lien may not use Bankruptcy Code § 1129(b)(2)(A)(iii) to deny the secured creditor the right to "credit bid" on its own collateral. http://www.haynesboone.com/Weathering-RadLAX-Supreme-Court-Decision Publication b9458af0-8da0-4b3d-9d6e-31fc7cf97fd5 Thu, 31 May 2012 00:00:00 GMT Buying natural gas assets from financially distressed companies is an inherently risky proposition. A means to deal with these issues and protect the acquisition from challenge is to acquire the natural gas assets through a structured bankruptcy transaction. http://www.haynesboone.com/Aquiring-Assets-through-Bankruptcy Publication 6cdbf779-ef79-43f9-8849-021581b7e33f Tue, 29 May 2012 00:00:00 GMT Two recent antitrust matters serve as reminders that exchanging sensitive information with business competitors can pose significant antitrust risks – particularly when companies stray from the “safety zones” established by the federal antitrust enforcement authorities. http://www.haynesboone.com/Information-Sharing-Risky Publication 7514d2a3-3474-4994-aa61-8cc6eec15099 Thu, 24 May 2012 00:00:00 GMT