Regulatory and Public Policy

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In an increasingly regulated world, Covington helps clients seize opportunities, navigate complex problems, and resolve difficult disputes.

Described as “well connected with both the regulators and thought-leaders,” by Chambers and Partners, we have more than 120 former regulatory and enforcement officials among our ranks.

With strength in litigation, investigations, and corporate work and deep knowledge of policy and policymakers, we turn regulatory insight into practical advice for doing business anywhere in the world.

Tax-efficient acquisition vehicles

Helped a leading global fund-of-funds sponsor with benefit plan investors acquire several large portfolios of European private equity interests. Working with corporate lawyers in our London and New York offices, we designed tax-efficient acquisition vehicles that complied with ERISA and avoided potential fiduciary and plan asset concerns.

Strategic advice to companies facing international regulatory challenges

A global chemical company is facing a World Health Organization (WHO) classification of one of its key products as “probably carcinogenic.” Recognizing that this finding is based on limited evidence and is in conflict with the conclusions of many national regulatory bodies that have analyzed this product and found it to be safe, the company asked us to help them develop a strategy to seek a public clarification from the U.N. organization.

Strategic advice to multinational corporations facing global market challenges

A global food and beverage company faces a variety of challenging legal and policy issues around the world, including international trade, market access, NGO activism, and multiple proposed restrictions to its ability to operate in the marketplace. We provide both domestic and global strategic counsel and advice and assist them in advancing their legislative and policy objectives.

Binding Corporate Rules for global pharmaceutical company

Assisting GSK plc in its adoption of Binding Corporate Rules (BCRs) in order to permit the company to transfer personal data globally. We helped develop GSK’s privacy compliance program, obtain the UK data protection authority’s approval and continue assisting GSK during the subsequent implementation.

Case of first impression arising from an FMS contract

Represented a U.S. electronics manufacturer in federal trial and appellate courts against contract claims by a foreign sovereign government asserting third-party beneficiary rights under a Foreign Military Sales (FMS) contract. The case raised issues of first impression under the Contract Disputes Act and Arms Export Control Act (AECA).

Agricultural manufacturer global relationship building

We assisted one of the world’s largest manufacturers of agricultural equipment in establishing and strengthening relationships with key constituencies in the United States, Africa, and South America, including with relevant government officials and international NGOs. With our knowledge of global development programs and agricultural initiatives, we helped identify future markets and consumers through relationships with U.S. and non-U.S. government officials as well as international NGOs.

Advocating On Behalf of Clients Before Congress

Advocating on a variety of legislative and policy issues before Congress on behalf of major corporations and industry associations, including United Airlines, Union Pacific Railroad, Associated of General Contractors, American Association of State Highway and Transportation Officials, Association of Equipment Manufacturers, and U.S. Custom Harvesters.

Advising on domestic sourcing compliance under subgrants and state and local agreements

Advised multiple for-profit clients about domestic sourcing requirements imposed under subgrants and state and local agreements through various Departments of Transportation and Energy appropriations, New Jersey Buy American requirements, and the American Recovery and Reinvestment Act of 2009.

Advising clients regarding anti-human trafficking compliance

Advised multiple clients concerning the Federal Acquisition Regulation’s anti-human trafficking requirements, which were expanded in early 2015. Our advice has included creating employee policies and trainings to facilitate compliance and developing contractor compliance plans that, among other things, provide tools for monitoring subcontractor adherence to human trafficking prohibitions.

Advising clients on pricing and contracting under Veteran’s Health Care Act programs, including VA FSS, 340B, and Tricare

Advice to numerous clients regarding compliance with the statutory and contractual pricing obligations under the Veteran’s Health Care Act (VHCA), including performing gap analyses, providing policies and training, and assisting with investigations and disclosures.

Advised client of risk mitigation techniques during contract formation

Counseled a major defense contractor on how to mitigate potential future tort risk during contract discussions with the U.S. government. The military wanted the contractor to provide support for a significant anti-terrorism initiative, and the contractor needed advice on how best to structure the contract to minimize its risk and maximize its protection in the event of third-party claims arising from its contract performance.

Advice regarding shared employee and facility costs during M&A process

Advised client on structuring employee secondment agreements so as to permit reimbursement of costs of shared employees and associated indirect costs under a secondment agreement during a contractual novation process in connection with an M&A transaction, enabling the client to orderly transfer employees and facilities to the purchaser and ensure continued reimbursement up to the point of final transfer.

Advice on the monitoring of employee communications

Conducted a pan-European and selective U.S. survey of laws and regulations affecting an employer’s right to monitor employee’s Internet use and review electronic communications. We have also advised numerous clients on the law governing call recording and access to (and disclosure of) employee e-mail, including in connection with several personal crises and actions.

Assisting with review and overhaul of FSS pricing model

We advised a large technology reseller in conducting a review and revision of its pricing practices under its Federal Supply Schedule (FSS) contract with the U.S. General Services Administration (GSA). In addition to identifying and addressing potential pricing irregularities, we successfully guided the company through an overhaul of its Commercial Sales Practices Format (CSP-1) disclosure and convinced the GSA to permit our client to implement an alternative pricing model that greatly reduced administrative burdens.

Assisting clients with VA Schedule contracts involving medical equipment and pharmaceuticals

Assisted numerous clients with matters arising under U.S. Department of Veterans Affairs schedule contracts, blanket purchase agreements, and related national agreements, including matters relating to price reporting, drafting of proposals, interactions with federal employees, small business subcontracting, and compliance with other commercial-contracting requirements.

Arms Export Control Act - third party beneficiary claims

Our client sold microchips under a U.S. Air Force Foreign Military Sales (FMS) transaction to a foreign ally’s defense ministry, in a “back-to-back” sale under the Arms Export Control Act (AECA), in which the Air Force purchased the microchips from our client and then sold them in turn to the foreign defense ministry. The foreign defense ministry then sought to present warranty claims directly against our client, claiming to be a third-party beneficiary under our client’s contract with the Air Force. We waged successful litigation in federal trial and appellate courts raising issues of first impression, which established that third-party beneficiary claims are not available, given the public policy and intent of the AECA.

Antidumping and countervailing duty proceeding for freight railroad company

We represented a freight railroad company in an antidumping and countervailing duty proceeding at the International Trade Commission covering certain intermodal containers from China. We assisted the company in successfully opposing the imposition of antidumping and countervailing duties on the Chinese containers.

Canadian IP trade dispute

Life sciences companies are being negatively impacted as a result of patent practices in Canada that are leading to the premature invalidation of pharmaceutical patents. We represent a major life sciences company in a dispute under the North American Free Trade Agreement (NAFTA) seeking compensation for losses suffered by Canada’s internationally inconsistent patent practices.

Cable One privacy class action

Achieved dismissals of three putative class actions against Cable One, a cable and Internet service provider, in litigation involving claims under the Wiretap Act, the Computer Fraud and Abuse Act, and related state laws. The litigation arose out of a third party’s test of a system using “deep packet inspection” for the purpose of serving targeted advertisements.

Aerospace Company Recovers Defense Costs after Fraud Investigation

Search warrants executed simultaneously on both coasts triggered an aggressive investigation of alleged Cost Accounting Standards (CAS) violations. First, we persuaded the U.S. Attorney to terminate its criminal case. Next, we convinced the Department of Justice’s Civil Frauds division that the case had no merit. Finally, we obtained a dismissal on motion of a pending qui tam case. After winning on all fronts, the client was able to submit and recover allowable costs of defense, including legal fees.

Advising clients on the negotiation and performance of contracts with the Biomedical Advanced Research and Development Authority, the Defense Threat Reduction Agency, and the National Institutes of Health

Advised multiple clients on matters arising from their negotiation and performance of manufacturing and research and development contracts relating to various pandemic and Chemical, Biological, Radiological and Nuclear (CBRN) threats, including matters relating to government indemnification or liability protection for unusually hazardous risks, compliance with cost standards and principles, and protection of intellectual property.

Assisting with cost classification determinations and implementation of subaward negotiation requirements

Advised global nonprofit organization on the appropriate classification of proposal costs claimed in connection with extensions of existing contracts and grants, as well as requirements relating to negotiation of profit under sole-source subawards for commercial items.

AOL privacy class action

Achieved dismissal of a putative class action against AOL alleging violations of the Wiretap Act, Video Privacy Protection Act, and numerous state laws. The suit alleged unauthorized collection of personal information from the plaintiffs’ computers using “Flash cookies” and unlawful disclosure of video viewing information to third parties.

U.S. regulatory guidance for South Korean airline

The second largest airline in South Korea was under investigation by the U.S. government in connection with a 2014 accident in San Francisco. Our Washington office guided the company’s participation in the National Transportation Safety Board (NTSB) investigation, and successfully mitigated U.S. public relations issues.

U.S. Department of Labor and Internal Revenue Service Investigations

Resolved contentious investigations by the US Department of Labor and Internal Revenue Service, in which the government took positions that exposed our clients to many millions, and in some cases over $1 billion, of potential liability. In several of these cases, we replaced counsel that was unable to reach agreement with the government, when litigation appeared to be imminent.

Univision Communications in Communications-Related Regulatory Matters

Representation of Univision Communications in all communications-related regulatory matters. Univision is the nation’s largest integrated Spanish-language media company and the fifth-largest broadcast network in any language, which owns nearly 150 radio and television stations, three national programming networks, internet portals and a suite of mobile communications products.

Two Major Hollywood Studios on Various Feature Films in China

Advise two of the major Hollywood studios on a number of different feature films in China. Film projects for the majors include both studio films intended for wide international release, as well as local Chinese-language productions. Work for the majors also include advice regarding cooperation agreements, development, copyright and IP infringement, and relationships with talent.

