Breaking the News: Disclosing Data Breaches and Withstanding Regulatory Scrutiny Breached companies are often crime victims, but they are also potential targets for regulatory actions (and, as we will discuss in future installments, potential parties to a wide range of litigation) ...
On February 21, 2014, the Federal Circuit’s 6-4 majority en banc ruling in Lighting Ballast Control vs. Philips Electronic North America retained the standard of de novo appellate review of district court claim construction rulings, whereby the scope of the patent grant is reviewed as a matter of law ...
In an opinion that could substantially affect future controlling-shareholder buyouts, the Delaware Supreme Court on Friday affirmed the Chancery Court’s decision that the business judgment standard of review, rather than entire fairness, should apply to controlling-party takeovers where it is established before trial that certain protections exist. Background The suit stemmed from Ronald Perelman’s going-private buyout of M&F Worldwide Corp. (“MFW”), a company he controlled ...
Criminal Referrals When a company falls victim to a damaging cyber attack or suffers a theft of sensitive data or intellectual property, the incident very well may fall within the ambit of one or more criminal statutes designed to deter and punish perpetrators with the prospect of jail time, financial penalties and restitution. Under appropriate circumstances, the company should give serious consideration to making a referral to law enforcement as part of its response strategy ...
The Firestorm: Civil Litigation and Class Actions Following a Cyber Incident As soon as your company has tangible evidence of a data breach, you must start thinking about what a lawsuit would entail, especially in light of the complexity of electronic evidence. In this installment of our special series, A Desk Guide to Data Protection and Breach Response, we discuss the firestorm of litigation that can arise following a breach and provide practical guidance for preparing for the worst ...
Confronted with three different standing tests applied by the Circuit courts to Lanham Act false advertising claims, the Supreme Court has answered the question of which test to apply: “None of the above.” In Lexmark International, Inc. v. Static Control Components, Inc., Slip op. March 25, 2014, Justice Scalia, writing for a unanimous Court, rejected each of the tests employed by the Circuits in favor of a “zone of interests” test ...
On March 26, 2014, the Securities and Exchange Commission (“SEC”) hosted a roundtable to discuss cybersecurity. The roundtable focused on how cybersecurity affects markets and how public companies and other businesses should address cybersecurity issues ...
What to Know When Pursuing Coverage For A Cyber/Privacy Breach During an investor conference call on Wednesday, February 26, Target CFO John Mulligan reported that the highest profile data breach of 2013 cost the retailer $61 million in out-of-pocket expenses during the fourth quarter, of which $44 million was covered by insurance ...
The Internal Revenue Service (the “IRS”) has temporarily suspended the issuance of private letter rulings on master limited partnership (“MLP”) “qualifying income” under Internal Revenue Code Section 7704(d) during the pendency of an internal committee review of existing rulings in that area ...
On March 21, 2014, the Division of Swap Dealer and Intermediary Oversight (“Division”) of the CFTC issued a no-action relief letter (the “2014 Letter”),1 to temporarily allow entities to deal in utility operations-related swaps, as defined in the 2014 Letter, without counting such swaps towards the “sub-limit” threshold for swap dealer registration with regard to such swaps ...
Beleaguered companies suffering from data breaches got more bad news when a federal judge held that the United States Federal Trade Commission (the “FTC”) has the authority to regulate corporate cybersecurity practices ...
Beleaguered companies suffering from data breaches got more bad news when a federal judge held that the United States Federal Trade Commission (the “FTC”) has the authority to regulate corporate cybersecurity practices ...
This paper is a virtual, international roundtable discussion of recent developments in environmental law, including developments pertaining to sustainability and energy development. The questions and answers include a discussion of recent greenhouse gas permitting developments in Texas, the role of sustainability in project development, measures for a corporation to take to become sustainable, hot issues in the environmental area, and the environmental impact of fracking. 4 ...
The D.C. Circuit recently expanded the scope of the False Claims Act’s first-to-file defense. See United States ex rel. Shea v. Cellco Partnership, __ F.3d __, 2014 WL 1294687 (D.C. Cir. April 11, 2014). The court concluded that this defense – which bars FCA suits based on facts related to a “pending action” – applies even after the first action is dismissed ...
Although a federal court recently ruled that the United States Federal Trade Commission (the “FTC”) has the authority to regulate data security practices, a clinical testing laboratory is arguing that the FTC’s regulatory authority does not extend to entities covered by the Health Insurance Portability and Accountability Act (“HIPAA”) ...
In recent years, one clause of the ISDA Master Agreement has been the source of a great deal of consternation among derivatives lawyers: the condition precedent set forth in Section 2(a)(iii), which purports to suspend a party’s payment obligations in the event of a continuing default by the other party ...
In a pair of unanimous decisions issued today, the United States Supreme Court has substantially lowered the bar for the prevailing party’s recovery of attorneys’ fees under § 285 of the Patent Act. 35 U.S.C. § 285 provides that a prevailing party may recover attorneys’ fees in an “exceptional case ...
Even if the parties determine that a proposed transaction is not subject to the requirements of the Hart-Scott-Rodino Antitrust Improvements Act (the “HSR Act”),1 the parties should take note of the recent activities and current views of agency staff regarding investigations of non-reportable transactions. Almost 20 percent of merger investigations opened by the Department of Justice (“DOJ”) between 2009 and 2013 related to non-reportable transactions ...
Texas operators and service companies need to carefully consider how a recent trend in Texas law affects the availability of insurance coverage - for themselves and their counterparties - for contractual liability. Most general liability policies, which insure claims for bodily injury and property damage, exclude coverage for liability assumed under a contract, unless the liability either exists in the absence of the contract or was assumed in a defined “insured contract ...
Mexico’s Senate received on April 30, the first round of the long-awaited secondary legislation to implement the constitutional energy reform effective last December. This first legislative package includes 9 new laws and modifies 12 existing laws. We anticipate that the package will be discussed and voted on during the extraordinary legislative sessions by the end of June. Below we list some of the highlights ...
The Federal Circuit today overruled a federal district judge and held that Oracle’s API computer source code qualifies for copyright protection, potentially breathing new life into Oracle’s billion-dollar lawsuit against Google. Oracle America, Inc. v. Google Inc., Case No. 13-1021 (Fed. Cir. May 9, 2014) ...
Prompted by the United States Court of Appeals for the District of Columbia Circuit’s decision in National Association of Manufacturers, et al. v. SEC, et al. (D.C. Cir. April 14, 2014), which held a portion of the conflict minerals rule (the “Rule”) invalid on First Amendment grounds, the Division of Corporation Finance of the Securities and Exchange Commission (the “SEC”) issued updated guidance on April 29, 2014 relating to upcoming Form SD filing obligations ...
A shareholder of a major public hotel corporation recently filed a derivative suit against several of the company’s officers and directors alleging they violated their fiduciary duties, wasted corporate assets, and were unjustly enriched in connection with three separate data breaches between 2008 and 2010 ...
The healthcare industry will have to wait for a court to answer the question of whether the United States Federal Trade Commission (the “FTC”) has authority to regulate data security practices of entities covered by the Health Insurance Portability and Accountability Act (“HIPAA”). On Monday, a federal district judge dismissed LabMD, Inc.’s case without reaching the merits, declining to disrupt the underlying administrative proceeding ...
LabMD, Inc. renewed its argument that the FTC lacks authority to regulate the data security practices of HIPAA covered entities by appealing the dismissal of its case for lack of jurisdiction (see our coverage here) to the Eleventh Circuit. LabMD also filed an emergency motion seeking expedited briefing and requesting an order enjoining the administrative proceedings until the appellate court rules on the merits of its argument ...
