February 2012

Business News Digest - February 2012

8 min

Honors and Awards

Baltimore Magazine Recognizes 8 Venable Corporate Partners, Including 1 Among Top 100 Lawyers in Maryland

Baltimore Magazine recognized 38 Venable attorneys for their outstanding work in several practice areas including 8 partners from our Corporate Group.  The lawyers and the areas for which they were recognized include Michael J. Baader, Herbert D. Frerichs, Jr., and James J. Hanks, Jr. for Business/Corporate; Charles J. Morton, Jr. and Thomas D. Washburne, Jr.  for Mergers & Acquisitions; and Constance H. Baker and Peter P. Parvis for Healthcare.  W. Bryan Rakes was also named a Rising Star for his work in Mergers & Acquisitions.

Mike Baader was singled out for particular recognition as one of three Venable attorneys who were listed among the top 100 attorneys in Maryland. Mike is a member of Venable's Corporate Practice Group and Managing Partner of the firm's Baltimore office.

Newsletters and Alerts

Venable attorneys produce periodic alerts and newsletters covering a variety of topics and practice areas. For your convenience, we have assembled below a collection of the latest alerts and newsletters from January 2012. To view the full text of an article, please click on the title of the piece.

Enforcing Non-Compete Provisions in California
One of the toughest tasks facing California businesses is preventing their employees from leaving the company and going to work for competitors or starting their own competing businesses. Many companies require employees to sign employment agreements which contain post-employment, non-competition clauses. However, most employers are unaware that such non-competition clauses are unenforceable in California.

FORM 8938 – Expansion of International Tax Reporting Requirements
The HIRE Act of 2010 enacted Section 6038D as part of the Foreign Account Tax Compliance Act. Drafts of the Form 8938 were issued by the IRS last year, and temporary and proposed regulations were issued late in the year.  This Tax Bulletin summarizes the requirements of Section 6038D and the recent regulations as well as the Form.  The Form is applicable for tax years beginning after March 18, 2010, which for most individuals will be the 2011 tax year.

Advertising News & Analysis - January 5, 2011

  • Obama Uses Recess Appointment to Name Cordray CFPB Head
  • AT&T Settles Unwanted Cell Phone Charge Allegations with Florida AG
  • FCC Seeks Disclosure of Corporate Interests in TV News Broadcasts


  • ERSP Sets High Standards for Body-Shaping Claims

Advertising News & Analysis - January 12, 2012

  • FTC Bans Payment Processor from Using Remotely Created Payment Orders
  • Despite Opposition, ICANN Launches Top-Level Registration


  • Know the Rules Before Working With Nonprofits

Advertising News & Analysis - January 19, 2012

  • Supreme Court Rules Federal Courts can Hear TCPA Cases
  • FTC Cracks Down on Gold, Credit Marketers for TSR Violations
  • ComScore Claims 31% of Online Ads Not “In-View”
  • Melissa Landau Steinman to Chair PMA Law Conference

Advertising News & Analysis - January 26, 2012

  • FTC Settles with “Fake News” Acai Affiliate Marketers
  • FTC, Consumer Financial Protection Bureau Sign Memorandum of Understanding
  • NAD Finds Support for WhoNu Cookie Nutritional Claims

Consumer Financial Protection Bureau Starts Nonbank Supervision Program
On January 5, 2011, the Consumer Financial Protection Bureau launched the first federal nonbank supervision program. “We will begin dealing face-to-face with payday lenders, mortgage servicers, mortgage originators, private student lenders and other firms that often compete with banks but have largely escaped any meaningful federal oversight,” said Richard Cordray the newly appointed director of the CFPB.

Council on Environmental Quality Releases Draft Guidance to Improve Efficiency Under the National Environmental Policy Act
On December 7, 2011, as part of the Obama Administration’s effort to improve regulatory procedures, the Council on Environmental Quality released draft Guidance to improve efficiency under the National Environmental Policy Act.

The Download Special Report: Third Circuit NJ Gift Card Law Ruling: New Jersey Retail Merchants Association v. Sidamon-Eristoff
If you issue or sell “stored value cards,” colloquially referred to as “gift cards,” in the state of New Jersey, take note: on January 5, 2012 the U.S. Court of Appeals for the Third Circuit issued a long-awaited decision in New Jersey Retail Merchants Association v. Sidamon-Eristoff that will impact your data collection practices by requiring you to collect, at a minimum, ZIP codes from the purchasers of gift cards.

Five Credit Counseling Compliance Tips and Best Practices for the New Year
With the start of the New Year, it's time for credit counseling agencies to think about ways to enhance legal and regulatory compliance.  Here are some tips on topics that you may not know about.

GSA Requires IT Contractors to Create and Implement IT Security Plans: This May Only Be the Beginning
On January 6, 2012, the General Services Administration issued a final rule requiring all prime- and sub-contractors providing the GSA with information technology supplies, services, or systems to submit an IT security plan outlining compliance with federal cybersecurity regulations. The GSA acknowledges that "[t]his final rule may have a significant economic impact on a substantial number of small entities."  The new rule signals what may become standard for all government contractors, and perhaps all commercial entities, in the years to come, as the U.S. government (and private industry) react to the rapidly developing cybersecurity landscape.

