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Deductible payments to CFCs can result in exorbitant BEAT
McDermott Will & Emery
  • Corporate Tax
  • USA
  • June 22 2018

A minimum tax has been imposed on domestic corporations with substantial amounts of deductible payments made to related foreign persons, referred to as the 'base erosion and anti-abuse tax' (BEAT). BEAT is particularly onerous if a controlled foreign corporation's income is subject to foreign taxation because, while foreign income taxes can be used as a credit to reduce regular tax liability, no foreign tax credit is permitted to offset the BEAT.

Status of Section 232 and Section 301 tariffs
Arent Fox LLP
  • International Trade
  • USA
  • June 22 2018

The secretary of the treasury recently stated that the United States was "putting the trade war on hold" pending negotiations with China to reduce the US trade deficit and address certain acts, policies and practices relating to IP rights. He subsequently clarified that his comments referred only to the proposed 25% tariff pursuant to Section 301 of the Trade Act 1974. These comments have raised questions regarding the status of the various safeguard tariffs announced by the Trump administration.

Verification fax found to be advertising
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • June 20 2018

An Illinois federal court recently declared that a fax sent to verify the contact information of recipients constituted an 'advertisement' within the meaning of the Telephone Consumer Protection Act because it had declared the commercial availability of the defendant's services on its face. As an alternative holding, the court found that the fax served as a pretext to an advertisement as it had required the plaintiff to access a website advertising the defendant's services in order to stop such faxes.

Jury awards Apple $533 million in damages
Fitzpatrick, Cella, Harper & Scinto
  • Intellectual Property
  • USA
  • June 18 2018

After a week-long trial and four days of deliberation, a federal jury has determined that Samsung owes Apple over $533 million in damages for infringing three design patents asserted by Apple. The jury also found Samsung liable to pay more than $5 million for infringing two utility patents.

NGOs sue EPA for ending 'once in, always in' policy for maximum achievable control technology
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 18 2018

Environmental non-governmental organisations recently filed a petition for review with the District of Columbia Circuit challenging the Environmental Protection Agency's decision to end its 'once in, always in' interpretation of Section 112 of the Clean Air Act. One of the plaintiffs also issued a report alleging that the policy's reversal could lead to a large increase in hazardous air pollutant emissions from major sources.

Five key takeaways from defence verdict in 15-year major league baseball stadium case
Kilpatrick Townsend & Stockton LLP
  • Construction
  • USA
  • June 18 2018

Pennsylvania's intermediate appellate court has affirmed a defence verdict for the design and construction manager of a major league baseball stadium. The court issued its ruling following extensive discovery and motions practice, a six-week bench trial in 2010 and two defence verdicts. The case has a number of key takeaways for complex, multi-party cases.

EPA will revise greenhouse gas emission standards for light-duty vehicles
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 18 2018

The Environmental Protection Agency (EPA) recently re-evaluated its January 2017 mid-term evaluation final determination of greenhouse gas emission standards for model year 2022-2025 light-duty vehicles, initially set in 2012. This re-evaluation culminated in an agency decision that it would revise those greenhouse gas emission standards. The EPA's reversal could lead to a legal battle with California over its Clean Air Act waiver.

IRS implementation of tax reform continues to move forward
McDermott Will & Emery
  • Corporate Tax
  • USA
  • June 15 2018

The latest announcement by the Internal Revenue Service (IRS) focuses on the $10,000 cap on the amount of state and local taxes that can be deducted for federal income tax purposes. In a press release and release of guidance in the form of Notice 2018-54, the IRS announced that proposed regulations will be issued to help taxpayers understand the relationship between federal charitable contribution deductions in exchange for a tax credit against state and local taxes owed.

DOJ continues intense focus on decree compliance
McDermott Will & Emery
  • Competition & Antitrust
  • USA
  • June 14 2018

The US Department of Justice Antitrust Division has further intensified its compliance focus by announcing the creation of the Office of Decree Enforcement, which will have the sole goal of ensuring compliance with, and enforcement of, Antitrust Division decrees. Firms that operate under existing decrees should stay ahead of any complaints of violation, as a newly energised and dedicated enforcement office will likely be investigating any claimed default.

EPA's OECA assistant administrator requests early notice of enforcement referrals to DOJ
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 11 2018

The assistant administrator of the Environmental Protection Agency's (EPA's) Office of Enforcement and Compliance Assurance recently issued to staff a memorandum establishing an interim process for providing her with early notice of referral of matters to the Department of Justice (DOJ) for civil judicial enforcement. The memorandum requests that EPA case teams contemplating a DOJ referral brief the relevant regional administrator or the assistant administrator before making the referral.

