On August, 24, 2010, the US Food and Drug Administration (FDA) published draft guidance interpreting the new restaurant menu labeling law in section 4205 of the Patient Protection and Affordable Care Act (PPACA) of 2010. The Agency also issued final guidance addressing the...

On August 16, 2010, the Treasury Department's Office of Foreign Assets Control (OFAC) issued new Iranian Financial Sanctions Regulations (IFSR) to implement provisions of the recently enacted Comprehensive Iran Sanctions, Accountability, and Divestment Act of...

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), signed into law on July 21, 2010, contains two provisions intended to promote greater international transparency and sensitivity to human rights by oil, gas, and mining companies as well as companies that purchase...

The US Food and Drug Administration (FDA) recently released the preliminary results of an internal study aimed at improving one of its major pathways for premarket review of medical devices -- the "510(k)" premarket notification process. Both within and outside the Agency, the...

This advisory provides a preliminary overview of some of the more notable agency rulemakings that are either required or permitted by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), which was signed into law on July 21, 2010. The Act requires the federal financial...

On June 30, 2010, the US Securities and Exchange Commission (SEC) unanimously adopted Rule 206(4)-5 under the Investment Advisers Act of 1940, as amended (Advisers Act) and certain other amendments to the rules under the Advisers Act (collectively, the Rule Amendments) to deter...

The Dodd-Frank Act contemplates the creation of a new Consumer Financial Protection Bureau (CFPB) within the Federal Reserve. CFPB would be responsible for consumer protection over financial products and services offered by both banks and nonbanks...

The Dodd-Frank Wall Street Reform and Consumer Protection Act is the most far-reaching financial regulatory legislation since the Great Depression. It sets the stage for major adjustments in the financial services industry. The challenges of complying with possibly as many as 400 studies and new regulations are both numerous and daunting.

How does the Dodd-Frank Act affect your business? The 2,300-page act requires or permits the creation of more than 250 new regulations. Read our Compendium of Advisories and see our detailed chart of the rulemakings. more»US Healthcare ReformAccess our latest resources on healthcare reform including the Healthcare Reform Chart which aggregates information on US legislation.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), which was signed by the President and became law on July 21, 2010, will significantly increase federal regulation and oversight of private investment funds and their managers. Title IV of the Act, the Private Fund...

On June 28, 2010, the Financial Crimes Enforcement Network (FinCEN) issued a Notice of Proposed Rulemaking (Notice) proposing substantial changes to the treatment of prepaid cards and other access devices under the Bank Secrecy Act (BSA). This proposal would replace FinCEN's...

After years of debate, the recent enactment of landmark healthcare legislation included a new framework - formerly known as the "Sunshine Act" -- for "transparency reporting" of transfers of value from pharmaceutical and medical device manufacturers to physicians and teaching...

Passage of the Dodd-Frank Act, the most far-reaching financial regulatory legislation since the Great Depression, has set the stage for major adjustments in the financial services industry. For affected businesses, the challenges of complying with more than 200 new regulations in a 2,300-page bill are numerous and complex....

The Dodd-Frank Wall Street Reform and Consumer Protection Act features a number of significant new restrictions on financial services firms. Banking entities and other financial service companies should be especially attentive to the so-called "Volcker Rule," which will substantially restrict...

One of the most-cited impetuses behind the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act or Act) efforts has been the need to curtail the systemic risk potentially posed by large, interconnected firms--both those traditionally subject to financial regulation...

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Act) expands upon and complicates the applicable regulatory and enforcement framework in the fair lending area. The Act charges the newly created Bureau of Consumer Financial Protection (CFPB) with carrying out...

July 2010 - Arnold & Porter partner and former State Department Legal Adviser John Bellinger testified as an expert witness at the Senate Judiciary Committee Hearing on the proposed amendments to the Foreign Sovereign Immunities Act.

The UK's Office of Fair Trading (OFT) has revised its guidance on its approach to competition disqualification orders (Revised Guidance). The Revised Guidance discloses an uncompromising approach by the OFT to the use of its power to seek the disqualification of directors of UK companies...

The Healthcare Reform Legislation passed earlier this year has historical significance for its expansion of access to health insurance coverage to more than 35 million Americans who have not had health insurance in the past. Implementation of the provisions of this legislation will have...

On July 1, 2010, President Obama signed the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA), an amendment and extension of the existing Iran sanctions under the Iran Sanctions Act of 1996 (ISA). The new sanctions are intended to put further pressure on...

On July 1, 2010, the General Court issued its ruling in the AstraZeneca case and upheld a 2005 decision from the European Commission which found that AstraZeneca had abused its dominant position, in breach of what is now Article 102 TFEU, by preventing or delaying the marketing...

On June 24, 2010, the US Supreme Court for the first time ruled on the extraterritorial reach of the US securities laws in its Opinion of Morrison v. National Australia Bank, significantly limiting the application of a key US statute in litigation brought by private parties where "securities are not...

On June 28, 2010, the US Supreme Court invalidated provisions of the Sarbanes-Oxley Act that had permitted only "for cause" removal of members of the Public Company Accounting Oversight Board. Because Board members were removable only for cause by the Securities and Exchange Commission, the result was a Board that exercised executive power but was not accountable...

On June 24, 2010, the US Supreme Court for the first time ruled on the extraterritorial reach of the US securities laws in its Opinion of Morrison v. National Australia Bank, significantly limiting the application of a key US statute in litigation brought by private parties where "securities are not...

On June 14, 2010, the US Departments of Treasury, Labor, and Health and Human Services jointly released interim final regulations (the Interim Regulations) under the new healthcare reform laws (commonly referred to as the Affordable Care Act) that set forth standards for determining...

On June 17, 2010, the Federal Communications Commission (FCC or Commission) issued a Notice of Inquiry (Notice)1 seeking comments on what legal framework the Commission should employ to regulate "broadband Internet services."2 The Notice follows a recent court decision, Comcast Corp....

On June 10, 2010, the United States Court of Appeals for the Federal Circuit issued a decision regarding the interpretation of the Federal Acquisition Regulation (FAR) definition of an "affected Cost Accounting Standard (CAS)-covered contract." Donley v. Lockheed Martin Corp., --- F.3d ----...