Transmission-Related Matters for PSEG

Represent PSEG, a large New Jersey electric utility, with respect to a range of transmission-related matters including financial incentives and favorable regulatory treatments for large transmission projects, cost allocation policy for certain transmission investments, and market based rates for new generation projects. We advised on the Northeast Grid Reliability Project sponsored by PSEG, a transmission investment of almost $1 billion, and in particular with respect to the rate incentives applicable to the project. FERC granted a range of incentives for the project. In a separate representation, we advised PSEG in a FERC proceeding that secured rate incentives and certain favorable regulatory treatments for PSEG’s construction of five large high-voltage transmission projects.

Venture Negotiations and Public Policy Efforts for Pearl Mobile DTV

Represented Pearl Mobile DTV in establishing a nine-company venture to provide Mobile Digital Television services in the United States. Covington led the negotiations leading to the creation of the Pearl Mobile DTV venture, the negotiation of content license agreements, and public policy efforts before Congress and at the White House and the FCC.

Wireline Competition Before FCC for Client TDS Telecom

Representation of TDS Telecom on a range of wireline issues before the FCC, including universal service, ETC regulation, intercarrier compensation and CALEA. We represent the world’s largest independent directory assistance providers on a range of issues before the FCC, including retail competition.

White Paper for Major Energy Trade Associations

Represent seven major energy trade associations including Edison Electric Institute, American Gas Association, Natural Gas Supply Association, and Electric Power Supply Association in preparing a comprehensive White Paper evaluating FERC’s enforcement initiatives both substantively and procedurally, presenting it to FERC, and paving the way for the implementation of significant reforms to FERC’s enforcement program.

Wells Fargo in Connection with Federal Reserve Board Investigation

Represent Wells Fargo & Co. and Wells Fargo Financial, Inc. in connection with a Federal Reserve Board investigation, enforcement action involving allegations of customer income alteration and customer steering by Wells Fargo Financial sales personnel in originating nonprime mortgage loans—and with implementation of the resulting consent order.

Washington National Cathedral in Copyright Matter in the U.S. District Court for the Eastern District of Virginia

Representation of Washington National Cathedral in a copyright action in the United States District Court for the Eastern District of Virginia to enjoin a major movie studio from its unauthorized use of a Cathedral sculpture in a popular feature film.

Virtual Electricity Trader FERC Investigation

Represent a virtual electricity trader in an on-going non-public FERC investigation of fraud and manipulation with respect to trading virtual electricity products and congestion revenue rights in the California ISO markets. As in other cases, we have responded to extensive data requests from FERC, defended depositions, reviewed documents and prepared position papers evaluating the factual and legal issues.

Testified in Favor of and Played an Advisory Role in Crafting, Federal Legislation to Limit “Libel Tourism”

A Covington partner testified in favor of, and played an advisory role in crafting, federal legislation to limit “libel tourism,” the practice of libel plaintiffs suing U.S. publishers abroad. The resulting legislation, the SPEECH Act, unanimously passed the House and the Senate and was signed into law in August 2010.

Television Clients on Pre-Publication Review, Newsgathering and Subpoena Defense Issues

Provided pre-publication review, newsgathering and subpoena defense work for television clients in some 25 states on a 24/7/365 basis. To ensure that our team is fully available to journalists around the clock, we have established technical solutions so that scripts, video clips and documents are distributed electronically to all members of our team simultaneously.

Specialty Equipment Manufacturers on FCC Compliance

Representation of one of the leading distributors of televisions to the healthcare field, Specialty Equipment Manufacturers, on FCC compliance issues. When its leading manufacturer discovered problems complying with an FCC rule, we sought a waiver of the FCC’s Part 15 requirements for one of the leading TV set manufacturer in this market.

San Francisco Digital Media Advisory Council Member

Covington is the only law firm member of the San Francisco Digital Media Advisory Council, a coalition between the City of San Francisco and a host of leading digital media and entertainment companies, including Electronic Arts, Lucasfilm, Dolby Labs, Wild Brain Entertainment, Giant Killer Robots, Dreamworks Animation and Pixar.

Two Major National News and Public Affairs Magazines and a National Newspaper on International Newsgathering and Libel Exposure Issues

Advised two major national news and public affairs magazines and a national newspaper on international newsgathering and libel exposure issues. For example, we have advised on the use of hidden cameras in Africa, India and Europe. We also represented a 50-member media coalition in successfully persuading Canadian courts not to exercise jurisdiction over the Washington Post in Bangoura v. Washington Post.

Pharmaceutical public policy and government affairs

We advise a major pharmaceuticals and health care products company on a wide range of U.S. issues, including Medicare/Medicaid coverage and reimbursement matters related to medical devices, reauthorization of nutrition programs and food labeling policy and tax policy and assist them in advancing their domestic legislative and policy objectives. We also provide global public policy advocacy in countries around the world and in international regulatory bodies.

KKR and Texas Pacific Group Acquisition of TXU Corp.

KKR and Texas Pacific Group in securing the necessary FERC and NRC approvals for the successful acquisition of TXU Corp. for $45 billion, the largest leveraged buyout in history. The acquisition of TXU included its large fleet of generation assets in Texas as well as transmission and distribution facilities. We also provided counsel on energy regulatory, climate change, government affairs, and public policy matters. The acquired company is now Energy Future Holdings.

Securing U.S. government support for clients in bilateral negotiations

Several companies and individuals facing complex legal issues in jurisdictions abroad sought our help securing the U.S. government’s involvement in support of our clients’ positions. The bilateral, government-to-government engagement by senior U.S. officials with their counterparts in foreign governments has significantly strengthened our clients’ ability to influence outcomes in the foreign legal processes. Our activities have included efforts to ensure fair and unbiased regulatory decisions and initiatives to address unwarranted judicial or prosecutorial actions.

Satellite Provider in Establishing European Services Satellite Trade Association

Assisted a satellite provider in establishing a European services satellite trade association. Subsequent representation of the association enabled us to combine our knowledge of law relating to EU trade associations with our experience in EU legislative advocacy in the telecom industry.

Reliance Infocomm Limited in $750 Million Financing

Represented Reliance Infocomm Limited in connection with its $750 million financing from the Export-Import Bank of the United States and Export Development Canada. The financing was provided to assist Reliance Infocomm in building a state of the art telecommunications infrastructure for India -- the largest and most complex information and communications technology initiative in the world. The definitive documents for the facility were entered into in December 2004 and the facility was drawn on in March 2005. The facility was the largest telecom installations loan for any company world-wide in 2004.

Regulatory requirements for domestic and international derivatives activities

Advise multiple derivatives market participants, including energy company end-users, regarding the regulatory requirements for domestic and international derivatives activities, specifically the analysis of whether financial products are “swaps” under Dodd-Frank, the analysis of whether a market participant satisfies the CFTC’s swap dealer registration requirements and the application of the CFTC’s guidance on the cross-border application of Dodd-Frank on the market participant’s derivatives activities.

Qualcomm in Acquisitions and Investments with Omnia

Qualcomm in acquisitions and investments including its joint venture with Omnia, a subsidiary of Saudi Oger, to create a UK-based company to deploy CDMA-based technology; its acquisition of UK-based Elata (Holdings) Limited, which provides content delivery and device management software systems; and its acquisition of Trigenix Limited, a European mobile content delivery software producer.

Public policy support for companies bidding on international infrastructure projects

A major U.S.-based infrastructure company turned to us for help bidding for contracts on major infrastructure projects in Bahrain and Egypt. Through our contacts with high-ranking embassy officials, we ensured our client’s bids received fair and equal treatment and consideration in the tender process, and we helped the client secure the contracts it was pursuing.

Broadcasters, Washington Post, and NFL on Broadband Matters

Advised local broadcasters, which have unique content in many markets, as they explore deals to move their content to broadband platforms, advised the Washington Post, and worked for many years with the NFL on a range of important communications and media issues, including debates on Sunday Ticket, importation of distant signals, and Internet gambling.

Brady v. National Football League

Covington successfully represented the National Football League in a class-action antitrust case in which the NFL Players Association and ten prominent players sought to enjoin the NFL’s lockout of its player-employees. The U.S. Court of Appeals for the Eighth Circuit ruled for the National Football League, vacating the injunction entered by the District Court on the ground that the injunction violated the Norris-LaGuardia Act, which prohibits judicial interference in labor disputes.

Broadcasters on Range of Legislative Issues

Representation of broadcasters on a range of legislative issues, including media ownership and the digital television transition. When the FCC proposed to increase the number of stations a network could own, Covington led the effort to urge Congress to adopt a special provision reversing the FCC. On behalf of broadcasters, we have been deeply involved in drafting every provision affecting the digital television transition over the past decade. Our long involvement in these issues before the Commission enable us to contribute effectively and efficiently to the debate before Congress.

Biopharmaceutical Legislation Representation

Representation of coalition of innovative biopharmaceutical manufacturers during the multi-year process that led to enactment of the Biologics Price Competition and Innovation Act of 2010 (BPCIA). Played a similar role for the pharmaceutical industry prior to enactment of the Hatch-Waxman amendments of 1984. Currently advising members of the pharmaceutical industry on FDA regulatory aspects of 21st Century Cures Act and the Senate’s Innovation for Healthier Americans initiative.

Bespoke Policy Development

When a newly formed government ministry in the Middle East was charged with developing “best-in-class” regulations, they turned to our policy experts and senior international advisors to design a regulatory system that would not only surpass global benchmarks, but would comport with the local legal system. Combining decades of government experience, key regulatory development, and local insight, our team delivered practical, implementable rules that are still in force today.

AstraZeneca in $1.26 Billion Acquisition of Ardea Biosciences

Representation of AstraZeneca in its $1.26 billion acquisition of Ardea Biosciences. Under the agreement, AstraZeneca will pay $32 per share for all of the outstanding shares of Ardea. AstraZeneca is a global, innovation-driven biopharmaceutical business with a primary focus on the discovery, development and commercialization of prescription medicines for gastrointestinal, cardiovascular, neuroscience, respiratory and inflammation, oncology and infectious disease. Ardea is a biotechnology company based in San Diego, California, focused on the development of small-molecule therapeutics for the treatment of serious diseases.

