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  • Supreme Court Tackles Tax-Related Cases

    The United States Supreme Court has picked up the pace this week, already issuing eight regular opinions and four opinions relating to orders as of today. We discuss the tax-related items here. In Rodriguez v. FDIC, the question was how to decide which member of a consolidated group of corporations is entitled to a tax...

  • EU Commission Issues Another Fine for Restrictions on Cross-Border Licensed Merchandise Sales

    The European Commission has reiterated its position that if a business allows for the non-exclusive licensing of its products in the EEA, such licensor can no longer control where, to whom, and in what manner (online/off-line) the products can be sold within the EEA. On 30 January 2020, the Commission fined NBCUniversal Media, LLC, and...

  • Flirting at Job Interviews Is Common

    One in five job applicants say an interviewer flirted with them during a job interview, and more than half of them flirted back, according to a survey by background-screening firm JDP. Of the 1,997 people surveyed, 58% of the women flirted back and 71% of the men reciprocated. The attraction may not have been mutual,...

  • Weekly IRS Roundup February 17 – 21, 2020

    Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 17 – 21, 2020. February 18, 2020:  The IRS issued a revenue ruling providing various prescribed rates for federal income tax purposes for March 2020, including various applicable federal rates (AFRs) for purposes of...

  • AB 2570: Déjà vu All over Again as California Attempts to Amend CFCA

    California’s Attorney General, Xavier Becerra, and Assembly Member Mark Stone have again advanced legislation that would amend the California False Claims Act (CFCA) to enlist private bounty hunters to go after California taxpayers. Becerra described the latest bill, AB 2570, as an additional tool to combat against “corporate cheats” whom Becerra claimed cost the state...

  • Aerospace and Defense Series: DOJ and FTC Vertical Merger Guidelines Will Impact Government Contractors

    Last month, the Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) released updated Vertical Merger Guidelines in draft form. These guidelines provide a useful resource for aerospace and defense contractors involved in M&A transactions. Vertical competition issues frequently arise in this industry given the nature of the supply base and contracting and...

  • New Podcast | Protecting Your Tech: IP Considerations in Digital Health

    Digital health companies are producing innovative products at a rapidly accelerating pace and experiencing a boom in investments and demand as the regulatory environment becomes more supportive of digital health services to both improve patient care and stay profitable. Protecting intellectual property (IP) and building a feasible data strategy to support the research and development...

  • IRS Releases Initial Section 45Q Carbon Sequestration Credit Guidance

    Treasury and the IRS released initial guidance on the amended Section 45Q carbon oxide sequestration credit on February 19, 2020. Notice 2020-12 and Revenue Procedure 2020-12 provide guidance relating to the beginning of construction and tax equity partnership allocations. This is the first Section 45Q guidance since Treasury issued a request for comments in Notice...

  • Summary of Commuter Benefit Laws (Current as of Feb. 3, 2020)

    An increasing number of jurisdictions around the country, including parts of California, New Jersey and Washington, DC, are mandating that employers provide commuter benefit programs that allow employees to pay for commuting costs on a pre-tax basis. While the requirements are similar across most jurisdictions, there are specific rules for which employees are covered under...

  • Digital Health Business Strategy: A Careful Balance

    When it comes to market success for digital tools in the health sector, business strategy can be far more complex than in other industries. Understanding customer-driven market trends is important, but healthcare’s complexity can camouflage customer demand and its regulatory ecosystem adds layers of additional considerations. Customer Demand and Digital Solutions The convenience, competitive...

  • Weekly IRS Roundup February 10 – 14, 2020

    Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 10 – 14, 2020. February 10, 2020:  The IRS issued a revenue ruling providing guidance regarding how to determine the adjusted basis life of insurance contracts under IRC section 1011 and 1012 given the...

  • Five Questions with a Health Lawyer: Matt Perreault

    Matt Perreault Office: Boston Years at Firm:  2 What is your favorite part about practicing health care law at McDermott?  As so many of my colleagues have expressed throughout this series, my favorite part of practicing healthcare law at McDermott is being a member of a collaborative and collegial team that is advising our diverse...

  • Up, Up and Away: 2020 Increased Penalties for Employee Benefit Plans

    For 2020, legislation enacted in December of 2019 dramatically increases penalties imposed by the Internal Revenue Code (the Code) for late filing of certain employee benefit plan notices and reports. In addition, a final rule published by the Department of Labor (DOL) makes inflation adjustments to a wide range of penalties. Learn the penalty amounts...

  • Texas Appeals Court Rules Private Communications with Customers Not Protected Free Speech

    In a case addressing the applicability of free speech as a defense to trade secret misappropriation, the Court of Appeals for the Fifth District of Texas retracted its previous ruling, holding that communications with customers and suppliers did not involve a matter of public concern and were therefore not an exercise of free speech. Goldberg,...

  • Weekly IRS Roundup February 3 – 7, 2020

    Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 3 – 7, 2020. February 3, 2020:  The IRS and the Departments of Labor and Health and Human Services jointly announced frequently asked questions about the implementation of the Affordable Care Act. The agencies...

  • What to Know Before Enforcing a Nicotine-Free Workplace

    Certain employers might prefer to avoid hiring nicotine users: smokers, dippers and vapers alike. U-Haul International Inc. is doing so, with a policy that went into effect on February 1. Thus, this is an opportune moment to examine why employers might consider doing likewise, the legal ramifications of such policies and the alternatives for encouraging...

