Wed, 16 May 2012 17:08:28 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all The latest newsletters from Crowell & Moring. 6064929b-1df8-4bf8-b17a-f0bf293729ac Wed, 16 May 2012 17:08:28 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/DC-Circuit-Loosens-Public-Disclosure-Bar-While-Tightening-the-Reins-on-Damages In United States ex rel. Davis v. District of Columbia (May 15, 2011), the D.C. Circuit held that recent Supreme Court precedent had abrogated the Circuit's long-standing rule that a relator must provide the government with the information upon which his allegations are based not only before filing an action, but also prior to any public disclosure. The Circuit Court also applied its recent holding in U.S. v. Science Applications Corp., 626 F.3d 1257, that proof of damages requires a showing that, as the result of the alleged fraud, the value of what the government received was less than what it believed it had purchased, finding that, in the matter before it, because there was no allegation that claimed reimbursements were for services not actually received or of inflated value -- only that they lacked documentary support -- "the government got what it paid for and there are no damages." ... f23dca91-78b5-4b7e-b37d-7c9ef12350a5 Tue, 15 May 2012 16:46:04 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Congress-to-Vote-on-Radically-Altering-CFCs-Bid-Protest-Timeliness-Rules Yesterday we erroneously reported that a provision to amend the Tucker Act with respect to the timeliness rules of Court of Federal Claims protests had been included in the 2013 National Defense Authorization Act reported by the House Armed Services Committee. We have learned that this proposed legislation from the Department of Defense was ultimately not included in the bill, as reported, perhaps because such amendments to Title 28 of the U.S. Code are within the jurisdiction of the Judiciary Committee, but we will continue to track this proposed legislation. May.14.2012 REVISED -- see above. Late last week, the House Armed Services Committee passed a committee mark version of the 2013 National Defense Authorization Act that includes a provision that would amend the Tucker Act to adopt all of the GAO's timeliness rules for bid protests. If the bill is signed into law in its current form, protesters ... 5e624a44-267a-4d73-95cf-3588691e81da Fri, 11 May 2012 13:42:33 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Citizen-Suit-Watch-Fifth-Circuit-Reverses-Dismissal-of-Citizen-Suit-Based-on-Pre-Existing-Consent-Decree In a recent per curiam opinion (LEAN v. City of Baton Rouge, No. 11-30549 (5th Cir.)), the Fifth Circuit reversed a lower court's dismissal of a Clean Water Act citizen suit, finding that the Clean Water Act's "diligent prosecution" bar to citizen suits is nonjurisdictional and that the district court improperly dismissed the suit as moot due to a pre-existing consent decree. The court remanded the case to the district court to determine whether the pre-existing consent decree and the government's efforts to enforce the decree constitute a diligent government prosecution that would preclude the plaintiffs' suit. The ruling will make it more difficult for citizen suit defendants to prevail at the motion to dismiss stage with a diligent prosecution defense, making the need for discovery on the issue more likely for future suits. Case Background The factual background for this case is set forth in our prior Citizen Suit ... 4ba7922a-c777-407f-abe4-8cf489220d91 Tue, 08 May 2012 11:26:20 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NLRBs-Acting-General-Counsel-Asserts-Unprecedented-Challenge-to-Employee-Handbook-Receipt-Provisions The Acting General Counsel of the National Labor Relations Board ("General Counsel") recently issued a Complaint alleging that certain employee acknowledgments, routinely included in employee handbooks, violate federal labor law.  The challenged acknowledgements, set forth in the Acknowledgment of Employee Handbook used by Hyatt Hotels Corporation ("Hyatt") nationwide, are: "I understand my employment is 'at will;'" "I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and" one of two company executives; and "The sole exception to [a prior acknowledgment] is the at-will status of my employment, which can only be changed in a writing signed by me and" by one of two company executives. The General Counsel asserts, ... 6af83d7f-1e3b-4844-8aa4-3bba2394e809 Mon, 07 May 2012 13:10:37 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Kansas-Supreme-Court-Scuttles-Rule-of-Reason-for-Resale-Price-Agreements-Under-State-Law On May 4, 2012, Kansas joined the growing trend among states to limit the distribution flexibility that had been anticipated would flow from the 2007 U.S. Supreme Court decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007). In a far reaching and potentially disruptive opinion, the Supreme Court of the State of Kansas in O'Brien v. Leegin Creative Leather Products, Inc., No. 101,000 (May 4, 2012) held that vertical resale price agreements, whether purely vertical or in a dual distribution setting, are per se illegal under the Kansas Restraint of Trade Act. While explicitly acknowledging that both types of agreements would be analyzed under the "rule of reason" at the federal level, the Kansas Supreme Court rejected the applicability of federal antitrust jurisprudence to claims brought under the Kansas antitrust statute, K.S.A. 50-101, 102, 112. The Kansas Supreme Court overturned a state district court's ... a2ffa6cd-b0a9-4097-b7c3-4d46f6da5dd9 Fri, 04 May 2012 13:04:56 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/OSHA-Changes-to-MSDS-Chemical-Labeling-May-11-Public-Meeting-on-New-GHS-Standards On May 11, 2012, the Occupational Safety and Health Administration (OSHA) will host a public meeting regarding its newly adopted standards impacting all hazardous chemical label and safety data sheets in the United States. These rules address the content and format of workplace chemical labeling in the U.S.—including material safety data sheets, commonly referred to as MSDSs. As these new standards affect any workplace that manufactures, uses, transports, or stores hazardous chemicals, Crowell & Moring LLP attorneys are closely tracking these new OSHA requirements and will be attending the May 11 meeting. Per the final rule issued March 26, 2012, the Department of Labor has adopted the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals—otherwise known as GHS. This change ensures that OSHA's current Hazard Communication Standard (HCS) is aligned with internationally-developed guidelines for the categorization and labeling of hazardous substances. On a practical level, the ... 83ba711b-3767-4698-93ea-5fd9cfaba862 Fri, 04 May 2012 13:42:38 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/This-Month-In-International-Trade-April-2012 THIS MONTH'S TOP FIVE DEVELOPMENTS 1) ITC Finds No Injury in Three AD/CVD Cases The International Trade Commission ("ITC") found no material injury in three separate cases last month, ending ongoing antidumping and countervailing duty investigations. Specifically, on April 17 the ITC unanimously found that a U.S. industry was not materially injured or threatened with material injury in its investigations of Bottom Mount Refrigerator-Freezers from Korea and Mexico and Certain Steel Wheels from China, while it held 4-2 on April 23 that there was no injury or threat of injury in Galvanized Steel Wire from China and Mexico. In all three cases, the Department of Commerce had made an affirmative determination that sales were being made at less than fair value and was prepared to impose duty rates ranging from an all others rate of 10.29% on Refrigerators from Korea to a China-wide ... 95349215-2966-45e5-9d6c-e3d5ce624448 Thu, 03 May 2012 09:14:49 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/New-Presidential-Order-Aims-to-Help-Bridge-International-Regulatory-Discrepancies On May 1, President Obama signed an Executive Order (E.O.) aimed at enhancing coordination of international regulatory cooperation activities among U.S. regulatory and policy agencies. The new E.O. – titled "Promoting International Regulatory Cooperation" – essentially grafts a broad international dimension onto E.O. 13563 (January 18, 2011), which focused on improving the quality of U.S. regulations, imposed new regulatory review requirements, and encouraged international cooperation. The new order appears aimed at the following key objectives: Improved coordination among U.S. agencies: The new order asserts additional control by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) over the international regulatory cooperation activities of individual agencies – an apparent response to perceived lack of coordination in the past. Greater consideration of regulatory approaches of major U.S. trading partners: The E.O. provides a more ... ef02e440-1863-4cbc-a6e9-03d2161f9d0d Fri, 04 May 2012 10:19:58 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Eighth-Circuit-Approves-Use-of-Fraud-Guidelines-for-Antitrust-Crimes In a landmark decision that could have a significant impact on sentencing in antitrust cases, the Eighth Circuit affirmed a lower court's use of U.S. Sentencing Guidelines ("Sentencing Guidelines") for fraud, rather than the applicable guidelines for antitrust violations. U.S. v. VandeBrake, No. 11-1390, 2012 WL 1448486 (Apr. 27, 2012). Because the fraud sentencing guidelines allow for more severe penalties in many cases, the Eighth Circuit's decision is likely to affect some antitrust defendants' decisions about whether to plea and, if so, what sentence to accept. In addition, DOJ will likely rely upon this decision during plea negotiations to advocate for stiffer sentences.  District Court Opinion In February 2011, Steven VandeBrake pled guilty to three antitrust conspiracies for price fixing and bid-rigging related to his family's business, which sold concrete products throughout northwest Iowa. The conspiracies took place between January 2006 and August 2009, and impacted approximately $5.6 million in ... 842add40-330a-4b10-9628-d9c2d6f7730a Thu, 03 May 2012 16:24:58 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Seventh-Circuit-Authorizes-An-Issue-Class-Action-in-Response-to-Dukes Since the U.S. Supreme Court's decision last summer in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011), there has been no shortage of discussion about the significance of the Court's decision. The Seventh Circuit's recent decision in McReynolds v. Merrill Lynch, 672 F. 3d 482 (7th Cir. Feb. 24, 2012) shows that courts will continue to be receptive to creative class action theories. Indeed, a second reading of McReynolds suggests that class action litigation in this area may be poised for a dramatic, and worrisome, change in focus. McReynolds is a class action alleging race discrimination brought by seven hundred black stock brokers working for Merrill Lynch.  Among other things, plaintiffs claim that black brokers make significantly less money than whites. Plaintiffs' counsel apparently didn't believe the initial press reports that Dukes was the death knell for employment discrimination class actions. Just a month after the Supreme Court's decision, plaintiffs sought reconsideration ... 6037fd79-54b9-4242-b0c8-800ad18056d8 Wed, 02 May 2012 17:09:27 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/California-High-Court-Rejects-Fee-Request-For-Rest-Break-Claims On Tuesday, April 30, 2012, the California Supreme Court decided that, in actions seeking to recover for rest break violations, parties cannot recover their attorneys' fees if they prevail on either the prosecution or defense of such a claim. What is initially novel about this case, Kirby v. Immoos Fire Protection, Inc., 2012 WL 1470313, __ Cal. 4th __ (Apr. 30, 2012), is the context in which it was decided -- the defendant's motion to recover attorneys' fees. The Immoos case originally included the laundry-list of claims typically seen in putative wage and hour class actions, including claims for violation of the California Unfair Competition Law, Business & Professions Code section 17200 ("UCL"), failure to pay wages each pay period and upon discharge (in violation of Labor Code sections 201, 203 and 204), failure to pay overtime, codified in sections 204.3, 510 and the applicable Industrial Welfare Commission (IWC) ... f6359137-5767-4e36-bac1-bad4ce2e4e95 Wed, 02 May 2012 11:33:43 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/PRM-Group-Hosts-Luncheon-With-CPSC-Commissioner-Northup On Monday, April 30, 2012, Crowell & Moring's Product Risk Management Group hosted an interactive discussion and luncheon featuring Commissioner Anne Northup of the U.S. Consumer Product Safety Commission (CPSC). The event was attended by Crowell & Moring attorneys, expert consultants, industry representatives, and members of the press. The Commissioner shared some of her views on Commission decision-making, CPSC priorities, the impact of CPSC policies on businesses and consumers, and current consumer regulatory issues. She also engaged in a dynamic question and answer session with members of the audience on a range of issues, including border control and enforcement of imported products, CPSC database critiques, and foreseeable and unforeseeable product misuse. As a former member of Congress, current CPSC Commissioner, and mother of six, Commissioner Northup shared her unique perspective on the economic and practical challenges that can arise with regulatory intervention. Commissioner Northup elaborated ... 