AstraZeneca/Bristol-Myers Squibb diabetes alliance

Representation of AstraZeneca in its strategic diabetes alliance with Bristol-Myers Squibb, including with respect to collaboration arrangements for the development and commercialization of Amylin Pharmaceuticals’ portfolio of diabetes products following BMS’s acquisition of Amylin in a deal valued at $7 billion (approximately half the cost of which was borne by AstraZeneca).

Association for Maximum Service Television, Inc. on Legislative and Regulatory Broadcast-Related Issues

Representation of the TV industry trade association, the Association for Maximum Service Television, Inc. (MSTV), with respect to legislative and regulatory issues affecting broadcast television service, including the congressionally-mandated transition to an all-digital television service in June 2009 and the FCC's preparation of the National Broadband Plan mandated by Congress in the American Recovery and Reinvestment Act of 2009.

BBVA in Acquisition of Simple

Representation of Banco Bilbao Vizcaya Argentaria, an international financial group based in Spain, in its acquisition of financial technology company Simple. The $117 million acquisition is part of BBVA's strategy to lead the technology-driven change that is transforming the financial services industry. According to Francisco González, Chairman and CEO of BBVA, Simple will reinforce BBVA’s “global digital transformation while BBVA will provide the means to help Simple maximize its outstanding growth potential.”

Representation of Coalition of Oil and Gas Companies in Efforts to Pursue California Offshore Oil and Gas Leases

A coalition of eleven oil and gas companies whose efforts to pursue development of their California offshore oil and gas leases were thwarted by the federal government, recovering more than $1.0 billion, including judgment after trial on complex geological and reservoir engineering issues.

Representation of an international beverage company in LCIA and UNCITRAL arbitrations

Representation of a leading Caribbean-based international beverage company in an LCIA arbitration against the former controlling shareholders of a major European-based company that was acquired by our client and in successfully handling a London-sited UNCITRAL arbitration administered by the LCIA.

NBA Properties and NBA Member Teams in Trademark Litigation Concerning the DREAM TEAM Mark

Representation of NBA Properties and the NBA member teams in trademark litigation concerning the DREAM TEAM mark in the United States District Court for the Eastern District of Missouri, and also in anti-counterfeiting litigation concerning other NBA marks brought in the United States District Court for the District of Columbia against purveyors of counterfeit NBA merchandise in connection with an NBA All-Star game.

GE and Synchrony Financial in $2.95 billion initial public offering and subsequent split-off transaction

Representing General Electric and Synchrony Financial (GE Capital’s former North American retail finance business) in connection with Synchrony’s approximately $2.95 billion initial public offering and in connection with GE’s subsequent exchange offer to complete the separation of Synchrony from GE, including the Federal Reserve Board application process and approval required for the Synchrony’s separation from GE.

PBS in Proceedings Before FCC, U.S. Copyright Office, and Other Policy Settings

Representation of the Public Broadcasting Service (PBS) in proceedings before the FCC, U.S. Copyright Office and other policy settings, including with respect to the role and distribution of educational and other noncommercial media across the broadcast, online, mobile and other IP-based platforms.

HR operations audit for multinational pharmaceutical client

Conducted a detailed review of the human resources operations of a large pharmaceutical company to assess compliance with data protection and privacy laws and regulations in both the US and EU, in anticipation of possible certification under the US-EU Safe Harbor regime. Our extensive written report described potential compliance issues and recommended specific remedial actions.

Horizon Discovery on Sage Labs Acquisition

Representation of Horizon Discovery Group plc, an AIM listed international life science company supplying research tools and services to organizations engaged in genomics research and the development of personalized medicines, on the acquisition of Sage Labs Inc. for a total of approximately $48 million (£29 million), comprising up to $16 million in cash and up to $32 million in new ordinary shares. The acquired business will be known as Sage Labs Inc., a wholly owned subsidiary of Horizon Discovery Group plc. The acquisition creates a fully integrated translational genomics platform and significantly expands Horizon’s product, service and research offerings.

In re Automotive Wire Harness Systems Antitrust Litigation

Representing S-Y Systems Technologies Europe, GmbH, the only defendant dismissed in its entirety from the wire harness price-fixing litigation, which is the lead case in the sprawling Automotive Parts Antitrust Litigation pending in Detroit. The court granted motion to dismiss, on personal jurisdiction grounds and did not grant the plaintiffs’ request for jurisdictional discovery.

Innovative Program Agreements Negotiations for Multiple Clients

Negotiated various innovative program agreements for (a) the NFL, including for example, its deals with ESPN and Sprint and one with TiVo to protect its programming against Internet piracy, (b) other program deals involving PBS, Comcast and Children’s Television Workshop and (c) NBC Weather Plus and NBC Broadband -- joint ventures between the network and its affiliates.

High-level advocacy before the U.S. executive branch

A U.S. defense company faced stiff competition from a non-U.S. competitor in connection with the deployment of its technology in a NATO-member country, which was seeking a complementary commitment from the U.S. government. We conducted high-level advocacy in the United States, helping our client obtain the needed commitment to secure the transaction-a deal valued at about $5 billion.

Acquisition of A123 Systems by Wanxiang America

Advised Wanxiang America’s purchase of substantially all of the non-government business assets of U.S. battery maker A123 Systems, Inc. On Jan. 28, 2013, CFIUS approved that transaction, valued at $256.6 million. Covington represented Wanxiang America in securing CFIUS approval. A123 makes lithium ion batteries for electric cars.

Allergy Therapeutics on Alerpharma Acquisition and £20 Million Placing

Representation of Allergy Therapeutics plc, the AIM-listed specialty pharmaceutical company, in its acquisition of Alerpharma, S.A. a Spanish-based allergy immunotherapy company which previously spun out from Spanish biopharmaceutical company, Zeltia S.A. Covington also advised Allergy Therapeutics on its recent £20.8 million placing of ordinary shares with institutional investors. The proceeds of the placing are being used to progress the clinical development of the company’s lead product, Pollinex Quattro Grass, through to FDA approval and planned launch in the United States in 2019.

PBS in Two Trademark-Related Matters

Representation of Public Broadcasting Services (PBS) in trademark litigation to recover the PBS.COM domain name in the United States District Court for the Eastern District of Virginia; and in an opposition proceeding before the U.S. Trademark Trial and Appeal Board, claiming that applicant's mark BE MORE RESPONSIBLE is likely to cause confusion with PBS's BE MORE mark.

Industrial conglomerate integrated compliance

Advising a major multi-sector industrial company in developing an integrated compliance program, including assessment of the company’s corporate risks and current compliance function, and the creation and implementation of training regimes, tailored policies and operational procedures to support those policies, and mechanisms to monitor compliance and address any issues that arise. The enhanced compliance program is designed to support a wide variety of business units, including industrial sites, and sales and procurement functions. The project also entails developing policies to address compliance in the company’s third-party collaborations.

In re K-Dur Antitrust Litigation

Representing Schering-Plough (now Merck) in multi-district class action litigation challenging so-called reverse payment settlements of pharmaceutical patent litigation. Obtained denial of certification of indirect purchaser class, after which indirect purchasers voluntarily dismissed their case. The team previously defeated the FTC at trial in an action on the same facts, and will now have the opportunity to resolve the direct purchaser portion of the case under a recent Supreme Court decision.

Former CEO of IndyMac Bancorp in Litigation

Representing the former CEO of IndyMac Bancorp in matters arising out of the failure of IndyMac Bank, including knocking out all but one claim in SEC’s once wide-ranging securities enforcement case and settling the last remaining claim, without admitting or denying liability, as a negligence-based claim for $80,000 and a commitment to comply with the securities laws; successfully resolving an FDIC lawsuit; and defending against and/or successfully resolving several securities class action lawsuits, mortgage-backed securities cases, and purported ERISA class action lawsuits.

Resolved claims arising from the incarceration of U.S. contractor for espionage

Negotiated a creative settlement of a tort suit filed by a subcontractor arising from his imprisonment in Cuba for carrying out a USAID democracy-building program in that country. We converted that tort settlement into a contract claim by the prime contractor, and successfully negotiated payment to fully compensate the subcontractor while making the prime contractor whole.

Representing global pharmaceutical company in “test” case involving BCR and CBPR interoperability

Representing Merck in one of the first “test” cases involving interoperability between BCRs and APEC’s Cross-border Privacy Rules (CBPR). The case will establish a precedent for cross-border transfers of personal data for both the EU and Asia-Pacific Region.

Renegotiated government IP agreements

On behalf of a major pharmaceutical manufacturer, we renegotiated agreements with the National Institutes of Health (NIH) concerning IP rights arising out of the development, manufacture, and use of experimental vaccine supplies for international clinical trials, and negotiated contract terms placing on the government the risk of the client’s use of contested IP developed by another contractor.

Successfully protested $200 million U.S. Army award

When the U.S. Army awarded a $200 million contract for IT services, we protested the award, arguing that the awardee had an organizational conflict of interest and gained an unfair competitive advantage by hiring a former government official. The agency took corrective action in response to the protest.

Successfully protested exclusion from $500 million+ biodefense competition

When the U.S. Department of Defense (DoD) conducted a competition for an Advanced Development and Manufacturing (ADM) facility for medical countermeasures, we protested DoD’s exclusion of one of the offerors from the competitive range. The protest issues were of extraordinary technical complexity, but after several rounds of briefing, we convinced the agency to reverse course and invite the offeror back into the competition.

Fax Ban Coalition, U.S. Chambers of Commerce, National Association of Realtors, and Coalition of Mortgage Finance Industry Businesses on Commercial Fax Messages Matter

Obtaining rules on commercial fax messages that protect consumers’ rights, but are fair to legitimate businesses, after multi-venue effort in Congress, in court and at the FCC on behalf of the Fax Ban Coalition, a cross-industry group of trade associations and businesses, as well as the U.S. Chambers of Commerce, the National Association of Realtors and a coalition of businesses in the mortgage finance industry.

