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Latest from Fox Rothschild LLP

On December 28, 2018, the D.C. Circuit Court of Appeals issued an opinion in the Browning-Ferris case. In this much anticipated decision, the Court of Appeals concluded that the National Labor Relations Board’s decision to enumerate a new joint employer test was a valid exercise of its authority. The Court of Appeals held, however, the NLRB failed to properly apply the newly created test. Consequently, while the Court of Appeals didn’t completely abrogate the NLRB’s…
By Memorandum Opinion entered by The Honorable Maryellen Noreika in ANI Pharmaceuticals, Inc. v. Method Pharmaceuticals, LLC et al., Civil Action No. 17-1097-MN (D.Del. January 11, 2019), the Court granted-in-part Defendants’ Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(2) or, in the Alternative, Transfer Venue to the extent that it sought to transfer the action from the District of Delaware to the Northern District of Texas. The Court denied the portion of Defendants’…
The California appellate court ruling which dismissed actress Olivia de Havilland’s suit against FX’s Feud will remain in place after the U.S. Supreme Court rejected de Havilland’s petition for review last week. The now 102-year-old actress best known for roles in Gone With the Wind and The Adventures of Robin Hood, de Havilland alleged that FX’s depiction of her in the Emmy-award-winning docudrama Feud infringed her right of publicity and portrayed her in a false…
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Way back in 2017, the SEC obtained an emergency asset freeze against an internet-based ICO involving certain Canadian residents, who had raised over $15 million on a variety of social media sites through an alleged fraudulent scheme. http://www.sec.gov/litigation/complaints/2017/comp-pr2017-219.pdf. At the time, it made major news and helped launch the SEC’s Cybersecurity Unit.  Of course, there have been many other actions since that time, but this action demonstrates that, with technology, it is impossible to ignore the potential for cross-border fraud.  Essentially, do…
Fines
Over the last several months, there has been an increase in questions from registered investment advisers relating to using hypothetical performance information.  Generally, the use of such information is fraught with danger as well as SEC scrutiny.  Not so long ago, the SEC went after a number of investment advisers and forced them to pay a total in fines, interest, and disgorgement of nearly $10 million.  See  https://www.sec.gov/litigation/admin/2017/33-10443.pdf; https://www.sec.gov/litigation/admin/2017/34-82244.pdf; and https://www.sec.gov/litigation/admin/2017/ia-4823.pdf. The SEC complained that these advisers did…
A number of new requirements for California settlement and separation agreements took effect on January 1, 2019. Two of them stem from the #MeToo movement. These are: Assembly Bill (AB) 3109 prohibits language in contracts or settlement agreements that bars anyone from testifying in administrative, legislative or judicial proceedings concerning alleged criminal conduct or sexual harassment. I think that those provisions would have been void under prior law, but there’s no doubt that they’re void…
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The government shutdown, which is now in its fourth week, is causing a backlog of cases that will need to be reviewed by the Committee on Foreign Investments (“CFIUS”) once the government reopens. CFIUS is an interagency committee chaired by the Secretary of the Treasury, which reviews certain transactions involving foreign investment in the Unites States in order to determine the effect of such transactions on national security. The shutdown will ultimately cause a delay…
GDPR Compliance
A medical center contracted by an insurance company to provide examinations and studies to individuals covered by insurance may be a “data controller” under the EU General Data Protection Regulation (GDPR) says the Commission for the Protection of Personal Data of Bulgaria. The CPPD determined that in the case before it, the medical center was a data controller and not a “data processor” because: The processing of personal data in connection with the carrying out…
Following news of the federal Judiciary’s imminent shutdown earlier this month, the government branch now estimates that it has sufficient funding to stay open through January 25, 2019. The delayed closure comes as a result of strong efforts to reduce spending and conserve resources so that court operations can function as long as possible, while the rest of the federal government is subject to the shutdown.  While non-essential travel and hiring has been deferred,…
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The Internal Revenue Service announced today that it will waive the estimated tax penalty for many taxpayers whose 2018 federal income tax withholding and estimated tax payments fell short of their total tax liability for the year. The IRS is generally waiving the penalty for any taxpayer who paid at least 85 percent of their total tax liability during the year through federal income tax withholding, quarterly estimated tax payments, or a combination of the…