15c46023-b77e-4012-a9ee-b62a93260069 Wed, 02 May 2012 09:19:46 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Saudi-Law-Update April 2012 saw a number of noteworthy draft laws and agreements move towards enactment in Saudi Arabia: 1) On 10 April 2012, it was announced that Saudi Arabia's Council of Ministers had approved a draft commercial arbitration law and a draft railway transportation law. While the terms of the draft laws have not yet been made available to the public, the approval of the Council of Ministers is often the penultimate step before the enacting of a law. Accordingly, it is expected that the new draft commercial arbitration law and the draft railway transportation law will be enacted into law before the end of 2012. 2) On 23 April 2012, on the basis of proposals forwarded by its Committee on Health and the Environment, Saudi Arabia's Shoura Council approved a draft law for a comprehensive food system in Saudi Arabia (the Draft Law). ... f31c3904-a90a-4aa3-8a71-cc6ca266388d Tue, 01 May 2012 13:55:55 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Shoura-Approves-New-Food-System On the basis of proposals forwarded by its Committee on Health and the Environment, Saudi Arabia's Shoura Council approved on 23 April 2012 a draft law for a comprehensive food system in Saudi Arabia (the Draft Law). The Draft Law has not been released to the public and will not become law until and unless enacted into law by a Royal Decree or Royal Order. However, it is understood that the Draft Law: defines food and food additives; sets standards for food; mandates hygienic practices for food handling and food safety; imposes requirements for the packaging of food; authorizes the Saudi Food and Drug Authority to approve foodstuffs for import into Saudi Arabia and to prohibit the import ... c4e245d8-f389-4c8f-9a90-5353fa373e0b Mon, 30 Apr 2012 16:20:55 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/What-You-Should-Know-in-the-New-Era-of-Transparent-Internal-Audits At the urging of GAO, DOD will soon be adopting policies requiring greater access to defense contractors' internal audit reports. Register for a free webinar hosted by Crowell & Moring and Grant Thornton on Thursday, May 17 (1 PM EDT), during which they will discuss GAO's recommendations, new developments, and best practices. 0a75f9f3-3319-4243-9499-e5f502542662 Fri, 27 Apr 2012 15:07:40 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Routine-Request-Still-Undisputed-Years-Later A split panel of the Federal Circuit in Parsons Global Servs., Inc. v. McHugh (Apr. 20, 2012) found that, despite not being paid for two years and by two CO's for an amount admittedly due in an invoice correcting a previous billing error, the invoice was "routine" and the amount not "in dispute," and so the ASBCA had no jurisdiction of the claim under the CDA. What the contractor was expected to do to make its situation "disputed" was not disclosed by the majority, and Judge Newman in dissent railed that "a simple correction of a billing error has morphed into a nearly four-year litigation, with no end in sight" and concluded that this "lengthy litigation . . . is an embarrassment." 916e458e-7d76-4210-9396-4a492158cde5 Fri, 27 Apr 2012 15:59:36 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Attempted-Country-of-Origin-Engineering-to-Avoid-Antidumping-Duties-Leads-to-False-Claims-Act-Exposure The U.S. Department of Justice (DOJ) announced on Tuesday that it is intervening in a lawsuit, U.S. ex rel. Dickson v. Toyo Ink Mfg. Co., Ltd. (W.D.N.C. 3:09-cv-438), brought under the whistleblower provisions of the False Claims Act. The suit alleges that a U.S. importer of Carbazole Violet Pigment 23 from China, which is subject to antidumping duties, misrepresented the country of origin of the product as Mexico in order to avoid paying the duties. The defendants allegedly moved certain pigment processing steps to Mexico and thereafter claimed the imported product was of Mexican origin. Even if the defendants relied on country of origin determinations from Customs & Border Protection ("CBP"), they likely will need to contend with the Commerce Department's independent authority to make origin determinations for the purpose of determining whether antidumping duties apply. Those determinations are often designed to ensure that importers do not "circumvent" antidumping duty ... 2dbd64c7-78ff-4ecd-a743-9c1152108967 Wed, 25 Apr 2012 16:30:54 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NHTSA-Issues-Notice-of-Proposed-Rulemaking-to-Expand-Regulation-of-Accelerator-Control-Systems On April 16, 2012, the National Highway Traffic Safety Administration ("NHTSA") issued a notice of proposed rulemaking that will affect automobile manufacturers and certain component part manufacturers. NHTSA's proposed rule seeks to modify and expand current Federal Motor Vehicle Safety Standard No. 124 ("FMVSS No. 124"), the standard that regulates Accelerator Control Systems ("ACS"). This widely-applicable proposal covers passenger cars, multipurpose passenger vehicles, trucks and buses, though application of one component of the rule is currently limited by vehicle weight. NHTSA hopes that the proposed rule will "reduce deaths and injuries resulting from uncontrolled vehicle propulsion caused by malfunctions or disconnections in accelerator control systems and from conflicting inputs to the brake and accelerator controls in a vehicle."      A) Modification of Existing FMVSS No. 124:  An Update to Throttle Disconnection Test Procedures. The proposed amendment to FMVSS No. 124 is primarily designed to ensure that current standards comport with ... 7e99d38d-6b85-4434-ba89-63d1739342e2 Wed, 25 Apr 2012 13:40:26 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Caution-Bankruptcy-Remote-Entities-Are-Not-Necessarily-Bankruptcy-Proof "Bankruptcy-remote entities" have been utilized for years in commercial transactions as a means to protect a defined group of assets from being administered as property of a bankruptcy estate in the event of a bankruptcy filing by an affiliated entity. There is no statute or authoritative legal precedent establishing the characteristics of bankruptcy-remote entities. Instead, the business world and literature have focused on the legal structure of such entities. The ongoing saga of litigation over the issue arising from the Doctors Hospital bankruptcy demonstrates that there is no guarantee that a bankruptcy-remote entity is bankruptcy proof. Doctors Hospital of Hyde Park, Inc. filed a chapter 11 bankruptcy petition in April 2000. In 2004, a chapter 11 trustee was appointed and took over certain litigation against the hospital's lender, LaSalle Bank, which was the trustee for a CMBS trust. Part of the litigation related to the pre-bankruptcy capital structure of the hospital and its ... de944f57-da09-440a-bf49-d9d5e2d71036 Tue, 24 Apr 2012 18:35:15 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/DC-Circuit-Fetters-Government-Discretion-to-Settle-Qui-Tam-Claims-over-Relators-Objection On Friday, April 20, 2012, in United States ex rel. Schweizer v. Océ N.V. the D.C. Circuit unanimously reversed the district court's approval of an FCA settlement over a relator's objection when the lower court did not examine the agreement's fairness. The D.C. Circuit held that, while the government has unfettered discretion under section 3730(c)(2)(A) to dismiss a qui tam action outright over a relator's objections, section 3730(c)(2)(B) is applicable to dismissal of settled cases over the relator's objection and -- as in other statutory schemes and despite the government's claim it would result in an unconstitutional violation of the Separation of Powers Clause -- requires the district court to conduct a hearing to determine whether the proposed settlement is "fair, adequate, or reasonable under all circumstances." 94242a17-e025-4a91-a237-05a2cbabfb4a Fri, 20 Apr 2012 13:21:19 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Air-Force-Debarment-Official-To-Speak-At-OOPS We are pleased to announce that Steven A. Shaw, Deputy General Counsel for Contractor Responsibility, Office of Air Force General Counsel, will be speaking at our Annual Ounce of Prevention Seminar being held May 9-10 in Washington DC. The Air Force suspension and debarment program is regarded as one of the most sophisticated in the federal government and is the model many agencies are adopting. be67a18f-c556-4bf5-9e85-7b5fd692e6db Thu, 19 Apr 2012 16:59:03 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/A-First-Step-or-an-Empty-Gesture-Relaxing-Sanctions-against-Burma-Myanmar On April 17, the United States began to relax sanctions against Myanmar/Burma as a quid-pro-quo for recent liberalization efforts and for apparently fair parliamentary elections that elected Nobel laureate Aung San Suu Kyi in a landslide. Australia has relaxed sanctions and the European Union may do the same within the next week.  What does this mean for market liberalization and trade and investment opportunities?   Recent Developments in Burma/Myanmar The political and economic changes taking place in Burma are dramatic as the country emerges from decades of isolation. The first elections in twenty years in 2010, nominally transferred power from the military junta to a civilian government. At the same time renowned opposition leader Aung San Suu Kyi was released from house arrest. President Thein Sein has since cautiously guided Burma from international pariah towards reintegration into the international community. Suu Kyi's National League for Democracy won 43 of 45 contested ... 6d4acbfe-9813-4667-8bc0-8a5d6878195d Wed, 18 Apr 2012 14:45:48 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NLRB-Notice-Posting-Rule-Delayed National Labor Relations Board Chairman Mark Pearce announced yesterday that the Board will not proceed with the April 30 deadline for implementing the Board's new rule requiring employers to post a notice advising employees of their rights under the National Labor Relations Act. Chairman Pearce cited "conflicting decisions at the district court level," referring to opinions written in cases brought in South Carolina and the District of Columbia challenging the Board's statutory authority to promulgate the rule. The Board also announced its decision to appeal the South Carolina decision to the Fourth Circuit. Chairman Pearce stated: "We continue to believe that requiring employers to post this notice is well within the Board's authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law." The D.C. Circuit has ordered expedited briefing in its case. A decision from that court is likely by ... 23df10d4-a929-4488-b7bd-3463d63b9618 Tue, 17 Apr 2012 13:12:56 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Brinker-Was-It-Worth-The-Wait-For-Employers The California Supreme Court's ruling last week in Brinker Restaurant Corp. et al. v. Superior Court provides some welcome news to California employers who had been waiting for clarification about their obligations pertaining to meal and rest breaks. Yet the decision confirms that meal and rest break class actions remain a challenge for even the most sophisticated employers. Principal Rulings The big news in Brinker is that while employers must ensure that non-exempt employees in California are offered an opportunity to take meal breaks, they are "not obligated to police meal breaks and ensure no work thereafter is performed." The proper interpretation of the term "provide" in the Labor Code had long divided the lower courts, leading to widespread class action litigation and – because of the consequences of uncertainty – large settlements. Brinker ends this debate. The other big news of Brinker concerns the Court's ... 049870e1-9d8b-4bb8-85be-da2c6842208f Tue, 17 Apr 2012 16:40:46 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Federal-Circuit-Holds-That-Settlement-Negotiations-Are-Not-Privileged In a decision last week that could have far reaching implications in "patent troll" cases, the Federal Circuit held that settlement negotiations are not immune from discovery, rejecting recognition of a "settlement negotiation privilege."  