What exactly does the U.S. Foreign Corrupt Practices Act (FCPA) have to do with growing a business or preparing for an M&A transaction? If your company is the acquirer in an M&A transaction, and the target’s business involves international markets, FCPA due diligence should be just as important as reviewing a target’s financial condition and customer base. If you plan to exit your business, and your business interfaces with international markets, then expect a knowledgeable buyer to conduct FCPA diligence on you. For those not versed in the FCPA, there are five common reactions to its provisions: “I get the… Read more

Same-sex couples (“SSCs”) were awarded a major victory by the U.S. Supreme Court in 2013 when Section 3 of the Defense of Marriage Act (“DOMA”) was declared unconstitutional in the case of United States v. Windsor, 133 S. Ct. 2675 (2013). Before being struck down, Section 3 of DOMA defined the word “marriage” to mean a legal union between one man and one woman as husband and wife, and the word “spouse” to refer only to a person of the opposite sex who is a husband or a wife. In Windsor, the Supreme Court held that Section 3 of DOMA… Read more

1. DATA SECURITY Data security concerns posed by advances in technology and the manner in which consumers, businesses and other organizations use that technology will be a significant concern in the year ahead. Data-related issues permeate virtually all evolving technologies. With huge amounts of business and personal data transmitted and stored electronically, the opportunities for data breaches are dramatically increased and businesses must anticipate quick responses to satisfy a patchwork of state and federal data breach regulations. While those regulations continue to raise the standards for data security practices, contracting parties also expect greater accountability for these standards. Enhanced encryption… Read more

TTL: What is the current state of U.S. patent law? Suzannah Sundby: At present, patent law in the United States is complete chaos. Effectively, we are operating under two distinct sets of laws and rules – the old set of laws and rules where a patent is granted to the first inventor, and the new set based on the America Invents Act (“AIA”), which grants patents to the first inventor to file for a patent. Because the language of some provisions of the AIA are similar to parts of our old laws, we are left pondering how much and what… Read more

In yet another blow to certain plaintiffs and their attorneys who file multiple cases each year asserting violations of the Americans with Disabilities Act (“ADA”), a New York federal judge has stated firmly that enough is enough. In Costello v. Flatman, LLC,1 the plaintiff alleged an ADA violation because he was wheelchair-bound and unable to access a Subway restaurant. After awarding the plaintiff a default judgment in the sum of merely $14.31, Eastern District Judge Sterling Johnson refused to award attorneys’ fees. But the court did not stop there. In a sharply worded opinion, Judge Johnson stated, “The conduct of… Read more

Internet-based advertising, also known as ad targeting or online behavioral advertising (“OBA”), involves the tracking of consumers’ online activities to deliver tailored or targeted advertising. The practice, typically invisible to consumers, allows businesses to align their ads to certain inferred interests of their audience. Most Internet users conducting a search for a product or service have been targeted by behavioral advertising. For example, imagine you visit a travel Web site and search for airline flights to the Caribbean but don’t purchase tickets at the time. Later, while visiting a local newspaper Web site, you notice an advertisement from an airline… Read more

Sadly, 2014 will bring more instances of elder financial abuse — a societal blight resulting in estimated annual losses of $2.9 billion. One of every six adults over the age of 65 has been a victim of elder financial abuse. Women are twice as likely as men to be the victims, especially those who live alone and require assistance with health care or other “activities of daily living.” The 2010 U.S. census recorded the greatest number and proportion of people age 65 and older in history: 40.3 million, constituting 13 percent of the total U.S. population. It is projected that by… Read more

Arbitration clauses can be an effective means of controlling the risks and costs of litigation. This is particularly true for businesses serving a large customer base. Such businesses may face the specter of a class action prompted by a single disgruntled customer. The costs and exposure associated with class actions may lead companies to settle otherwise defensible claims rather than place their companies at risk. Fortunately the U.S. Supreme Court has staunchly supported the use of arbitration clauses, including those that waive class action claims. In 2011, the Court held that the Federal Arbitration Act (“FAA”) preempted a California law… Read more

The United States District Court for the Southern District of New York recently ruled that an applicant must delete all goods from its trademark registration where it could not prove that it had a corresponding “bona fide intent to use the mark in commerce” in association with the identified goods. The dispute concerned the use of the trademark SANDRO by Sandro Andy, S.A. (“Sandro Andy”). Sandro Andy is a company that designs, manufactures and sells clothing and accessories under the SANDRO trademark. The SANDRO trademark registration identified more than 250 items associated with the mark. All trademark applications in the United States must be based on use in commerce or an intention to use… Read more

Section 101 of the U.S. patent laws (35 U.S.C. §101) provides that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” U.S. Supreme Court precedent, however, carves out three specific exceptions to Section 101’s broad patent-eligibility principles — specifically, “laws of nature, natural phenomena, and abstract ideas” are not patentable. Diamond v. Diehr. The U.S. Court of Appeals for the Federal Circuit, which is the federal court that hears all appeals relating to patents, has faced challenges to patents directed to computer-implemented inventions on each ground of the above judicially created exceptions… Read more