Chambers USA 2010 named Arnold & Porter a "Leading Law Firm" in 15 practice areas nationally and in practices coast to coast in its US offices. Seventy-six leading lawyers were named in 27 areas. The firm received No. 1 band rankings nationally for antitrust, IP, life sciences, and financial...

The National Law Journal named Lawrence Schneider to its list of "Champions & Visionaries" in Washington, DC. Mr. Schneider was noted for his leadership of the impressive report by Arnold & Porter on the nation's immigration removal adjudication system on behalf of the American Bar Association's Commission on Immigration.

Arnold & Porter's Michael Trager, Richard Jacobson, and Christopher Rhee discuss the SEC's new focus on insider trading as it relates to hedge funds in the June 3, 2010 issue of The Hedge Fund Law Report.

With the passage by the Senate last week of the Restoring American Financial Stability Act of 2010, amending the version of the bill previously passed by the House in December 2009,1 the stage has been set for a significant change in the standards for federal preemption of state...

The Wall Street Reform and Consumer Protection Act of 2009 (Senate Bill)  was passed by the Senate on Thursday, May 20, 2010, by a vote of 59-39. The legislation now proceeds to a House-Senate conference to reconcile differences between the Senate version, originally introduced...

On May 20, 2010, Senate Finance Committee Chairman Max Baucus (D-Mont.) and House Ways and Means Committee Chairman SanderLevin (D-Mich.) released a compromise proposal on the taxation of carried interests, as part of the American Jobs and Closing Tax Loopholes Act...

Nominet, the United Kingdom internet registry for .uk domain names, has announced that it intends to release approximately 2000 domain names for registration, consisting of one character and two letter domain names it controls. This change is due to technical restrictions that no longer apply...

The Los Angeles and San Francisco Daily Journal named Suzanne Wilson to its "Top Women Litigators" list, which features California lawyers who are working on cutting-edge matters. Ms. Wilson was noted for her impressive history representing clients, such as Microsoft, in intricate IP matters.

On March 23, 2010, the landmark healthcare legislation, the Patient Protection and Affordable Care Act (PPACA), was signed into law. It is already having an impact on how the government pursues fraud and abuse matters in the healthcare arena. In this six-minute video, two...

Three recent developments in the United Kingdom, the most recent being in May 2010, highlight how the UK's Office of Fair Trading (OFT), is striving--not always with success--to modernise its process in competition cases. First, the OFT has introduced a short-form opinion procedure...

When President Obama signed the Patient Protection and Affordable Care Act (PPACA) into law on March 23, 2010, a new and little-discussed provision found at Section 4207 of PPACA which amends Section 7 of the Fair Labor Standards Act (FLSA) imposed new requirements on employers...

On April 15, 2010, Representatives Ron Klein (D-FL) and Ileana Ros-Lehtinen (R-FL) introduced HR 5044, the Medicare Fraud Enforcement and Prevention Act (MFEPA) which would amend the federal False Claims Act and Anti-Kickback Statute to toughen criminal penalties and fines...

On April 20, 2010, the US Department of Defense published a proposed rule on organizational conflicts of interest (OCIs). These conflicts of interest arise when a contractor has opportunities or interests that compete with government objectives such as equal competition or...

The Financial Industry Regulatory Authority, Inc. (FINRA) recently released a notice reminding members of their obligations to investors when participating in transactions made pursuant to Regulation D under the Securities Act of 1933 (Securities Act), also known as private placement...

On April 21, 2010, the House Armed Services Committee (HASC) unanimously voted to approve the IMPROVE Acquisition Act of 2010, HR 5013, which had been introduced just one week prior. The bill represents the latest move in the broader push for government-wide acquisition reform and...

Attorney General Eric Holder presented Arnold & Porter counsel Robert Pitofsky with the Justice Department's highest antitrust award, the John Sherman Award, for his lifetime contributions to the teaching and enforcement of antitrust law and the development of antitrust policy.

Daily Journal named Suzanne Wilson and Ginger Dreger to its annual list of leading intellectual property lawyers in California. Ms. Wilson was named to the "75 Leading IP Litigators" list and Ms. Dreger was named to the top "25 Portfolio Managers, Prosecutors and License Specialists" list.

The National Law Journal named Arnold & Porter to its 2010 "Appellate Hot List". The 20 ranked firms "represent the best in the practice of appellate law" and "boast an impressive track record overall." Arnold & Porter was also profiled for its banking pre-emption work.

Within the more than 900 pages of the Patient Protection and Affordable Care Act (PPACA) is a provision for very significant tax credits or, if elected, outright cash grants for small companies devoted to developing new pharmaceuticals, drug delivery technologies, and molecular-level...

Sixteen years ago, Congress decreed that five percent of federal government contracts should go to women-owned small businesses (WOSB). Despite the modest nature of this goal, it has not been met. Since 1999, when the Small Business Administration (SBA) first started tracking the numbers...

The US Department of Defense (DOD) is considering making new rules to protect unclassified DOD information currently housed or transmitted on its contractors' and subcontractors' computer systems. On March 3, 2010, DOD issued an advance notice of proposed rulemaking (ANPR) and notice...

On March 29, 2010, the Supreme Court of the United States heard oral arguments in the case of Morrison v. National Australia Bank, No. 08-1191. The Morrison case, which has been the subject of previous advisories by Arnold & Porter LLP, involves a so-called "foreign-cubed" securities...

The National Law Journal named William Baer to its list of "The Decade's Most Influential Lawyers," one of three honored for antitrust. NLJ selected 40 attorneys nationwide whose work throughout the last decade "was so consequential that it helped push the profession...forward."

On March 22, 2010, the United States Court of Appeals for the Federal Circuit issued a much-anticipated en banc decision holding that the patent statute contains a written description requirement that is separate from the enablement requirement. In Ariad Pharmaceuticals Inc. v. Eli Lilly....

The Consumer Product Safety Improvement Act of 2008 (CPSIA) dramatically raised the maximum civil penalties the Consumer Product Safety Commission (CPSC) may seek for knowing violations of the laws CPSC enforces--the Consumer Product Safety Act (CPSA), the Federal...