In In re MSTG, Inc., a three-judge panel considered for the first time whether communications relating to reasonable royalties and damages are protected from discovery based on a settlement negotiation privilege. Applying the criteria for establishing privileges articulated by the Supreme Court, the panel determined that a settlement negotiation privilege is not warranted, and upheld a district court decision ordering production of settlement negotiation documents. MSTG sued several  mobile device manufacturers and service providers claiming infringement of three patents allegedly covering 3G mobile communications technologies. MSTG extracted royalty-based settlements from all but one defendant. The remaining defendant sought those settlement agreements and all related communications in discovery, arguing that they were relevant to MSTG's royalty-based ... c3411298-6a3b-4e5f-954b-80cbdd16b8c0 Mon, 16 Apr 2012 14:30:09 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Preparing-For-May-Day-And-Beyond-At-The-NLRB This is a big month at the NLRB, with three important new initiatives in the works. First, April 30 is the effective date for the Board's changes to its representation election procedures. Our summary of these rules - the "quickie election rules" - can be found here. April 30 is also the tentative effective date for the Board's new rule requiring almost all private sector employers to post a notice advising employees of their rights under the National Labor Relations Act ("Act"). Our summary of this requirement can be found here. "Tentative" is still the operative word with respect to this initiative, as Friday the 13th was a bad day for the Board in a federal district court in Charleston, South Carolina. Judge Norton granted summary judgment to a group of plaintiffs, led by the U.S. Chamber of Commerce, that had sued the Board under the Administrative ... 5d1702e9-6b84-45c3-bf29-19070fd3d704 Fri, 13 Apr 2012 11:21:57 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Maryland-Takes-the-Lead-on-Social-Media-Access-Legislation Maryland Governor Martin O'Malley is expected to sign a ground-breaking bill passed last week by the Maryland General Assembly. The bill prohibits employers from requesting or requiring applicants or employees to provide information that would allow an employer to gain access to social media websites such as Facebook, as well as other personal Internet sites and web-based accounts. The bill will become effective October 1 of this year. The bill also prohibits an employer from taking adverse personnel action against an applicant or employee who refuses to disclose access information. A similar bill is pending in the Illinois state legislature. Legislators in other states are considering addressing the issue, and several members of Congress are currently drafting federal legislation on the topic. Proponents of such legislation assert that individuals have a reasonable expectation of privacy with respect to personal web-based accounts such as Facebook accounts. Facebook's chief Privacy Officer weighed in on the subject ... 0b521d79-863c-4bfe-b6cb-a758b0fdef70 Fri, 13 Apr 2012 10:21:41 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Failure-to-Comply-with-Section-L-Instructions-Invalidates-Award In The Emergence Group (Feb. 29, 2012), the protestor, represented by Crowell & Moring, achieved an exception to the general rule that an agency is not required to evaluate offerors for compliance with RFP submission (Section L) requirements. In this case, the evaluation criteria (Section M) stated that compliance with Section L was mandatory, and the protest was sustained because the agency allowed offerors failing to submit the minimum number of past performance references per Section L to receive top evaluation marks. 2100dc84-bf2e-4f7e-af3d-cc5661cf775c Tue, 10 Apr 2012 12:37:57 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/This-Month-In-International-Trade-March-2012 THIS MONTH'S TOP FIVE DEVELOPMENTS 1) Congress Invites Proposals for Miscellaneous Tariff Bills The House Ways and Means Committee and the Senate Finance Committee have both announced the commencement of the 2012 Miscellaneous Tariff Bill (MTB) process. Members of the House and Senate have until April 30, 2012 to introduce temporary miscellaneous tariff bills in order to have them considered for inclusion in the overall MTB. Items included in the MTB must fall into one of three categories: 1) a new temporary duty suspension or reduction on one particular product or item; 2) an extension of an existing temporary suspension or reduction; or 3) a technical correction. In addition, all proposals must be "non-controversial" (meaning there is no domestic industry opposition), and must result in a loss of revenue not to exceed $500,000.   After April 30, the Committees will post on their ... 5dbe7415-fb63-4158-b0b6-3c0cc88d044f Tue, 10 Apr 2012 09:05:37 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Managed-Care-Lawsuit-Watch-April-2012 This summary of key lawsuits affecting managed care is provided by the Health Care Group of Crowell & Moring LLP. If you have questions or need assistance on managed care law matters, please contact Art Lerner or any member of the health law group. Please click to view the full Crowell & Moring Managed Care Lawsuit Watch archive. Cases in this issue: Kaiser Foundation Health Plan, Inc. v. Superior Court Markey, M.D. v. Aetna Health Inc. Messner v. Northshore University Healthsystem Anthem Health Plans of Maine, Inc. v. Superintendent of Insurance Sw. Pharmacy Solutions, Inc. v. CMS John B. v. Emkes ... 0e3fd9d8-31eb-4a9e-8940-b4cd5a39735b Wed, 04 Apr 2012 10:57:53 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Proposed-Revisions-to-Interagency-Leveraged-Lending-Guidance On March 26, 2012, the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation (the "Agencies") issued "Proposed Guidance on Leveraged Lending" (the "Guidance"),1 which will replace guidance issued in 2001. The Agencies are seeking comments on or before June 8, 2012. The Guidance is targeted at lending practices encompassing the entire debt structure of a leveraged borrower including senior loans, letters of credit, mezzanine tranches, and senior and subordinated bonds. It is anticipated that the Guidance will impact large and global banking institutions, as the majority of community banks and smaller institutions have little exposure to leveraged credits. As an outgrowth of the recent financial crisis, the Agencies have become acutely aware of the need for leveraged lenders to refocus on prudent underwriting practices and to reassess the propriety of debt agreements that provide relatively ... 86cb83ee-fcfd-457b-b974-fcf2d0bbf635 Wed, 04 Apr 2012 18:15:00 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Statute-of-Limitations-Runs-from-Receipt-of-Auditable-Information The six-year statute of limitations on contract claims begins to run when either party's cause of action "accrues," defined in FAR 33.201 as "the date when all events, that fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known." Several prior decisions have held that a government claim accrued no later than the date on which it is identified and quantified in an audit report, but in Raytheon Co. v. U.S. (Apr. 02, 2012), the Court of Federal Claims held that the government claim had accrued, not when the costs at issue were first audited (2003), but instead when Raytheon submitted to the government all of the information that was needed to audit the costs and assert a claim (1999). 7835ba09-0744-44b6-84f8-aed02fffc033 Tue, 03 Apr 2012 11:55:28 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/New-MLR-Final-Rule-for-Community-Rated-Plans-Under-FEHBP On Monday, April 2, 2012, the U.S. Office of Personnel Management ("OMB") published in the Federal Register final regulations which amend existing Federal Employees Health Benefits ("FEHB") and the Federal Employees Health Benefits Acquisition Regulation ("FEHBAR") provisions related to premium rate-setting methods for community rated plans. With "minor changes" to a June 29, 2011 interim final rule, see 76 Fed. Reg. 38282, the new regulations replace the prior similarly sized subscriber group ("SSSG") rate-setting method with a medical loss ratio ("MLR") calculation. The updated MLR requirements impose obligations on all community-rated plans, except those subject to "traditional" community rating requirements under state law. The revised MLR regulations, like those embodied in the Patient Protection and Affordable Care Act ("PPACA"), are designed to offer "a more modern and transparent calculation while still ensuring that the FEHB Program is receiving a fair rate." In addition, OPM anticipates that the MLR requirement ... 41a985d2-67dc-4f9e-a12e-8483b31451bb Mon, 02 Apr 2012 11:55:59 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/European-Commission-Publishes-Antitrust-Manual-of-Procedures On 30 March 2012, the European Commission ("Commission") published its antitrust manual of procedures, disclosing parts of its internal guidelines applicable to investigations on procedures for the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU"). After the publication of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU ("Best Practices"), this is another step in the Commission's efforts to provide transparency on how it is conducting administrative procedures. Lawyers and corporations have claimed that in light of the increasing amount of fines imposed by the Commission and its role as investigator and decision-maker in the administrative procedure, companies should at least be able to know how the Commission would investigate their case. Background The combination of very large fines imposed by the Commission and its responsibility to investigate and decide ... bbf07a67-4856-4c44-8430-f2c57969286f Thu, 29 Mar 2012 10:00:36 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Supreme-Court-Allows-Pre-Enforcement-Jurisdictional-Challenges-To-EPA-Compliance-Orders-Applicability-Beyond-the-Clean-Water-Act-Is-Unclear On March 21, 2012, the Supreme Court issued a unanimous opinion finding that regulated parties may challenge administrative compliance orders issued by the Environmental Protection Agency (EPA) under the Clean Water Act (CWA).  In Sackett v. EPA, U.S., No. 10-1062, the Court rejected EPA’s position that such orders are not subject to pre-enforcement judicial review.  Notably, the decision does not address EPA’s jurisdictional reach over wetlands or the definition of “waters of the United States” under the CWA, but it allows the Sacketts to litigate these jurisdictional issues immediately in federal court.  The Court offered a straightforward analysis that such orders are “final agency action” that can be challenged under the Administrative Procedure Act (APA) and that Congress did not preclude such challenges in the CWA.  The Court did not address any constitutional arguments, nor did it opine on whether the holding would apply to other environmental statutory schemes. ... fb95a57a-c6ef-4423-9bf1-b84cbbf22652 Tue, 27 Mar 2012 17:54:36 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Citizen-Suit-Watch-Federal-Court-Demands-EPA-Review-of-Nonpoint-Source-Regulations-As-Part-of-Water-Quality-Standard-Review In Northwest Environmental Advocates v. United States Environmental Protection Agency, No. 3:05-cv-01876-AC (D. Or. Feb. 28, 2012), an Oregon federal court breached the statutory barrier between the U.S. Environmental Protection Agency (“EPA”) and the regulation of nonpoint sources under the Clean Water Act (“CWA”) by holding that EPA must review various state nonpoint source regulations as part of its review of proposed state water quality standards.  The court found fault with federal agency review under both the CWA and the Endangered Species Act (“ESA”) and triggered the start of a new and uncertain chapter not only for Oregon water quality standards, but also for those subject to state nonpoint source controls nationwide. Factual Background The recent district court opinion in Northwest Environmental Advocates is but the latest development in a long and complicated history of Oregon’s attempts to promulgate water quality standards under Section 303 of the CWA. ... 46fcd327-f266-470a-b88f-5bc5b3b68f94 Fri, 23 Mar 2012 10:16:58 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Transgender-Employees-Protected-By-Federal-Law-Against-Discrimination The Eleventh Circuit recently held that transgender employees are protected by federal anti-discrimination laws, bolstering employee claims for harassment and discrimination in the workplace. Glenn v. Brumby, Nos. 10-14833, 10-15015 (11th Cir. Dec. 6, 2011). While the plaintiff, as a Georgia state employee, brought her claims of discrimination under the Equal Protection Clause, the Eleventh Circuit used broad language to find that such discrimination was also unlawful under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Under the Glenn analysis, the types of prohibited discrimination covered by Title VII in the private workplace would now include discrimination against transgender employees or any employee discriminated against because of his or her perceived "gender nonconformity." Furthermore, many states, cities, and counties have enacted laws prohibiting discrimination on the basis of gender identity or expression.  