IP Buzz - January 2012
IP Legal News and Updates

  • Despite Opposition, ICANN Launches Top-Level Registration
  • Pleading Standards for Inequitable Conduct – Did Therasense Change the Rules?
  • America Invents Act – Already Making its Mark
  • Expiration of the Green Technology Pilot Program
  • Creating a Road Map to Prepare for Patent Applications
  • ERSP Sets High Standard for Body-Shaping Claims
  • Pre-purchase Exposure: Defeating Class Certification in False Advertising Cases

New 2012 Hart-Scott-Rodino Thresholds for Reporting Transactions
For those of you who are considering mergers, acquisitions or joint ventures, last week the Federal Trade Commission announced new thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) regarding the reportability of certain transactions. These thresholds identify the deals that must be reported to the antitrust agencies (the FTC and U.S. Department of Justice) for evaluation before they can close. But it is important to emphasize that transactions below these thresholds can violate the antitrust laws, and that the thresholds are not safe harbors for otherwise anticompetitive deals.

President Uses Recess Appointment Authority to Install Cordray as CFPB Director
More than a year-and-a-half after President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the Consumer Financial Protection Bureau, the CFPB finally has a “Director” – although the Director is not who many thought and hoped it would be (Elizabeth Warren), nor was the process of installing the Director in office the process contemplated by the authors of the Dodd-Frank Act, which says that “… the Director shall be appointed by the President, by and with the advice and consent of the Senate.”

Possible Realignment of Trade Regulatory Agencies Could Impact Global Commerce
The Obama Administration announced a plan to combine six federal agencies with responsibility for U.S. international trade: the U.S. Department of Commerce’s “core business and trade functions,” the Small Business Administration, the Office of the U.S. Trade Representative, the Export-Import Bank, the Overseas Private Investment Corporation, and the U.S. Trade and Development Agency.  The plan is part of the Administration’s larger efforts to “streamline and modernize” agencies dealing with trade discussed during the President’s 2011 State of the Union Address.

The Public Disclosure of Contractor Information on FAPIIS is Here to Stay
On January 3, 2012, the Department of Defense, the General Services Administration and NASA adopted as final, with changes, an interim rule amending the Federal Acquisition Regulation to implement section 3010 of the Supplemental Appropriations Act, 2010. Specifically, section 3010 requires that the information in the Federal Awardee Performance and Integrity Information System, excluding past performance reviews, be made available to the public.

STOCK Act Could Expand Insider Trading Laws and Restrict Investment Advisers' Use of "Political Intelligence"
Last month, the Senate Homeland Security & Governmental Affairs Committee passed the “Stop Trading on Congressional Knowledge Act,” or “STOCK Act” and the House Financial Services Committee held hearings on similar legislation. The primary purpose of this Act is to close a loophole in the law that may allow Members of Congress to legally trade securities based upon nonpublic “political intelligence.” However, the legislation could have significant, perhaps unintended, consequences for investment advisers and those in the financial services industry.

Supreme Court Upholds Use of Arbitration in CROA Lawsuits
The U.S. Supreme Court has handed credit counseling agencies a major victory. By an 8-1 vote, on January 10, 2012, the Court ruled that lawsuits brought under the federal Credit Repair Organizations Act can be subject to mandatory arbitration.

Upcoming Events

We would also like to highlight upcoming Venable events that you may be interested in attending.  Please click on the event title for additional information.

Overseas Operations: What Every Nonprofit Should Know Before Crossing U.S. Borders

February 22, 2012
12:00 p.m. - 2:00 p.m. EST

More often than not, global reach is the goal for many, if not most, U.S.-based nonprofit organizations. Indeed, it is difficult these days to find a U.S. nonprofit not engaged in or contemplating expansion of its operations and activities overseas. Yet, there is a minefield of thorny legal issues that need to be addressed to keep your nonprofit out of trouble. From hosting meetings, conferences and other events overseas, hiring local representatives, and affiliating with foreign entities, to determining appropriate corporate and tax structures for overseas operations, considering foreign payment and dispute resolution options, and analyzing U.S. export controls – among many others – there is no shortage of issues and concerns that must be considered.

Click here to RSVP.

Intellectual Property: Increasing Your Return on Investment

February 23, 2012
8:00 a.m. - 10:00 a.m. EST

Join panelists from Venable LLP and Stout Risius Ross (SRR) for a thought-provoking roundtable in which we will discuss:

  • How to effectively and efficiently harvest your IP
  • Strategies and best practices to protect your IP
  • How much is your IP worth? Tools for properly assessing the value of IP
  • The golden goose – generating revenue from your IP assets
    • M&A in the IP world
    • Securitizing IP
    • Current Issues in IP Licensing

Click here to RSVP.