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Briefings
August 19, 2010 Major Maritime Reform Efforts Advancing in the U.S. Congress Go Well Beyond the DEEPWATER HORIZON Incident
Since shortly after the DEEPWATER HORIZON incident on April 20, 2010, the U.S. Congress has had under consideration numerous measures addressing not only drilling operations in the U.S. Gulf of Mexico, but also a host of other changes that could affect many other aspects of U.S. maritime commerce.
August 16, 2010 Illinois Employment Law Legislative Update
Last week, Illinois Governor Pat Quinn signed into Illinois law an act that prohibits employers from running credit checks on job applicants.
August 6, 2010 Illinois Law Increases Penalties for Violations of Wage Payment Act
On July 30, 2010, Illinois Governor Pat Quinn signed into law a bill that increases criminal penalties for employers who illegally withhold wages and expands procedural mechanisms for mployees to pursue unpaid wages.
August 5, 2010 SEC Adopts Changes to Form ADV
The Securities and Exchange Commission has adopted amendments to Part 2 of Form ADV and related rules under the Investment Advisers Act of 1940, as amended, to require investment advisers registered with the SEC to provide new and prospective clients with a narrative brochure and brochure supplements written in plain English.
August 2, 2010 U.S. Government International Economic Sanctions Bite Maritime Industry Again
The worldwide maritime industry was reacquainted in April 2010 with U.S. government international economic sanctions when President Obama issued an order making it unlawful for U.S. persons to pay ransoms to designated Somali pirates.
July 29, 2010 New Iran Sanctions Will Impose New Duties on U.S. Banks, Broker-Dealers, Investment Companies, and Insurance Companies with respect to Certain Accounts Held by Foreign Financial Institutions
On July 1, 2010, while much of the banking and securities industry was singularly focused on financial regulatory reform legislation, the president signed the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010.
July 28, 2010 President Obama Signs Cruise Vessel Security and Safety Act of 2010 Into Law
On July 27, 2010 President Obama signed into law the Cruise Vessel Security and Safety Act of 2010. The new law aims to improve the safety and security of American citizens sailing as passengers to and from the United States on large cruise vessels.
July 28, 2010 UK Financial Regulation Shakeup Consultation Begins
On 26 July 2010 the UK government published a consultation paper “A New Approach to Financial Regulation” outlining the proposed reforms to the UK’s regulatory framework to avoid another financial meltdown.
July 23, 2010 The Bribery Act: Timing & Consultation Announced
The UK recently approved new legislation consolidating existing anti-corruption laws and adding broad new offences.
July 23, 2010 Dodd-Frank: The Impact on the Hedging Activities of the Corporate Treasurer
What if, on July 21, 2010, the treasurer of a corporate client had sat down with the Winston & Strawn derivatives team to discuss the impact to her of Title VII of the Dodd-Frank Act which was signed into law earlier that day. Set out below is one possible version of a transcript of that discussion.
July 22, 2010 SEC Seeks Comments on U.S. Proxy System
On July 14, 2010, the Securities and Exchange Commission approved the issuance of a long-anticipated concept release concerning the U.S. proxy system.
July 21, 2010 Seventh Circuit Determines That Retaliatory Discharge Cases In Federal Court Are Subject To More Demanding Illinois Law Framework Instead Of More Lenient, McDonnell Douglas Standard
In Gacek v. American Airlines, Inc., No. 09-3131 (July 15, 2010), the U.S. Court of Appeals for the Seventh Circuit addressed the standard for retaliatory discharge cases under Illinois law when litigated in federal courts, providing further support for employers on an important question of law.
July 21, 2010 The Bureau of Consumer Financial Protection: Broad Authority to Regulate Arbitration Agreements
Comprehensive financial reform legislation known as the Dodd-Frank Wall Street Reform and Consumer Protection Act recently passed both houses of Congress and will significantly alter regulation of the financial industry.
July 19, 2010 Discovery Sanctions Opinion
In an infringement suit brought under the Hatch-Waxman Act, the plaintiffs filed a motion for sanctions against the alleged infringer for spoliation of evidence.
July 19, 2010 Supreme Court to Hear Several Cases Affecting Labor & Employment
The Supreme Court has accepted seven labor- and employment-related cases to be heard in the Court’s next term, which begins in October 2010. These cases touch on a wide range of labor and employment issues, and the Court’s rulings could have significant impacts on employers.
July 16, 2010 Swift Justice in China for U.S. Banks Suffering Fraud Losses
On two occasions in the past six months, Winston & Strawn attorneys have helped the firm’s U.S. bank clients to recover money that was transferred from U.S. accounts to Hong Kong/China as a result of fraud.
July 14, 2010 The Proposed Office of Financial Research: Beware of Its Scope, Mission, and Enforcement Powers
On June 29, 2010, a Congressional Conference Committee released the final version of the financial reform legislation now known as the Dodd-Frank Wall Street Reform and Consumer Protection Act.
July 8, 2010 Second Circuit Defers to DOL Amicus Brief in Ruling That Certain Pharmaceutical Sales Reps Are Not Exempt Under the FLSA
On July 6, 2010, the United States Court of Appeals for the Second Circuit held that Pharmaceutical Sales Representatives of Novartis Pharmaceuticals Corporation were not exempt from the Fair Labor Standards Act or state laws as either “outside sales” or “administrative” employees.
July 8, 2010 Supreme Court Finds No U.S. Cause of Action in “F-cubed” Case
A new Supreme Court decision should help quell the fears of those who think the United States “has become the Shangri-La of class action litigation for lawyers representing those allegedly cheated in foreign securities markets.”
July 6, 2010 Congress Considers Expanding Jones Act-Like Restrictions to All Activities in the Waters within 200 Miles of the U.S., Including Alternative Energy Projects
The DEEPWATER HORIZON incident on April 20, 2010 has led to numerous Congressional legislative proposals.
July 6, 2010 Stock Exchanges to Expand Circuit Breaker Rules
As discussed in earlier briefings, on June 10, 2010, the Securities and Exchange Commission approved proposals by each of the national securities exchanges and the Financial Industry Regulatory Authority (collectively, the “self-regulatory organizations” or “SROs”) to impose uniform market-wide standards for certain securities that experience a rapid price movement.