Raycom Media’s CBS-Affiliated Station in Cleveland in Opposing Newsgathering Restriction

Representation of Raycom’s CBS-affiliated station in Cleveland in opposing a newsgathering restriction imposed by the mayor of the City of Cleveland. Within 24 hours of the imposition of a ban on contacts to our clients’ journalists, we had begun preparation of an injunction action. Following initial hearings, we negotiated a resolution that resulted in full reinstitution of access for our client.

On Behalf of MSTV, Representing the Television Industry on Key Legislative, FCC, and Industry Issues

On behalf of MSTV, representing the television industry on key legislative, FCC and industry issues, including, for example, negotiating a template agreement with Sprint Nextel for the migration of broadcast ENG services out of the 2 GHz spectrum, the implementation of a “hard date” for the transition to a digital-only television service, and for the process of electing and assigning final DTV channels.

Network Affiliated Stations Alliance and NAB in Battle before Congress, FCC, and Third and D.C. Circuits Courts of Appeals

Waging on behalf of the Network Affiliated Stations Alliance and the National Association of Broadcasters a multi-year, multi-venue battle before Congress, the FCC, and the Third and D.C. Circuits Courts of Appeals on the national television ownership rule, successfully achieving a legislative reversal of the FCC’s decision.

Multiple Clients on Legislative and Regulatory Policy and Litigation Issues

Representation of clients on various legislative and regulatory policy and litigation issues, including (1) retransmission consent, (2) downconversion of digital signals by cable systems, (3) carriage of digital multicast streams by cable, DBS and other video program distributors, (4) indecency, (5) media ownership and (6) importation of distant signals by DBS operators.

Microsoft before FCC on Issues Concerning Media Center and DRM Products

Representation of Microsoft before the FCC on various issuing surrounding its Media Center and DRM products. We obtained FCC recognition of Windows Media Digital Rights Management software as a permissible means to handle digital content. We also represent the company in ongoing rulemakings and waiver petitions involving plug-and-play issues, including industry-wide efforts to resolve these issues.

Newspaper Association of America and 70-Member Media Coalition in Spearheading Federal Legislation to Establish Journalists’ Privilege

Representation of the Newspaper Association of America, and an 70-member media coalition, in spearheading federal legislation to establish a journalists’ privilege. We have worked closely with proponents of legislation and with Congress to suggest creative solutions to protecting the integrity of the journalistic enterprise, in both traditional and digital media, while taking into account legitimate law enforcement and anti-terrorism concerns.

Successfully protested award for contract to help reform the justice system in Mexico

We successfully challenged an agency award of a contract to assist the government of Mexico in reforming its justice system, obtaining corrective action that involved new final proposal revisions. When our client won the second round award, we defended a challenge by the prior awardee, and preserved the award to our client.

Transfer of major construction dispute from state to federal court

Removed a construction dispute involving several hundred million dollars from state to federal court, which was a superior forum for asserting various federal defenses on behalf of our government contractor client. We defeated the plaintiff’s efforts to send the case back to state court, successfully arguing that the case properly was removed under the federal officer removal statute because of the significant role played by the federal government in the construction project.

TINA dispute

For an electronics supplier to a prime contractor for a major U.S. Navy program, we appealed in the prime contractor’s name from a final decision finding defective pricing due to the alleged nondisclosure of certain improvement-curve data that the Navy contended would have led the Navy to conclude that the decline in labor costs would have been steeper than the parties assumed in negotiations. After the close of discovery, we negotiated a favorable settlement.

Support of derivative sovereign immunity defense through Supreme Court amicus brief

Filed a Supreme Court amicus brief on behalf of a government contractor trade association in support of a U.S. Navy contractor being sued for unwanted text messaging. The proposed class action raised significant questions regarding the application of derivative sovereign immunity to private contractors performing work on behalf of the federal government.

Guidance to Governments on Telecommunications Matters

Advised governments on the privatization of telecom service providers, crafting regulations for the introductions of regulatory structures to foster competition in the telecommunications industry; drafted regulations governing telecom activities; and established a licensing and regulatory structure for the introduction of next-generation wireless telecommunications service.

GSK DOJ pharmaceutical investigation

Represented GlaxoSmithKline (GSK) in resolving a complex criminal and civil investigation by the United States Department of Justice. The multi-faceted investigation had a broad focus, including issues relating to GSK’s sales and marketing practices for numerous products, its regulatory submissions relating to Avandia, and the company’s use of the nominal price exception under the Medicaid Rebate Program.

Gramm-Leach-Bliley Act (GLBA) and State Financial Privacy Laws

We have advised the largest and most sophisticated banks, consumer reporting agencies, and financial services companies on the collection, use and disclosure of nonpublic personal information under GLBA, that California Financial Information Privacy Act, and similar laws, including the development and implementation of privacy notices.

Merck, Verizon, Spirits International, National Geographic, PBS, and Others before the United States Trademark Trial and Appeal Board

Representation of numerous clients, including Merck, Verizon, Spirits International, National Geographic Society, Public Broadcasting Services, M Financial, Promontory Financial Group, U.S. Soccer Federation, Lewis Brothers Bakeries and Rosie O’Donnell in opposition and cancellation proceedings before the United States Trademark Trial and Appeal Board.

Policy advice to the Executive Affairs Authority of Abu Dhabi

We provided policy advice to the Executive Affairs Authority of Abu Dhabi on how the Embassy in Washington, DC could be most effective in representing the UAE’s interests. In a follow-on project, we advised on factors to consider in establishing a business-oriented consulate on the West Coast of the United States.

Preparation of key industry comment letters

Advising the Securities Industry and Financial Markets Association, The Clearing House Association, American Bankers Association, and Global Financial Markets Association with respect to comment letters submitted in response to proposals from the Federal Reserve Board, Financial Stability Board, and other agencies affecting large systemically important financial institutions.

Mass media company global public policy

One of the world’s largest global mass media companies needed support on a range of issues that intersect law and policy. We helped the client:

navigate U.S. sanctions on advertising, promotion, and distribution of content in international markets;
pursue a diplomatic solution to an IP rights dispute in the Middle East, leveraging extensive relationships at the State Department; and
advocate on federal issues with Members of the U.S. Congress.

National Geographic Society in Two Trademark Matters

Representation of National Geographic Society in the United States District Court for the District of Massachusetts against claims of infringement of an alleged family of ZONE marks asserted by the author of a series of ZONE books on health and nutrition; and in an opposition proceeding before the U.S. Trademark Trial and Appeal Board, claiming that applicant's EXPLORE CHANNEL mark is likely to cause confusion with National Geographic's EXPLORER marks.

Microsoft public policy and government affairs

Microsoft wanted assistance with legal, public policy, and strategic issues. We support Microsoft on a wide array of policy and legislative issues, including privacy, national security, immigration, tax, and telecommunications, and assist them in gathering political intelligence and advocating before Congress and federal agencies.

Numerous Clients in Managing U.S. and Global Trademark Portfolios

Advise on cutting edge trademark strategies, domain name, social media, and keyword advertising issues, manage U.S. and global portfolios, and provided trademark advisory and prosecution services to leading US and global brand owners, including: American Automobile Association (AAA); AOL, Inc.; Astelllas US; Business Software Alliance; Dale & Thomas Popcorn; Expedia, Inc.; FeraDyne Outdoors; German American Chambers of Commerce; Lewis Bakeries, Inc.; Merck & Co. Inc.; Microsoft Corporation; National Basketball Association; National Football League; National Geographic Society; National Hockey League; Public Broadcasting Service; Phi Beta Kappa Society; Promontory Financial Group; and U.S. Soccer Federation.

Salix Pharmaceuticals in $2.6 Billion of Santarus, Inc.

Representation of Salix Pharmaceuticals, Ltd. in its acquisition of Santarus, Inc. for a total value of approximately $2.6 billion. The transaction closed on January 2, 2014. According to Carolyn Logan, Salix President and Chief Executive Officer, “The acquisition of Santarus is a transformational event for Salix and an important milestone in our growth as the leading gastroenterology-focused specialty pharmaceutical company in the United States.”

Review of the right to monitor Internet and electronic communications

Conducted a pan-European and selective US survey of laws and regulations affecting an employer’s right to monitor employee’s Internet use and review electronic communications. We have also advised numerous clients on the law governing call recording and access to (and disclosure of) employee e-mail, including in connection with several personal crises and actions.

Microsoft Transactions

Representation of Microsoft Corp. in its $8.5 billion acquisition of Skype Communications S.à.r.l., the largest acquisition in the company’s history, in connection with its $4.5 billion acquisition of certain Nortel patents, in its $7.2 billion acquisition of the handset division of Nokia, and its $2.5 billion acquisition of Mojang, the developer of Minecraft.

Microsoft on Internet Protocol Television Issues

Advised Microsoft on Internet Protocol Television issues, including testimony before Congress, appearances at the FCC, and industry negotiations, and advised on industry negotiations to encourage movie studios and the cable industry to use their digital rights management technology for distributing movie and other content over the Internet.

Joint Ventures for Multiple Broadcast Clients

Representation of the first joint venture to provide Mobile Digital Television ("Mobile DTV") services in the United States in establishing a nine-company venture, as well as in negotiating a national joint venture with NBC, Fox and Ion Media to deploy this new digital service. This project has involved leading the negotiation of the Pearl Mobile DTV venture, leading the negotiation of certain programming and content agreements, and heading up public policy efforts with Congress, the White House, and the FCC.

Successfully protested the terms of a $600 million cloud procurement

When the Central Intelligence Agency (CIA) issued an RFP for cloud services, we filed a protest challenging the terms of the RFP as unduly restrictive of competition. After discussion with the U.S. Government Accountability Office (GAO), the agency agreed to amend the RFP to revise the terms at issue in the protest.

