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May 2014 Client Alerts

Practice groups throughout Bryan Cave often prepare alerts on issues of interest to our clients and friends. Listed below are the Client Alerts published in May 2014.  Please click on the title to read the full text of the Alert.

SEC Confirms that FINRA May Investigate Non-FINRA Companies Controlled by a FINRA Member, published by the Broker-Dealer Litigation, Arbitration and Regulatory Practice on May 29, 2014.

CFTC Hopes To Attract More Whistleblowers With Issuance of First Award, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement, and Labor and Employment Investment Management practice groups on May 22, 2014.

Court Strengthens Statute of Limitations Defense Against the SEC, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement group on May 15, 2014.

Spreading the Sunshine in Private Equity:  SEC’s Observations from OCIE’s Presence Exams of Private Equity Fund Advisers, published by the Investment Management and Private Equity practice groups on May 14, 2014.

IRS Issues Guidance on Retiree Health Benefits Funded Through Captive Insurance Subsidiary, published by the Tax Advice and Controversy and Captive Insurance practice groups in May 14, 2014.

New Endangered Species Act Rules and Policy Proposedpublished by the Environmental group on May 15, 2014.

Russian Sanctions Creep (IRB No. 523), published by the International Trade CEE and CIS Team on May 13, 2014.

EU Expands Basis for Ukraine-related Sanctions Targets (IRB No. 523), published by the International Trade CEE and CIS Team on May 13, 2014.

At Last:  DoD Codifies Procedures for Addressing Foreign Ownership, Control or Influence (“FOCI”) Concerns, published by the National Security practice on May 6, 2014.

International Centre for Dispute Resolution (“ICDR”) Draft Procedures and Rules, published by the International Arbitration practice on May 8, 2014.

EU to Make It Easier to Confiscate Proceeds of Crime, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team on May 20, 2014.

Who is a Foreign Official Under the FCPA?  U.S. Appeals court Affirms Government’s Broad Reading of Instrumentality, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team on May 19, 2014.

Imminent Consumer Contracts Regulations Affecting Hotel Operators and Travel Agencies — Summary of Key Changes, published by the London Technology, Entrepreneurial and Commercial Practice and Retail Team on May 23, 2014.

Bankers Beware:  Global Financial Institutions and Regulated Firms Remain in the UK’s Firing Line, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team on May 19, 2014.

Hedging the Hedge — Are Hedging Losses Recoverable in Commodities Contracts, published by the Singapore Energy and Natural Resources group on May 14, 2014.

Labor and Employment Bulletin – May 2014, published by the London Labor and Employment practice on May 12, 2014.

EU & Competition Law Update – May 2014, published by the European Antitrust and Competition practice group on May 9, 2014.

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Regulatory Lawyer Selected as Firm Chair-Elect

We are pleased to announce that Bryan Cave LLP has completed the process of naming a successor to Don Lents as Chair of the Firm.  Therese (“Terry”) Pritchard will serve as Chair-Elect until the completion of Don’s term on September 30, 2014.  Don will continue to serve as Chair of the Firm during that time, working closely with Terry in order to assure a smooth and effective transition.

Our community banking lawyers are pleased to have someone with an extensive regulatory background, including bank regulatory experience, as our incoming chair.  Terry joined the firm in 1999, resident in the Washington DC office, having earlier served in several senior positions in government agencies, including the Securities and Exchange Commission and the Office of Thrift Supervision.  For more than 30 years, she has concentrated her practice on securities and financial institutions enforcement and litigation, representing major public companies, banks, accounting firms, broker-dealers, investment advisors, mutual funds, hedge funds and individuals under investigation by the SEC, DOJ, FINRA and the federal banking agencies.  Terry has held a number of leadership roles at Bryan Cave, including serving on the Executive Committee, as leader of the firm’s White Collar, Securities Enforcement and Litigation Client Service Group, and as Coordinator of our Asia practice.

Bryan Cave’s full press release about the appointment of Terry as Chair-Elect is available here.

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September 2011 Client Alerts

Social Media and the National Labor Relations Act:  A Trap for Unwary Employers

The use of social media has become one of the most rapidly-changing areas in employment law today.  What most employers do not realize is that the National Labor Relations Board has become very active in policing both the substance of social media policies and the actions of employers in addressing social media concerns.  Please click here to read an overview of NLRB activity in the area of employee use of social media published by the Labor & Employment and Internet & New Media Client Service Groups on September 23, 2011.

Check It Out and Check It Off:  2012 Group Health Plan Checklist

While the Patient Protection and Affordable Care Act, as amended (“PPACA”), required significant design changes for group health plans in 2010 or 2011, some additional requirements must be implemented for 2012.  Please click here to read the Alert published by the Employee Benefits & Executive Compensation Client Service Group on September 7, 2011. 