EPA headquarters retain authority to make certain jurisdictional determinations under Clean Water Act
Sidley Austin LLP
  • Environment & Climate Change
  • USA
  • June 11 2018

The Environmental Protection Agency (EPA) administrator recently issued a memorandum and accompanying revised Delegation of Authority 2-43 retaining the EPA headquarters' authority to make certain jurisdictional determinations under the Clean Water Act Section 404 discharge of dredged or fill material permitting programme. Jurisdictional determinations are important because they delineate whether, and to what extent, a water body is subject to Section 404 permitting.

Trump issues Section 232 tariff exemptions, but companies must remain diligent
Arent Fox LLP
  • International Trade
  • USA
  • June 08 2018

Canadian business leaders greeted President Trump's announcement that the exemptions for Canada (and Mexico) from the double-digit Section 232 tariffs on certain steel and aluminium imports will be extended. What happens next is anyone's guess, and no company should feel comforted. Company executives will need to stay well apprised of their cross-border transactions and take all necessary steps to mitigate the risk of border delays, import audits or North American Free Trade Agreement verifications.

Second Circuit holds that sexual orientation discrimination is sex discrimination under Title VII
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • June 06 2018

The US Court of Appeals for the Second Circuit recently reversed its prior precedent and held that Title VII's prohibition on sex discrimination includes a prohibition on sexual orientation discrimination. For years, states and municipalities have been adding laws prohibiting discrimination based on sexual orientation. However, whether Title VII prohibits discrimination based on sexual orientation under federal sex discrimination prohibitions has been actively debated in both courts and administrative agencies.

Recovering punitive damages from non-employer third parties
Fowler Rodriguez
  • Shipping & Transport
  • USA
  • June 06 2018

Can seafarers recover punitive damages from non-employer third parties under the general maritime law? Short answer: it depends on where you are. A recent Circuit Court of the City of Chesapeake, Virginia case is the latest example of inconsistent rulings on the availability of punitive damages under the general maritime law.

When USPTO institutes inter partes review, it must decide patentability of all challenged claims
Fitzpatrick, Cella, Harper & Scinto
  • Intellectual Property
  • USA
  • June 04 2018

In a recent case, the Supreme Court held that when the US Patent and Trademark Office (USPTO) institutes an inter partes review, it must decide the patentability of all of the claims challenged by the petitioner, based on the plain text of 35 USC Section 318(a). The court found no basis in the statutory text or framework for the USPTO's partial institution practice.

Section 232 adjustments on US steel and aluminium imports
Arent Fox LLP
  • International Trade
  • USA
  • June 01 2018

Following the presidential proclamations regarding the imposition of double-digit tariffs on certain steel and aluminium imports (ie, the Section 232 tariffs), the US Customs and Border Protection (CBP) has published further guidance detailing their implementation. Given the complexity of these tariffs and the scrutiny that the CBP will be applying to imports of steel and aluminium from all countries, importers should consider compliance with these trade actions to be a high-risk area.

IRS announces HSA contribution limit increase for 2018
McDermott Will & Emery
  • Corporate Tax
  • USA
  • June 01 2018

The Internal Revenue Service has increased the 2018 maximum deductible health savings account (HSA) contribution for taxpayers with family coverage under a high deductible health plan to $6,900. Employers that previously lowered their plan's contribution limit for HSAs to $6,850 should consider how to address the increased limit and whether any changes or employee communications are necessary.

Real estate firms in the digital advertising era: are you thinking about the risks?
Pillsbury Winthrop Shaw Pittman LLP
  • Real Estate
  • USA
  • June 01 2018

Digital advertising is an effective and efficient way to brand a property, but it is also increasingly complex and nuanced, which is why many real estate firms subcontract this work to creative agencies that specialise in digital ad strategy and development. However, engaging a third party to provide this service can introduce risk in a number of areas. Therefore, real estate firms should consider how to mitigate those risks in their contracts with digital advertising partners.

DOJ enforcement update: higher education
McDermott Will & Emery
  • Competition & Antitrust
  • USA
  • May 31 2018

According to press reports, the Antitrust Division of the Department of Justice (DOJ) is investigating several issues relating to the admission of students to institutions of higher learning. The DOJ expects institutions of higher learning to compete freely for students and faculty much as ordinary businesses compete for customers and employees. In today's high-enforcement environment, college and university counsel should be alert to Sherman Act pitfalls and seek antitrust counsel if close calls arise.

Transgender and gender transitioning status under Title VII
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • May 30 2018

The US Court of Appeals for the Sixth Circuit has held that a funeral home violated Title VII of the Civil Rights Act 1964 when it fired a director because she was planning to undergo sex reassignment surgery and had requested to dress in women's clothing at work. Employers – particularly those in the Sixth Circuit – should consider reviewing their employment policies and hiring practices to ensure that they are treating transgender status as a protected category.

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