Successfully protested the terms of a $2 billion USAID procurement

When USAID issued a $2 billion procurement for consulting services related to economic growth and poverty reduction, we protested the terms of the solicitation. Our protest convinced the agency to abandon its use of the “low cost, technically acceptable” evaluation scheme by arguing that LPTA was inappropriate for the complex, high-stakes services being sought.

Broadcasters on DTV Transition

Representation the broadcast industry and individual broadcasters for nearly two decades on the incredible range of technical, legal and policy issues surrounding the transition to digital television. We helped negotiate the DTV standard, and devised the new frequency table. We worked closely at every step with the FCC’s engineers and with engineers across the television industry. We also worked to develop the new rules and legal requirements to accompany the detailed technical analysis.

WTO and NAFTA disputes

Counseled clients on WTO and NAFTA disputes on a wide range of matters, including sanitary and phytosanitary regulations, anti-dumping and countervailing duties, agricultural subsidies, and intellectual property issues, including the FSC and Byrd WTO disputes against the United States. Our lawyers have argued cases before the WTO and have negotiated solutions related to implementation, compliance, and retaliation in trade disputes.

Veritas Capital’s investment in Alion Science & Technology

Represented private equity firm Veritas Capital as regulatory counsel during its pending acquisition of Alion Science & Technology Corporation, a leading provider of engineering services to the Department of Defense. We handled government contracts, trade controls, and national industrial security due diligence.

U.S. government sanctions investigation of international energy company

We advised an international energy company on a U.S. Treasury Department investigation of transactions with certain U.S.-sanctioned markets, and assisted the company with interactions with the U.S. State Department on sanctions-related policy matters. The Treasury Department closed its investigation without taking any enforcement action against our client.

U.S. Appeals Court Shoots Down FCC Merger-Review Disclosure Order

Successful representation of CBS Corporation, The Walt Disney Company, Twenty-First Century Fox, Inc., Scripps Networks Interactive Inc., Time Warner Inc., Univision Communications Inc., and Viacom Inc. Borrego Solar Systems, Inc. against the Federal Communications Commission (FCC) in connection with the disclosure of programming contracts with pay-TV providers as part of the FCC’s review of pending cable and satellite mergers.

Univision in Deal for Carriage on DISH’s “Over the Top” Sling TV Service

Represented Univision Communications in the precedential agreement for carriage of Univision’s broadcast stations and cable networks on DISH’s “over the top” Sling TV service. The UCI media portfolio includes the Univision Network, one of the top five broadcast networks, and the most-watched Spanish language broadcast network in the U.S., reaching approximately 94 percent of U.S. Hispanic television households. The agreement covers the Univision and UniMas broadcast networks, as well as other UCI services, such as Univision Deportes and El Rey Network. Sling TV is a new online offering from one of the largest television distributors in the country, by which subscribers can view major network content via the Internet anywhere in the United States.

Veritas Capital’s investment in SolAero Technologies Corp.

Represented private equity firm Veritas Capital as regulatory counsel during its acquisition of EMCORE’s Space Photovoltaics business, and represented the business, which is now known as SolAero Technologies Corp., during its subsequent acquisitions of Alliance Spacesystems and Vanguard Space Technologies. We handled government contracts, trade controls, anti-corruption, and other regulatory due diligence, and also assisted with contract novations.

Comprehensive compliance program update

Advising a multinational chemical manufacturer regarding updates to its integrated compliance program, developing a three-year plan for a comprehensive update, and helping the company assess risk and update its existing policies and procedures in the areas of anti-corruption, third party due diligence and monitoring, and investigations.

Legislation granting visa access for New Zealand nationals

We represented the Embassy of New Zealand in seeking the passage of legislation that would permit NZ nationals to access trade and investment visas in the United States. Covington assisted the Embassy in devising a legislative strategy, drafting the legislation, and lobbying key members of Congress and the Administration.

LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S. Ct. 1020 (2008) (counsel for amicus)

The U.S. Supreme Court held that a participant stated a colorable ERISA fiduciary breach claim for losses stemming from the alleged failure to implement investment directions for his 401(k) plan account. In a concurring opinion, Chief Justice Roberts cited our amicus brief for The ERISA Industry Committee in stating that such actions might need to be brought as benefits denial claims and subjected to exhaustion of administrative remedies.

Complex Procurement

A government entity needed to purchase a large number of military vehicles. The procurement required contractors and technology from several jurisdictions and a long-term supply arrangement. From international trade controls and U.S. and EU military sales advice to commercial terms, Covington provided strategic direction as we simultaneously ensured that the documents met local and international requirements.

COMPETE Representation in Federal and State Electricity Competition Issues

COMPETE, a major coalition of more than 680 electricity market participants including Exelon, PSEG, Wal-Mart, PPL Energy, Calpine, TXU Energy, Safeway, Tendril and Leggett & Platt on a wide range of federal and state electricity competition issues, including the structure of RTO markets and retail competition matters in numerous states including Texas, Pennsylvania, New Jersey, Illinois, Virginia, Michigan, California, Oregon, Wisconsin, Arizona and Ohio.

Cole Taylor Bank in Federal Reserve Board Investigation

Representing Cole Taylor Bank, now part of MB Financial, in Federal Reserve Board (and Illinois banking department) investigation and consent cease and desist/civil money penalty order alleging violations of consumer protection laws with respect to deposit products provided by the bank through a third party that offered financial aid refund disbursement services to higher education students.

Coalition of Broadband Users and Innovators, including Microsoft, Google, and Consumer Groups before FCC and Congress

Led the Coalition of Broadband Users and Innovators, including Microsoft, Yahoo!, Google, eBay, and consumer groups before the FCC and Congress for policies that ensure that as broadband services are deregulated, these Internet content companies have the ability to reach their customers.

Confidential data leak

Provided guidance to a major technology and manufacturing company in connection with the unauthorized posting of employee personal information on a third-party webpage. Our efforts on behalf of the client included working with Internet service providers to remove the posted information and providing notice to potentially affected individuals and applicable state regulators.

Coordinated monitoring and advocacy at the multinational, international and national levels

A highly innovative pharmaceuticals company was concerned about the public debate and policy proposals made to address antimicrobial resistance, as these could seriously curtail its future business. Working together with external partners, we monitor and participate in discussions at the G7, WHO, EU and national levels (in the UK and Germany), with several successes already at proposing alternative solutions more favorable to our client.

Fintech Financial Regulatory and Data Privacy Compliance

Advise numerous financial technology and services companies, including consumer reporting agencies, payment processors, and technology providers, on issues related to consumer credit reporting, financial privacy and data security, payment processing and payment systems, and state licensing requirements.

Congressional testimony advice for cable programming company

We advised an independent lifestyle programming channel on the effects of a potential Comcast/Time Warner Cable merger and assisted them in communicating their concerns to Congress and relevant federal agencies, including the Department of Justice, and the FCC. Covington’s work led to the channel’s then-CEO testifying before the Senate Judiciary Committee.

Credit Suisse AG in connection with Federal Reserve Board Investigation and Consent Order

Representing Credit Suisse AG in connection with Federal Reserve Board investigation and Federal Reserve Board Consent Order to Cease and Desist and Assessment of Civil Money Penalty with respect to allegations that Credit Suisse assisted U.S. taxpayers with opening of foreign accounts to avoid required U.S. tax reporting and related matters—and in connection with implementation of requirements of the Order.

Corporate, Financial and Operational Matters for Borrego Solar Systems

Advising Borrego Solar Systems, Inc. on a variety of corporate, financial and operational matters in a dynamic and rapidly changing solar market. Borrego is one of the oldest and largest solar integrators in California with over 25 years of experience. We counseled Borrego on tax, regulatory and corporate matters related to power purchase agreement, engineering procurement and constructions contracts, operations and maintenance contracts and site access agreements on more than 30 projects.

Copyright and Fair Use Advice and Counseling to Publishers

Provide general copyright and fair use advice and counseling to publishers such as the National Geographic Society, the Washington Post Company, and Zomba Music Publishing, to various television broadcast stations, and to a number of leading online business and media ventures including The Microsoft Network, USA Interactive, and the National Football League. Covington is also special intellectual property counsel to the Smithsonian Institution.

Congressional action on organic product marking

We helped a trade association obtain congressional reversal of a crippling federal court decision that would have compelled removal of the USDA seal from approximately 90 percent of organic products and that would have likely resulted in a market loss of nearly $1 billion in the first year after the ruling.

Center for Sustainable Economy, Petitioner v. Sally Jewel and Bureau of Ocean Energy Management, Respondents American Petroleum Institute, et al., Intervenors

Covington successfully represented the American Petroleum Institute, Independent Petroleum Association of America, U.S. Oil & Gas Association, and International Association of Drilling Contractors in a lawsuit seeking to block a federal program which provides the basis for all oil and gas leasing in offshore federal waters. The D.C. Circuit ruled that the Government had rationally and appropriately balanced the environmental, social, and economic values at stake in proceeding with the leasing program.

CBS Corp. v. FCC.

Covington successfully represented CBS against a threat by the FCC to make hundreds of thousands of pages of highly confidential programming contracts and negotiation materials available to hundreds of third parties. The D.C. Circuit ruled in favor of CBS, stating the FCC’s decision was “both substantively and procedurally flawed.”

Capacity Formation Market in Midwest Independent Transmission System Operator

Represent Comverge, Wal-Mart and Leggett & Platt, large commercial and industrial electricity consumers, before FERC in a matter involving the formation of a capacity market in the Midwest Independent Transmission System Operator (MISO). We intervened in the matter and pressed arguments for the broadening of the MISO capacity market proposal.

Cross-border trade, anti-corruption, and data compliance

Advising a major petrochemical company regarding its establishment of an integrated compliance program, with particular focus on the areas of U.S. and European trade controls, anti-corruption, and data privacy. Our representation includes assistance with establishing a corporate compliance office, assessing risks in these areas, drafting the necessary policies and procedures tailored to company risks and operations, and implementing the program through training and assessment.