IRS Establishes a Voluntary Classification Settlement Program

The IRS recently announced a new settlement program for employers with misclassified workers.  Under the new program, employers can get a significant reduction in their federal employment tax liability associated with past nonemployment treatment by agreeing to properly classify their workers for future tax period.  The announcement came on the heels of recent announcements that the IRS, Department of Labor and various state agencies are collaborating on examining worker misclassification issues.  To learn more about the new program, please click here to read the Alert published by the Employee Benefits & Executive Compensation Client Service Group on September 30, 2011.

Department of Labor Issues Final Rule Requiring Follow-On Contractors to Hire Their Predecessor’s Employees

The Department of Labor issued a final rule just before Labor Day that, in effect, will given certain employees now performing under Federal government service contracts employment for life or at least for as long as the government continues to contract for those services.  Although the rule does not take effect until the Federal Acquisition Regulation Council issues its complementary regulations, matters are sufficiently final that contractors should begin planning for how they are going to comply.  To learn more about this new regulation, click here to read the Alert published by the Government Contracts Team on September 8, 2011.

U.S. House Panel Hears Divergent Opinions on SRO Oversight of Investment Advisers

Fund managers and other investment advisers should be aware that Congress is now considering legislation that would significantly alter regulation of the nation’s registered investment advisers.  A key House subcommittee has heard widely divergent views on the proposed legislation entitled the “Investment Adviser Oversight Act of 2011.”  To learn more about the draft legislation, click here to read the Alert published by the White Collar Defense and Investigations Securities Litigation and Enforcement Client Service Groups on September 20, 2011.

New Patent Reform Bill Poised to Significantly Change U.S. Patent Law

On September 8, 2011, Congress approved the Leahy-Smith America Invents Act of 2011.  The Act materially alters a long history of patent law in the United States.   Among the provisions addressed by the Act are who is entitled to a patent (“first to file” versus “first to invent”) and who may file a “false marking” lawsuit.  To read more about how the Act alters patent law, please click here to read the Bulletin published by the Intellectual Property Client Service Group on September 12, 2011. 

FinCEN Issues Final Rule on Prepaid Access; Extends Compliance Date for Many Aspects of the Final Rule

New anti-money laundering regulations that directly impact retail business that issue or sell gift cards or other prepaid cards were issued by the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN),  The regulations require the collection and verification of customer information when certain prepaid cards are sold or reloaded.  To read an overview of the Final Rule, please click here for the Alert published by the Financial Institutions Client Service Group on September 6, 2011. The Final Rule was set to go into effect on September 27, but FinCEN announced that it has extended the compliance date for most aspects of the regulations.  For information on how the compliance dates changed, please click here to read the Alert published on September 12, 2011.

New Dual/Third Country National Rule Continues to Present Challenges

A new rule took effect in August which amended the International Traffic in Arms Regulations (ITAR) to include a new license exemption for the transfer of defense articles to dual/third country national employees of approved non-U.S. licensees under ITAR agreements.  To read about the new rule, please click here for International Regulatory Bulletin published September 28, 2011.

DDTC Updates its “Guidelines for Preparing Electronic Agreements” to Implement New Dual/Third Country National Rule

In August, DDTC updated its “Guidelines for Preparing Electronic Agreements” (the “Guidelines”) to reflect implementation of the new rule and provide guidance to exporters preparing ITAR agreements.  To learn more, please click here to read the International Regulatory Bulletin published September 28, 2011.

 Electronic Payment of Registration Fees

The Directorate of Defense Trade Controls (DDTC) issued an amendment to the International Traffic in Arms Regulations (ITAR) that requires a change in the method of payment for registration fees.  Effective September 26, 2011, all registration fees must be paid electronically via Automated Clearing House.  To read about the amendment, please click here for the International Regulatory Bulletin published September 15, 2011.

French Working Time for Executives:  Lump-Sum Remuneration Agreements Based on a Fixed Number of Working Days Per Year (so-called Forfaits-Jours)

The legal duration of work for employees in France is 35 hours per week, meaning that any hours required to be worked above this limit would normally be considered overtime.  Executives are, however, most often not subject to this limit.  For an outline of how the French Labor Code distinguishes between three types of executives, please click here to read the September 2011 Briefing published by the Paris Labor & Employment Client Service Group.

 The Agency Workers Regulations 2010

UK’s new Agency Workers Regulations come into force on 1 October 2011.  The regulations are intended to give agency workers the same basic employment rights and conditions as permanent staff employed directly by the relevant company.  To learn about the new regulations, please click here for the September 2011 Briefing published by the London Labour and Employment Client Service Group.

