Publications
From the Courts Insurers Who Disclaim Duty to Defend Do So at Their Own Peril K2 Inv. Group, LLC v. Am. Guar. & Liab. Ins. Co., 21 N.Y.3d 384, 993 N.E.2d 1249 (2013) New York’s highest court has recently held that an insurer who declines to provide defense to its insured may thereby waive its […]
Contracts often include forum selection clauses, which provide that any litigation relating to the contract (or, depending on the wording, the parties’ entire relationship) may only be brought in a certain state or federal court. The potential advantages of a forum selection clause are numerous. For example, a forum selection clause can prevent having to […]
It’s beginning to look a lot like H-1B Cap Season… One of the most commonly used visa categories for U.S. employers to employ foreign nationals is the H-1B for temporary workers. H-1B visa status is available to an individual who will perform services in a “specialty occupation” that generally requires a bachelor’s degree or its […]
Each year an increasing number of people use social media technologies and assemble or acquire “digital assets” such as writings, pictures, videos and music in digital form. In most cases these assets do not have significant monetary value, but sometimes valuable intellectual property has been created. Regardless of economic value, many people attach a very […]
Congress grappled last week with the merits and costs of several new cybersecurity proposals, each designed to protect consumers and stem the tide of recent data breaches that have engulfed U.S. businesses. Whether this activity will result in new law remains uncertain; nevertheless, the debate on federal cybersecurity governance likely will lead to changes in […]
On January 23, 2014, Secretary of Defense Chuck Hagel and General Services Administration (“GSA”) Administrator Daniel Tangherlini sent a strong message to Federal contractors and their suppliers: practice cybersecurity or the government will look elsewhere for the $500 billion in goods and services it procures annually. Hagel and Tangherlini delivered this message in a report […]
At the SEC’s recent compliance outreach program, a high-level SEC official announced that the National Examination Program (“NEP”) will be reviewing investment advisers’ policies and procedures for preventing cyber attacks. In particular, the SEC is looking at the risk created by investment advisers who give vendors access to their information technology systems. As reported by […]
On Tuesday January 28, the staff of the SEC’s Office of Compliance Inspections and Examinations (“OCIE” or “staff”) issued a Risk Alert on the due diligence practices employed by investment advisers and financial planners before recommending alternative investments (e.g., hedge funds, private equity funds) and their managers. The Risk Alert offers both industry trends noted […]
In virtually every state, the Attorney General can bring lawsuits for violations of state consumer protection or antitrust law. Often the Attorney General can seek both penalties and injunctive relief for itself and restitution for its citizens harmed by the defendant’s alleged wrongful actions. For defendants, these lawsuits often mean litigating a high stakes lawsuit […]
H-1B Visa Cap Season is just around the corner, and Wiggin and Dana would like to remind employers to plan ahead when considering recruitment of foreign workers. This is because one of the most commonly used visa categories for U.S. employers to employ foreign nationals is the H-1B visa for temporary workers. H-1B visa status […]
The National Labor Relations Board (“NLRB”) is taking aim at workplace policies that are commonly used by non-union employers and invalidating them because, in the view of the current NLRB, these policies could reasonably be construed to limit employee unionizing and other activities protected by the National Labor Relations Act (“NLRA”). Section 7 of the […]
Effective January 1, 2014, and pursuant to amendments made by the United States Environmental Protection Agency (EPA) dating back to 2012, companies are now required to report additional information on the inventory reporting forms submitted pursuant to the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001, et seq. (EPCRA). These forms are due […]
We are pleased to share the inaugural issue of the Wiggin and Dana Cybersecurity and Privacy Practice Group Newsletter. We will circulate this newsletter periodically by e-mail to bring to the attention of our colleagues the latest updates in the areas of cybersecurity and privacy, with reports on recent developments, cases and legislative/regulatory actions of […]
On Friday, July 12, Connecticut Governor Malloy vetoed House Bill 6658, An Act Concerning Employer Use of Noncompete Agreements. The bill required that, where there is a merger or acquisition, an employer must provide a written copy of any noncompete agreement to the employee and give the employee a reasonable period of time, but not […]
On July 10, 2013, the Securities and Exchange Commission adopted final rules that allow the use of general solicitation to solicit investors in private placements under Rule 506 (“Rule 506”) of Regulation D (“Regulation D”) of the Securities Act of 1933 (the “Securities Act”) or Rule 144A (“Rule 144A”) of the Securities Act. In addition […]