Most recently, Baltimore County, Maryland joined the jurisdictions that provide ... 84c01c5a-09b7-4bd2-b18a-e651562566fb Tue, 20 Mar 2012 10:57:09 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/New-CIETAC-Arbitration-Rules-2012 The China International Economic and Trade Arbitration Commission ("CIETAC") has published its long-awaited revised Arbitration Rules (the "2012 Rules"), updating its previous rules of 1995 (the "1995 Rules"). The 2012 Rules, adopted by the China Council for the Promotion of International Trade and by the China Chamber of International Commerce on 3 February 2012, will come into effect as of 1 May 2012. The 2012 Rules are divided into six Chapters: General Provisions (Arts. 1-10); Arbitration Proceedings (Arts. 11-45); Arbitral Award (Arts. 46-53); Summary Procedure (Arts. 54-62); Special Provisions for Domestic Arbitration (Arts. 63-70); and Supplementary Provisions (Arts. 71-74). CIETAC's jurisdiction extends to cases "involving economic, ... 6de5ba33-75ab-402e-b945-2d19f44e4b74 Fri, 16 Mar 2012 15:30:38 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NAFI-Or-Not-Contractors-Can-Sign-Away-Their-Right-To-Appeal In The Minesen Co. v. McHugh (Mar. 2, 2012), a majority panel of the Federal Circuit held that the contractor had waived its right to appeal by agreeing to the contract’s disputes clause, which stated that ASBCA decisions were final “and are not subject to further appeal.” While this decision involved a contract with a NAFI, the majority decided the issue by assuming the Contract Disputes Act applied, and so its reasoning would seem to apply to any contract with similar language. 20ab11a0-9139-4fea-a05d-f50e5e64471f Wed, 14 Mar 2012 14:06:53 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/CFTC-Issues-Final-Rules-Regarding-Exemptions-Registration-Compliance-Obligations-CPOs-CTAs-Public-Private-Funds On February 9, 2012, the Commodity Futures Trading Commission (CFTC) adopted final rules under the Commodity Exchange Act that will eliminate or modify certain registration exclusions and exemptions relied upon by both investment companies registered under the Investment Company Act of 1940 (mutual funds) as well as private funds. These rule changes may trigger registration and reporting requirements and it is important for all funds that trade in commodity futures, commodity options and derivatives, even on a limited basis, to evaluate their registration requirements. CFTC section 4.5 currently excludes the sponsors of mutual funds from the definition of a commodity pool operator (CPO). The amendment to section 4.5 drastically restricts the exclusion and limits it to sponsors of mutual funds trading commodity interests at certain de minimus levels and that comply with certain marketing restrictions. Generally, to rely on the exclusion, a mutual fund must represent with respect ... c369c3f9-ca3b-4ac7-b266-e8c5ca1bab4a Wed, 14 Mar 2012 14:46:34 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/DOJ-Prosecution-of-Chinese-State-Owned-Enterprise-for-Trade-Secrets-Theft-Offers-Lessons-for-US-Businesses For the first time, the U.S. Department of Justice has indicted a Chinese state-owned enterprise for violating the Economic Espionage Act, in connection with efforts to acquire manufacturing technology for titanium dioxide, a white pigment commonly used in paint, plastics and paper. The indictment specifically alleges that "the People's Republic of China (PRC) publicly identified the development of chloride-route titanium dioxide (Ti02) production technology as a scientific and economic policy." The recently issued indictment charges the state-owned enterprise, Pangang Group Company, Ltd., and three of its affiliates, along with five individuals. The individual defendants include two former employees of chemical giant DuPont, which owns the targeted technology. One of the former DuPont employees pled guilty on March 1, 2012, and the other pled not guilty on March 8, 2012. Another key witness in the case committed suicide shortly before the Pangang indictment, according to press reports. ... 4fb6f2d9-f07c-47c4-83d4-fdb237cc4268 Tue, 13 Mar 2012 10:59:25 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Cyber-Regs-Toughened-Up As Congress continues to mull competing proposals for new cyber legislation, federal agencies have moved ahead under existing statutory authority to tighten and toughen the regulations and standards governing cybersecurity for government contractors. In a recent Briefing Paper published by Thomson West, David Bodenheimer and Jon Baker of Crowell & Moring address the escalating cyber threats driving this trend, the existing statutory and regulatory framework imposing information security requirements, and the fundamental elements necessary for a sound cybersecurity program -- including compliance procedures, continuous monitoring, and security controls specified by the National Institute of Standards and Technology (NIST). a823b1d2-209f-4ce6-ad9e-7b6f55b2c079 Thu, 08 Mar 2012 16:32:12 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/New-FATF-Recommendations-FinCEN-Calls-for-Comments-on-Customer-Due-Diligence-Procedures On February 29, 2012, the Financial Crimes Enforcement Network (“FinCEN”) within the U.S. Department of the Treasury published an Advance Notice of Proposed Rule Making (“ANPRM”) requesting comments on plans to formalize Customer Due Diligence (“CDD”) procedures.  While the ANPRM specifically addresses traditional financial institutions, the notice also contemplates expanding the scope to non-traditional financial institutions also covered by the Bank Secrecy Act Regulations.  On February 16, 2012, the Financial Actions Task Force (“FATF”) published its revised Recommendations to address anti-money laundering (“AML”), counter-terrorist financing (“CTF”) and those involved with the proliferation of weapons of mass destruction.  The new 40 Recommendations replace the 40 Recommendations and 9 Special Measures in place since 2001.  The FATF also published a mere nine pages in response to the public sector/private sector involvement in the consultation process.  This cursory response highlights certain tensions between the FATF and those who must implement the corresponding AML/CTF ... 76f6fdea-a75c-439e-8848-93dab5eb0716 Wed, 07 Mar 2012 17:11:39 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/This-Month-In-International-Trade-February-2012 THIS MONTH'S TOP FIVE DEVELOPMENTS 1) Congress Passes New Countervailing Duty Legislation Resulting in the Continuation of Countervailing Duties Against China, But at Reduced Rates On March 6, the House of Representatives approved legislation affirming the Commerce Department's authority to impose countervailing duties (CVDs) on imports from China and other non-market economies (NMEs). The legislation overturns a Dec. 19 ruling by the Court of Appeals of the Federal Circuit in the case of GPX International Tires v. United States, which held that Commerce does not have the authority to impose CVDs on NME imports. The retroactive effective date of the legislation ensures that 24 ongoing China CVD cases can continue.  Specifically, the legislation provides the following: EFFECTIVE DATE.—Subsection (f) of section 701 7 of the Tariff Act of 1930, as added by subsection (a) of 8 this section, applies to ... 827be549-0b50-46a5-95a4-3d2685e15731 Tue, 06 Mar 2012 13:44:40 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Highlights-from-ICPHSO-2012 The International Consumer Product Health and Safety Organization ("ICPHSO") hosted its annual meeting and training symposium on February 28-March 2, 2012, in Orlando, Florida. Crowell & Moring attorneys Bridget Calhoun, Laurent Ruessmann, Scott Winkelman, Natalia Medley, and Laura Walther attended this year's meeting, along with representatives from the United States and other governments, industry, consumer interest groups, and a variety of service providers. Conference Overview: As in past years, one of the highlights of the meeting was "CPSC Day," featuring representatives from the U.S. Consumer Product Safety Commission ("CPSC") who provided insights on topics including the CPSC's areas of focus for 2012, enforcement priorities and practices, increased import surveillance efforts, international cooperation, and enhanced electronic databases. Speakers included CPSC Chairman Inez Moore Tenenbaum, Commissioner Robert Adler, General Counsel Cheryl Falvey, Executive Director Kenneth Hinson, newly-appointed Office of Compliance and Field Operations Director Andrew Kameros, Office of Compliance and ... 347ea0bb-58a0-49f3-b920-40a67de6af80 Mon, 02 Apr 2012 23:49:06 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Saudi-Shoura-Council-Approves-Draft-Amended-Anti-Money-Laundering-Law In response to recommendations made in a 2010 Middle East and North Africa Financial Action Task Force Report on Saudi Arabia's anti-money laundering (AML) and counter-terrorist financing (CFT) regime (the Report), Saudi Arabia's Shoura Council approved on 27 February 2012 a draft amended anti-money laundering law (the Draft Law). Saudi Arabia's existing AML / CFT regime was established in 2003 with the issuance of the Anti Money Laundering Act (AMLA) and supplemented by implementing regulations issued in 2007. The Report identified a number of areas for improvement in Saudi Arabia's existing AML / CFT regime, including: The AMLA does not clearly cover self-laundering and does not clearly extend to predicate offences committed abroad. There is no stand-alone statutory terrorist financing (TF) offence with features and elements as required by the United Nations' Terrorist Financing Convention (the ... 7afe90b6-5567-411c-85e3-3912589310f3 Wed, 29 Feb 2012 10:57:01 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Airport-Public-Private-Partnerships-Taking-Off The recently enacted FAA Modernization and Reform Act of 2012 caps the budget for airport improvement funds through FY15, which likely will prompt airports to consider using public-private partnerships (P3s) for infrastructure improvements. Illustrative of this potential, earlier this month the Port Authority of New York and New Jersey announced it is continuing to explore a P3 to design, build, finance, operate, and maintain a new, $3.6 billion Central Terminal Building at LaGuardia Airport and has received "significant interest" from investors, airport construction and development companies, facility operations and management firms, and concession developers in response to an initial request for information. f1d1d3b0-84af-47b0-aca9-9bd037ca2ef3 Tue, 28 Feb 2012 09:13:30 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/European-TMT-Privacy-Bulletin-February-2012 Sections of this issue: ISP-Liability & Media Law Court of Justice clarifies scope of copyright protection for portrait photographs Blocking measures imposed on Dutch ISPs with respect to The Pirate Bay The Court of Justice of the European Union (CJEU) issues its decision in the Sabam v. Netlog case (C-360/10) and further defines the scope of injunctions against ISPs Privacy & Data Protection EU Commission proposes new Data Protection Regulation including various new obligations for companies and stringent enforcement rules Contracts & E-Commerce The European Commission still undecided over Statement of Objections against Google ISP-LIABILITY & MEDIA LAW ... b705a29f-a839-4b79-87d8-3b631650032c Mon, 27 Feb 2012 16:52:34 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Appeals-Court-Finds-Encrypted-Data-Beyond-Reach-of-Government-Investigators In an important decision that could have significant implications for government enforcement, the Eleventh Circuit ruled that a suspect could not be required to decrypt his computer hard drives because it would implicate his Fifth Amendment privilege and amount to the suspect's testifying against himself. In United States v. Doe, the government seized hard drives that it believed contained child pornography.  Some of the hard drives were encrypted, and the suspect refused to decrypt the devices, invoking his Fifth Amendment right against self-incrimination.  The Eleventh Circuit held that compelling the suspect to decrypt and produce the drives’ contents “would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.”  Moreover, the government could not force a suspect to decrypt and produce ... 2690ddeb-e0d4-4a80-a62a-879f76f1890d Mon, 27 Feb 2012 17:21:05 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/New-GSA-Contract-Vehicle On Feb. 21, GSA announced that it intends to proceed with the "Integrations" program, which it called "a groundbreaking approach to the way government acquires complex, integrated professional services, with supporting IT components." According to GSA, the yet-to-be-finalized contract vehicle, which will involve the award of multiple-agency IDIQ contracts, is the product of agency demand for "a total professional services solution" which requires acquisition of multiple services across separate functional areas, in lieu of the acquisition of technology and other professional services on an "à la carte basis" from the GSA schedule. 