July 2, 2010 SEC Prohibits Pay-to-Play Practices by Investment Advisers
On Wednesday, June 30, 2010, the five commissioners of the Securities and Exchange Commission (the “SEC”) unanimously voted to approve new rules intended to curtail significantly the influence of “pay-to-play” practices by investment advisers that are registered with the SEC under the Investment Advisers Act of 1940, as amended (the “Act”) or unregistered in reliance on section 203(b) of the Act.
June 30, 2010 Key Questions Remain Unanswered In Supreme Court Decision on the Patentability of Business Methods
In a highly anticipated decision that had once promised to redefine the scope of patentable subject matter under U.S. law, the Supreme Court ruled narrowly on Monday that a claim to a method for hedging risk in commodities trading could be rejected under existing precedent.
June 30, 2010 Supreme Court Issues Significant Decision on “Relation Back” Doctrine
Earlier this month, the Supreme Court issued a civil procedure decision that could have a significant impact on lawsuits against corporations, particularly where the plaintiff’s complaint asserts claims against the wrong member of a corporate family.
June 25, 2010 Department of Labor Issues Administrator’s Interpretation Expanding Who Can Stand “In Loco Parentis” Under FMLA
The Department of Labor (“DOL”) has issued an Administrator’s Interpretation that extends FMLA leave rights to any employee who has assumed responsibility for the parental care of a child, clarifying that the phrase “in loco parentis” includes non-traditional families.
June 25, 2010 Supreme Court Rules That Court, Not Arbitrator, Determines When Collective Bargaining Agreement Was Ratified
The U.S. Supreme Court held in a 7-2 decision that a dispute concerning the ratification date of a collective bargaining agreement (“CBA”) was for a district court, not an arbitrator, to decide.
June 25, 2010 Exchanges Propose Uniform Rules for Clearly Erroneous Transactions
On June 21st, each of the national securities exchanges and FINRA filed with the SEC proposed rules relating to the handling of erroneous trades in exchange-listed securities on their markets. The Proposed Rules are intended to clarify when, and at what prices, trades will be broken because they are considered “clearly erroneous.”
June 23, 2010 Court Sides With Arbitrator’s Rights to Determine the Enforceability of Arbitration Agreements
This week, in a narrow 5–4 ruling, the Supreme Court continued its trend in favor of pro-arbitration rights in Rent-A-Center West v. Jackson. The ruling gives businesses the option to have mandatory arbitration enforceability disputes settled by arbitration, while leaving the door open for district court review of enforceability under certain circumstances.
June 21, 2010 Federal Reserve Board Adopts Credit Card Penalty and Interest Rate Rules
On June 14, 2010, the Federal Reserve Board amended its Regulation Z to implement certain provisions of last year’s Credit Card Accountability, Responsibility, and Disclosure Act. The Board has been periodically adopting regulations to implement various provisions of the CARD Act.
June 18, 2010 Supreme Court Rules Two-Member NLRB Lacked Authority to Decide Cases
In a 5-4 decision, the Supreme Court ruled yesterday that the National Labor Relations Board does not have authority to issue decisions while it has only two members.
June 18, 2010 DOL Administrator Issues Interpretation on “Clothes” Under § 203(o) of the FLSA
On June 16, 2010, the Department of Labor (DOL) issued its second wage and hour guidance document in the form of an “Administrator’s Interpretation.”
June 17, 2010 Biggest Shakeup in UK Financial Services Regulation and Enforcement in a Decade
Yesterday, the UK government announced a complete overhaul of the financial services industry in the UK, increased focus on white-collar crime, and a review, with possible reform, of the banking industry.
June 15, 2010 Options Exchanges Adopt Circuit Breaker Trading Halts
On June 10th, in response to the adoption by each of the national securities exchanges and the Financial Industry Regulatory Authority of “circuit breaker” rules for stocks that experience significant market price movements, each of the U.S. options exchanges adopted rules calling for trading in any exchange-listed option contract to be halted whenever trading in the underlying security is paused by the primary listing market.
June 15, 2010 UK Court Holds that Vessel Remains On-Hire While Held by Pirates
On June 11, 2010, the U.K. Commercial Court ruled that a vessel chartered under a New York Produce Exchange (1946) form charter party remained on-hire while detained by Somali pirates.
June 11, 2010 SEC Approves Circuit Breaker Rules
As we discussed in earlier briefings,1 on May 18 and 19, 2010, in response to the unprecedented market volatility on the afternoon of Thursday, May 6, 2010 (which some have referred to as the “flash crash”), each of the national securities exchanges and the Financial Industry Regulatory Authority filed with the Securities and Exchange Commission proposals for uniform market-wide standards for certain securities that experience a rapid price movement.
June 4, 2010 FINRA Proposes Registration of Operations Professionals
On May 26th, the Financial Industry Regulatory Authority published Regulatory Notice 10-25, requesting comment on a proposal to establish registration requirements for broker-dealer operations personnel.
May 26, 2010 “Durbin Amendment” May Benefit Merchants—Harm Card Issuers, Networks, Processors, and Consumers
On May 13, 2010, the U. S. Senate approved the so-called “Durbin Amendment” to the financial regulatory reform bill, S. 3217, the Restoring American Financial Stability Act, then pending in the Senate.
May 25, 2010 Supreme Court Rules for Plaintiffs in Two Employment-Related Cases
On May 24, 2010, the Supreme Court issued decisions for plaintiffs in two separate cases, one under Title VII and the other under ERISA. These rulings will impact both employers and administrators of benefit plans.
May 25, 2010 Two Recent Rulings Address Eligibility for Chapter 9 Bankruptcy Protection
Two recent rulings have provided significant guidance on the determination of whether an entity is eligible to be a debtor under Chapter 9 of the Bankruptcy Code.
May 24, 2010 Comment Deadline Set for Circuit Breaker Rule Proposals
On Friday, May 21st, we issued a briefing that discussed the proposals by the various national securities exchanges and FINRA to adopt uniform “circuit breaker” rules designed to halt trading in S&P 500 stocks that experience a rapid price movement.