Last week, in a closely-watched case, the United States Court of Appeals for the First Circuit, sitting en banc, upheld the dismissal of Rule 10b-5 securities fraud claims brought by the US Securities and Exchange Commission (SEC) against two officers of a firm that underwrote and marketed...

Kirk Ogrosky, a veteran white collar prosecutor at the US Department of Justice, today joined Arnold & Porter LLP as a partner in the white collar criminal defense and FDA/healthcare practices. Mr. Ogrosky's arrival is part of the firm's effort to broaden its white collar...

Arnold & Porter LLP strengthens its white collar criminal defense practice with the addition of two partners, John Nassikas and Baruch Weiss, and counsel Laura Lester, all of whom have joined the firm in Washington, DC.

After decades of dissonance between the Circuit Courts of Appeal, the US Supreme Court finally stepped in and unanimously ruled that, for purposes of federal diversity jurisdiction, a company's "principal place of business" is where the corporation's high level officers "direct, control...

Most businesses have an interest in the costs of personal injury litigation. All sorts of people, employees as well as customers, have accidents and trip and slip in all sorts of places. People using or exposed to products marketed by others can suffer injury which may or may not be caused...

Over 20 years ago, the Federal Circuit decried the "absolute plague" that inequitable conduct charges had become in patent cases. Conscious of the risk, the Federal Circuit nevertheless has unleashed yet another patent law "plague" with its recent decision in Forest Group...

The Department of Justice (DOJ) recently charged Smithfield Foods, Inc. (Smithfield) and Premium Standard Farms LLC (Premium Standard) with a violation of Section 7A of the Clayton Act (the Hart-Scott-Rodino (HSR) Act), claiming that Smithfield wrongfully exercised control over...

The ABA's Commission on Immigration announced the results of a year-long study on the US immigration removal adjudication system, conducted by Arnold & Porter. More than 50 firm lawyers and staff were involved in the pro bono effort, led by Lawrence Schneider.

On 6 January 2010, the European Commission cleared the hostile bid for Cadbury plc (Cadbury), by Kraft Foods Inc. (Kraft Foods), subject to divestments in Poland and Romania. The most striking aspects of the Commission's decision concern its rationale for clearing the transaction...

In most jurisdictions, plaintiffs' counsel have virtually unfettered ex parte access to their client's treating physicians, while defense counsel typically have little (and in some jurisdictions no) opportunity to meet or communicate with treating physicians outside of formal discovery. Defendants have pointed...

On January 19, 2010, the Federal Deposit Insurance Corporation (FDIC) published in the Federal Register, 75 Fed. Reg. 11, an advance notice of proposed rulemaking (ANPR) seeking comments on how to modify the FDIC's risk-based deposit insurance assessment system to...

Arnold & Porter has elected three new partners and two new counsel to the firm. The attorney promotions are in several of the firm's practice areas: government contracts, international arbitration, bankruptcy and corporate restructuring...

Arnold & Porter partner and former State Department Legal Adviser John Bellinger recently appeared on China Central Television to discuss US-China trade policy and Chinese foreign investment, including reviews by the Committee on Foreign Investment in the United States (CFIUS).

On January 19, 2010, the Federal Bureau of Investigations (FBI) arrested 22 people charged with violations of the Foreign Corrupt Practices Act (FCPA). The arrests arose from "the first large-scale use of undercover law enforcement techniques to uncover FCPA violations and the largest...

In March and August 2009 advisories, we reported on several initiatives by the new leadership of the Securities and Exchange Commission's Division of Enforcement, including efforts to "foster cooperation" by individuals and companies with enforcement investigations and...

As a result of congressional deadlock last month, the one-year repeal of federal estate and generation-skipping transfer (GST) taxes scheduled to take effect under 2001 tax legislation has become a reality. Under the law as it currently stands, the estates of decedents who die in 2010 will not be...

The first several months of the new year is the time during which many employers establish annual bonus awards and make equity and other long-term incentive compensation awards. As the area of executive compensation has become increasingly regulated, navigating applicable...

Arnold & Porter (UK) LLP announced today that a leading patent litigation team of four lawyers led by David Perkins has joined the firm in London. The group, which includes Christopher Stothers, Ben Clossick Thomson, and Stephanie Hutchinson...

On December 22, 2009, the US Court of Appeals for the DC Circuit issued a decision in a closely-watched case that could have significant implications for Medicare payment policy. In Hays v. Sebelius, the court struck down a policy based on the "least costly alternative" (LCA) approach...

Arnold & Porter LLP announced today that real estate finance lawyers John Busillo and Alan Lawrence have joined the firm as partners in New York. Both were partners at a major Wall Street law firm prior to joining Arnold & Porter.

Arnold & Porter (UK) LLP was ranked the No. 1 international firm in the 2009 Diversity League Table of the Black Solicitors Network (UK). The firm also ranked in the top ten for female partners, ethnic minority and female paralegals, and diversity among 49 firms ranked...

In its 2007 decision in MedImmune, Inc. v. Genentech, Inc., the US Supreme Court adopted a totality of circumstances test to determine whether subject matter jurisdiction existed under the Declaratory Judgment Act. For patent cases, the United States Court of Appeals for the Federal...

Earlier this year, the UK's Serious Fraud Office (SFO) released guidance (Guidance) on its approach to investigating allegations of corruption overseas. The SFO will continue to be the primary enforcer under a proposed Bribery Bill, now being considered by Parliament, if and...

On November 30, 2009, the US Supreme Court granted certiorari to review the transnational securities fraud case of Morrison v. National Australia Bank. This comes on the heels of the US Solicitor General's brief filed on October 27, 2009, on behalf of the United States as...

Federal defense contractors should be aware that on November 19, 2009 the US Department of Defense (DOD) issued, and made effective, a final rule that prohibits a federal contractor from taking an adverse employment action against any employee who makes a disclosure...

New regulations issued by the Board of Governors of the Federal Reserve System (Federal Reserve) will prevent institutions from charging overdraft service fees on ATM or one-time debit card transactions without the opt-in consent of a consumer. This change is contained...

