Publications
The Second Circuit recently expanded the ability of the Securities and Exchange Commission to obtain disgorgement in insider trading cases, holding that a defendant need not receive a direct benefit from the illicit trades in order to be liable for the disgorgement of another’s profits. SEC v. Contorinis, No. 12-1723-cv (2d Cir. February 18, 2014). […]
On March 26, the Securities and Exchange Commission (SEC) held a roundtable discussion regarding the issues and challenges that cybersecurity presents for market participants and public companies. The roundtable was divided into four panels, discussing in turn the cybersecurity landscape generally, cybersecurity disclosure issues faced by public companies, cybersecurity issues faced by exchanges and other […]
On April 7, the U.S. District Court for the District of New Jersey ruled that the Federal Trade Commission should be allowed to proceed with its case against Wyndham Worldwide Corp., the hotel franchisor, for allegedly failing to safeguard consumers’ personal information. Between April 2008 and January 2010, Wyndham experienced three major data breaches that […]
On March 27, 2014, the New York’s Court of Appeals ruled, in apparent contravention of most practitioners’ understanding of New York law, that a contract’s consequential damages disclaimer did not preclude recovery of the lost profits. The relevant clause stated that “neither party is liable to the other for any indirect, special, consequential, incidental or […]
The U.S. Court of Appeals for the Second Circuit recently affirmed the admissibility of wiretap evidence in upholding the insider trading conviction of former Goldman Sachs director Rajat Gupta. In this closely-watched case, the Second Circuit found that wiretapped telephone conversations between Raj Rajaratnam, founder of the Galleon Group, and other Galleon employees to which […]
Many states have established, or are in the process of establishing, online databases reporting practitioner prescribing patterns and patient prescription histories. These databases have become an important tool for law enforcement in the fight against prescription fraud and the illegal trafficking and use of controlled substances. Often, states tout these databases for their ability to […]
On April 15, 2014 the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert providing important additional information concerning its ongoing initiative to assess cybersecurity preparedness in the securities industry. According to the Alert, OCIE will be conducting examinations of more than 50 investment advisers and broker-dealers focusing on the following areas […]
While the Omnibus HIPAA regulations were promulgated over a year ago and are becoming more familiar, the HIPAA enforcement landscape continues to evolve. The federal government is determined to have HIPAA taken more seriously and is continuing to make strides in HIPAA enforcement. Covered entities and business associates need to be aware of these developments […]
The European Commission (“EC”) has issued a Technology Transfer Block Exemption Regulation (“TTBER”) and related Guidelines, which will become effective on May 1, 2014. The TTBER and Guidelines set forth principles for evaluating technology transfer agreements, including many IP license agreements, under European Union (“EU”) competition law. The TTBER provides a safe harbor from EC […]
The U.S. Equal Employment Opportunity Commission recently issued a question-and-answer guide and accompanying fact sheet addressing workplace rights and responsibilities with respect to religious dress and grooming under Title VII of the Civil Rights Act of 1964. As with other Title VII-protected classes, employers are prohibited from discriminating, harassing or retaliating against applicants and employees […]
Governor Cuomo recently signed into law changes to New York’s estate and income taxes. As the headlines noted, the changes provide some welcome tax relief to many middle class New Yorkers. However, wealthy clients may see little benefit under the new rules, and the additional complexity means careful estate planning to maximize the available benefits […]
The Second Circuit recently affirmed the Securities and Exchange Commission’s ability to negotiate settlements without requiring an admission of wrongdoing, thus vacating and remanding a decision to the contrary by Judge Jed S. Rakoff of the Southern District of New York in SEC v. Citigroup Global Mkts., Inc., No. 11-5227-cv(L); 11-5375-cv(con), 11-5242-cv(xap) (2d Cir. June […]
In April 2013, the SEC and the U.S. Commodity Futures Trading Commission jointly issued final rules (the “Red Flag Rules”) requiring certain investment advisers and other regulated entities to develop and implement written identity theft prevention programs (“Reg S-ID Programs”) designed to detect, prevent and mitigate identity theft in connection with new accounts and certain […]
Upcoming revisions to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) will result in numerous additional pharmaceutical licensing transactions becoming subject to filing requirements under the HSR Act. On November 6, the U.S. Federal Trade Commission (the “FTC”) released the final version of amendments to be made to the HSR Act. […]
Google has entered into a $17 million settlement with thirty-seven states and the District of Columbia in order to resolve allegations that the company had circumvented privacy settings pertaining to Safari, Apple Inc.’s Web browser. The states and the District of Columbia alleged that Google had broken state consumer protection and computer privacy laws. “By […]
On October 23, 2013, the Securities and Exchange Commission proposed new rules to implement the requirements of Title III of the Jumpstart Our Business Startups Act or “JOBS Act” which creates a “crowdfunding” private placement exemption. The JOBS Act, enacted on April 5, 2012, established a foundation for a regulatory structure for crowdfunding and directs […]
Several high-profile cybersecurity incidents in October and November of this year and the federal government’s recent proposal for a national “Cybersecurity Framework” for both the public and private sectors highlight the need for companies to develop or update their cybersecurity programs. An effective cybersecurity program should include initial and ongoing cyber risk assessments that inventory […]
With 2014 quickly approaching, there are a number of tax planning opportunities you may want to consider before year-end. Also, outlined below is a recap of some of the recent estate, gift and generation skipping transfer (“GST”) tax changes made in 2013, the inflation-adjusted 2014 federal estate, gift and GST exemption amounts and some things […]
On December 4, 2013, the staff of the SEC’s Division of Corporation Finance (the “Division”) issued new Compliance and Disclosure Interpretations (“CDIs”) concerning recently adopted Rule 506(d) of the Securities Act of 1933, the so-called “bad actor” rules. As background, Rule 506(d), which took effect on September 23, 2013, disqualifies securities offerings from reliance on […]
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 […]