The Fall 2017 Unified Federal Regulatory Agenda

The Office of Information and Regulatory Affairs and the Office of Management and Budget have posted the Fall 2017 Agency Statements of Regulatory Priorities. Here's a look at what's ahead.

December 31, 2017 Deadline for Cybersecurity under DFARS 252.204-7012 Re-Interpreted

With the December 31 deadline for cybersecurity compliance just around the corner, the Department of Defense has clarified some of its expectations.

The Algorithm Did It: The Evolving Legal Landscape of the Internet’s Favorite Tool

There are no shortage of practical, legal considerations for businesses that employ algorithms.

Last Minute Tax Change Benefits Commercial Real Estate

A last-minute change to the Tax Cuts and Jobs Act could be particularly beneficial to certain commercial property owners with few employees and leveraged capital investments.

DOL Again Delays Implementation of ERISA Fiduciary Rule

The latest postponment comes amid Department of Labor concerns that financial institutions and advisors may incur undue expense. Is a more comprehensive revision--or total repeal--next?

Large Whistleblower Award to Non U.S. Person – Lessons for Anti-Corruption Compliance Programs

Increasingly, The SEC is being alerted to securities fraud by whistleblowers living in foreign countries. It is a trend that only further incentivizes sound compliance.

Ireland Set to Bring Anti-Bribery and Corruption Laws Up-to-Date

New legislation represents a major update to Irish anti-bribery and corruption laws. International companies with Irish subsidiaries, as well as Irish-headquartered companies, should take note.

Retroactive Corporate Liability for Human Rights Abuses

Section 13 of the Criminal Finances Act 2017 is now in effect in the United Kingdom, meaning companies have far greater liability for human rights violations.

Five Things to Know about the Tax Cuts and Jobs Act

As the House and Senate head to conference regarding the final tax bill, every business should pay particular attention to how these five issues are handled.

The Trump Administration’s First Steps Toward Streamlining Environmental Reviews

An August Executive Order aims to fast-track federal review of infrastructure projects, including a streamlined environmental review process of projects deemed “high-priority.” Recent actions taken by the Council on Environmental Quality and the U.S. Department of the Interior indicate what that might look like.

CBP Takes Measures to Enforce Ban on Imports Made with Forced Labor and Sanctions for Forced North Korean Labor in Supply Chains

With a renewed focus on enforcing its ban on imports of forced labor, U.S. Customs and Border Protection has taken new measures so importers don't run afoul.

Time Is of the Essence: Multinational Companies Must Respond to Cyber Regulation

Cyberinsurance could help mitigate risk for companies impacted by the new EU General Data Protection Regulation when it takes effect in May.

The Trump Administration Gets Its Man at the CFPB

President Trump’s appointment of Mick Mulvaney as Acting Director has clear implications for the future of the CFPB.

Estate Planning Under the Tax Cuts and Jobs Act

The Tax Cuts Jobs Act passed by the House will almost certainly be amended in the Senate but, as currently drafted, the legislation will dramatically change the estate and gift tax regime in United States.

Prime Contractors Take Note of New California Law Imposing Liability for Subcontractors’ Employees’ Unpaid Wages

A new California law requires prime contractors on private projects to be as involved in monitoring their subcontractors’ payroll practices as their public works counterparts.

Changes to Supply Chain Management and Commercial Item Contracting in FY 2018 NDAA

The latest National Defense and Authorization Act Conference Report proposes changes to supply chain management, the definition of a “subcontractor” and commercial item contracting that could impact your business.

Are Smart Contracts Smart Enough for the Insurance Industry?

Smart contracts may be the way of the future but when it comes to insurance policies, are they smart enough?

Changes to Audit and Truth in Negotiations Act in FY 2018 NDAA

The 2018 NDAA Conference Report leaves little question that Congress remains unhappy with the Defense Contract Audit Agency’s (DCAA) audit backlog.

Are Smart Contracts Smart Enough for the Insurance Industry?

Third-party intervention may now prove unnecessary when interpreting and enforcing contract provisions—at least this is what proponents of smart contracts believe. The overall goal, they argue, is to provide security unattainable through traditional contract law, and to reduce additional transaction costs that come with the traditional process. Will insurance policies become the laboratory to test their thesis?

Three Key Aspects of the Proposed Reform to the CFIUS Process

A bill updating the Committee on Foreign Investment in the U.S. and the national security review process has been introduced in the U.S. House and Senate. Here's what you need to know.

Tax Reform: The Shifting Landscape of Executive and Equity Compensation

The House and Senate propose wide-sweeping amendments to the tax rules regarding executive and equity compensation that would affect public and private for-profit companies as well as tax-exempt organizations.