Almost three years ago, New York City became the first jurisdiction to enact nutrition labeling requirements for restaurants. Since then, various states, counties, and cities have enacted or proposed nutrition labeling requirements. At least a dozen jurisdictions now have specific...

The US Department of Agriculture's Rural Utilities Services (RUS) and the US Department of Commerce's National Telecommunications and Information Administration (NTIA) recently announced that they planned to streamline the broadband grant and loan programs provided for in the...

Little noted in media coverage of the US House of Representatives' passage earlier this week of the Affordable Health Care for America Act was a provision requiring certain restaurants (including "similar retail food establishments") to list the amount of calories and other...

On October 22, 2009, the Federal Reserve issued proposed guidance (the Proposed Guidance) addressing incentive compensation practices at banks regulated by the Federal Reserve. The Proposed Guidance does not impose a cap on pay or ban any particular practices. Rather, it sets...

On October 27, 2009, the US Solicitor General filed a brief on behalf of the United States, as amicus curiae, in the transnational securities fraud case of Morrison v. National Australia Bank. In Morrison, which has been the subject of previous advisories by Arnold & Porter LLP...

The Federal Communications Commission (FCC or Commission) has adopted a highly anticipated Notice of Proposed Rulemaking (Notice) looking towards the codification and expansion of "net neutrality" principles intended to preserve the open Internet. Comments on the Notice are due...

In the first three weeks of October, Arnold & Porter has advised on four major capital markets transactions for sovereign and financial institution clients, for a combined total of approximately US$7.4 billion.

The UK Financial Services Authority (FSA) has recently published its Feedback Statement in response to its February 2009 Discussion Paper on the treatment of short selling. The FSA is not making any immediate changes to the disclosure regime covering net short positions in UK...

Council Regulation (EEC) No. 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, now consolidated into Regulation EC/469/2009 (the SPC Regulation) allows for patent term extensions of up to five years, if certain...

A new phase in the battle over derivatives regulation has opened with delivery of the Obama administration's proposed legislation to Congress. The Over-the-Counter Derivatives Markets Act of 2009 (Proposed Bill) is an ambitious proposal that would subject over-the-counter (OTC)...

On September 21, 2009, Federal Communications Commission (FCC) Chairman Julius Genachowski announced plans to launch a rulemaking proceeding at an FCC meeting in October 2009 to codify "net neutrality" rules. The date of the October 2009 meeting has not been...

Arnold & Porter had the most WBJ “Top Washington Lawyers” winners: Sarah Kahn (Corporate), Steve Parker (Technology), Amy Rifkind (Real Estate), and Les Sotsky (Environment). Gaela Gehring Flores was named a Young Gun and David Gersch a litigation finalist.

For the fourth consecutive year Arnold & Porter LLP has achieved a perfect score from the Human Rights Campaign (HRC) through placement on its 2010 Corporate Equality Index (CEI), which rates businesses on a scale from 0 to 100 percent for their treatment of gay, lesbian...

The Federal Communications Commission (FCC) released a Notice of Inquiry (Notice) seeking comment on whether there are ways to protect and empower consumers by developing policies to ensure sufficient access to and disclosure of information by communications providers...

The Toxic Substances Control Act (TSCA) Interagency Testing Committee (ITC) has submitted its 64th report to the US Environmental Protection Agency (EPA or Agency), and the Report demonstrates the Agency's intention to require the submission of new and existing data on the...

Earlier this month, a California judge approved a settlement between the district attorneys of three California counties and Starbucks Corporation resolving allegations that the coffee retailer did not comply with California's unique gift card statute. Among other things, the statute...

The focus of the Securities and Exchange Commission's (SEC's) recent proposals to amend the proxy rules, and much of the commentary relating to them, has been on executive compensation disclosure and management of risk. However, the SEC has also proposed and is seeking comment on...

In recent class actions, groups of stockbrokers have challenged their classification as exempt employees under the Fair Labor Standards Act (FLSA or Act) and demanded payments at the 150% (time-and-a-half) overtime premium for past hours worked in excess of 40 hours in a week during...

A recent decision by the US Court of Appeals for the Fourth Circuit reaffirms that Circuit's strict standard for pleading scienter under the Private Securities Litigation Reform Act (PSLRA), in the wake of the Tellabs case. This decision follows on the Fourth Circuit's decision late...

Until recently, regulatory uncertainty existed regarding which federal agencies had authority to regulate the development of renewable energy resources on the Outer Continental Shelf (OCS). However, in April 2009, the Minerals Management Service (MMS), part of the US Department of...

The Federal Communications Commission (FCC) released a Notice of Inquiry (NOI) as required by Section 706 of the Telecommunications Act of 1996, seeking comment on whether broadband is being deployed to all Americans in a reasonable and timely fashion. Comments in response to...

Arnold & Porter LLP announced today the addition of four lawyers in a range of key practices and offices where the firm is expanding strategically to meet growing client demand: Duane J. Mauney in product liability (Washington, DC); Lisa Hill Fenning in bankruptcy (Los Angeles)...

In a recent decision, the United States Court of Appeals for the Second Circuit interpreted the federal criminal restitution statutes in a way that may help companies recover compensation for both (1) the harm they suffered from a criminal scheme; and (2) the various expenses they incurred...

In our recent advisory on the energy provisions of the February 2009 Stimulus Law, we reported that the Stimulus Law created a federal grant program for eligible renewable energy projects instead of the traditional production and investment tax credits. The grant is equal to 30%...

On July 27, 2009, the US Securities and Exchange Commission (SEC) announced several initiatives aimed at preventing abusive short selling practices and allowing more short sale trading information to be accessible to the public. As part of these initiatives, the SEC finalized amendments to...

On 16 June 2009, Communications Minister Lord Carter presented his report "Digital Britain." The Report was commissioned by the British government to provide a strategy for the development of the digital economy in the UK and to establish a programme of action. The Report makes...

Maybe third time's a charm, at least from the perspective of shareholder activists, institutional investors, and special interest groups. The Securities and Exchange Commission's latest proxy proposal--it's third in six years--would give shareholders, or groups of shareholders...

