In news that will be of interest to every federal contractor, including large and small businesses, universities, banks, and the health care industry, Executive Order 14042 (along with the related Task Force Guidance and contract clauses) has been ENJOINED in the states of Kentucky, Ohio, and Tennessee. U.S. District Court Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky issued an order on November 30, 2021 granting Plaintiffs’ (a group including the states of Tennessee, Kentucky, and Ohio) motion for a preliminary injunction. For more information about this Order, check out our GovCon Alert available here.
Continue Reading What We Know And Don’t About The Federal Court Order Enjoining EO 14042
CMS Loosens Restrictions on Co-Located Healthcare Providers; Enforcement Interpretation Still to Be Determined
On November 12, 2021, the Centers for Medicare and Medicaid Services (“CMS”) revised and finalized draft guidance first issued on May 3, 2019, for co-location of hospitals with other hospitals or healthcare providers[1] (the “Finalized Guidance”). The Finalized Guidance is intended to guide CMS Surveyors in evaluation of such hospitals’ compliance with Medicare Conditions of Participation related to shared space, services, and staff.
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DFPI Reports Increase in Consumer Loans Under $2,500, Decrease in Consumer Loans Between $2,500 and $10,000
On November 16, the California DFPI released Version 2.0 of its Annual Report of Finance Lenders, Brokers and PACE Administrators Licensed under the California Financing Law (CFL). The Annual Report examined unaudited data gathered from finance lenders, brokers, and Property Assessed Clean Energy (PACE) administrators licensed under the CFL, as well as new data from the “buy now, pay later” or BNPL industry.
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Court Finds Company Entitled to Nominal Damages for Former Employee’s Breach of an NDA
By Luke Bickel*
A recent California Court of Appeals decision found nominal damages could be awarded for an employee’s breach of a non-disclosure agreement (“NDA”), even if no actual harm was done to the employer. An award of nominal damages for breach of an NDA may be important for companies seeking to protect confidential information and trade secrets for two reasons: (1) this may give rise to an award of litigation costs, and (2) may also support a permanent injunction ruling preventing the former employee from any further possession or use of the protected information.
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Historic $130m+ Patent Infringement Award Against the United States of America
A Sheppard Mullin trial team led by partners Brad Graveline and Laura Burson obtained one of the largest patent infringement damages awards against the United States of America for client SecurityPoint Holdings, Inc (SecurityPoint). Sheppard Mullin partner Don Pelto and associates Kazim Naqvi, Rebecca Mackin, and Tom Carr were also key members of the trial team. In addition, the Sheppard Mullin team included trial specialist Stephanie Limbaugh and legal assistants Dori Dellisanti and Ann Castro.
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Continue Reading Historic $130m+ Patent Infringement Award Against the United States of America
Historic $130m+ Patent Infringement Award Against the United States of America
A Sheppard Mullin trial team led by partners Brad Graveline and Laura Burson obtained one of the largest patent infringement damages awards against the United States of America for client SecurityPoint Holdings, Inc (SecurityPoint). Sheppard Mullin partner Don Pelto and associates Kazim Naqvi, Rebecca Mackin, and Tom Carr were also key members of the trial team. In addition, the Sheppard Mullin team included trial specialist Stephanie Limbaugh and legal assistants Dori Dellisanti and Ann Castro.
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Continue Reading Historic $130m+ Patent Infringement Award Against the United States of America
OCC Chief Counsel Clarifies Bank Authority to Engage in Crypto
On November 18, the Chief Counsel of the Office of the Comptroller of the Currency (OCC) issued a fourth interpretive letter (Letter 1179) regarding whether it is permissible for national banks and federal savings associations to engage in certain cryptocurrency, distributed ledger, and stablecoin activities. The letter clarifies ambiguities in the previous three letter including the authority of a bank to engage in certain cryptocurrency activities and the authority of the OCC to charter a national trust bank.