804913fd-7e26-4c2b-bb8c-d28fee2d09ca Thu, 23 Feb 2012 14:41:52 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Federal-Court-Imposes-Broad-Preservation-Obligation-Regarding-Potential-Class-Members-in-FLSA-Action In a ruling that could have a widespread impact on the employment law landscape, the U.S. District Court for the Southern District of New York recently ruled that KPMG LLP, defendant in a suit alleging FLSA and NY state class action claims, is required to preserve electronically stored information relating to all potential plaintiffs, at least until class membership is settled. While the district court’s decision in Pippins v. KPMG may provide some relief from the more onerous requirements of the magistrate judge’s earlier ruling, the decision still represents an expansive view of e-discovery preservation requirements in the employment class action context. In Pippins, KPMG was faced with a potential FLSA class of 2,500 members, and a smaller number of putative New York state class members.  KPMG presented evidence that the cost of retaining hard drives for the entire putative class would exceed $1.5 million.  It appears that the parties had made ... a8432afd-f50a-400f-9f65-098f618b0c70 Thu, 23 Feb 2012 14:10:47 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Substantial-Penalties-Under-the-FCA-Without-Real-Damages-Violates-Eighth-Amendment Using reasoning that could prove useful to other FCA defendants, the court in U.S. ex rel. Bunk v. Birkart Globistics GmbH & Co. (E.D. Va. Feb. 14, 2012),  after the jury found over 9,000 false claims based on invoices submitted, refused to award statutory penalties of between $50.2 and $100.4 million.  The court held that, when the qui tam relator failed to show that the government suffered any damage, imposing penalties of this magnitude would have violated the Eighth Amendment’s Excessive Fines Clause and, because it lacked discretion under the FCA to  fashion a civil penalty that would be within Constitutional limits, no penalties could be imposed. 554c0451-382e-4511-8c8f-d69e6f5453a3 Fri, 24 Feb 2012 19:05:49 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Citizen-Suit-Watch-Supreme-Court-of-Illinois-Rejects-Attack-on-Mining-Permit-Reclamation-Plan On February 2, 2012, the Supreme Court of Illinois held that a plaintiff organization could not bring a citizen suit under the state’s Surface Coal Mining Land Conservation and Reclamation Act (“Mining Act”) or the Water Use Act to challenge site conditions or activities that conformed to the terms of a Mining Act permit and reclamation plan approved several years prior to the filing of the suit by the Illinois Department of Natural Resources (“IDNR”).  The case, Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., involved surface and underground coal mining operations in Clinton County, Illinois.  Because the plaintiff was not challenging the permit holder’s compliance with any permit terms, but instead was alleging that the permit terms do not comply with the Mining Act, the Court held that the citizen suit amounted to an untimely collateral attack on the permit that was barred under the Mining Act. Factual Background ... 7f47beab-09e6-462b-b9dc-fcad468934cb Fri, 17 Feb 2012 10:24:14 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Registration-Deadline-Loom-for-Companies-Seeking-New-gTLDs Companies that are considering whether to apply for a new generic Top-Level Domain (TLD) should keep in mind that the filing window will close in less than six weeks. March 29, 2012 is the last date for new users to register for the application process. This deadline is key as the Internet Corporation for Assigned Names and Numbers (ICANN)’s web-based TLD Application System (TAS) requires an applicant to first register prior to applying for a new TLD. There still is time to prepare and submit a successful application but it is in the best interest of potential applicants to avoid waiting until the last minute to initiate an application, as it is important to have adequate time built into the process in the event that unanticipated obstacles arise. Please note these deadlines: Registration Closes March 29th -- The March 29 registration deadline ... aec0921a-6765-4130-97bd-431ae83b89b4 Thu, 16 Feb 2012 14:59:17 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/California-and-the-USDOL-Stake-Out-Common-Ground-in-Focusing-on-Alleged-Misclassification-of-Employees-as-Independent-Contractors On February 9, 2012, the State of California and the U.S. Department of Labor announced that they have entered into a memorandum of understanding in order to combat misclassification of employees as independent contractors. In the view of the California Labor Commissioner, Julie A. Su, a recent amendment to the California Labor Code will play an important role in enabling new joint efforts "to attack the problems of the underground economy." The two new sections of the California Labor Code, which went into effect on January 1, 2012, increase civil penalties for employers engaging in willful misclassification of workers. In addition to significant monetary penalties,  violators are required to publicly post notice of the violation, and those advising employers to improperly misclassify their employees are exposed to joint and several liability.  Section 226.8(a) of the Labor Code provides that "[i]t is unlawful for any person or employer to engage in ... 4a117d58-b28f-4f1c-b648-f07c7d0121b4 Tue, 14 Feb 2012 15:33:43 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Department-of-Labor-Proposes-FMLA-Rule-on-Leave-for-Caregivers-to-Servicemembers-and-Airline-Flight-Crew-Employees The U.S. Department of Labor ("DoL") recently issued a Notice of Proposed Rulemaking ("Notice") that, among other things, would implement legislation that extended military caregiver leave under the Family and Medical Leave Act ("FMLA" or "the Act").  The proposed rule change also provides guidance as to a 2009 amendment to the FMLA that addressed FMLA coverage for airline flight crew employees.  Additionally, the proposed rule change addresses calculation of FMLA leave time under certain circumstances, defines key terms and phrases that were previously undefined, and provides substantial guidance to employers in the implementation of their leave policies.  Once the Notice is published in the Federal Register, interested parties will have sixty days in which to submit comments. Congress has enacted several amendments to the FMLA since 2008 (see prior alert), expanding the Act to allow a spouse, son, daughter, parent, or next of kin of a "covered servicemember" to ... ec6bad47-db25-44af-a344-970d96e34e46 Tue, 14 Feb 2012 17:23:14 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Inadequate-Documentation-Dooms-Cost-Realism-Evaluation In TriCenturion, Inc.; SafeGuard Services, LLC (Jan. 25, 2012), a case in which C&M represented one of the protesters, GAO sustained challenges to the agency’s determination that the awardee’s proposed labor costs were realistic in light of its technical approach, finding that the “inadequate” and “apparently incomplete” evaluation record, which the agency was unable to bolster through hearing testimony, failed to support the agency’s conclusions.  GAO also sustained challenges to the agency’s technical and past performance evaluations. 41d034a5-0bc0-4f33-b5e9-e063ad7c0aa0 Fri, 10 Feb 2012 15:07:37 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Bundeskartellamt-and-Public-Prosecutors-Jointly-Focusing-on-the-Prosecution-of-Bid-Rigging On 10 February, 2012 the Bundeskartellamt announced that it will strengthen its cooperation with the competition authorities of the Länder and public prosecutors in the framework of the prosecution of bid rigging. The announcement comes at the end of a week that already saw a set of meetings between stakeholders of these parties, and could herald a more rigorous institutionalized approach to the prosecution of conduct that is condemned under both German competition and criminal law. Background Under German law, bid rigging is deemed anti-competitive and can lead to the imposition of administrative sanctions (including fines) on the undertakings involved. It is also a criminal offense that can lead to prosecution of the individuals acting on behalf of the undertakings involved, with penalties of up to five years of imprisonment. Due to the number of institutions implicated (Bundeskartellamt and competition authorities of the Länder with regard ... 4789a581-c340-4435-885d-f571e8abb2d9 Fri, 10 Feb 2012 15:51:56 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/1368358 In Trident, LLC (Jan. 24, 2012), the SBA’s Office of Hearing and Appeals found that SBA area offices have no jurisdiction to review the substance of 8(a) mentor-protégé agreements or joint venture agreements if they have been approved by the SBA’s Office of Business Development before the “final award” of an 8(a) contract. OHA then reversed the size determination made by the area office because it had “no authority (or reason)” to repeat a review of the joint venture agreement for compliance. 8c209cf3-fde7-4700-a9a7-17b07fa675f9 Wed, 08 Feb 2012 13:20:01 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/This-Month-In-International-Trade-January-2012 THIS MONTH'S TOP FIVE DEVELOPMENTS 1) EU High Court Annuls Footwear Anti-dumping Duties On 2 February 2012, the Court of Justice of the European Union (CJEU) decided in a ground-breaking judgment that the European Commission was wrong not to consider claims of market economy treatment (MET) made by several Chinese footwear producers that were not among those sampled by the Commission in the context of an anti-dumping case. In case Brosmann Footwear (HK) and Others v. Council (C-249/10 P), several Chinese footwear companies obtained the reversal of the decision by the General Court of the European Union denying their action for annulment of Council Regulation (EC) No 1472/2006. The Council Regulation had imposed an anti-dumping duty on EU imports of certain footwear with uppers of leather originating from China and Vietnam. The Chinese companies in question had requested MET but due to ... 794c6101-041a-4390-b757-8652ad0f31f9 Wed, 08 Feb 2012 11:31:55 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Cyber-on-the-Hill President Obama in his State of the Union address warns of “the growing dangers of cyber-threats,” Congress presses ahead with cybersecurity legislation targeted for votes this month, and the SEC’s recent guidance identifies cyber threats as “material” risks for publicly traded companies.  At Crowell & Moring’s DC office on February 15, 2012, C&M’s David Bodenheimer will serve as moderator for the ABA’s “Cyber on the Hill” discussion featuring Rep. Jim Langevin (R.I.), Co-Founder and Co-Chairman of the House Cybersecurity Caucus, who will discuss the cyber threat’s effect on national and economic security, the path toward protecting national assets and promoting cybersecurity, and the role lawyers may play in this process. 13aa7d28-3642-4648-a4bc-2f5d59b03162 Tue, 07 Feb 2012 11:50:50 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/DOL-Issues-Long-Awaited-Final-Rules-For-Service-Provider-Compensation-Disclosures-Under-ERISA On February 3, the Department of Labor issued its long-awaited (and much delayed) final rules for service-provider compensation disclosures under ERISA Section 408(b)(2).  Although these rules do not, by their terms, apply to health and welfare plans, the Department has, as discussed below, confirmed in this issuance that they intend to issue comparable rules on the health and welfare side, and there is reason to believe that many of the concepts in the current rules will appear in any new health-and-welfare Section 408(b)(2) rules. Section 408(b)(2) requires the fiduciaries of an ERISA plan, among other duties, to ensure that their arrangements with their service providers are "reasonable" and that only "reasonable" compensation is paid for services.   Under these new rules, which replace (with some changes) interim final rules that were issued on July 16, 2010, an arrangement between a service provider and an ERISA plan will not be considered to ... be1c5639-6177-46a2-8473-de155eff2289 Mon, 06 Feb 2012 17:48:16 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Congress-Readies-Its-Cudgel-Expansive-New-Iran-Sanctions-Advance-Through-The-Senate President Obama issued a new Executive Order on Iran sanctions early on February 6, 2012. These sanctions, and two new General Licenses authorizing certain transactions with the newly designated financial institutions will be addressed in a forthcoming alert. On Thursday, February 2, the Senate Banking Committee unanimously approved the Iran Sanctions, Accountability and Human Rights Act, a new 61 page Iran sanctions bill which would dramatically expand the reach of current U.S. sanctions. Painting with broad strokes, the measure will reshape many of the carefully-tailored provisions in current U.S. law, requiring substantial new mitigating steps from companies – including potential divestment – to bring themselves into compliance. The bill would affect a range of industries – but primarily focuses on (re)insurance, banking, shipping, financial institutions, petroleum and petrochemical sectors. Amongst other measures, the bill expands the range of activities on which it will sanction foreign entities, makes U.S. parent ... 