May 21, 2010 Stock Exchanges Propose Stock-by-Stock Circuit Breakers; SEC & CFTC Staffs Issue Initial Joint Report on May 6 Market Events
On the afternoon of Thursday, May 6, 2010, in an event that some have been calling the “flash crash,” stock prices suffered an unprecedented period of volatility when the Dow Jones Industrial Average fell nearly 1,000 points in a short period of time, only to partially rebound shortly thereafter.
May 19, 2010 FTC Red Flags Rule Reminder to Financial Institutions and Creditors
Beginning June 1, 2010, the Federal Trade Commission will enforce its Red Flags Rule.
May 17, 2010 SEC and CFTC Announce Joint Advisory Committee on Emerging Regulatory Issues
On May 11, 2010, the Chairmen of the Securities and Exchange Commission and Commodity Futures Trading Commission announced the formation of a joint advisory committee to address emerging regulatory issues.
May 12, 2010 EPA Releases Dual Proposal to Regulate CCR under RCRA
On May 4, 2010, the Environmental Protection Agency released two alternative proposals to regulate the disposal of coal combustion residuals—fly ash, bottom ash, boiler slag, and flue gas desulfurization materials that are generated from processes intended to generate power—under the Resource Conservation and Recovery Act.
May 12, 2010 New Rules for Group Health Plans Providing Coverage to Children Under Age 26
The Internal Revenue Service, the Department of Labor, and the Department of Health & Human Services each published Interim Final Rules on May 10 concerning the obligation of all group health plans under the Patient Protection and the Affordable Care Act to provide dependent coverage for children who have not yet attained age 26.
May 11, 2010 Senate Approves Coast Guard Authorization Bill Setting Stage for Conference with the House of Representatives
On May 7, 2010, the U.S. Senate passed a House version of a Coast Guard authorization bill (HR 3619), setting the stage for enactment of the service’s first reauthorization since 2006.
May 11, 2010 Stress-Testing Is Changing Bank Supervision
Federal Reserve Chairman Ben Bernanke recently spoke on the occasion of the first anniversary of the public release of the stress test results for the 19 largest banking organizations in the midst of the recent financial crisis.
May 5, 2010 Supreme Court Holds that Debt Collector Who Makes An Error of Law Cannot Invoke the “Bona Fide Error” Defense
The Supreme Court has issued a new decision on the scope of the Fair Debt Collection Practices Act, interpreting the Act in a manner that is likely to raise concerns for law firms and others engaged in debt collection.
May 3, 2010 FINRA Announces Timetable for 30-Second Trade Reporting
On April 7, 2010, the SEC published approval of a proposal by the Financial Industry Regulatory Authority to reduce the time frame for reporting over-the-counter transactions in equity securities from 90 to 30 seconds after execution.
April 29, 2010 Supreme Court Holds “Class Arbitration” May Not Be Imposed Absent Explicit Agreement
Class actions tend to increase the breadth and potential exposure of litigation against corporate defendants, which creates uncertainty in the legal environment.
April 28, 2010 Pension Committee and Rimkus Consulting: Differing Approaches to Determining Spoliation
Two prominent federal judges in the field of e-discovery have recently issued opinions setting forth differing analytical frameworks for deciding whether to impose sanctions for the spoliation of electronic evidence.
April 27, 2010 SEC Proposes Larger Trader Reporting System
On April 14th, the Securities and Exchange Commission published proposed Rule 13h-1 and Form 13H under Section 13(h) of the Securities Exchange Act of 1934.
April 26, 2010 Guidance Regarding the Application of the New U.S. Executive Order on Somalia to Pirate Ransom Payments
Last week, the White House released Executive Order 13536 of April 12, 2010, “Blocking Property of Certain Persons Contributing to the Conflict in Somalia,” which has significant potential impacts on the payment of ransom by U.S. persons in the event of a Somalia related piratical attack.
April 26, 2010 Rejecting the Second Circuit's "One Strike" Rule, the Supreme Court Reaffirms the Importance of Firestone Deference
The Supreme Court's recent decision in Conkright v. Fommert, No. 08-810 (April 21, 2010), should provide ERISA plan sponsors and administrators with some peace of mind—given the Court's finding that making "a single honest mistake" will not strip them of the right to have their plan interpretations reviewed with deference by the courts.
April 26, 2010 FINRA Reminds Broker-Dealers of Obligations in Regulation D Offerings
On April 20, 2010, the Financial Industry Regulatory Authority issued Regulatory Notice 10-22 to remind broker-dealers of their of their obligations to comply with FINRA’s rules governing suitability, communications and supervision when they recommend securities offered under Regulation D promulgated under the Securities Act of 1933, as amended.
April 20, 2010 President Obama Signs Extension of Jobless Benefits
On April 15, 2010, President Obama signed into law H.R. 4851, the Continuing Extension Act of 2010, which temporarily extends certain unemployment and health care benefits.
April 19, 2010 SEC Brings Regulation FD Enforcement Action
In March 2010, the SEC brought an enforcement action under Regulation FD against a company and its former CEO for signaling disappointing quarterly results during a phone call received by the CEO from an investment advisor.
April 15, 2010 MARAD Seeks Project Applications for New Marine Highway Program
The U.S. Maritime Administration announced today, April 15, 2010, that it will accept applications for the designation of “marine highways” and related projects for preferential federal government funding. Applications are due by June 11, 2010.
April 14, 2010 FINRA Reduces OTC Trade Reporting Window From 90 to 30 Seconds
On April 7, 2010, the SEC published its approval of an amended proposal by the Financial Industry Regulatory Authority to require FINRA members to report over-the-counter transactions in equity securities within 30 seconds of execution.
April 9, 2010 Supreme Court Allows A Diversity Class Action to Proceed Despite Contrary State Law
The Supreme Court issued a decision last week that may be of concern to many corporate defendants hoping to benefit from state-level tort reform.
April 8, 2010 Recent Developments Affecting Renewable Energy Projects
The month of March saw three generally positive developments for the renewable and alternative energy industry.
April 8, 2010 Congress Establishes a New Regulatory Framework for the Approval of Biosimilars
The Patient Protection and Affordable Care Act was enacted on March 23, 2010.
April 7, 2010 The Risks of Risk Retention
The House and Senate versions of “financial regulatory reform” include mandatory “risk retention” standards that have received little analysis to date.