On July 2, 2009, the Federal Deposit Insurance Corporation (FDIC) released a Proposed Statement of Policy on Qualifications for Failed Bank Acquisitions (Proposed Policy Statement or Statement). According to FDIC Chairman Sheila Bair, the Proposed Policy Statement is intended to...

Arnold & Porter has just been ranked No. 6 on American Lawyer's "A-List" of top 20 US firms. The magazine considers the list "a ranking of the nation's elite." The rankings are based on revenue per lawyer, commitment to pro bono, diversity among lawyers, and associate satisfaction.

On June 26, 2009, Arnold & Porter scored a significant jury trial win in Virginia state court for the firm's client, Overlook Systems Technologies, Inc., a government contractor in the navigation warfare space. On behalf of Overlook, Arnold & Porter pursued claims against two former employees who formed a competing company and solicited clients before their employment ended.

A new, proposed regulation, which will replace the unwieldy, and much amended, EU Cosmetics Directive (76/768/EEC) was recently approved by the European Parliament. The Regulation is awaiting its first reading by the Council of Ministers.

On June 17, 2009, the US Department of the Treasury unveiled details of the Obama Administration's proposal to reform financial regulation. The proposal recommends that Congress and regulatory agencies adopt a comprehensive series of changes to overhaul the US financial...

On June 10, 2009, the US Department of the Treasury (Treasury) released an interim final rule (June Rule) providing much-anticipated guidance on the executive compensation and corporate governance provisions of the Emergency Economic Stabilization Act of 2008 (EESA) that apply to...

In recent years, it has become increasingly more common for commercial landlords, sellers of real estate, and even lenders to obtain security from tenants, buyers, and borrowers in the form of a letter of credit, as opposed to cash. Letters of credit became the preferred form of security...

This side-by-side chart presents a brief summary of key issues in the healthcare reform proposals under consideration by the authorizing committees in Congress. It reflects information made available as of June 17, 2009.

Arnold & Porter LLP's pro bono client, the League of Women Voters of Ohio, has resolved its four-year voting rights lawsuit against the Ohio Secretary of State. The landmark agreement calls for new institutional procedures in the electoral process and settles a lawsuit filed by Arnold & Porter (along with the Lawyers' Committee for Civil Rights Under Law and other civil rights organizations) in 2005. The lawsuit alleged that then Ohio...

Chambers USA: America's Leading Business Lawyers 2009 named 73 Arnold & Porter lawyers as "Leading Individuals" and ranked six practices in the No. 1 band in the areas of antitrust, bankruptcy, financial services regulation, healthcare regulation, life sciences, and real estate…

On May 26, 2009 the Supreme Court of the United States granted certiorari to review Merck & Co., et al. v. Reynolds, No. 08-905, a matter concerning federal securities claims against Merck arising from Merck's representations about its pain reliever VIOXX. The United States District...

President Obama recently signed into law the Fraud Enforcement and Recovery Act of 2009 (FERA). Among other significant changes, FERA ushers in expansive modifications to the False Claims Act (FCA or Act) that increase the potential for liability under the Act. With the increased...

In a variety of contexts worldwide, regulators are making clear to boards of directors and senior management that they have personal accountability for failure to exercise effective oversight over company conduct. It is increasingly apparent that governments expect companies to...

In the latest example of the proliferation of laws aimed at sales and marketing practices in the pharmaceutical and medical device industries, the Vermont state legislature passed legislation (the Act) on May 11, 2009 that imposes a comprehensive gift ban and disclosure law prohibiting...

The Federal Trade Commission (FTC) recently persuaded a district court to issue a preliminary injunction to block a transaction pending an administrative trial. The matter combined two of the three leading companies that sell specialized computer software to insurers and automotive repair...

The US Environmental Protection Agency (EPA) has advised various companies and trade associations that information concerning the results of EPA testing performed on more than 100 antimicrobial products to determine if the products are effective at killing germs in a manner that is consistent...

Arnold & Porter LLP announced today that Marcus Asner, a former Assistant United States Attorney for the Southern District of New York (2000-2009), where he served for two years as Chief of the Major Crimes and Computer Hacking/Intellectual Property Unit (2007-2009), has joined...

Arnold & Porter's bankruptcy practice group, led by Michael L. Bernstein, along with partners James L. Cooper and Kenneth L. Schwartz, and associates David Valeck, Charles Malloy, and Peter Roman, has been retained to represent the Chrysler National Dealer Council in the Chrysler bankruptcy proceedings. The National Dealer Council represents [video]...

The recent Fourth Circuit Court of Appeals opinion in United States ex rel. DRC, Inc. v. Custer Battles, LLC represents an expansion of the scope of the False Claims Act (FCA). In overruling two lower court decisions, the appellate court broadened the scope of what may be classified as...

In what is likely to be a major change in the English anti-bribery laws, Jack Straw, the Secretary of State for Justice and Lord Chancellor, has proposed legislation that would significantly alter the approach of England, Wales, and Northern Ireland to preventing bribery. In particular...

On March 26, 2009, the US Food and Drug Administration's (FDA's) Division of Drug Marketing, Advertising, and Communications (DDMAC) sent Untitled Letters to 14 pharmaceutical companies addressing their use of "sponsored links" on internet search engines, i.e., links (with...

The sale of sponsored online advertising based on keyword auctions is an important revenue source for search engines and many new media businesses. In 2008 alone, Google, Inc., for instance, reported billions of dollars of advertising revenue from its AdWords sales. The question...

As part of the Financial Stability Plan introduced on February 10, 2009, the US Department of the Treasury (Treasury)--in conjunction with the Federal Deposit Insurance Corporation (FDIC) and the Federal Reserve--announced on March 23, 2009 the details of its Public-Private...

To minimize the expense and burden of responding to large-scale document requests, savvy litigants often invoke their option under Rule 34 to produce documents "as they are kept in the usual course of business," rather than "organiz[ing] and label[ing] them to correspond to the categories...

In August 2008, Massachusetts enacted "An Act to Promote Cost Containment, Transparency, and Efficiency in the Delivery of Quality Healthcare" which contained a new chapter entitled "Pharmaceutical and Medical Device Manufacturer Conduct." The purpose of the new law was to...