43969464-db3e-4488-aa92-2702f7f11056 Mon, 06 Feb 2012 12:49:34 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/C-M-Top-Ranked-Again C&M is pleased to announce that we have been recognized as “Group of the Year” in both government contracts and white collar by Law360. In its articles, Law360 commented that C&M “racked up an impressive range of victories for government contractors” and “the noteworthiness and frequency of its wins made it stand out as one of the most powerful white collar teams in the country.” 777c6dd8-d8cc-40ac-ac02-49d40c6bd8af Fri, 03 Feb 2012 11:26:01 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Second-Circuit-Weighs-in-Again-on-Class-Action-Waivers-in-Arbitration-Agreements On February 1, 2012, the United States Court of Appeals for the Second Circuit reconfirmed two prior decisions that class action waivers in certain arbitration provisions applied to antitrust disputes are unenforceable.  These waivers require arbitration to be conducted on an individual rather than class-wide basis.  The decision is significant because it follows two recent United States' Supreme Court rulings in which class action waivers were upheld, each of which required the Second Circuit to review its initial ruling that rejected the enforceability of the class action waivers.  The Second Circuit explained that the Supreme Court decisions did not declare all class action waivers either per se enforceable or per se unenforceable.  Rather, the Second Circuit emphasized that the enforceability of class action waivers would depend upon the particular facts in each case and that plaintiffs had to demonstrate effectively "that their claims cannot reasonably be pursued as individual actions." ... cf1a416b-eb05-4750-9608-adcb871df5f2 Fri, 03 Feb 2012 15:52:45 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/DCAA's-Use-of-a-Statistically-Invalid-Analysis-for-Testing-Compensation-Reasonableness The ASBCA in J.F. Taylor, Inc. (Jan. 18, 2012) rejected DCAA’s disallowance of executive compensation, based primarily on the credibility of differing expert opinions. The board concluded that the standard DCAA analysis relying on a “rule of reason” that permits compensation within 10% of the 50th percentile of an unweighted average of multiple surveys with different sample sizes is statistically invalid, at least in part because the contractor’s expert was credible and the government’s, who had included in his resume what was arguably a mail order PhD from a South African “university,” was not. 2957f031-36fa-4e20-aef8-8ced2448976b Fri, 09 Mar 2012 11:18:36 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NLRB-Clarifies-Its-Position-Regarding-Employees'-Social-Media-Usage On January 24, 2012, the National Labor Relations Board (“NLRB” or “Board”) Acting General Counsel, Lafe Solomon, released a new Report of the Acting General Counsel Concerning Social Media Cases (“Report”). The Report summarizes the NLRB’s recent handling of fourteen charges involving employers’ social media policies and the discipline issued to employees under those policies. Highlighting the NLRB’s continued focus on what Mr. Solomon acknowledges is a “hot topic” in labor and employment law, the Report updates his prior August 2011 analysis. The new Report expands on a number of trends discussed in the August 2011 report regarding the manner in which the NLRB is approaching these cases. Most notably, the Board found, for the first time, two employer social media policies that, on their face, did not violate the National Labor Relations Act (“NLRA”). Additionally, the Report announces what appears to be a new hybrid test for determining whether an ... dc757700-c87b-41e4-820f-7bfc16a02e04 Thu, 02 Feb 2012 16:29:58 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Inconsistent-Statute-of-Limitations-Decisions-Or-Not In The Boeing Co. (Jan. 6, 2012), the ASBCA dismissed a government claim on the ground that the CO’s final decision was barred by the statute of limitations because it was not issued within six years of the CO having knowledge of the existence and amount of the claim. In contrast, the Fifth Circuit a week later held in U.S. v. Renda Marine, Inc., that a government suit against a contractor to enforce a final decision that the contractor did not appeal was timely because it was brought within six years of the issuance of the final decision, even though the underlying cause of action arose more than six year before the litigation began, on the ground that what was at issue was the enforcement of the final decision, not the merits of the underlying claim, which the contractor had not contested. a6c2f125-de94-44f6-b1a7-566f260a75d6 Wed, 01 Feb 2012 12:00:20 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Will-Cyber-War-Come-to-a-Contract-Near-You Cyber war has arrived: Sec. Panetta warns of a "digital Pearl Harbor," the Stuxnet cyber missile penetrates Iran's Bushehr nuclear facility, and cyber attacks shut down power grids in other countries, as discussed in David Bodenheimer's article "Cyberwarefare in the Stuxnet Age: Can Cannonball Law Keep Pace with the Digital Battlefield?" in the ABA's SciTech Lawyer. Focusing on what cyber warfare means for the private sector, this article explains how government contractors supporting offensive or defensive cyber operations (or even just standing by) face unprecedented and potentially ruinous legal liability for cyber weapons gone awry, multi-billion-dollar class actions for assisting federal agencies in authentication efforts to track down covert cyber adversaries, and huge economic losses when private information networks must be disconnected, shut down, or disabled due to foreign cyber infections or botnets, leaving the private sector to ask who foots the bill. e4d20485-efca-4dcf-a071-912b14bb5ef3 Tue, 31 Jan 2012 17:04:35 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Recent-Developments-In-EU-Export-Controls-And-Sanctions The reform of EU export controls continues with the introduction of new EU General Export Authorizations for dual-use exports, and EU sanctions regimes regarding Iran and Syria are expanding quickly. New EU General Export Authorizations for Dual-use Items Exporters of dual-use items established in the EU now have expanded possibilities for simplified compliance under new EU General Export Authorizations ("GEAs"). Regulation 1232/2011 entered into force on 7 January 2012 and amended Regulation 428/2009, adding five new GEAs.  The new GEAs liberalise the export of certain dual-use items (also controlled by the Wassenaar Arrangement) to Argentina, Croatia, Iceland, South Africa, South Korea and Turkey (EU002), exports after repair/replacement of certain items to a broad range of countries (i.e. for goods re-imported in the EU for repair or replacement after an initial export under a valid ... 50cda38a-90f1-47f4-bafd-73d74453ab85 Tue, 31 Jan 2012 18:02:37 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/New-Jersey-Adopts-the-Uniform-Trade-Secrets-Act On January 9, 2012, Governor Chris Christie signed into law the New Jersey Trade Secrets Act ("NJTSA"), which is modeled after the Uniform Trade Secrets Act ("UTSA").  New Jersey joins 45 other states and the District of Columbia in enacting a trade secret statute modeled on the UTSA. The NJTSA generally follows the UTSA, but with a few key differences. The NJTSA defines a "trade secret" more broadly than the UTSA, and extends protection to various other forms in which trade secrets can exist, including a "design, diagram, drawing, invention, plan, procedure, [or] prototype." The NJTSA augments, rather than displaces, New Jersey common law remedies for misappropriation of a trade secret. The NJTSA is silent as to whether courts must seek uniformity with other states applying the UTSA.  ... 8db39af9-f61f-4813-b55c-1fab94b05069 Mon, 30 Jan 2012 14:38:15 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/IR-D-Reporting-Requirements-Reinstated In a final rule published today, the DFARS were amended to reinstate a requirement that was eliminated from the regulations in the early 1990s, providing that as a condition of allowability for Independent Research and Development (IR&D) costs, major contractors must submit to DoD at least annually technical descriptions of the IR&D projects that the contractor claims as allowable. In response to criticism of a draft regulation proposing a $50,000 coverage threshold, the final rule limits mandatory reporting to “major contractors” that allocate more than $11 million annually to “covered contracts” (a term that excludes fixed-price contracts without cost incentives), leaves largely to the contractor’s discretion how much detail needs to be reported in the on-line template through which the reports must be submitted, encourages voluntary reporting by contractors not subject to the mandatory requirement, and promises that the reports will be exempt from disclosure under the Freedom of Information Act. ... c1b34b5c-3d6d-44de-b484-37ef4a7a7cc2 Mon, 30 Jan 2012 10:03:11 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Circuit-Court-Reinforces-That-Neither-Lack-Of-Novelty-Nor-Ability-To-Reverse-Engineer-Are-Defenses-To-Trade-Secret-Misappropriation Although trade secrets and patents are both means to protect ideas, the Eighth Circuit’s recent decision in AvidAir Helicopter Supply v. Rolls Royce Corp., __ F.3d __ (Dec. 13, 2011),  confirmed that they are still fundamentally different bodies of law. AvidAir reinforces two important facets of the law of trade secrets in UTSA jurisdictions:  (1) novelty is not a requirement for trade secret protection and (2) the fact that a trade secret can be reverse engineered does not absolve unlawful misappropriation. Corporations and individuals whose businesses involve confidential information obtained from outside sources should take note. The dispute in AvidAir involved Distributor Overhaul Information Letters (“DOILs”), which were compilations of specifications necessary for helicopter engine overhaul. Only Rolls Royce and its licensees had authorized access to the most current DOIL for their Model 250 helicopter engines. AvidAir obtained a copy of that DOIL without Rolls Royce’s permission and ... 3a408081-c2ad-41df-a8d6-5fc775269f56 Fri, 27 Jan 2012 14:52:03 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/FTC-Proposes-Changes-to-Rules-Governing-Investigatory-Procedures-Primarily-to-Address-Issues-Regarding-Electronically-Stored-Information On January 13, 2012, the Federal Trade Commission announced a number of proposed changes to Parts 2 and 4 of the Commission’s Rules of Practice governing its investigatory process, “[e]specially in response to growing reliance upon and use of electronic media in document discovery.”  Given the challenges posed by the routine discovery of large, non-uniform, broadly dispersed volumes of electronically stored information (“ESI”), the Commission expressed its interest in making its “procedures more efficient and less burdensome for all parties.”  It claims the proposed changes will “expedite investigatory processes” and “keep pace with technology.”  In many ways, the recognized need for reform of the Commission’s investigatory process is likely welcomed by lawyers and parties involved in Commission investigations.  For example, some may argue that the Commission historically has been hesitant to recognize the effectiveness and efficiencies that can result from advanced technologies used in modern e-discovery.  The introduction ... eb722d9d-f4ba-4f49-8c31-f98f2c481945 Thu, 26 Jan 2012 11:52:36 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/CFC-Weighs-in-on-Timeliness-of-OCI-Protest In a case of first impression for the Court of Federal Claims and a victory for C&M, which represented the intervenor, the court concluded in CRAssociates v. U.S. (Dec. 23, 2011) that the protestor waives an organizational conflict of interest challenge when it (1) knows that a firm intends to compete, (2) knows the facts giving rise to an OCI concern, (3) notifies the agency of the OCI concern, (4) receives an indication that the agency will not take any remedial action, and (5) fails to file a pre-award challenge to the agency’s decision. The court’s analysis is generally consistent with GAO precedent. d15621d6-548c-41c0-ba22-6d986f099208 Thu, 26 Jan 2012 16:19:34 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Collyer-Lite-NLRB-Announces-Limitation-on-Collyer-Deferral On January 20, 2012, the Acting General Counsel for the National Labor Relations Board (“NLRB” or the “Board”) issued a new policy Memorandum regarding the investigation and resolution of unfair labor practice charges in the context of workplace disputes arising under a collective bargaining agreement. The new policy places limitations on Collyer deferral, the decades-old policy pursuant to which the Board defers resolution of unfair labor practices charges when a grievance has been filed and is being processed in accordance with contractual arbitration procedures.  