China Announces Legal Changes That May Broaden Power to Investigate Bribery

In August the National People’s Congress of the People’s Republic of China released the draft Criminal Procedure Law Amendment to the public for comment.  If passed, the amendment is expected to provide additional protection to the civil rights of accused parties.  However, critics say that the amendment would also provide authorities legal cover to utilize secret locations to detain subjects suspected of engaging in acts involving national security, terrorism, or other serious crimes which may include serious bribery.  To read about the amendment, please click here for the International Regulatory Bulletin published September 27, 2011.

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May 2011 Client Alerts

Federal Judge in Missouri Dismisses Legal Challenge to Health Care Reform

The Judge in the U.S. District Court for the Eastern District of Missouri, Southeastern Division, entered an order dismissing a lawsuit filed by Lt. Gov. Peter Kinder that challenged the Patient Protection and Affordable Care Act.  Kinder et al v. Geithner et al. was filed in July 2010 by Kinder, joined in by six other Missouri residents, as a private citizen after the state’s attorney general declined to join other states in challenging the health care law.  To read more about the order in this case, please click here to see the Alert published by the Life Sciences and Health Care Client Service Group on May 3, 2011.

FTC Cracking Down on Affiliate Advertisers

In April the FTC filed 10 lawsuits against companies and individuals that run affiliate advertising websites.  These lawsuits come within two months of an earlier round of lawsuits targeting affiliate advertising programs.  The most recent targets are fake news websites that promote weight loss products.  To learn more, please click here to read the Alert published by the Retail Team on May 5, 2011.

Arbitration Clauses May Waive Class Proceedings

The U.S. Supreme Court recently ruled that the Federal Arbitration Act does not allow state law to invalidate class action waivers in arbitration agreements on the basis of unconscionability.  While AT&T Mobility v. Concepcion involved consumer claims, the language of the ruling will bolster enforceability of class action waivers in employment related arbitration agreements.  To read more about the ruling, click here for the Alert published by the Labor & Employment Client Service Group on May 18, 2011.

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Client Alerts November 2010

Client Alerts November 2010

January 9, 2011

Authored by: Jeannie Osborne

Criminal Action Against In-House Lawyer Underscores Risks in Dealing with Government Investigations

Lawyers who deal with government investigators and regulators should take note of a recent federal criminal action charging a former in-house lawyer at GlaxoSmithKline for statements she made while representing the company in a government investigation.  For more information, please click here to read the Client Alert published by the White Collar Defense & Investgations, Securities Litigation and Enforcement practice group on November 29, 2010.

Qualified Retirement Plans: Year-End Compliance

Although 2010 has been dominated by new healthcare-related laws and regulations requiring significant design changes to group health plans, as discussed in a prior alert, qualified retirement plans are not immune to new requirements that must be addressed by the end of 2010.  For more information, please see the Client Alert published b y the Employee Benefits and Executive Compensation Client Service Group on November 30, 2010.

SEC Proposed Whistleblower Rules Attempt to Balance Competing policy Considerations

The Securities and Exchange Commission has now issued proposed rules to implement the whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank“). Dodd-Frank amended the Securities Exchange Act of 1934 by adding Section 21F. Section 21F directs the SEC to pay awards to whistleblowers who provide the SEC with information about securities laws violations that lead to successful enforcement actions. Proposed Regulation 21F defines statutory terms, establishes the standards and procedures for rewarding eligible whistleblowers and generally seeks to explain the program.  For more information on the proposed rules, please click here to see the Client Alert published by the Corporate Finance and Securities Client Service Group on November 11, 2010.

SEC Proposes “Family Office” Exemption from Definition of Investment Advisers

On October 12, 2010, the U.S. Securities and Exchange Commission (the “SEC”) proposed Rule 202(a)(11)(G)-1 (the “Proposed Rule”) under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) to define family offices for purposes of excluding them from the definition of “investment adviser.”  For more information on the Rule, please click here to see the Client Alert published by the Private Client practice group on November 1, 2010.

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June 2010 Client Bulletins

June 2010 Client Bulletins

July 12, 2010

Authored by: Jeannie Osborne

Regulations Issued on Preexisting Condition Exclusions, Annual and Lifetime Limits, Rescissions and Patient Protections under Health Care Reform

On June 22, 2010, the Departments of Labor, Treasury and Health & Human Services issued regulatory guidance under the Patient Protection and Affordable Care Act regarding prohibitions on preexisting condition exclusions, annual and lifetime limits and rescissions, as well as guidance regarding certain patient protections.  These rules are generally effective for plan years beginning on or after September 23, 2010 (January 1, 2011 for calendar year plans).  For more information on the rules, please see the Bulletin published by the Employee Benefits & Executive Compensation Client Service Group on June 30, 2010.