The John F. Kennedy Library Foundation announced that Arnold & Porter LLP's Brooksley Born will receive a Profile in Courage Award for her leadership in public service. The award will be presented at a ceremony in Boston on May 18, 2009.

In a long anticipated settlement first announced on December 15, 2008, German industrial giant Siemens AG (Siemens) and three of its subsidiaries, Siemens S.A. (Argentina) (Siemens-Argentina), Siemens Bangladesh Limited (Siemens-Bangladesh), and Siemens S.A....

The chapter of the Treaty establishing the European Community (EC Treaty) containing the rules of competition comprises not only an antitrust section that deals with company conduct (such as cartels and abuse) but also a section concerning state measures that consist in granting financial...

As detailed in our earlier client advisory, "A New Dawn for Top Level Domain Names," the Internet Corporation for Assigned Names and Numbers (ICANN) is undertaking an initiative to expand generic Top Level Domain Names (gTLDs) from the 21 that currently exist (e.g., .com, .biz,...

On March 2, 2009, the Securities and Exchange Commission (SEC) published for notice and comment amendments to a proposed rule change that will become effective as early as April 14, 2009, in which the Financial Industry Regulatory Authority, Inc. (FINRA) would establish a new...

Non-Federal employers who receive Federal stimulus funds pursuant to the recently enacted stimulus package, the American Recovery and Reinvestment Act of 2009 (ARRA or Act), should be aware that the Act contains new whistleblower provisions which protect employees from reprisal...

The stimulus bill signed by President Obama on February 17, 2009, known officially as the American Recovery and Reinvestment Act of 2009 (the Stimulus Law), contains unprecedented federal government support for energy initiatives, in particular renewable energy projects, energy...

The American Recovery and Reinvestment Act of 2009 (ARRA), which was signed into law on February 17, 2009, makes significant changes to the health insurance coverage continuation provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The purpose of...

The Supreme Court on March 4, 2009 issued its long-awaited decision in Wyeth v. Levine, 555 US __ (Mar. 4, 2009), rejecting federal preemption of a failure to warn product liability claim involving a prescription drug. By a vote of 6-3, the Court ruled that the state tort claim at...

On February 25, 2009, the Supreme Court further limited the circumstances in which the antitrust laws compel a firm to assist its competitors. In Pacific Bell Telephone Co. d/b/a AT&T California v. linkLine Communications, Inc., No. 07-512, slip op. (Feb. 25, 2009),...

In 2008, Congress enacted the Consumer Product Safety Improvement Act (CPSIA), which sets more stringent safety standards for consumer products and establishes certain testing, labeling, and certification requirements.

On February 18, 2009, the Obama Administration unveiled its comprehensive Homeowner Affordability and Stability Plan (Plan). This Plan is intended to limit the number of foreclosures and stabilize home values, thus aiding the US housing market.

On February 13, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (H.R. 1) (Act). The Act contains an announced US$150 billion investment in our nation's infrastructure. The Act proposes such expenditures through a combination of block...

Until recently, no published appellate decision had squarely answered a key question in the minds of companies that have settled Proposition 65 cases with private plaintiffs: Can another private plaintiff sue for the same alleged violation? In November 2008, the California Court of Appeal...

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 (ARRA). Title VII of ARRA amends Section 111 of the Emergency Economic Stabilization Act of 2008 (EESA), which established restrictions on executive compensation (EESA Restrictions)...

The California Environmental Protection Agency (Cal/EPA) has issued the final policy recommendations resulting from its groundbreaking Green Chemistry Initiative (GCI). The recommendations, when fully implemented by legislation or administrative changes, will fundamentally alter the way...

If you are a US company with UK and European operations, then you are probably coming to terms with the complexity of UK and EU employment laws. Reductions in force in Europe operate according to very different rules from those that apply in the US. Getting the process...

On September 30, 2008, Governor Arnold Schwarzenegger signed into law SB 1420, making California the first state in the nation to enact statewide legislation requiring restaurants to provide nutritional information on menus and menu boards. SB 1420 applies to restaurant systems...

Arnold & Porter LLP announced today that fund lawyer Richard Chen has joined the firm as counsel in New York. Mr. Chen advises hedge fund and private equity fund sponsors on regulatory and compliance matters, fund formation, investment product structuring, service...

Micron v. Rambus and Arista v. Usenet.com are two recent intellectual property cases that highlight the dangers lurking for those who fail to understand and take seriously their obligations to preserve or disclose documents that may be relevant to litigation. There are lessons...

Beginning what is widely anticipated to be a significant Congress for the financial services industry, the first bills to regulate private investment funds, including hedge funds, have now been filed. On January 29, 2009, Senators Chuck Grassley (R-IA) and Carl Levin (D-MI)...

In December 2008, following the US Supreme Court's 2006 Rapanos decision, the US Environmental Protection Agency (EPA) and the Army Corps of Engineers (Army Corps) issued final guidance intended to clarify the Government's position on the reach of the Clean Water Act. While the...

Eight government agencies--including the US Food and Drug Administration (FDA), the US Consumer Product Safety Commission (CPSC), and the US Environmental Protection Agency (EPA)--jointly issued on January 13, 2009, a Draft Guidance for Industry on "Good Importer Practices." The...

Arnold & Porter LLP announced today that Claudius Sokenu has joined the firm's securities enforcement and litigation and white collar criminal defense practices as a partner. He has experience in domestic and international litigation, securities enforcement, white collar criminal...

This marks the seventh consecutive year Arnold & Porter has been on the "100 Best Companies to Work For" list by FORTUNE magazine. Ranked No. 21, Arnold & Porter was the most highly placed law firm on the list for the second year in a row.

Enforcement of the Foreign Corrupt Practices Act (FCPA), which bars companies from bribing foreign officials, has been rapidly increasing since 2004. Having reached record highs in 2007, the trend continued in 2008, as the US Department of Justice (DOJ) and the Securities and...

On January 9, 2009, the US Consumer Product Safety Commission (CPSC) posted on its website proposed rules on the following topics to implement the lead substrate requirements that are scheduled to go into effect on February 10, 2009:...