In an 11-page Memorandum, the Acting General Counsel issued a time limitation on Collyer deferrals, noting that excessive delays often rendered “enforcement of a Board order ‘pointless and obsolete.’” The Memorandum raised concerns that multi-year delays caused by the arbitration process interfered with the enforcement of statutory rights, as evidence becomes more and more difficult to gather with the passage of time. Furthermore, the Memorandum noted, changing ... f52cfecf-8416-4a9f-8d06-25b031845d54 Thu, 26 Jan 2012 18:21:42 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/FTC-Increases-HSR-and-Section-8-Thresholds The Federal Trade Commission announced today that it would increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product. The HSR Act requires that certain large transactions be notified prior to their consummation. This year, the minimum "size-of-transaction" threshold for reporting mergers and acquisitions will increase from $66.0 million to $68.2 million. In addition, the "size-of-person" thresholds, the filing fee thresholds and the thresholds applicable to certain exemptions will also increase. These revisions will become effective thirty days after their publication in the Federal Register. The FTC also issued revised thresholds relating to the prohibition of certain interlocking directorates under Section 8 of the Clayton Act. Those revisions take effect immediately upon their publication in the Federal Register. ... 0226c407-618f-4421-8121-4968f76f3d0a Wed, 25 Jan 2012 16:36:31 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/FMLA-Protections-from-Interference-and-Retaliation-Extended-to-Pre-Eligible-Employees A recent decision from the Eleventh Circuit enlarges the pool of employees who may assert claims under the Family and Medical Leave Act (“FMLA”).  In Pereda v. Brookdale Senior Living Communities, Inc., the Eleventh Circuit extended protection from interference and retaliation to certain employees who are not yet eligible for leave under the FMLA. The court found such protection applies to employees who requested, and will be eligible for, FMLA leave by the time that the requested leave is scheduled to begin. The Eleventh Circuit also followed the Sixth Circuit in concluding that an employee’s request for FMLA leave constituted protected activity under the FMLA’s retaliation provision, regardless of whether the request is made before or after the employee is eligible to take it. In light of this case, employers should assume that employees who are not yet eligible for FMLA leave may nonetheless assert meritorious FMLA claims in the ... 1c66ca9a-d1c0-4002-a064-304424ab6fef Tue, 24 Jan 2012 12:33:43 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NAFI-Contractor-Goes-Straight-to-Court-When-CO-Fails-to-Issue-Final-Decision In SUFI Network Servs., Inc, v. U.S. (Jan.17, 2012), the Court of Federal Claims denied the government’s motion to dismiss for lack of jurisdiction, relying on the Federal Circuit’s decision in Slattery v. U.S., 635 F.2d 1298, 1321 (Fed. Cir. 2011) (en banc), that the court has Tucker Act jurisdiction over all NAFI disputes. The court also found, in this non-CDA matter, that the CO had materially breached the contract’s Disputes clause by failing to provide a final decision on SUFI’s claim within a reasonable time, excusing SUFI from going to the board first, as the clause specified. f882307a-79cf-4de0-b738-c91bf7728eda Fri, 20 Jan 2012 15:24:43 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Recent-Guidance-For-The-Protection-of-Intellectual-Property-Rights-at-The-EU-Border In December 2011, the Court of Justice of the European Union (CJEU) provided practical guidance regarding the application of the EU legislation for customs action against goods suspected of infringing certain intellectual property rights (IPR) which are not yet cleared for free circulation in the EU1. While rejecting recourse to a general possibility of fraudulent diversion, the Court made clear that national customs officials can detain goods suspected of infringing IPR without necessarily having proof that the goods have already been sold or advertised to EU consumers, as long as there are indications that that is about to happen or that an operator is disguising its commercial intentions.  In proceedings before national courts, however, there must be proof of a sale, offer for sale or advertising to EU consumers, or documentation showing that diversion to EU consumers is envisaged, in order for the judge to be able to conclude ... 7edfa613-ad94-4a18-84c8-0ad81df705f4 Thu, 16 Feb 2012 15:57:13 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/CAS-PPA-Harmonization-Rules Below an analysis of the recently published changes to the Cost Accounting Standards (CAS) required by the Pension Protection Act (PPA) provisions concerning "harmonization" of CAS and PPA. The analysis, prepared jointly by Crowell & Moring and John McQuade and Jim Buss at Pine Cliff Consulting, two of the leading actuarial experts on Government contracting rules for pensions costs, summarizes the significant changes in the CAS rules about accounting for defined-benefit pension costs, identifies the issues created by the new rules, and suggests practical strategies for addressing those issues. Background In 2006, Congress enacted the Pension Protection Act ("PPA").  The primary thrust of PPA was to address underfunding of defined benefit pension plans by increasing minimum funding requirements.  PPA took effect in 2008 for most plan sponsors but was delayed until 2011 for a handful of the largest defense contractors.  Recovery of pension costs under ... 121d8d82-e317-4f85-9387-ab9abd2ab996 Thu, 19 Jan 2012 16:38:53 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Federal-Court-Rejects-Expansive-Interpretation-of-Criminal-Liability-Under-Migratory-Bird-Treaty-Act In a decision with broad implications, a federal judge in North Dakota recently dismissed three criminal cases brought under the Migratory Bird Treaty Act by the federal government as part of a targeted enforcement action on the "North Dakota oil patch."  See United States v. Brigham Oil & Gas L.P., -- F. Supp. 2d --, 2012 WL 120055 (D.N.D. Jan. 17, 2012).  The federal government argued that the Migratory Bird Treaty Act should be broadly interpreted to impose criminal liability for actions that indirectly result in a protected bird's death.  The U.S. District Court for the District of North Dakota rejected this sweeping interpretation of the Act and dismissed criminal Informations filed against three oil and gas companies on whose properties protected birds had allegedly been found dead.  The court's reasoning is applicable to numerous legal activities that may indirectly kill migratory birds, including oil and gas activities, wind energy ... e4c714be-d86e-4945-b8de-c0aa2078ff84 Thu, 19 Jan 2012 10:42:53 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Congress-Enacts-Appropriations-Restriction-Relating-to-Felony-Convictions As is discussed in more detail in a blog posting, the recently enacted Consolidated Appropriations Act of 2012 includes provision in five of the nine individual bills covered in the Act prohibiting the use of funds “to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to, any corporation” with a felony conviction within the preceding 24 months, unless the agency has considered suspension or debarment and made a determination that no further action is necessary. This provision is almost sure to create uncertainty because Congress did not create a uniform standard, but instead included language in only certain individual appropriation acts, with substantial variances between the different provisions (e.g., some provisions only apply if the corporation is convicted while other also include officers or agents of the corporation). 24a6747c-4702-41b0-a6cf-d5ea1cdfadc8 Tue, 17 Jan 2012 15:37:27 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/2011-Top-Ten-Intellectual-Property-Copyright-Cases-Crowell-Moring What are the trends that will impact copyright owners in 2012? To answer that question, we start by taking a look at what we believe are the top 10 most significant cases from 2011. Understanding the drivers behind these cases will be crucial to devising your IP strategy for the coming year. Here's what you need to know. 1) John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210 (2d Cir. 2011). In a case likely to be taken up by the Supreme Court, the Second Circuit held that the First Sale Doctrine does not apply to foreign-produced works. The "first sale doctrine" permits the owner of a lawfully purchased copy of a copyrighted work to resell the work without limitation. Although the first sale doctrine was originally "created" by the Supreme Court in Bobbs-Merrill Co. v. Strause, 210 U.S. 339 (1908), it is now codified in ... 745a7c87-272c-4a61-bbf7-0790a041acad Thu, 12 Jan 2012 18:05:07 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NLRB-and-FINRA-Signal-Federal-Push-To-Create-A-Right-for-Employees-To-Pursue-Collective-Litigation-Regardless-of-Arbitration-Agreements Two major regulatory agencies have signaled a government-wide effort to provide employees with a right to pursue collective and class litigation in court proceedings regardless of governing arbitration agreements.  In a highly anticipated decision on January 3, 2012, D. R. Horton, Inc., Case 12–CA–25764, the National Labor Relations Board ("NLRB" or "Board") held that employee arbitration agreements must permit employees to pursue joint, collective, and class litigation workplace grievances through judicial proceedings.  This decision follows closely on the heels of a December 23, 2011 proposed rule change, FINRA 2011-75, by the Financial Industry Regulatory Authority (“FINRA”), that would preclude collective action claims from being arbitrated under the Industry Code.  Taken together, these developments demonstrate the growing preference of federal regulators for redirecting class and collective employee claims from arbitration to judicial proceedings.  Section 8(a)(1) of the National Labor Relations Act (“NLRA”) prohibits employers from interfering with employees’ Section 7 rights ... 5be25674-4ea3-4573-a089-c23508995373 Thu, 12 Jan 2012 18:14:25 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/90-Day-Filing-Window-Opens-for-New-Internet-Top-Level-Domain-Applications As has been widely reported by the mainstream media, the Internet Corporation for Assigned Names and Numbers (ICANN) began accepting applications for new generic Top-Level Domain names (TLDs) on January 12, 2012. No longer will you see only .com, .net, or .org at the end of most web addresses. Now, as a result of the new TLD program, you will also see hundreds of new web suffixes. The consequences may prove significant, and any company with an Internet presence should be aware of the opportunities, challenges and risks. A company would be well advised to consider: Would a new TLD help (re)shape our online presence and capabilities? How does a new TLD fit into plans for expansion and growth?  How may competitors leverage common industry terms for use in their own ... 6e27fe3a-210b-4a88-81ae-d8d3e29806d5 Wed, 11 Jan 2012 14:37:18 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/USAID-Contracting In a final rule published yesterday (but not effective until February 6), USAID revamped its source, origin, and nationality rules applicable to procurement of goods and services purchased with Foreign Assistance Act (FAA) funds both to implement the 1993 amendments to the FAA and to keep pace with the globalized economy.  The new regulations adopt a single, presumptively authorized geographic code 937 (which includes the United States, the cooperating or recipient country, and developing countries, exclusive of advanced developing countries and prohibited sources) and eliminate the “increasingly obsolete and difficult to apply” origin requirement, while changing the definitions of source and nationality to ensure that “fly-by-night” entities cannot be set up somewhere within the authorized geographic region to evade the restrictions. c770e2b6-5c4e-4afb-bdec-23ab17a61b1d Wed, 11 Jan 2012 18:11:44 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/IRS-Issues-Updated-Guidance-on-Mandatory-Form-W-2-Informational-Reporting-of-Employer-Sponsored-Health-Coverage On January 3, 2012, the Internal Revenue Service ("IRS") issued Notice 2012-9 ("Notice"), which amends and restates the interim guidance initially provided to employers in Notice 2011-28 regarding the new Form W-2 reporting requirement for employer-sponsored group health coverage. This requirement was added to the Internal Revenue Code ("Code") by the Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-149 ("Affordable Care Act"). The IRS states in Notice 2012-9 that it will continue to consider comments submitted regarding Notice 2011-28 as it works toward issuing additional guidance (including regulations). Notice 2012-9 modifies some of the Q&As provided in Notice 2011-28 and also provides additional guidance through new Q&As. Background Regarding the Affordable Care Act and the New Form W-2 Reporting Requirement Section 6051(a) of the Code generally requires that an employer provide a written statement to each employee on or before January 31st ... 