China Investment Corporation Purchase in AES Corporation

China Investment Corporation (CIC), a large sovereign wealth fund created by the People's Republic of China, on FERC and state (NY) energy regulatory issues with respect to its purchase of a 15% share in the AES Corporation, a large independent power producer of international scope with significant US electricity generation assets. Covington secured all necessary approvals for this transaction.

European counseling on distribution

We have significant experience advising clients on all aspects of their European commercialization networks, including the design and operation of exclusive and selective distribution systems, pricing/rebates, sales and rental channels, supply chain management, customer loyalty programs, dealer financing, central warehousing, consumer warranties, dealer termination, etc.

Fair Credit Reporting Act (FCRA)

Advising several of the largest bank holding companies in the U.S. on compliance with the FCRA. Advising major consumer reporting agencies and trade associations on the requirement of the FCRA. Successfully representing numerous consumer reporting agencies and financial services providers in CFPB and FTC supervisory and enforcement actions relating to FCRA. Representing numerous firms in connection with the acquisition of FCRA-regulated businesses, including due diligence and preparation of merger and acquisition documents.

FTC Investigation Involving Microsoft's Passport Internet Authentication Service

Microsoft in the FTC’s groundbreaking investigation and agreement related to Microsoft’s Passport Internet authentication service, which was the FTC’s first consent agreement under Section 5 of the FTC Act to impose information security commitments related to the protection of personal information.

ERISA litigation in the Supreme Court

Successfully handled important ERISA litigation in the Supreme Court, including Conkright v. Frommert, 130 S. Ct. 1640 (2010) (requiring deference to the plan administrator’s interpretation of a plan, even though the administrator had previously relied on provisions that were not properly added to the plan), and Kennedy v. Plan Adm’r for Dupont Sav. & Invt. Plan, 129 S. Ct. 865 (2009) (applying ERISA’s “plan document” rule to affirm unanimously a plan administrator’s decision to follow a beneficiary designation that gave rights to a participant’s former spouse, even though a divorce decree had stated that the former spouse gave up her rights).

Ensuring fair international procurements for private companies

When a major Latin-American government’s procurement financed by the Inter-American Development Bank (IDB) appeared to lock out foreign competitors, a private company turned to us for advice and discreet action. With our knowledge of the country, and of IDB and other multilateral procurement regulations, and relationships with key officials, we were able to persuade the IDB to take quick remedial action which ensured the company a new opportunity to compete fairly in a new procurement with no damage to their relationships in Latin America.

Employee data breach support

Emerging policy issues

Worked directly with, and appeared before national and regional privacy authorities, such as the European Commission, the EU Article 29 Working Party, and the Council of Europe, both to address emerging policy issues in the data privacy field, such as data retention, radio frequency identification (RFID), Big Data, facial recognition, security breach legislation and biometrics, and to defend individual clients.

BSA in Major Domestic and International Copyright Law Reform Efforts

Advise Business Software Alliance in most of the major domestic and international copyright law reform efforts resulting from the advent of the digital age, including the U.S. Digital Millennium Copyright Act, the WIPO Treaties, the EU Copyright Directive, the EU Software Directive, implementation of the TRIPS Agreement, and amendments to existing copyright laws in over 30 countries worldwide.

Koppers Global Wood Preservation Portfolio

For Koppers Performance Chemicals Inc., managing a portfolio of patents and patent applications relating to market-leading wood preservation technology as well as advising on strategies for obtaining patents throughout the world and on post-grant opposition proceedings involving its patents and applications in Europe, Australia, and New Zealand. Covington also represented the predecessor to Koppers in several inter partes reexamination proceedings, including the defense of patents drawn to methods of preserving wood using particulate copper and methods for directly producing copper carbonate.

Alkermes Global Pharmaceutical Portfolio

Managing the worldwide patent portfolios of Alkermes companies relating to sustained-release pharmaceutical formulations in products such as VIVITROL®, RISPERDAL® CONSTA®, and BYDUREON®. We obtained pivotal patents in Canada, China, Europe, Japan, and the United States covering the BYDUREON product, a sustained-release formulation indicated for the treatment of Type 2 diabetes.

Verizon Communications Transactions

Representation of Verizon Communications in several transactions, including its $3.89 billion acquisition of AOL. Also advised the company in connection with its purchase of UK-based Vodafone’s 45 percent ownership of Verizon Wireless, as well as Vodafone’s purchase of Verizon’s interest in Vodafone Italy, which was valued at $124.1 billion.

AstraZeneca Transactions

Representation of AstraZeneca in relation to the creation of a $3.4 billion diabetes joint venture with BMS, and the subsequent acquisition of sole control over that venture; in its acquisition of the rights to Almirall’s respiratory franchise (for initial consideration of $875 million and up to $1.22 billion in development, launch and sales-related milestones); assisting in the acquisition of the Takeda respiratory portfolio; and in relation to the creation of an oncology joint venture with Fujifilm Kyowa Kirin Biologics (FKB).

Samsung Inter Partes Reexamination Proceeding

Representation of Samsung Electronics Co., Ltd. in inter partes reexamination proceedings for a patent related to LCD color technology. Genoa Color Technologies Ltd., the original owner of the patent, sued Samsung for infringement. Samsung requested inter partes reexamination of the patent, and the Right of Appeal notice upheld the final rejection of all claims of the patent on numerous grounds. Subsequent to the Right of Appeal Notice, the parties settled the litigation.

Inter Partes Reexamination of Patents in HPL Portfolio

Representation of multiple requesters in inter partes reexamination of seven patents in the Helferich Patent Licensing (HPL) portfolio. All challenged claims in all patents stood rejected, with six of the seven patents on appeal to the Patent Trial and Appeal Board. Given the success of the reexamination and Inter Partes Review proceedings handled by Covington, the last remaining requesters reached favorable settlements with HPL.

Trend Micro Inc. Reexamination Proceedings

Representation of Trend Micro Incorporated as patent owner before the U.S. Patent and Trademark Office in ex parte reexamination proceedings relating to two patents directed to anti-virus technology. Reexamination Certificates for both patents were issued, and Trend Micro and the third-party requester settled the state court litigation in which the validity of the patents was at issue.

Orange Book Listed Patents in Reexamination Proceedings

We represented Alkermes, Inc., the top patent owner of Orange Book listed patents in reexamination, in ex parte reexamination proceedings and worldwide opposition proceedings initiated by competitors. Six of the seven patents successfully emerged from reexamination and remain listable for the VIVITROL® and RISPERDAL® CONSTA® products.

3rd Party Access to Distribution Resources and Required Retail Market Structure

Major national retail electricity supplier on the rules regarding 3rd party access to distribution resources and the retail market structure required to facilitate robust electricity supply competition in a dozen states including Texas, Pennsylvania, Illinois, Maine, Maryland, New York, Massachusetts and Ohio.

Prosper in First-of-its-Kind Transaction

Representation of Prosper Marketplace in a variety of securities advisory and transactional matters, including in a first-of-its-kind registration of $500 million of borrower dependent notes and restructuring into a bankruptcy remote vehicle, several rounds of venture financings, as well as ongoing disclosure, SEC reporting and SEC regulatory matters.

Pre-Incident Advice and Assessments

We regularly advise clients on compliance with information security requirements and best practices, including, among others, governance best practices, vendor contract terms and due diligence, the implementation of information security controls to satisfy regulatory requirements, and the conduct of vulnerability assessments.

Global compliance

Conducted a detailed review of the human resources operations of a large pharmaceutical company to assess compliance with data protection and privacy laws and regulations in both the U.S. and EU, in anticipation of possible certification under the U.S.-EU Safe Harbor regime. Our extensive written report described potential compliance issues and recommended specific remedial actions.

Huawei privacy class action

Defending Huawei, a Chinese mobile handset maker, in a putative class action alleging violations of the Wiretap Act, Stored Communications Act, and various state laws. The suit stems from the allegation that third-party mobile analytics software transmitted data about mobile device users’ activities to other parties without authorization.

Global privacy assessment

On behalf of one of the world’s leading consumer electronics and technology companies, we completed a comprehensive global privacy audit under the laws of the United States, the European Union, and China, including an assessment of the data collection, use, and sharing practices of numerous business units (including HR data), cross-border data transfers, and adopting a going-forward privacy governance and risk-management approach and corresponding policies and procedures.

Cybersecurity FCA Victory for a Services Contractor

Foreign government cyber hacking of a federal agency produced front page news and a U.S. Department of Justice (DOJ) False Claims Act (FCA) investigation of the service contractor that built and maintained the agency’s cyber security system. We rebutted allegations that critical cyber infrastructure was missing, out of date, and technically deficient. The DOJ dropped its investigation and the company made a small, five figure settlement with the agency.

Cutting-edge cost allowability victory

Successfully represented a major defense contractor, through trial and decision, in board of contract appeals litigation involving the allowability of private security costs allegedly incurred in connection with providing logistical support to the U.S. military during the Iraq War. The case raised cutting-edge cost allowability, contractor-on-the-battlefield, and statute of limitations issues.

Compliance program for a defense company

Developed a major defense company’s comprehensive export controls compliance best-practices manual covering a range of export control topics. We seconded one of our associates to the company’s core export compliance organization to work on this project, which required synthesizing existing company compliance material and standardizing export compliance practices across a diverse group of businesses.

Deep experience

We have represented clients in numerous other congressional investigations and oversight hearings, including a major internet services company in an investigation of its practices abroad, a chemical manufacturer in an investigation of the safety of its products, an insurance company in a hearing on the federal long term care insurance program, a financial services company in an investigation of credit card terms, and drug companies in investigations concerning such matters as payments to doctors, marketing practices, generic approvals, drug importation, and drug safety.