Parties to securities fraud lawsuits in the US Court of Appeals for the Fourth Circuit, and those who practice in the Fourth Circuit, should take note of a recent opinion on the issue of scienter.

On December 18, 2008, the Board of Governors of the Federal Reserve System (Board), the Office of Thrift Supervision (OTS), and the National Credit Union Administration (collectively, the Agencies), following consultation with the Office of the Comptroller of the Currency, the Federal Deposit...

The Antitrust Division's (the Division) Corporate Leniency Policy has, without question, become a key driver of the Division's unprecedented success at identifying and prosecuting cartel behavior over the last decade.1 Over the years, Division officials have given several...

On November 20, 2008, the Federal Deposit Insurance Corporation (FDIC) announced a new program, called "Mod in a Box," to assist lenders and loan servicers in the process of implementing systematic and streamlined loan modifications (Program). The FDIC also has advanced...

In order to continue to participate in the Federal Deposit Insurance Corporation's (FDIC) Debt Guarantee Program, by December 5, 2008, eligible institutions must complete a form on the FDICconnect website indicating the amount of senior unsecured debt outstanding as of September 30...

On November 12, 2008, the Civilian Agency Acquisition Council and the Defense Acquisition Council (the Councils) published a Final Rule amending the Federal Acquisition Regulation (FAR) to increase the compliance and reporting obligations of federal government contractors...

A recent Federal Trade Commission (FTC) consent decree makes the point that timing makes a difference. In particular, if firms want to defend a noncompete provision as ancillary to an overall procompetitive arrangement, they will have to show that the noncompete was part of, and reasonably necessary to, the overall deal, and not something tacked on...

The UK Financial Services Authority (FSA) has recently introduced a change to the disclosure rules concerning net short positions in excess of 0.25% of the share capital of UK financial sector companies.

Arnold & Porter LLP's commercial litigation team earned a major victory for SunTrust Bank as the US Court of Appeals for the Federal Circuit affirmed in its entirety a US$30.66 million award for expectancy damages and incidental losses in a breach of contract action against the United States. The Arnold & Porter team had prevailed in two trials in the US Court of Federal Claims, first winning a judgment of liability after a two-week trial in...

The US Court of Appeals for the Second Circuit, based in New York City, recently issued an important decision regarding the extraterritorial reach of the US securities laws. The decision involved a so-called "foreign-cubed" securities transaction--a transaction where (1) a foreign plaintiff is suing, (2) a foreign issuer in a US court for violations of US securities...

On October 20, 2008, the US Treasury (the UST) and banking regulators issued application guidelines for the Capital Purchase Program (the Program) announced on October 14, 2008. Under the Program, the UST will make US$250 billion in capital available to US qualifying financial institutions in the form of preferred stock. Institutions that sell shares to the government must...

On October 14 and 15, 2008, the US Securities and Exchange Commission (SEC) issued a series of new rules and rule amendments intended to address concerns about certain short selling practices...

On October 22, 2008, Finmeccanica--Società per azioni, Italy's largest aerospace and defense company and a world leader in the aerospace, defense, and security industry, successfully completed its acquisition of DRS Technologies, Inc., a leading supplier of integrated defense electronics products, services, and support, in a transaction valued at US$5.2 billion. The Arnold & Porter LLP team, led by partners Jeffrey Smith and Sarah Kahn, served...

On October 13, 2008, President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP Act) of 2008, Senate Bill 3329. Acknowledging the harm caused by trademark and copyright counterfeiting and infringement to the US economy, the PRO-IP Act amends the Lanham Act (Title 15), the Copyright Act...

The US Securities and Exchange Commission (SEC) has adopted amendments to the rule that exempts foreign private issuers from registering a class of equity securities under Section 12(g) of the Securities Exchange Act of 1934 (Exchange Act). The amendments to Exchange Act Rule 12g3-2(b) permit a foreign private issuer that does not have SEC...

The Emergency Economic Stabilization Act of 2008 (the Act), which was signed into law on October 3, 2008, imposes a new layer of executive compensation regulation and tax rules on financial institutions that participate in the Treasury Department's troubled assets relief program (TARP). As discussed in more detail below, the Act (1) requires the Secretary...

The Emergency Economic Stabilization Act of 2008, which was signed into law on October 3, 2008, adds a new Section 457A to the Internal Revenue Code that will (1) largely shut down future deferrals under nonqualified deferred compensation programs (at least as they are currently structured) maintained by offshore hedge funds and other entities that...

On September 30, 2008, California moved to the forefront of a global trend in chemical regulation by enacting into law a first-in-the-nation Green Chemistry program. The new legislation, which according to California Governor Arnold Schwarzenegger puts the state "on the path toward a comprehensive green chemistry program to reduce or eliminate hazardous chemicals...

The United States Supreme Court agreed to hear two related cases that will address key issues related to apportionment and arranger liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). On October 1, 2008, the Supreme Court granted certiorari in Burlington Northern and Santa Fe Railway Co. v. U.S., No. 07-1601...

On September 22, 2008, the Federal Circuit Court of Appeals issued an en banc decision in Egyptian Goddess v. Swisa modifying the test for design patent infringement. In a unanimous opinion, the court rejected the "point of novelty test" that has been applied in design patent infringement cases since 1984. Instead, the court held that the...

Working Mother magazine today named Arnold & Porter to its 2008 Working Mother 100 Best Companies list. Arnold & Porter has earned this recognition nine times, including 5 years in a row. It is the only law firm in 2008 also to be named to FORTUNE's "100 Best Companies To Work...

Recent turmoil in the financial markets makes it timely to provide a short reminder of the potential impact such instability could have on financial assurance for environmental cleanup.

On September 21, 2008, the US Securities and Exchange Commission (the SEC) amended two emergency orders that established new rules applicable to short sales of securities. As discussed in our September 19, 2008 client advisory, under these orders the SEC is temporarily prohibiting short sales in the publicly traded securities of hundreds of financial firms...

The transition relief period for complying with Internal Revenue Code Section 409A will end on December 31, 2008. As a result, beginning January 1, 2009, nonqualified deferred compensation plans and other arrangements that are subject to Section 409A must comply with the Final Regulations both by their terms and in operation. This Client Advisory...