Grandfathered Plan Regulations Provide Vital Compliance Information for Employer-Sponsored Health Plans

On June 14, 2010, the Departments of Labor, Treasury and Health &  Human Services issued much-anticipated guidance on how a group health plan maintains or loses its status as a grandfathered plan under the Patient Protection and Affordable Care Act.  A grandfathered plan is generally one that was in effect on March 23, 2010.  Because grandfathered plans are exempt from many of the Act’s requirements, maintaining a plan’s grandfathered status has important plan design and cost implications.  Please read the Employee Benefits & Executive Compensation Group’s Bulletin published June 16, 2010, for more information on the interim final regulations.

Supreme Court Expands Time Period for Filing Title VII Disparate Impact Charges

In Lewis v. City of Chicago, the US Supreme Court ruled that the period in which to file an EEOC charge alleging that an employment practice has a disparate impact commences anew whenever that practice is applied, not when that practice was first adopted.  The Lewis decision sharpens the dilemma created by last summer’s Ricci v. DeStefano decision, which held that an employer’s changing an employment practice based on its fear of possible disparate impact claims could be a basis for disparate treatment claims.  For more information on the decision, please see the Labor & Employment Group’s client Alert published June 1, 2010.

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October 2009 Client Alerts

FinCEN’s New Bank Secrecy Act Compliance Outreach Initiative Targeted at Depository Institutions With Assets Under $5 Billion

Yesterday FinCEN announced a new outreach initiative targeted at depository institutions with assets under $5 billion. The outreach initiative builds upon knowledge FinCEN previously gained from its meetings with larger financial institutions. As part of its ongoing outreach efforts, FinCEN is now seeking to engage smaller to moderate size depository institutions who are working to implement the four pillars of the Bank Secrecy Act regulatory regime: (1) policies, procedures and internal controls; (2) designation of a compliance officer; (3) ongoing training; and (4) independent testing.

For more information, please read the client alert published by Bryan Cave LLP’s Financial Institutions Client Service Group on October 15, 2009.

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Client Alerts Update — May 22, 2009 to June 9, 2009

Federal False Claims Act Amended to Significantly Expand Liability

On May 20, 2009, President Obama signed legislation containing a number of significant amendments to the federal False Claims Act (“FCA”), the statute which permits private citizens to bring lawsuits on behalf of the United States against persons or entities accused of defrauding the government and keep a portion of any recovery. These amendments, which are part of the Fraud Enforcement and Recovery Act of 2009, substantially expand the range of conduct subject to liability under the FCA, provide greater protection for “whistleblowers”, and remove certain procedural hurdles that the government and whistleblowers have faced in pursuing FCA investigations and actions, as discussed further below.

For more information, read the client alert published by Bryan Cave LLP’s White Collar Defense and Investigations Client Service Group on May 27, 2009.

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Client Alerts Update — April 20, 2009 to May 4, 2009

H1N1 Flu Concerns: Workplace Privacy and Employee Illnesses

In the wake of the H1N1 Flu outbreak (initially named “swine flu”), many employers will be asked to balance employee privacy rights with public and company health concerns. We have recently issued a client alert that offers a brief checklist of guidelines that may help balance the privacy interests of potentially infected workers and the health interests of co-workers and the public.

For more information, read the client alert published by Bryan Cave LLP’s Labor and Employment Client Service Group and its Pandemic Preparedness Team on May 1, 2009.

H1N1 Virus: Employees in Mexico

In light of the current H1N1 virus outbreak events around the globe, the Mexico Practice of Bryan Cave has prepared a list of issues and recommendations to be taken into consideration by our firm’s clients and friends with employees in Mexico, so as to avoid any improper or unlawful employer conduct under Mexican labor laws.

For more information, read the client alert published by Bryan Cave LLP’s Labor and Employment Client Service Group and its Pandemic Preparedness Team on May 4, 2009.

New Case Clarifies Copyright Protection for Handbooks, Manuals and Training Materials

Although the copyright term “literary works” tends to conjure images of Hemingway and Faulkner, most companies have a different — and often more valuable — set of “literary works”, including training manuals, employee handbooks, how-to booklets, customer pamphlets and the like. Some are in printed form; others are available at the company’s website. Indeed, some companies are in the business of creating such materials — and this spring, a hotly litigated dispute between two such companies has shed new light on the scope of protection for this special category of literary works.

For more information, read the client alert published by Bryan Cave LLP’s Intellectual Property Client Service Group on April 30, 2009.

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