  • 2019 Hospital and Health Systems Year in Review

    Hospitals and health systems are facing consumer demand for innovation, the need to expand and enhance streams of revenue and the push for improved quality, all while navigating changing regulations, federal enforcement, antitrust litigation and business pressures. 2019 saw hospitals and health systems navigate these challenges and more, with valuable lessons for 2020. This Special Report...

  • Draft Amendment to German Patent Act May Limit Availability of Injunctions

    On 14 January 2020, the German Federal Ministry of Justice published a draft act to modernize German patent law. Among other things, the draft addresses the fact that patent infringement trials proceed much quicker than parallel invalidity proceeding (which, under German law, are conducted separately). Hence, an injunction may be issued in first instance infringement...

  • New Podcast | 2020 Digital Health Outlook: Thoughts from CES and JPM

    The digital health space had a strong start to 2020 with two of the industry’s largest conferences leading the conversation on what’s to come for digital health companies, deals, products and the regulatory outlook in the coming year. The Consumer Electronics Show (CES) launched its Digital Health programming track in Las Vegas this year and...

  • Anticompetitive Conduct in Biologics – An Enforcement Priority with FTC and FDA

    This blog was originally published on McDermott’s Antitrust Alert Blog. On February 4, 2020, the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) released joint guidance concerning competition for biologics, including biosimilars. The joint guidance seeks to enhance competition for biologics and reduce manufacturers’ use of false or misleading statements or promotional...

  • Mechanics of DB Plan QDROs Differ from Those for DC Plans

    There are requirements for a qualified domestic relations order (QDRO) that apply whether the QDRO is for splitting up defined contribution (DC) plan assets or defined benefit (DB) plan assets, notes McDermott’s Lisa K. Loesel. However, the mechanics of setting up QDROs vary between DC and DB plans. Read on to discover the different paths...

  • Anticompetitive Conduct in Biologics – An Enforcement Priority with FTC and FDA

    Today the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) released joint guidance concerning competition for biologics, including biosimilars. The joint guidance seeks to enhance competition for biologics and reduce manufacturers’ use of false or misleading statements or promotional communications concerning the efficacy or safety of biosimilars and other biologics. This

  • Tackling Increased Cybersecurity Requirements in the Defense Industrial Base

    On January 30, 2020, the US Department of Defense (DoD) released version 1.0 of the Cybersecurity Maturity Model Certification (CMMC) framework, which is available here, with appendices available here. This highly anticipated 390-page release supersedes the prior draft versions, the last of which was released in December 2019. The DoD will begin requiring contractors to obtain certification...

  • Annual European Competition Review 2019

    McDermott’s Annual European Competition Review summarizes key developments in European competition rules. During the previous year, several new regulations, notices and guidelines were issued by the European Commission. There were also many interesting cases decided by the General Court and the Court of Justice of the European Union. All these new rules and judicial decisions...

  • Weekly IRS Roundup January 27 – 31, 2020

    Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of January 27 – 31, 2020. January 27, 2020: The Joint Committee on Taxation released a report regarding an overview of selected provisions and options relating to funding and financing infrastructure investments. The report addresses the...

  • The 10 Most Significant Matters CEOs Should Know About Their Employment Contracts

    The most significant issues in any employment or severance agreement are going to be personal to that situation, and will be driven in part by special issues and circumstances. For instance, succession planning issues may be incredibly important to the organization when the CEO is 65 years old and there is no clear successor, and...

  • No En Banc Review of Non-Institution Decision After Remand of Partial Institution

    Addressing a panel decision that affirmed a Patent Trial and Appeal Board (PTAB) holding denying institution of an inter partes review (IPR) after an earlier partial institution decision, the US Court of Appeals for the Federal Circuit denied both a panel rehearing and a rehearing en banc over a dissent from Judge Newman. BioDelivery Sciences...

  • Inherent Claim Limitation Necessarily Present in the Prior Art Invalidates Patent

    Addressing the issue of obviousness, the US Court of Appeals for the Federal Circuit affirmed the district court’s finding that a patent was invalid based on inherency because the claim limitation was necessarily present in the prior art. Hospira, Inc. v. Fresenius Kabi USA, LLC, Case Nos. 19-1329, -1367 (Fed. Cir. Jan. 9, 2020) (Lourie,...

  • Failure to Mitigate Not a Complete Defense to Statutory Damages Under Copyright or DMCA

    On an issue of first impression in a copyright infringement dispute out of the Southern District of Texas, the US Court of Appeals for the Fifth Circuit confirmed that failure to mitigate is not a complete defense to copyright or Digital Millennium Copyright Act (DMCA) claims for statutory damages. Energy Intelligence Grp., Inc. et. al.,...

  • ‘Egregious Behavior’ Language Does Not Render Jury Instruction on Willfulness Legally Erroneous

    Addressing the propriety of the trial court’s jury instruction regarding willful infringement, the US Court of Appeals for the Federal Circuit found that descriptors such as “egregious behavior” and whether an infringer is “worthy of punishment” are inappropriate for a jury instruction on willful patent infringement, but ultimately found that the instruction was not legally...

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