This Advisory addresses whether a hospice is permitted to pay a nursing home more than Medicaid pays to the hospice to cover room and board for nursing home residents electing hospice services. Background The State of Connecticut has offered a Medicaid hospice benefit since 2009. When a Medicaid nursing home resident elects the Medicare or […]
In late June the U.S. Supreme Court invalidated portions of the 1996 Defense of Marriage Act (DOMA) in the Windsor case.Implementing that decision, the Internal Revenue Service (IRS) has now issued a ruling (Revenue Ruling 2013-17) confirming that any same-sex couple who marries in a jurisdiction that recognizes their marriage will be treated as married […]
Starting on October 1, 2013, nursing homes will benefit from two new options for tackling bad debts. The two options are set forth in Sections 128-130 of Public Act No. 13-234 (the Act), the omnibus law implementing the state's human services budget for fiscal years 2014 and 2015. The Act authorizes nursing homes to bring […]
On August 26, 2013, the Securities and Exchange Commission’s Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert highlighting weaknesses and best practices observed during its recent examination sweep of investment advisers’ business continuity and disaster recovery planning.[1] While this sweep, which examined approximately 40 investment advisers located in regions affected by Hurricane […]
In a sharp departure from longstanding practice, the Securities and Exchange Commission has required New York-based hedge fund adviser Philip A. Falcone and his advisory firm Harbinger Capital Partners to admit to wrongdoing as a condition of settling civil charges brought by the agency. As part of the settlement, which was announced on Monday, August […]
On June 24, 2013, the Second Circuit Court of Appeals affirmed a summary judgment decision by the U.S. District Court for the District of Connecticut holding that the Connecticut Franchise Act (“CFA”) did not apply to the relationship between an insurance agent and an insurer that was at issue in that case. While the appeals […]
In a case that should provide a cautionary tale to business owners and high-level managers, the United States Court of Appeals for the Second Circuit recently affirmed a ruling finding John Catsimatidis, the CEO and owner of New York-area grocery chain Gristede’s, individually liable for wages under the Fair Labor Standards Act (“FLSA”). Irizarry v. […]
Last week, the U.S. Court of Appeals for the Second Circuit limited the reach of criminal prosecutors in cases involving foreign securities and foreign transactions, providing defense counsel with ammunition to challenge such prosecutions. The court’s holding also affects sentencing issues, such as relevant conduct under the Sentencing Guidelines and restitution orders issued pursuant to […]
On September 18, 2013, the Securities and Exchange Commission charged Shadron L. Stastney with breaching his fiduciary duty to the hedge fund he advised by engineering an undisclosed principal transaction in which he had a financial conflict of interest, thereby violating Sections 206(2) and 206(3) of the Investment Advisers Act of 1940. The case represents […]
In August 2013, the Third Circuit Court of Appeals issued two opinions reversing district court certification of consumer classes because the plaintiffs in each case had failed to present a viable way of demonstrating that each proposed class member had purchased the product at issue. These two decisions, along with a 2012 Third Circuit decision, […]
At the recent IAWatch fall conference in Philadelphia, Pa., Mark Dowdell, Assistant Regional Director in the SEC’s Philadelphia Office of Compliance Inspections and Examinations (“OCIE”), provided a preview of the SEC’s examination priorities for 2014 for investment advisers and investment companies. According to Dowdell, the SEC should finalize and publicly release the list of exam […]
Recent decisions from the United States District Court for the Southern District of New York and the Connecticut Appellate Court revisit a familiar yet sometimes perplexing question: Am I transacting in “goods” under the Uniform Commercial Code (“UCC”) or dealing with “services”? Often, the answer is straightforward enough particularly in the world of widgets. How […]
The SEC’s Division of Trading and Markets issued guidance on Monday in the form of FAQs addressing concerns about failure-to-supervise charges being brought against broker-dealer compliance and legal personnel. Under Section 15(b)(6) of the Exchange Act, the Commission is authorized to bring enforcement proceedings against a person associated with a broker-dealer if someone under that […]
On October 1, 2013, the Department of Labor published its Final Rule, made effective January 1, 2015, eliminating the application of the “companionship exemption” to employees employed by home care agencies and other companies. Consequently, the minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) have been extended to approximately 1.9 million […]
On October 2, the Division of Investment Management of the U.S. Securities and Exchange Commission (“Division”) published a Guidance Update for institutional investment managers seeking confidential treatment of information filed on Form 13F. This guidance expands upon guidance issued by the Division in 1998 for requesting confidential treatment of 13F information and provides Form 13F […]