April 7, 2010 Section 4207 of the Patient Protection and Affordable Care Act of 2010
The Patient Protection and Affordable Care Act of 2010 amends Section 7 of the Fair Labor Standards Act by adding the requirement that employers provide “reasonable break time for nursing mothers.”
April 6, 2010 TVA Defeats Clean Air Act Case
In a bellwether case followed by much of the electric utility industry, the Tenesse Valley Authority defeated a Clean Air Act enforcement action following a multi-week bench trial.
April 5, 2010 The ABCs of Health Care Reform
President Obama signed the Patient Protection and Affordable Care Act into law on March 23, 2010.
March 26, 2010 DOL Reverses Position on Mortgage Loan Officers, Creates New Type of Guidance
The U.S. Department of Labor yesterday began a new practice of issuing interpretive guidance through “Administrator’s Interpretations,” which will set forth generally applicable interpretations of laws within the Department’s jurisdiction and will not be bound by any particular set of facts.
March 25, 2010 Third Circuit Rules Secured Creditors Do Not Have a Right as a Matter of Law to Credit Bid in Bankruptcy Plan Sale
This week, in a 2-1 decision affirming the District Court’s reversal of a ruling of the Bankruptcy Court for the Eastern District of Pennsylvania, the United States Court of Appeals for the Third Circuit held that secured creditors do not have a right as a matter of law to credit bid their claim at an auction pursuant to a plan of reorganization where the debtor intends to impose the plan on its secured creditors through a “cramdown” under section 1129(b)(2)(A)(iii) of the Bankruptcy Code.
March 24, 2010 New HIRE Act: Fund-Related Tax Provisions
On March 18, 2010, President Obama signed into law the Hiring Incentives to Restore Employment Act, which contains tax breaks for employers who hire new workers.
March 23, 2010 SEC Reinstates Price Restrictions on Short Sales
On February 24th, the Securities and Exchange Commission voted to adopt a new short sale pricing rule -- Rule 201 under Regulation SHO.
March 22, 2010 New NFA Quarterly Reporting Requirements for Registered CPOs
On March 17, 2010, the National Futures Association announced its adoption of new Compliance Rule 2-46: CPO Quarterly Reporting Requirements, which will become effective on March 31, 2010.
March 22, 2010 FINRA Advises Financial Firms of Responsibility for Employee Social Media Use and the Requirement of a Social Media Policy
The Financial Industry Regulatory Authority recently issued a Regulatory Notice providing guidance to financial firms regarding use of social media by the firms and their employees and the applicability of existing rules to such activities.
March 18, 2010 President Obama Signs $17.6 Billion Job-Creation Bill
President Obama has signed into law a $17.6 billion job-creation bill that contains tax breaks for employers who hire new workers.
March 18, 2010 Supreme Court Again Limits Which Statutes are "Jurisdictional" Absent a Clear Indication by Congress or Previous Supreme Court Authority
The Supreme Court recently issued another in a series of rulings limiting when a statutory requirement operates as a constraint on the federal courts’ jurisdiction.
March 17, 2010 Shareholders Seek Coal Ash Management Controls
Flush with victory after the Securities and Exchange Commission issued long-sought guidance on climate change disclosures, environmental activist shareholder groups have a new target in their cross-hairs—coal-fired power plant companies that manage coal ash in large, unlined surface impoundments.
February 26, 2010 SEC Issues Guidance on Climate Change Disclosures
On February 8, 2010, the Securities and Exchange Commision published in the Federal Register interpretive guidance on mandatory disclosures regarding climate change risks and opportunities. The guidance followed on the heels of a somewhat contentious discussion and a 3-2 vote in late January by the Commissioners, some of whom felt the push for such guidance was politically motivated and unnecessary.
February 26, 2010 U.S. Supreme Court Defines Company's Principal Place of Business As Its Nerve Center for Purposes of Removal
The U.S. Supreme Court's February 23, 2010 decision in Hertz v. Friend sends a clear message that our country's highest Court set out to resolve an inconsistency among federal courts that has been very costlly to employers on several levels, for too many years.
February 25, 2010 SEC Votes to Adopt Short Sale Price Restrictions
On February 24th, the Securities and Exchange Commission held an open meeting at which the commissioners voted 3-2 to approve a new short sale pricing rule – Rule 201 under Regulation SHO.
February 25, 2010 Supreme Court Defines “Principal Place of Business” for Diversity Cases
The Supreme Court recently answered a critical question of diversity jurisdiction in a way that should prove very helpful to corporate defendants seeking to keep lawsuits out of plaintiff-friendly state jurisdictions.
February 19, 2010 EEOC Issues Proposed Rule Clarifying RFOA Defense Under ADEA
The Equal Employment Opportunity Commission has released a proposed rule which, if adopted, would clarify the term “reasonable factors other than age” as used in the Age Discrimination in Employment Act.
February 9, 2010 SEC Proposes Revisions to Issuer Repurchase Rule
On January 26th, the Securities and Exchange Commission published a proposal to amend Rule 10b-18 under the Securities Exchange Act of 1934, as amended.
February 5, 2010 Developments in United States and International Regulation of Greenhouse Gas Emissions and Markets
This past year saw much activity in the United States on the climate change front, including developments in Greenhouse Gas emissions and related commodity and derivatives trading regulation.
January 27, 2010 Department of Justice Issues New Guidance for Discovery
U.S. Deputy Attorney General David Ogden has issued new guidelines that federal prosecutors must follow in complying with their discovery obligations in criminal cases.
January 26, 2010 SEC Proposes Risk Management Control Rules for Broker-Dealers with Market Access
On January 19th, the Securities and Exchange Commission published for comment proposed Rule 15c3-5 under the Securities Exchange Act of 1934, which would require broker-dealers with access to an exchange or alternative trading system as a result of being a member or subscriber, to implement risk management controls and supervisory procedures reasonably designed to manage the financial, regulatory, and other risks involved in such activity.
January 22, 2010 SEC Issues Concept Release on Equity Market Structure
As we discussed in a recent briefing, on January 13, the Securities and Exchange Commission approved the issuance of a “concept release” concerning equity market structure, which was published on January 14.