The US Securities and Exchange Commission (the SEC) issued two emergency orders in the early morning of Friday, September 19, 2008, establishing new rules applicable to short sales of securities. Depending on continuing developments in the securities markets and other factors, the SEC may take additional steps and issue additional emergency orders in...

Recently, the United States Court of Appeals for the Second Circuit and the US Department of Justice (DOJ), in concurrent but independent actions, significantly altered the legal landscape surrounding attorney-client privilege, government investigations of corporations, and employee indemnification. In United States v. Stein, No. 07-3042-CR,...

Arnold & Porter LLP launched its new recruiting website www.arnoldporter.com/recruiting today, geared toward law students and lateral associates from around the world. Through online profiles and video clips of attorneys and members of firm management, this dynamic site...

On August 19, 2008, the Internal Revenue Service (IRS) released the final version of the Instructions to the new Form 990, the annual information return filed by public charities and certain tax-exempt organizations in the United States. Although the Instructions will not be published in final form until later in the year, the IRS does not expect the final Instructions will...

Arnold & Porter LLP announced today that Vernessa Pollard, former Associate Chief Counsel in the US Food and Drug Administration's Office of Chief Counsel, has joined the firm's FDA and Healthcare Practice in Washington as a counsel. During her tenure at the agency from 2002 to...

On July 29, 2008, the US Court of Appeals for the DC Circuit (DC Circuit) in a split opinion reversed the 93-page opinion by the US District Court for the District of Columbia (District Court) denying a preliminary injunction to block the merger of Whole Foods Markets, Inc. and Wild Oats Markets. The DC Circuit remanded the proceedings to the District Court to determine if...

Arnold & Porter LLP announced today that healthcare lawyers Jeffrey Ruggiero and Andrew Bogen have joined in New York. They will focus on regulatory and compliance matters, commercial litigation, fraud and abuse matters and corporate transactions relating to healthcare service...

Arnold & Porter LLP announced today that intellectual property lawyer Richard Dickinson has joined the London office as a partner. Mr. Dickinson has a degree in Biochemistry and studied law at postgraduate level.

The United States Department of Justice (DOJ) has aggressively enforced the Foreign Corrupt Practices Act (FCPA) in recent years, including enforcement actions arising out of mergers and acquisitions. An acquiring company may be liable for the target company's violations of the FCPA committed before the acquisition. The contours of FCPA successor liability...

While the meltdown in the subprime mortgage and securitization markets continues to receive considerable media attention, an increasing supervisory concern of the federal banking regulators is not subprime mortgage lending. Instead, the banking agencies are most concerned about, and are increasingly directing their attention to, the large concentrations of...

Arnold & Porter LLP announced today that a four-person healthcare team has joined the firm. The group brings substantial experience in a number of growing areas for the firm, including false claims, fraud and abuse, healthcare coverage, and reimbursement and coding.

On June 25, 2008, more than five years after publishing a proposed rule, the US Office of Government Ethics (OGE) released a final regulation that provides guidance to former US Government employees seeking to comply with the post-employment restrictions imposed by 18 U.S.C. § 207. Employers who contemplate hiring former US Government officials must themselves...

Arnold & Porter LLP ranked #8 in American Lawyer's "A-List" 2008, the magazine's sixth annual ranking of the nation's top 20 law firms. It is the fifth time the firm has made the list since its inception in 2003. The A-List is created through a composite ranking of four indicators based on data...

The Sarbanes-Oxley Act of 2002 (SOX) raised the bar for corporate governance by creating new standards for corporate accountability, as well as new penalties for acts of wrongdoing. Essentially, SOX forced businesses to develop a structured approach to managing financial risk.

Arnold & Porter LLP announced today that prominent intellectual property litigator Beth Parker will join the firm's San Francisco office as a partner. Ms. Parker has significant trial and appellate experience...

The litigators in Arnold & Porter LLP's London office have won a significant victory for its client, Sanofi Pasteur SA, in the House of Lords. The judgment, on the meaning of European product liability law, should be of interest to all manufacturers who market products in the European Union and their insurers.

On June 3, 2008, the US Department of Justice announced that AGA Medical Corporation (AGA), a privately-held medical device manufacturer, agreed to pay a US$2 million criminal penalty in connection with corrupt payments to Chinese government officials in violation of the Foreign...

Pressure is growing on the British Bankers' Association (BBA) to overhaul the method of calculating the London Interbank Offered Rate or LIBOR, the primary benchmark for short term interest rates globally. Banks often calculate their own LIBOR, but LIBOR as calculated by the BBA...

Section 852 of the National Defense Authorization Act for Fiscal Year 2007 required the Department of Defense (DoD) to prescribe regulations ensuring that pass-through charges on DoD contracts and subcontracts are not excessive in relation to the cost of work performed.

On May 16, 2008, the Government published a revised version of a proposed rule that, as drafted, would dramatically change the compliance landscape for federal government contractors. Like the original proposed rule, the new version includes controversial requirements for...

On April 22, 2008, the United States Court of Appeals for the District of Columbia Circuit vacated a much-discussed and widely-reported Federal Trade Commission decision that found computer memory developer and licensor Rambus Inc. had unlawfully monopolized the market for certain memory...

Today, 1 May 2008, the Court of Appeal handed down its judgment in relation to the judicial review proceedings commenced by Eisai against the National Institute for Health and Clinical Excellence (NICE). In a unanimous judgment, the wider significance of which was expressly recognised by the Court...

In an important Lanham Act false advertising decision, a Baltimore federal court entered a preliminary injunction against Tyson Foods, which will bar the food giant from advertising its chicken as "raised without antibiotics." The Court issued a 31-page memorandum decision and order today. Arnold & Porter LLP successfully represented plaintiffs (competitors Sanderson Farms and Perdue Farms) in this first-of-its-kind case.

The housing market has cratered; foreclosures are at an all-time high; delinquencies and defaults in subprime and alternative loan products are at historic levels, and every indication is that this will continue well into the next year and possibly longer.

Subprime Outlook Newsletter - February 2008 (0.39 MB)