Eight-Year FCA Investigation Ends with Declination

Press reports accusing our client of using inflated labor categories on a billion dollar contract triggered an eight year False Claims Act (FCA) investigation. Eventually, our appeal to senior attorneys at the U.S. Department of Justice’s Civil Division brought an end to the FCA investigation and cleared the way for the client to negotiate an administrative settlement with the contracting agency resulting in a net payment to the client of millions of dollars.

Dismissal of wrongful death case based on government contractor defense

Obtained dismissal of a wrongful death case brought against a major government contractor for alleged gamma radiation exposure from a cargo screening device it manufactured for national security/border protection purposes. Early in the case, and only after minimal discovery, we successfully asserted the government contractor defense and convinced the trial court that the government had meaningfully reviewed and approved the product’s design specifications, that the product conformed with those specifications, and that the contractor had no knowledge of any product risks or hazards unknown to the government.

Dismissal of wartime wrongful death claims brought by contractor employees

Obtained dismissal of wrongful death claims against a military support contractor following an insurgent attack on a supply convoy in Iraq. After the district court refused to dismiss the case, we successfully brought an interlocutory appeal and persuaded the court of appeals that the Defense Base Act provided an exclusive remedy and barred the employee claims.

Dismissal of personal injury case involving military personnel

Persuaded a district court to dismiss a tort suit brought against a large logistical services contractor for injuries sustained by a soldier on a military base in Iraq. The district court and the court of appeals agreed that the case raised political questions because of the involvement of the military that were outside the scope of judicial review.

Addressing Regulatory Enforcement Actions

We have addressed regulatory investigations and enforcement actions from regulators in the United States, Europe, and Asia following data breaches. These have included investigations or formal enforcement proceedings brought by the Federal Trade Commission, State Attorneys General, and the Securities and Exchange Commission in the United States, and by data protection authorities and sector-specific regulators across Europe and Asia.

Internal investigations for an aircraft manufacturer

Led more than a dozen internal investigations for a military aircraft manufacturer, including drafting voluntary disclosures filed with the Departments of State and Commerce that were successfully resolved. Also developed export compliance plans for several of the company’s high-profile international projects.

International procurement capacity building

Through the United Nations Development Program, the International Senior Lawyers Project, and the U.S. Department of Commerce’s Commercial Law Development Program, we provide procurement law expertise and training to senior procurement officials of foreign governments including Liberia, Iraq, and Afghanistan to help those countries build capacity for conducting predictable and transparent procurements. This experience allows us to provide specific, knowledgeable advice to clients wishing to pursue procurements conducted by foreign governments.

Negotiation and vetting of state contracts for healthcare exchanges and MMIS

We helped a major client negotiate contracts with state healthcare exchanges in Maryland and several other states, and navigate the procurement rules and risk areas unique to many state exchanges. We have also advised clients regarding intellectual property and other issues specific to state MMIS procurements.

Navigation of Organizational Conflicts of Interest

We have helped major contractors navigate the specific Organizational Conflicts of Interest (OCI) rules and requirements imposed by the Centers for Medicare and Medicaid Services (CMS), the Defense Health Agency, and other agencies. When CMS rolled out its new approach to OCIs, including its new standard clause and required forms, we helped a major CMS contractor comment on key aspects of the approach.

Navigating U.S. sanctions programs for multinational corporations

When the U.S. government announced changes to its Cuba policy, major global companies in the consumer products, travel, and entertainment sectors turned to us for advice on policy and trade matters. We advised these clients on export controls and sanctions, legislative proposals, Helms-Burton restrictions, expropriations and certified U.S. claims, and market access issues.

Navigated foreign legal requirements for international contractors

Organized foreign counsel in 40 foreign countries to determine legal requirements governing U.S. government contractors working in country, to ensure local compliance as to business registrations, visas, employment laws, and taxes. In doing so, developed a template for determining foreign requirements and a network of local counsel to serve as a resource for the contractor.

Multi-defendant privacy class action

Achieved dismissal of a putative class action against Microsoft, CBS, Microsoft, McDonald’s, and Mazda alleging violations of the Wiretap Act, Computer Fraud and Abuse Act, and state laws. The complaint alleged that an online ad network used Flash cookies and other tracking mechanisms to build user profiles for the purpose of serving targeted advertising.

Microsoft privacy class action

Achieved summary judgment for Microsoft in a putative class action alleging unauthorized collection of geolocation information from the plaintiffs’ mobile devices. After a claim under the Wiretap Act was dismissed at the pleadings stage, we successfully obtained summary judgment on a remaining claim under the Stored Communications Act.

Over-the-counter medicine investigation

We represented a world-leading consumer products manufacturer in an investigation by the House Committee on Oversight and Government Reform regarding high-profile recalls of over-the-counter medicines. The investigation included multiple interviews, tens of thousands of documents produced to Congress, and two major hearings, including one at which the company’s chairman and CEO testified.

Joint Venture for Creation and Launch of 120 Sports

Represented NHL in connection with its entry into a joint venture with Silver Chalice Partners, Sports Illustrated and Major League Baseball Advance Media for the creation and launch of 120 Sports, the first multi-sport, league-created digital network in the United States. In addition to MLB and NHL content, the digital network will include content from the NBA, NASCAR and a number of college conferences. The network is expected to offer 24/7 programming on an unauthenticated basis, including live sports highlights and related news programming.

Largest Suspension and Investigation in USAID's History

A voluntary disclosure to USAID by one of its largest not-for-profits led the agency to suspend the entity for potential false claims and lack of internal controls, resulting in the board of directors forcing the resignation of the entity’s leadership team and hiring our lawyers to resolve the matters. When the agency refused to lift the suspension due to the lack of trustworthy internal controls and the entity was on the brink of shuttering its doors, our lawyers successfully negotiated a grand bargain to transfer nearly all of the programs, assets, and employees to another not-for-profit and settle the False Claims Act (FCA) investigation.

Obtained SAFETY Act protection for anti-terror products and services

The SAFETY Act, administered by the U.S. Department of Homeland Security, provides liability protection to the makers and users of anti-terror technology in the event of a terror attack. We have successfully guided clients from virtually every major industry in the United States, including government contractors, airports, port authorities, chemical companies, large sports stadiums, and professional sports leagues, through the SAFETY Act application process and secured SAFETY Act protection for a wide range of technologies.

Los Alamos investigation

We represented the University of California in an intense and wide-ranging investigation by the House Energy and Commerce Committee’s Subcommittee on Oversight and Investigations into alleged fraud and mismanagement at the Los Alamos National Laboratory. The investigation involved more than two dozen witness interviews and culminated in three days of hearings. At the conclusion of the investigation, the University retained its contract to manage the Laboratory.

LinkedIn privacy class action

Achieved dismissal of a putative class action against LinkedIn alleging violations of the Stored Communications Act and state law. The complaint asserted that LinkedIn disclosed LinkedIn user identification numbers and LinkedIn URL addresses to third party advertising companies, which allowed those companies to correlate the identity of a user with his or her previously anonymous Web browsing history.

Lindsay Goldberg's transformation of PAE

Represented private equity firm Lindsay Goldberg and PAE as regulatory counsel in six different M&A transactions that have grown PAE to a defense contractor with annual revenue in excess of $2 billion. Our work began in 2011 with Lindsay Goldberg’s acquisition of PAE from Lockheed Martin, and continued through to PAE’s acquisitions of Defense Support Services, CSC’s Applied Technology Division, USIS’s Global Security and Solutions Business, and A-T Solutions and to Lindsay Goldberg’s 2016 sale of PAE to Platinum Equity. Our work in each of these deals has included government contracts, national security, trade controls, and anti-corruption due diligence and advice on transaction structuring, novations, and regulatory approvals.

Launch of the WWE Network

Represented WWE in the launch of the WWE Network, a direct-to-consumer, subscription-only, online video channel that will air round-the-clock programming, including new programs and matches, an on-demand service, WrestleMania, and a six-decades-deep library for $9.99 a month. This is one of the first sports “over the top” offerings in the United States and the transaction received a great deal of publicity as a result.

Blockchain Public Policy Counsel

We provide regular government affairs and public policy support and advice to a blockchain infrastructure and transaction processing company. In particular, we help them identify key stakeholders for Blockchain issues and guide them in their discussions with regulators in various jurisdictions and various industry sectors.

NBA in Live Virtual Reality Streaming with NextVR

We represented the NBA in a multi-year deal to stream live NBA games in virtual reality in a partnership with NextVR, which will become the official live virtual reality partner of the NBA. During the 2016-2017 season, live VR games will first be available to NBA League Pass subscribers, with single-game purchase opportunities to follow for all VR consumers as the NextVR app becomes available on new VR devices.

Taylor v. United Technologies Corp.

Taylor v. United Technologies Corp., 2009 WL 4255159 (2d Cir. Dec. 1, 2009), aff’g 2009 WL 535779, 46 Empl. Ben. Cas. (BNA) 1935 (D. Conn. Mar. 3, 2009). The Second Circuit affirmed the summary judgment entered in favor of our client United Technologies in a 401(k) plan expense class action lawsuit. The court upheld the rejection of all of plaintiffs’ claims concerning a variety of fiduciary decisions over more than a decade, for which plaintiffs had calculated alleged damages of $230 million.

Navigating U.S. Legislative Amendment Procedures on a Tight Deadline

Our client, a major trade association, was facing an adverse and precedential amendment to a piece of U.S. legislation. With only one day before decisions were to be made as to which amendments would be in order during the House of Representatives (House) debate, we promptly developed substantive and procedural arguments against the amendment at issue. We then presented these arguments to senior members of the committee of jurisdiction and the Rules Committee. Through our aggressive efforts, the Rules Committee decided against making the amendment in order for a vote, preventing the House from acting on it.

Global assistance to international corporations on government procurement

One of the world’s largest manufacturers of civilian aircraft wanted to promote its foreign direct investment and expand access to government procurements in the United States and Latin America. We supported the company’s increased engagement in Washington, achieving notable recognition by U.S. policymakers at the most senior levels of government. We also advised on U.S. trade policy, export credit programs, and market access issues.