January 15, 2010 SEC Approves Nasdaq Proposal to Improve Regulation of Sponsored Access
On January 13th, the Securities and Exchange Commission approved a proposal by the Nasdaq Stock Market LLC to modify its rule governing electronic access to Nasdaq’s order execution systems.
January 14, 2010 SEC Approves Proposal for Risk Management Controls for Direct Access Brokers and Issuance of Concept Release on Equity Market Structure
On January 13th, the Securities and Exchange Commission held an open meeting at which the Commissioners voted unanimously to: (1) propose a new rule regarding risk management controls and supervisory procedures to manage financial, regulatory, and other risks, for brokers or dealers that provide their customers with unfiltered direct access to exchanges and/or alternative trading systems, and (2) publish a “Concept Release” on equity market structure that would invite public comment on a wide range of issues, including the performance of the current market structure, high-frequency trading, and undisplayed liquidity.
January 13, 2010 Additional Funding Provided for MARAD’s Small Shipyards Grant Program
On January 13, 2010, the U.S. Maritime Administration announced the availability of $14,700,000 in funding under the Small Shipyards Grant Program.
January 11, 2010 U.S. House of Representatives Passes its Version of Legislation Requiring Most Private Fund Advisers to Register as Investment Advisers
As we have reported in recent briefings, on December 11, 2009 the United States House of Representatives passed its version of comprehensive financial regulatory reform, The Wall Street Reform and Consumer Protection Act of 2009.
January 11, 2010 FINRA Proposes New Rules to Govern Applications for Registration and Changes in FINRA-Member Firms
On January 4, 2010, the Financial Industry Regulatory Authority issued Regulatory Notice 10-01, requesting comments on proposed consolidated FINRA Rules governing FINRA’s membership application process.
January 6, 2010 SEC Adopts Amendment to Advisers Act Custody Rule to Better Protect Investor Funds
The Securities and Exchange Commission has issued a release adopting amendments to Rule 206(4)-2 and related recordkeeping rules and Forms ADV and ADV-E under the Investment Advisers Act of 1940, as amended.
December 24, 2009 The Wall Street Reform and Consumer Protection Act of 2009: Impact on Broker-Dealers and Investment Advisers
On December 11th, the House of Representatives narrowly passed “The Wall Street Reform and Consumer Protection Act of 2009”.
December 23, 2009 COBRA Premium Subsidy Extended
President Obama recently signed into law an extension of the government subsidized COBRA premium reduction program established earlier this year by the American Recovery and Reinvestment Act of 2009.
December 22, 2009 House Passes Financial Regulation Reform Package
On December 11, 2009, the U.S. House of Representatives approved, by a vote of 223-202, regulatory reform legislation, the Wall Street Reform and Consumer Protection Act of 2009 (H.R. 4173).
December 21, 2009 Misclassification of Employees as Independent Contractors Draws Heightened Government Enforcement
Highlighting a broad national trend toward stricter enforcement of employee misclassification, the Illinois Department of Labor on December 10 announced that it had imposed a $328,500 civil penalty against a Chicago-area contractor, finding that the contractor has misclassified 18 of its employees as independent contractors.
December 15, 2009 Supreme Court holds that orders requiring disclosure of privileged materials may not be appealed under the collateral order doctrine
Court orders requiring parties to disclose attorney-client privileged information can be devastating for businesses involved in litigation. In Mohawk Industries, the Supreme Court introduced a new obstacle to relief by ruling out one of the four methods litigants have used to challenge such orders.
December 14, 2009 2009 Reminder of Annual Requirements for Investment Managers
As 2009 comes to a close, we thought it would be helpful to remind our clients that manage separate accounts or private funds of certain obligations that may be applicable to them under various U.S. federal and state laws and regulations.
December 14, 2009 NASDAQ Adopts Ten-Minute Prior Notice Rule For Material Announcements
The Securities and Exchange Commission recently approved a change to NASDAQ Rule 5250(b)(1) and IM-5250-1 that requires, rather than recommends, that NASDAQ-listed companies notify NASDAQ’s MarketWatch Department at least ten minutes prior to the public release of material information.
December 14, 2009 FINRA Proposes New Rule to Govern Payments to Unregistered Persons
On December 2, 2009, the Financial Industry Regulatory Authority issued Regulatory Notice 09-69, requesting comments on proposed new FINRA Conduct Rule 2040 governing payments to unregistered persons by FINRA member broker-dealers.
December 11, 2009 EPA Finalizes GHG Endangerment and Cause-or-Contribute Findings
In April of this year, we alerted you to the Environmental Protection Agency’s (EPA) proposed findings that (1) the current and projected concentration of six key greenhouse gases in the atmosphere threatens the public health and welfare (the proposed endangerment finding), and that (2) the combined emissions of these GHGs from new motor vehicles contribute to this concentration, which threatens the public health and welfare (the proposed cause-or-contribute finding).
December 10, 2009 U.S. Nuclear Regulatory Commission Issues Four Confirmatory Orders Related to Fitness-for-Duty and Medical Issues
The U.S. Nuclear Regulatory Commission recently issued four confirmatory orders, two to Nuclear Fuel Services, Inc. and two to its primary physician for licensed activities/Medical Review Officer.
December 10, 2009 Supreme Court Issues Two Unanimous Decisions Affecting Labor & Employment
In Union Pac. R.R. Co. v. Bhd. of Locomotive Engineers, No. 08-604 (December 8, 2009), the Court unanimously held that a union’s failure to present evidence of efforts to reach a settlement through “conferencing” did not preclude the National Railroad Adjustment Board from exercising jurisdiction over the union’s claim.
December 9, 2009 Winston Maritime Clients Prevail In Key Judicial Decisions
On December 4, 2009, a federal district court in Virginia entered judgment in favor of the U.S. Coast Guard and Matson Navigation Company, Inc. in a long-running vessel foreign rebuild case.
December 9, 2009 Second Circuit Permits Unsecured Claim for Post-Petition Attorneys’ Fees Authorized Under a Valid Pre-Petition Contract
In a recent holding that a creditor may collect, on an unsecured basis, post-petition attorneys’ fees under an otherwise enforceable pre-petition contract, the Second Circuit Court of Appeals followed a similar ruling by the Ninth Circuit earlier this year, adding to a conflict among the circuits on this issue.