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Illegal Deal? Ninth Circuit Rejects Attempt to Revive No-Poaching Claims
No-hire or “no-poaching” agreements have recently come under increasing scrutiny by the federal government, as well as various state regimes. However, a recent Ninth Circuit decision upholding a no-poach agreement highlights the various hurdles an antitrust claimant will face in bringing such a claim.
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Everything Changes, Except That Which Stays the Same: GAO’s Bid Protest Annual Report to Congress
By Anne Perry
It is that time of year again when the U.S. Government Accountability Office (“GAO”) submits its bid protest statistics to Congress as mandated under the Competition in Contracting Act of 1984, 31 U.S.C. §3554(e)(2). On November 16, 2021, the GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2020. It has been a year of ups and downs, but, importantly, the chances of winning have stayed the same.
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NYAG’s Warning to Crypto Businesses Muddies Regulatory Waters; Compliance Requirements Remain Elusive
New York’s chief law enforcement agency recently squandered an opportunity to bring much needed guidance to the digital assets space. On October 18, 2021, the Office of New York Attorney General, Letitia James (“NYAG”), issued a press release warning New York businesses that offer interest-bearing accounts to customers depositing virtual currency without having registered under New York General Business Law § 352, et seq. (the “Martin Act”) are breaking the law.
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Google’s Privacy “Data Safety” Form Is Now Available
By Julia Kadish & Dhara Shah*
Google Play’s “data safety form” is now live. Developers can now submit the form for early review and feedback. Starting in April 2022, Google will require this label and a privacy policy for all new and existing apps. This is similar to Apple. Before, only apps that collected personal and sensitive user data needed to share a privacy policy in Google’s store.
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Banking Agencies Provide Crypto-Asset Roadmap as a Result of Interagency “Policy Sprints”
On November 23, the Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, and Office of the Comptroller of the Currency (“banking agencies”) released a joint statement recognizing that the emerging crypto-asset sector presents potential opportunities and risks for banking organizations, their customers, and the overall financial system.
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FERC Seeks Comments on Potential Alternative Reactive Power Compensation Mechanisms in Reactive Power Capability Compensation, 177 FERC ⁋ 61,118 (2021) (“NOI”)
By Mark Sundback & Andrew Mina
Introduction: On November 18, 2021, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued a notice of inquiry seeking comments on various aspects of currently accepted reactive power compensation mechanisms and alternative compensation methodologies, including for those resources that interconnect at the distribution level but offer reactive power capability in support of transmission. The NOI may foreshadow FERC’s adoption for the first time of a uniform standard for reactive power compensation, displacing the current fragmented reactive power federal pricing environment.
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Continue Reading FERC Seeks Comments on Potential Alternative Reactive Power Compensation Mechanisms in Reactive Power Capability Compensation, 177 FERC ⁋ 61,118 (2021) (“NOI”)
New York Imposes New Requirements for Employee Monitoring
New York recently enacted a law governing employee monitoring. The law applies to New York employers who monitor employees through electronic devices. This includes monitoring of telephone, emails, and internet access or usage. The law takes effect May 7, 2022.
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Challenged – OSHA’s Rule Mandating COVID Vaccinations or Weekly Testing for Employers Halted
On November 4, the Occupational Safety and Health Administration (OSHA) released its much-anticipated mandate-or-test workplace vaccine emergency rule (“the Rule”). The Rule requires employers with 100 or more employees to either mandate covered employees be fully vaccinated against COVID-19 or require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering. The Rule went into effect immediately on November 5 with employers expected to comply by no later than January 4, but implementation has since been halted due to pending legal challenges. For more information of the Rule requirements and specifics, see our prior article It’s Here: OSHA’s Rule Mandating COVID Vaccinations or Weekly Testing for Employers.
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FDA Joins Other Regulators in Focus on AI and Machine Learning
The Food and Drug Administration recently sought comments on the role of transparency for artificial intelligence and machine learning-enabled medical devices. The FDA invited comments in follow up to a recent workshop on the topic.
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