EU Data Transfer Solutions Under Further Judicial Scrutiny – What Next For Model Contract Clauses?

Many organizations rely on MCCs to transfer personal data worldwide. That's why data exporters await an EU ruling on the issue with bated breath.

Reaching for a Rarely Used Tool to Probe China IP Practices

President Trump has repeatedly express concern about China's trade practices, most notably its technology transfer requirements. Now the U.S. Trade Representative is employing a rarely used tool to investigate.

The ICO’s Draft Guidance Leaves Unanswered Questions on Processor Obligation to Notify Infringing Instructions

One GDPR requirement has been a particular source of angst for commercial and data protection professionals--especially those acting for processors and sub-processors.

Legal issues in Additive Manufacturing Technology – peeling back the layers

As a result of dropping costs and advancing technologies, 3D printing and other forms of additive manufacturing (AM) have experienced rapid growth. A clearer regulatory framework seems sure to follow.

Evolving U.S. and UN Sanctions Against North Korea

The U.S. and UN have imposed a number of sanctions on North Korea since the middle of 2017. Here is a summary of all the key pronouncements.

U.S. Government Agencies Publish Changes to Cuba Sanctions Program Pursuant to President Trump’s Policy Announcement

The U.S. government has announced a number of changes to its sanctions program in Cuba, adjusting some of the broader reforms initiated during the previous administration.

Initial Coin Offerings (ICOs): The Current State of Play

ICOs represent a new and innovative way for companies to raise capital but sponsors still need to ensure regulatory compliance. Here's what you need to know.

Russia Sanctions Under CAATSA – U.S. Updates Rules and Provides Guidance on Enforcement

U.S. efforts to advance sections of the Countering America’s Adversaries Through Sanctions Act of 2017 (CAATSA) will impact the implementation and enforcement of Russia-related sanctions.

U.S. DOT Releases Draft Strategic Plan Beginning Implementation of Trump Administration’s Executive Order on Project Streamlining

The U.S. Department of Transportation (DOT) has released a draft Strategic Plan that establishes goals for increasing investment and streamlining environmental review and approval of transportation infrastructure projects over the next five years. The draft Plan is DOT’s first formal action in response to the Administration’s Executive Order on streamlining. Although it identifies needs and objectives it provides few specifics.

Another Market Opens: U.S. Revokes Sudanese Sanctions Program Though Important Limitations Remain in Place

The U.S. government has revoked sanctions regulations in recognition of Sudan’s sustained positive actions in stopping conflict and improving humanitarian access. However, since Sudan remains designated as a “State Sponsor of Terrorism,” key restrictions remain and companies must continue to abide by applicable anti-corruption and anti-money laundering laws.

ARC Dispute May Mean Further Delay in Needed Drone Regulation

The Unmanned Aircraft Systems Identification and Tracking Aviation Rulemaking Committee has failed to reach consensus on issues described as fundamental for operations over people and operations beyond the visual line-of-sight (BVLOS). The UAS industry is growing rapidly but If users are to capitalize on this opportunity, the FAA will need to get serious about catching up.

Global In-House Centers in India, v 2.0

Recent years have seen a resurgence of interest in Global In-House Centers (GICs) in India across a wide range of industries, including transportation, telecom, media, manufacturing, medical devices, oil & gas, aerospace, retail and hospitality. Despite India’s attractive low-cost talent pool, ultimate success with GICs depends on careful planning and execution—including committing necessary resources and understanding the country’s unique requirements.

Without Further Delay: The ERISA Fiduciary Rule

On April 7, 2017, the Department of Labor (DOL) published a final rule delaying the applicability date of the “Fiduciary” rule and certain related “Prohibited Transaction Exemption” rules until June 9, 2017. Although there was speculation as to whether the DOL would further delay the applicability date of the Rules, on May 22, 2017, the DOL issued Field Assistance Bulletin 2017-02 and Conflict of Interest FAQ (the May 2017 Guidance) confirming that the applicability date will remain June 9, 2017.

Acquirers Beware: Salary History Bans Impact Employment Diligence and Arrangements

In a new law taking effect October 31, New York City has made it an unlawful for employers to inquire about prospective employees’ salary history (all compensation, benefits, bonuses and retirement plans), or to consider a job applicant’s salary history when determining compensation. Employers across the country should pay particular attention to developments in this growing area of law.

House Judiciary Committee Votes to Advance Controversial ADA Amendment

The House of Representatives has proposed legislation that would limit Americans with Disabilities Act lawsuits based on a business’s failure to proactively remove obstacles that impede access to existing public accommodations. Disabled persons’ groups oppose the bill.

Singer v. Newton: Making Sense of Federal Preemption and Drone Regulation

A recent federal court decision limits state and local governments’ ability to regulate drones in areas preempted by federal law. The Massachusetts Federal District Court held that local regulations may not conflict with FAA regulations regarding registration, permitted flight or restricting flight within navigable airspace.