December 7, 2009 FINRA Proposes Shortening Trade Reporting Timeframe to 30 Seconds
The Financial Industry Regulatory Authority is proposing to amend its reporting rules to require that over-the-counter equity transactions be reported within 30 seconds of execution.
November 30, 2009 SEC Brings First Enforcement Proceeding Under Reg G for Improper Use of Non-GAAP Numbers
On November 12, 2009, the SEC announced that it had brought its first enforcement proceeding under Regulation G under the Securities Exchange Act of 1934 since its enactment in 2003. Reg G, as it is commonly called, regulates the use by public companies of non-GAAP financial measures in public disclosures such as press releases, Web sites and conference calls.
November 30, 2009 New Ten Percent Penalty Imposed in California for Failure to Timely Report Changes in Control
Effective January 1, 2010, if a legal entity fails to file a change in control statement within 45 days of the earlier of: 1) the date of the change in control or the change in ownership of the corporation, partnership, limited liability company, or other legal entity; or, 2) the date of a written request by the State Board of Equalization, then a penalty of 10 percent of the taxes applicable to the new base year value of the subject real property will be added to the subject property’s assessment.
November 25, 2009 SEC Proposes Regulation of Dark Pools
On November 13, 2009, the Securities and Exchange Commission published a proposal to enhance regulation of so-called “dark pools of liquidity” – alternative trading systems that do not display quotations in the publicly disseminated consolidated quotation data. Given the lack of transparency inherent in much of dark pool trading, the SEC is concerned that an increase in such trading could deprive the public of important information regarding stock prices and liquidity.
November 23, 2009 Facebook’s Claim of Ownership of Posted Content Does Not Destroy CDA Immunity
The New York Supreme Court recently granted Facebook, Inc.’s motion to dismiss a pending defamation action because the court concluded that Facebook was immune from liability under the Communications Decency Act as an interactive computer service.
November 20, 2009 George Clinton’s Use of “Dog” and Panting in Song is Copyrightable Subject Matter
Bridgeport Music, Inc., owner of the publishing rights to George Clinton’s best-known work, “Atomic Dog,” sued UMG Recordings Inc. for copyright infringement.
November 20, 2009 Court Finds No Copyright Infringement Where Works Lack Similarity in Total Concept and Feel
A children's book was found not to infringe on another work for children. The court found that the total concept and feel of the two works were not substantially similar, and only the non-copyrightable elements of the works were shared.
November 19, 2009 New York’s Highest Court Narrows Restrictions on Transfer of Claims
The New York Court of Appeals ruled on October 15, 2009 that transfers of legal claims do not violate New York’s champerty statute even where the transferee intends to enforce the claims in court, so long as the purpose of the transfer is not to profit from the costs of the resulting litigation.
November 17, 2009 FTC To Hold First in Series of Privacy Roundtables
The Federal Trade Commission will hold on December 7 the first in a series of roundtables on privacy issues.
November 18, 2009 World Trade Organization: Doha Round of Trade Negotiations
The “Doha Round” of negotiations at the World Trade Organization in Geneva has the potential, directly or indirectly, to affect business around the world.
November 16, 2009 Social Networking Web site to Pay $750,000 for Sending Unsolicited and Deceptive Promotional Emails
The New York and Texas State attorneys general entered into settlement agreements with social networking Web site Tagged.com, after the attorneys general concluded that the Web site misappropriated its members’ contact lists and sent out millions of unsolicited and deceptive promotional emails to members’ contacts.
November 13, 2009 U.K. Law on Prize Competitions Receives Clarification
Under the Gambling Act 2005 the organisers of prize competitions in the United Kingdom must be careful to ensure that their promotions do not constitute an illegal lottery. 
November 13, 2009 Mattress.com Ruled Generic
The Federal Circuit Court of Appeals ruled on Friday that Mattress.com is generic for online retail sales of mattresses, beds, and bedding.
November 11, 2009 Creating Categories Does Not Destroy CDA Immunity
Thomas Dart, a sheriff in Cook County, Illinois, filed suit against online classified advertiser Craigslist, Inc. in the U.S. District Court for the Northern District of Illinois for creating a public nuisance by facilitating prostitution.
November 11, 2009 Photographer Retains Rights in Photos Created for Company’s Advertising and Promotional Materials
Learning Curve International is an authorized licensee of the popular “Thomas & Friends” train characters.
November 11, 2009 DOE Issues Loan Guarantee Program for Commercial Technology Renewable Energy Generation Projects
Nearly eight months after passage of the American Recovery and Reinvestment Act of 2009 and its promulgation of Section 1705 of Title XVII of the Energy Policy Act of 2005 authorizing Department of Energy loan guarantees for commercial technology renewable energy generation projects, on October 7, 2009 the DOE issued its solicitation for applications for these loan guarantees.
November 9, 2009 Facebook Issues New Policy Regarding Conducting Sweepstakes and Contests
Facebook recently released a revised policy for administering sweepstakes and contests through Facebook.
November 6, 2009 Geisen Appeal Goes to the Commission
On September 21, 2009, the Nuclear Regulatory Commission Staff filed a petition seeking Commission review of the Atomic Safety and Licensing Board decision setting aside an Enforcement Order against David Geisen.
November 5, 2009 Revisions to Forms U4 and U5-Action Required by November 14
In May 2009, the SEC approved a proposal by the Financial Industry Authority to modify Forms U4 and U5 in several ways. The revised forms contain additional disclosure questions regarding regulatory actions brought against industry employees, which are designed to enable FINRA and other regulators to more readily identify persons who are subject to disqualification from participation in the securities industry.
November 5, 2009 October 2009 FMLA Amendments Regarding Military Leave
On October 28, 2009 President Obama signed the National Defense Authorization Act for Fiscal Year 2010, which expands Family and Medical Leave Act coverage for family members of military servicepersons.
November 3, 2009 National Mediation Board Proposes Changes to Representation Election Rules
The National Mediation Board has proposed significant changes to representation election rules under the Railway Labor Act, which governs labor relations in the airline and railway industries.