987ee5dc-f3ca-4364-8b09-df2162daef21 Mon, 09 Jan 2012 17:48:57 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/This-Month-In-International-Trade-December-2011 THIS MONTH'S TOP FIVE DEVELOPMENTS 1) Landmark CAFC Decision Invalidating Applicability of countervailing duty law to Non-Market Economies. In GPX International Tire Corporation v. United States (Dec 19, 2011), the U.S. Court of Appeals for the Federal Circuit (CAFC) determined that the Department of Commerce (DOC) lacked statutory authority to apply countervailing duty (CVD) law, i.e., anti-subsidy law, to non-market economies (NMEs), including China. Specifically, the CAFC noted that when amending and reenacting CVD in 1988 and 1994 Uruguay Round Agreements Act, Congress was aware of and legislatively ratified the DOC's then position that government payments cannot be characterized as "subsidies" in a non-market economy context and that CVD law accordingly did not apply to NME countries. While GPX will have a considerable impact on trade remedies in the U.S., any immediate changes to pending investigations or current orders seem unlikely. Additionally, the parties may ... 301b9740-fd57-45d3-b9b0-e744ad827181 Mon, 09 Jan 2012 10:56:02 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Sole-source-Acquisition-Turn-Square-Corners-or-Sit-on-Sideline The Federal Circuit in Digitalis Educ. Solutions, Inc. v. U.S. (Jan. 4, 2012) emphasized that a company wanting to protest must itself satisfy the stipulated process. In this case, the company lost its right to complain of a sole-source award to a competitor because it did not routinely check FedBizOpps, where the agency published a notice of the proposed award, or submit its own statement of capability to show it could do the job, as the notice in FedBizOpps required. d1eade4b-d84c-48cc-8f3d-6da9a2470fbb Thu, 05 Jan 2012 10:29:28 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/New-DOT-Regulations-Require-Commercial-Truckers-to-Hit-the-Breaks The U.S. Department of Transportation's Federal Motor Carrier Safety Administration ("DOT") recently issued a final rule that revises the hours-of-service ("HOS") safety requirements for commercial truck drivers ("HOS Rule").  The new HOS Rule, which goes into effect on July 1, 2013, reduces the maximum number of hours that a driver of a commercial motor vehicle ("CMV") can work within a week from 82 hours to 70 hours.  The HOS Rule also prohibits truck drivers from driving more than eight hours without taking a  break of at least thirty minutes.  The HOS Rule retains the existing eleven-hour total daily driving limit.  Finally, the HOS Rule makes several changes to the "thirty-four hour restart" provisions that allow truck drivers to restart the calculation of their work week by taking at least thirty-four consecutive hours off work.  Truck drivers will, upon the effective date, only be able to use the thirty-four hour restart ... 77cb6f09-7278-4c1a-891a-6ef1c85a6393 Thu, 05 Jan 2012 16:08:40 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Executive-Compensation-Limits-Expanded Section 803 of the National Defense Authorization Act of 2012, signed by the President on December 31, 2011, expands the existing limit on "senior executive" compensation to cover all employees and purports to apply the new allowability limitation effective January 1, 2012, to existing contracts, although "the Secretary of Defense may establish one or more narrowly targeted exceptions for scientists and engineers upon a determination that such exceptions are needed to ensure that the Department of Defense has continued access to needed skills and capabilities." The most recent cap published by the Office of Federal Procurement Policy was $693,951 for 2010 (no cap was published in 2011, apparently for political reasons), so as a practical matter the expansion of the cap to all employees is likely to have limited impact, but the provision purporting to apply the new limit to existing contracts is almost certainly unenforceable. 1299ef35-c6af-4611-9308-fa9082624faa Tue, 03 Jan 2012 11:51:03 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Contractors-Can-Review-and-Object-to-Public-Release-of-Information-in-FAPIIS On January 3, 2012, the FAR Council issued a final rule to implement a congressional mandate that the public have access to all information (excluding past performance reviews) in the Federal Awardee Performance and Integrity Information System ("FAPIIS"), which was created in 2010 as a one-stop shop for contracting officers to review information about contractors' business ethics, integrity, and performance.  In response to concerns raised about the disclosure of a contractor's proprietary and confidential information, the final rule added a requirement that contractors be given a seven-calendar-day review period to object to the public release of information on the grounds that such information is exempt from disclosure under FOIA. c9643450-b036-41ea-872b-0c852d8038f0 Thu, 29 Dec 2011 10:45:01 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NASA-Pushes-FAR-Far-Away-for-Commercial-Crew-Program In a recent report, GAO questioned whether NASA could ensure adequate price competition using a FAR-based acquisition approach for its Commercial Crew Program because, according to the GAO, substantially reduced funding would jeopardize NASA’s plan to award multiple contracts for the program’s integrated design phase.  NASA concurred, and on December 15, 2011, announced that it would abandon using FAR-based contracting for the next stage of the program and instead would rely on “multiple, competitively awarded Space Act Agreements” to foster competition and give NASA “the flexibility to adjust technical direction, milestones and funding” in order to decrease reliance on foreign governments for sending Americans into space. cc3249f3-52ab-4bb0-814c-03c731871be0 Wed, 28 Dec 2011 15:48:06 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Congress ProposesChanges-to-Technical-Data-Rights-Statutes The National Defense Authorization Act for Fiscal Year 2012, presently before the President for signature, includes a number of important procedural and substantive changes to the treatment of technical data rights.  For example, in addition to lengthening the time period for which the U.S. can challenge a contractor’s assertion of a technical data use or release restriction from 3 to 6 years, the bill would also permit the U.S. to release or disclose technical data outside the government if such release or disclosure “is necessary for the segregation of an item or process from, or the reintegration of that item or process (or a physically or functionally equivalent item or process) with, other items or processes[.]” 490b194b-ff05-4b02-ab67-f0075721f1d1 Tue, 27 Dec 2011 12:31:39 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Private-Plaintiffs-May-Assert-Common-Law-Claims-In-Securities-Related-Litigation-Under-New-York-Law New York's Court of Appeals ruled on December 20, 2011 that private plaintiffs, such as investors, can assert common law claims such as fraud, breach of fiduciary duty and gross negligence in securities-related litigation.  The ruling is significant because it settled the issue that New York's blue sky statute, known as the Martin Act, does not preempt common law claims where the claims have a legal basis independent of the statute.  As a consequence, plaintiffs will now have greater opportunity to assert common law claims under New York law in connection with investor or securities disputes.  Click for a PDF of the decision: Assured Guaranty (UK) Ltd. v. J.P. Morgan Investment Management Inc. Under the Martin Act, New York Attorney General has the exclusive responsibility for investigating and enjoining "fraudulent practices in the marketing of stocks, bonds and other securities within or from New York."  While the Martin Act ... ddc518bf-bda0-47e2-8d0e-0256d899bf78 Thu, 22 Dec 2011 16:02:09 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NLRB-Issues-Final-Rule-On-Quickie-Elections The National Labor Relations Board ("Board") has just issued, and published in the Federal Register, its "Final Rule" substantially reducing the time frame for the holding of union representation elections after the filing of the petition for election.  The Final Rule is to become effective April 30, 2012. The changes contained in the Final Rule are identical to the changes described in the “Resolution” adopted by the Board on November 30, which are set forth in our Alert of December 6.  As we informed in the Alert, under the Final Rule, union representation elections will, except in the rarest of circumstances, be required no later than twenty-five days after the filing of the petition, and could be as soon as fifteen days after the filing. Issuance of the Final Rule at this time was expected, as enactment required approval of a majority of the Board (two of the ... 7d950def-1ee6-4a51-b4f2-7b893648385f Thu, 22 Dec 2011 15:00:02 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/NHTSA-Proposes-New-Rules-To-Address-Keyless-Ignition-Safety On December 12, 2011, the National Highway Traffic Safety Administration (NHTSA) issued a notice of proposed rulemaking seeking to address safety issues relating to keyless ignition controls. The notice reportedly stems from vehicle owner complaints to NHTSA that have arisen in three situations: one, the driver's inability to power down a moving vehicle when he or she was panicking, for example, when the brakes failed; two, the vehicle rolling away because the driver turned off the propulsion system, but did not put the vehicle into "park"; and three, the driver exiting a vehicle, but unintentionally leaving it running. The complaints NHTSA reviewed highlighted the risks of crashes, and in the third situation, dangers associated with carbon monoxide. In response to these concerns, NHTSA's proposed new rules contain a number of new requirements for vehicles with keyless ignition systems, including: Controls that ... 7b5fc171-ba47-405c-b4bc-467703d4306f Wed, 14 Dec 2011 15:13:32 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/Sea-Change-in-OFCCP-Disability-Regulations-Would-Mean-Increased-Turbulence-for-Contractors On December 9, 2011, the Office of Federal Contract Compliance Programs (OFCCP) issued a Notice of Proposed Rulemaking (NPRM) that would revise the affirmative action and nondiscrimination obligations of federal contractors and subcontractors (collectively "Contractors") regarding individuals with disabilities. These proposed regulatory changes, which the Director of the OFCCP described as a "sea change" in OFCCP's enforcement of the obligations imposed on Contractors under Section 503 of the Rehabilitation Act, would impose a seven percent "utilization goal" for individuals with disabilities, substantially increase Contractors' data collection and analysis obligations, and mandate prescribed outreach efforts. The proposed changes, if enacted, would dramatically expand Contractors' obligations with respect to individuals with disabilities, and the time and expense required to meet these obligations. Highlights of the NPRM include the following: A nationwide, across-the-board seven percent "utilization goal" for individuals with disabilities, similar to the ... efa5cfc5-2d40-40d5-b810-fac74e5d11c0 Fri, 09 Dec 2011 11:54:16 GMT http://www.crowell.com/NewsEvents/AlertsNewsletters/all/General-Court-Confirms-Commission-Decision-Not-To-Investigate-Cartridge-Market-For-Ink-Jet-Printers On 24 November 2011, the General Court of the European Union ("GC") in Luxemburg confirmed a decision of the European Commission ("Commission") not to open a formal antitrust investigation against Hewlett Packard, Lexmark, Canon and Epson. The case is interesting because, inter alia, the court had to assess whether competition on the primary market might exclude the finding of dominance on the consumables market and under which conditions.  The decision of the GC marks the (temporary) end to the long lasting attempts by the European Federation of Ink and Ink Cartridge Manufacturers ("EFIM") and certain ink manufacturers to induce the Commission to open up the markets for ink and ink cartridges for ink jet printers. EFIM has, however, two months to appeal against the GC's decision. Background: Since March 2000 Pelikan, an ink manufacturer, and subsequently EFIM had brought several complaints to the Commission alleging first that Hewlett ...