Council on Environmental Quality Takes First Step to Implement Trump Executive Order on Streamlining Federal Environmental Reviews

The Council on Environmental Quality (CEQ), which oversees federal agency compliance with the National Environmental Policy Act, has announced a list of planned actions to implement President Trump’s Executive Order on streamlining federal environmental reviews. While the Order and CEQ notice have launched a process that could transform federal environmental reviews and approvals, they provide few specifics, and their impact remains to be seen.

Cyberattacks Are the New Norm

Attorneys general are increasingly launching investigations and filing lawsuits against companies whose customer databases have been stolen. Because of the significant possibility of government action, companies should fully understand their liability insurance policies, obligations and risks.

Disclose or Else: FTC Steps Up Prosecution of Social Media Influencers

In September 2017, the Federal Trade Commission brought its first-ever action against a social media influencer for failing to make appropriate disclosures on sponsored posts. Going forward, anyone who posts sponsored material or even tags a brand in a post should seriously consider the possibility of FTC prosecution.

President Trump Issues Executive Order Blocking Proposed Acquisition of Lattice Semiconductor

For only the fourth time in 30 years, the President blocked the proposed acquisition of a U.S. company following a review by the Committee on Foreign Investment in the United States (CFIUS). The alert explains the reasoning behind the Executive Order that prevented a Chinese consortium from acquiring a U.S. semiconductor company at a time when concerns about Chinese investment in the United States are growing.

Two-Minute Warning: Preparing for a Possible Government Shutdown

For U.S. government contractors, the fallout from a threatened shutdown—let alone an actual one—ranges from inconvenient to disastrous. Businesses that derive significant profits from government contracting should consider a range of contingency planning options.

The Internet Stole My Face: New Advances in Technology Could Make Everyone a Digital Video Puppet

Visual effects artists can create realistic digital replicas of actors that can be manipulated like puppets, and new developments in software technology could soon make digital puppetry accessible to the masses. Protections against unauthorized use of digital replicas can involve copyright or traditional tort claims, but if this technology continues to spread, the difficulty in controlling one’s own likeness will probably increase.

New Executive Order Imposes Further Sanctions on Venezuela

On August 25, President Trump issued an Executive Order providing for sanctions against the Government of Venezuela targeting certain long-term financial transactions, similar to existing sanctions on the Russian petroleum sector. The Order does not restrict imports or exports of oil, and the Treasury Department’s Office of Foreign Assets Control issued several general licenses that provide for specific permitted activities.

DOE Opens the Door to Major Energy Market Reforms

In August, the Department of Energy published a much-anticipated study analyzing the market hurdles facing conventional baseload generation, such as coal, nuclear and hydropower. The study sets the stage for a high-stakes debate before the Federal Energy Regulatory Commission.

Time Will Tell If Trump Infrastructure Executive Order Shortens Federal Reviews

On August 15, President Trump issued an Executive Order that seeks to streamline federal environmental review and approvals of major infrastructure projects by imposing new timelines and procedures. Key provisions create a two-year deadline for completing review and issuing authorizations.

Possible Further Delay of ERISA Fiduciary Rule

In August, the Department of Labor (DOL) and Secretary of Labor submitted a proposal to the Office of Management and Budget (OMB) to delay the applicability date of certain parts of the “Fiduciary” rule until July 1, 2019. While the full rule’s future is unclear, until the DOL issues further guidance, plan sponsors and named fiduciaries should expect that its remaining portions, including BICE and the Principal Transactions Exemption, will become applicable January 1, 2018.

The Doxing Dilemma: A Popular Tactic of Social Activists and Cyber Bullies Alike Remains Mostly Legal

Doxing, the gathering and public distribution of information such as photographs, telephone numbers and addresses found on the internet, may be done to harass or bully someone, or as a form of vigilante activism. While tort remedies could be available, it remains to be seen whether legislation can effectively target doxing without infringing on freedom of speech.

Brace for 2018: The SEC’s Pay Ratio Rule

Starting in January 2018, public companies must disclose the ratio between their CEO’s salary and the salary of the company’s “median employee.” This article reviews SEC guidance on those calculations, and provides a six-step plan to prepare your company for the new requirements.

Chemicals, Compliance and the Toxic Substances Control Act

The Toxic Substances Control Act (TSCA) required the compiling of a national register of chemicals that were manufactured in or imported into the United States for a non-exempt commercial purpose, and the first TSCA Inventory in 1979 included approximately 62,000 chemicals. Since then, the Inventory has been expanded to include approximately 90,000 chemicals—a rate of over 700 new chemicals per year.