November 3, 2009 SEC Proposes to Eliminate Flash Orders
On September 18, 2009, the Securities and Exchange Commission issued a proposal to eliminate the "flash order" exception from the quotation dissemination requirements of Rule 602 of Regulation NMS under the Securities and Exchange Act of 1934, as amended.
November 2, 2009 Delaware Court Holds That Fiduciary Disclosure Principles Do Not Apply to ROFR Purchases
In an intriguing case of first impression, the Delaware Court of Chancery recently held in Latesco, L.P. v. Wayport, Inc. that fiduciary disclosure principles do not apply to purchases by insiders pursuant to contractual "right of first refusal" provisions.
October 29, 2009 Refunds Issued for Baby Einstein Purchases
According to recent press reports, Walt Disney Studios Home Entertainment is offering consumers who purchased Baby Einstein videos between June 2004 and September 2009 a refund of $15.99, or else the option to exchange the video for another product.
October 28, 2009 Puerto Rico Revises Sweepstakes Regulations
On October 27, 2009, Puerto Rico’s Department of Consumer Affairs released new regulations governing the promotion of sweepstakes in Puerto Rico.
October 27, 2009 FTC Settles With Company Over Biodegradable Claims Since Product Not Normally Composted
The Federal Trade Commission announced a settlement October 22 with a company that makes clothing and other textiles from processed bamboo.
October 27, 2009 House of Representatives Passes Coast Guard Authorization Bill — Again
On October 23, 2009, the U.S. House of Representatives once again passed the authorizing legislation for the U.S. Coast Guard with its accompanying 300 pages of diverse maritime legislative provisions (H.R. 3619).
October 21, 2009 Facebook Settles Privacy Lawsuit for $9.5 Million
Facebook recently settled a class action lawsuit filed in California against its Beacon program.
October 21, 2009 President Obama Issues Executive Order on Environmental Sustainability
On October 5, 2009, President Obama issued an executive order “to establish an integrated strategy towards sustainability in the Federal Government and to make reduction of greenhouse gas emissions a priority for Federal agencies.”
October 21, 2009 EPA Issues Proposed Greenhouse Gas Tailoring Rule
On September 30, 2009, the Environmental Protection Agency issued a proposed rule that would prescribe the application of Clean Air Act permit requirements to stationary sources of greenhouse gas emissions (“the proposed tailoring rule”).
October 21, 2009 Use of Celebrity Image in Greeting Card May Violate Publicity Right
Paris Hilton sued Hallmark Cards after a Hallmark birthday card contained a picture of Paris Hilton’s head super-imposed on a cartoon’s body with a caption that read, “Paris’s First Day as a Waitress” and included Hilton’s catch-phrase “That’s hot.” Hilton sued Hallmark for violation of her right of publicity as well as violations of the Lanham Act.
October 21, 2009 Customs Issues New Vessel Repair Duty Regulations
On October 20, 2009, United States Customs and Border Protection modified its regulations administering the foreign vessel repair duty to incorporate additional exemptions for repairs by the vessel’s crew and repairs made in countries with which the United States has a free trade agreement.
October 20, 2009 COPPA Settlement for Improper Age Screening Results in $250,000 Civil Penalty
Iconix Brand Group, Inc. owner of the Mudd, Candie's, Bongo and OP brands (brands with wide appeal to children), settled on October 20, 2009 with the Federal Trade Commission over its information collection practices on many of its brand-specific sites.
October 19, 2009 U.S. Nuclear Regulatory Commission Issues Final Rule Imposing Criminal Penalties for Unauthorized Introduction of Weapons in Certain Licensed Facilities
On October 14, 2009, the U.S. Nuclear Regulatory Commission published in the Federal Register a final rule which would authorize the imposition of federal criminal penalties for the introduction, without authorization, of weapons or explosives into certain facilities and installations regulated by the NRC.
October 19, 2009 Reminder – Many Companies Need to Amend for 162(m) by Year End
Many companies will need to amend their employment agreements, equity plans and awards, and other incentive plans and agreements by December 31, 2009, to preserve the deductibility of performance-based awards and amounts under Code Section 162(m) [the $1 million limit on public companies’ ability to deduct compensation payments to their named executive officers] in light of Rev. Rul. 2008-13.
October 13, 2009 Class Action Filed for Invalid Instant Win Codes in Sweepstakes
A class action lawsuit was filed against a major alcoholic beverage manufacturer alleging that some instant win game codes distributed in connection with the “Silver Ticket Sweepstakes” were invalid.
October 13, 2009 RE/MAX International Wins Trademark Infringement Suit
RE/MAX International, Inc. brought a trademark infringement suit against Trend Setter Realty, LLC, for use of “red-over-white-over-blue horizontal bar design” in connection with real estate services.
October 13, 2009 Maritime Provisions Enacted in U.S. Defense Legislation
On Oct. 8, 2009, the U.S. House of Representatives passed the National Defense Authorization Act for Fiscal Year 2010.
October 12, 2009 FINRA Proposes New Rules Governing Communications with the Public
On September 21, 2009, FINRA issued Regulatory Notice 09-55, requesting comments on proposed new rules governing communications with the public by FINRA member broker-dealers.
October 9, 2009 IRS Updates Procedures for Appeals Mediation Program
The Internal Revenue Service’s Appeals mediation program provides taxpayers who are unable to resolve issues during the traditional Appeals settlement process with another opportunity to resolve those issues before litigation.
October 9, 2009 TALF and Non-Mortgage ABS: Formal Risk Assessment and Expansion of Credit Rating Agency Eligibility
On October 5, 2009, the Federal Reserve Board announced changes to the Term Asset-Backed Securities Loan Facility, which is maintained by the Federal Reserve Bank of New York as authorized on November 24, 2008, and is intended to aid market participants in meeting the credit needs of investors in highly rated asset-backed securities.
October 7, 2009 FTC Announces Final Update To Endorsement and Testimonial Guides
The Federal Trade Commission adopted final changes to the Guides Concerning the Use of Endorsements and Testimonials in Advertising.
October 7, 2009 FTC Enters Into Final Consent Agreement Regarding Product Claims
The FTC entered a final consent agreement with Constellation Brands concerning the FTC’s charges that ads for Wide Eye caffeinated schnapps were deceptive. 
October 6, 2009 SEC Indicates How Companies May Avoid Regulation FD Enforcement Proceedings
Regulation FD generally requires public companies to publicly disclose material nonpublic information that has been selectively disclosed to members of the investment community.
October 5, 2009 A Different Era: An Update on New Nuclear Adjudications
The first applications for licenses to construct and operate new power reactors were filed in 2007. At the time, the applications were the first in nearly 25 years — but they were not the last.
October 2, 2009 Second Circuit Rules Parties May Sue Greenhouse Gas Emitters Under Nuisance Claim
In a decision that should raise flags across the country in boardrooms of companies with significant greenhouse gas emissions, the United States Court of Appeals for the Second Circuit recently overturned a federal district court decision and ruled in favor of the plaintiffs in a climate change lawsuit based on a federal common law nuisance claim against six private power companies that operate coal-fired power plants in 20 states.
September 30, 2009 NRC Issues Guidelines on Use of Firearms by Security Personnel at Licensed Facilities
Some four years after the passage of the Energy Policy Act of 2005, the U.S. Nuclear Regulatory Commission has issued, with the approval of the United States Attorney General, guidelines on the use of firearms by security personnel whose duties include the protection of NRC-regulated facilities.
September 25, 2009 IRS Rules Offshore Loan Activities Subject to U.S. Tax
In a legal memorandum issued by the Office of the Chief Counsel, the Internal Revenue Service has concluded that a foreign corporation’s income attributable to certain loan activities was effectively connected with the conduct of an active trade or business within the United States and, therefore, was subject to U.S. income tax.
September 24, 2009 Winston Wins Victory for Veoh Against Universal Music Group in Copyright Infringement Lawsuit
A federal court recently affirmed that Veoh Networks, an online video Web site, qualified for safe harbor protection under the Digital Millennium Copyright Act.
September 24, 2009 Florida Attorney General Sues For Failing to Send Rebate Checks On Time
The Florida Attorney General sued Tigerdirect, Inc. for deceptive trade practices with respect to Tigerdirect's advertisements for its mail-in rebates.
September 24, 2009 CARU Finds Sweepstakes Disclosures Not Clear and Understandable to Children
The Children's Advertising Review Unit reviewed advertising for Mrs. Butterworth's Syrup that aired during children's programming.
September 24, 2009 Joint Policy Committee Issues Advice Regarding Union Demands Over Payments on Unauthorized Uploads to Web Sites
Recently, the Screen Actors Guild and the American Federation of Television and Radio Artists have been demanding that advertising agencies remit payments to performers and to pension and health funds for videos that have been uploaded to video sharing Web sites, such as You Tube, without the advertising agency or producer's permission.
September 24, 2009 NAD Recommends That Company Modify "Green" Claims Regarding its Computers
Following a challenge, the National Advertising Division reviewed certain "green" claims touted by Apple regarding its MacBook laptop computers. Specifically, NAD examined the express claim, "The New MacBooks.
September 24, 2009 Court Finds Browsewrap Agreement Unenforceable
The U.S. District Court for the Eastern District of New York held that Overstock.com's terms and conditions were not enforceable against its customers who did not actually read the terms.
September 24, 2009 Twitter Amends Terms in an Attempt to Address User Ownership Issues
Twitter recently amended its Web site terms of use to emphasize that users own their own postings.
September 24, 2009 Site Vicariously Liable for Infringing Content Created by its Web Developer
A janitorial supply corporation, Master Maintenance, hired a third party Web developer, West Central Ohio Internet Link, Ltd., to redesign its Web site.
September 24, 2009 ISPs Found Liable for Contributory Trademark and Copyright Infringement
A unanimous jury in the U.S. District Court for the Northern District of California found that two ISPs committed contributory trademark infringement and copyright infringement against Louis Vuitton Malettier S.A. for failing to block Web sites offering counterfeit Louis Vuitton merchandise.
September 24, 2009 Blog Post Generically Describing Patient Experience Did Not Violate Privacy Policy
A Kentucky court recently ruled that a nursing student's blog post about a patient giving birth did not violate the school's policies, which prohibit students from disclosing confidential information, including medical information about patients.
September 24, 2009 Missouri Enacts Data Breach Notification Law
Effective August 28, 2009, businesses in Missouri are now required to notify Missouri residents if their unencrypted personal information is breached when a risk of harm is present.
September 24, 2009 A Step-by-Step Action Plan For Conducting Executive Compensation Risk Assessments
The most important year-end 2009 task for Companies, Boards of Directors, and Compensation Committees may be to begin to establish a process for assessing the risk of the Company’s executive and employee compensation programs.
September 24, 2009 EPA Finalizes Greenhouse Gas Reporting Rule
In March of this year we alerted you to the Environmental Protection Agency’s proposed rule to require the reporting of greenhouse gas emissions from large sources of GHGs.
September 22, 2009 New Guidance From the SEC on Regulation FD
On August 14, 2009, the SEC’s Division of Corporation Finance published new Compliance and Disclosure Interpretations regarding Regulation FD, which generally requires public companies to publicly disclose material nonpublic information that has been selectively disclosed to members of the investment community
September 14, 2009 International Tribunal Rules That Hong Kong Investor May Assert Claim Under Chinese Bilateral Investment Treaty
An international tribunal has issued the first arbitral award ever rendered under a Chinese bilateral investment treaty.
September 10, 2009 Further Update Re Maine Predatory Marketing Law
As we reported recently, the Maine Independent Colleges Association and others filed a case in the United States District Court of Maine against the Governor of Maine and the Maine Attorney General to have the Maine Act to Prevent Predatory Marketing Practices Against Minors declared unconstitutional, arguing that it impinges upon Free Speech and the Commerce Clause, and that it is preempted by COPPA.
September 9, 2009 Geisen Sanctions Set Aside
On August 28, 2009, a three-member panel of the Atomic Safety and Licensing Board set aside, in a 2-1 decision, an Enforcement Order against David Geisen, a former employee of the Davis-Besse Nuclear Power Station owned and operated by First Energy Nuclear Operating Company.
September 4, 2009 Illinois Employment Law Legislative Update
Illinois Governor Patrick Quinn recently signed three statutory amendments into law, each aimed at expanding the rights of workers in Illinois.
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