Michelin Transaction

Representing Michelin in its acquisition of IHLE Holding AG. The transaction involved six national European merger notifications, namely in France, Germany, Austria, Hungary, Romania, and the Czech Republic. This was the first time that an upstream tire manufacturer and supplier took control over a wholesale tire distributor in Europe creating substantial questions about the effects of this vertical integration.

Aristocrat Leisure Ltd. Transactions

Covington advised Aristocrat Leisure Ltd. in its $1.3 billion acquisition of Video Games Technology Inc. (VGT). Aristocrat is a leading seller of Class III slot machines and video games bought by casinos around the world and VGT is the leading seller of Class II slot machines and video games to Native American-owned casinos in the United States. Covington regularly advises Aristocrat on antitrust transactional and other matters.

Consumer Financial Protection and Practices

Advise numerous financial institutions and non-bank financial services firms on unfair, deceptive, or abusive acts or practices (“UDAAPs”), fair lending, overdraft programs, credit cards, installment loans, and other consumer credit products, payments and payment systems, military lending, and managing vendor and other third-party relationships.

TRICARE-Related Advocacy

We achieved a significant legislative victory for a major retail corporation when Congress passed the FY 2017 National Defense Authorization Act with new authorities to expand patients’ access to retail pharmacies. Our objective was to overcome the exclusion of chain and local pharmacies from providing brand maintenance drugs under TRICARE at the same rates available for prescriptions filled at military treatment facilities or through mail-order pharmacies, which caused significant losses to chain and local pharmacy businesses and limited beneficiaries’ access to retail pharmacies. Our efforts led to the inclusion of a pilot program allowing pharmacies to provide brand maintenance drugs to TRICARE beneficiaries. The bill passed with overwhelming support in both the House (375-34) and the Senate (92-7).

Bayh-Dole Advice Across Sectors

We have advised clients in various sectors regarding the substantial manufacturing requirement under the Bayh-Dole Act, including securing waivers of the requirement and helping clients structure manufacturing obligations to maximize business efficiencies within the requirements of the Bayh-Dole Act. We also routinely advise clients regarding the Bayh-Dole Act’s requirements for perfecting title in intellectual property and avoiding potential march-in actions under the Act.

High Profile Section 337 Dispute Between U.S. Steel and the Chinese Steel Industry

Representation of Baoshan Iron & Steel Co., Ltd. in a trade secret, antitrust and false designation of origin dispute in the International Trade Commission involving processes for making Advanced High Strength Steel. In November 2016, Sturgis Sobin, Derek Ludwin, and James O’Connell were named “Litigators of the Week” by American Lawyer for an initial determination at the ITC on behalf of our client. This was the first price-fixing case in almost 40 years at the agency, terminating U.S. Steel’s antitrust claim.

Enactment of Trade Secrets Legislation

Represented the Protect Trade Secrets Coalition in successfully seeking to enact legislation to create a federal civil cause of action for trade secret misappropriation to supplement state-level remedies and testified before the House Judiciary Committee on the need for legislation. The legislation was enacted in 2016 after being passed by the Senate 87-0 and by the House 410-2.

Sony BMG Music Entertainment in Class Action Lawsuit

Sony BMG Music Entertainment in a class action lawsuit brought by the Allman Brothers Band and Cheap Trick on behalf of all artists whose contracts pre-date the era of digital downloaded music. Sony BMG pays the artists under the applicable royalty rate for album sales at brick-and-mortar record stores, while the artists claim that Sony BMG should be paying a much greater royalty rate for downloaded music.

Severance cost dispute for DOE contractor

Recovered disallowed severance costs paid by a U.S. Department of Energy (DOE) contractor to its employees when the contractor exited the contract and the employees went to work for a successor contractor. The costs were unallowable under the Federal Acquisition Regulation (FAR), but the contract contained an unusual provision, personally approved by President Truman, making virtually all costs allowable. We handled the preparation of the initial claim, the contract appeal to the Court of Federal Claims, and the appeal to the Federal Circuit, at the end of which our client recovered every penny of its severance outlay, plus interest.

Service Contract Act investigation and disclosure

Our client, a major large business provider of IT services to the federal government, discovered possible Service Contract Act compliance issues in the operations of a recently acquired subsidiary. We conducted and internal investigation and assisted the client in making a disclosure to the U.S. Department of Labor, which closed the matter without adverse financial or other consequences for our client.

SBIC portfolio company divestment advice

Our client was a small business defense contractor owned by a Small Business Investment Company (SBIC) that was nearing the end of the control period permitted under Small Business Administration (SBA) regulations. We advised a special committee of the board of directors of the client about the potential effects of various potential sale and transfer scenarios on the client’s continued small-business status, and enabled the committee to decide upon a course of action that would permit the client to continue to perform and compete for small-business set-aside contracts.

SBA Size Determination

We took over a U.S. Small Business Administration (SBA) size determination proceeding for our client, an IT services provider, after previous DC government contracts counsel had failed to persuade the SBA that our client was a small business. We submitted thousands of pages of documentation and numerous position papers in what is believed to be the most complex size determination ever performed by SBA, and persuaded the agency that our client is a small business, notwithstanding its affiliation with dozens of other small businesses, thus allowing it to continue to compete for business on small business set-aside contracts.

Sanctions advice for a major non-U.S. financial institution regarding the processing of U.S. dollar payments

We are representing a non-U.S. financial institution in connection with an investigation by federal and state civil and criminal enforcement authorities into the bank's processing to or through the United States of U.S. dollar payments involving U.S.-sanctioned parties.

Successfully defended bidder against claims of misuse of competitors data

We obtained a complete jury verdict for our client accused of misappropriating the incumbent’s trade secrets to win a $200 million NASA contract. The alleged trade secrets included the data generated under the incumbent’s existing NASA contract and the incumbent’s proposal data for the new contract.

Successfully defended prime contractor in data rights lawsuit

We successfully defended a Navy prime contractor accused of misusing its subcontractor’s design data. We convinced the court that the Defense Federal Acquisition Regulation Supplement (DFARS) data rights clauses allowed the client to use and distribute the data, resulting in a complete summary judgment for our client.

Successfully defeated infringement suit in the Court of Federal Claims

One of our clients provides a key component of the F-35 Joint Strike Fighter. A rival contractor sued the U.S. government in the Court of Federal Claims, alleging that the component infringed its patent. We intervened on behalf of our client and persuaded the court to rule that the patent is invalid.

Successful resolution of best pricing investigation

One of the nation’s largest construction supply companies was investigated for failing to provide the General Services Administration (GSA) with its “best pricing” for materials. Working with the company’s auditors, we were able to resolve the matter for no money based on ambiguities in the Schedule language as applied to the circumstances.

Successful representation of major defense IT contractor in GSA IG audit

Successfully represented a major defense IT contractor in an audit of two U.S. General Services Administration (GSA) Schedule contracts by the GSA Inspector General (IG), in which the IG initially asserted a claim for the repayment of tens of millions of dollars. The matter was resolved for less than $5,000.

Global Privacy Audit for Leading Consumer Electronics and Technology Companies

GE Capital Retail Bank CFPB Investigation and DOJ Consent Order

Represent the former GE Capital Retail Bank (now Synchrony Financial) in a CFPB investigation, enforcement action, and consent order related to allegations of deceptive marketing of credit card add-on products and discrimination against Spanish-speaking customers related to certain offers to settle outstanding credit card balances and a Department of Justice enforcement action and consent order regarding the same allegations of discrimination.

Global regulatory and legislative support

A global air cargo company wanted to enhance its political influence as a respected industry voice on public policy issues in order to advance its global business objectives. We helped the company resolve difficult regulatory disputes in several countries, including a fast-moving dispute in China that endangered its business model. We also achieved legislative success for the company in the U.S. Congress on defense policy matters in the authorization bill (NDAA).

Pearl Mobile DTV in Project to Provide Mobile Digital Television Services in U.S.

Pearl Mobile DTV in establishing a nine-company venture to provide Mobile Digital Television services in the United States. Covington attorneys led the negotiations leading to the creation of the Pearl Mobile DTV venture, the negotiation of content license agreements, and public policy efforts before Congress and at the White House and the FCC.

Proposition 65 Labeling and Chemical Safe Harbor Levels

Represent Compañía Cervecera de Puerto Rico, Inc. (CCPR), in a lawsuit alleging that CCPR’s Malta India product contains the chemical 4-MEI in quantities above the safe harbor level, and that CCPR has failed to label Malta India products sold in California with the warning required by California’s Proposition 65.

Privacy “health checks”

Conducted privacy “health checks” for clients to assess their compliance with privacy and data security laws, particularly those in the 28 Member States of the European Community; where appropriate, we have designed remediation programs that include, for example, filing notifications to local privacy regulators, fulfilling obligations to furnish notice, and ensuring compliance with local data security regulations.

Successful jury trial defense of Schedule contractor in False Claims Act case in the Eastern District of Virginia

Through a jury trial in the Eastern District of Virginia, successfully represented a Schedule contractor accused of submitting fraudulent commercial pricing data in violation of the False Claims Act (FCA). The Fourth Circuit affirmed the jury verdict in favor of the contractor.

Successfully protested $2 billion+ biodefense award

When the federal government awarded a contract worth more than $2 billion for the development and delivery of a medical countermeasure, we protested at the U.S. Government Accountability Office (GAO). After many rounds of briefing, and a hearing before GAO, the agency agreed to cancel and re-compete the majority of the contract.

Protection of Client IP Rights

For pharmaceutical, energy, and defense companies entering into R&D contracts, grants, and cooperative agreements with federal agencies (including DoD, DOE, and HHS), we have successfully developed and implemented strategies for protecting our clients’ intellectual property. We have helped our clients limit or avoid government IP rights through the use of alternative contracting vehicles, specially negotiated contract clauses, properly drafted statements of work, and other means. We have also obtained waivers of patent ownership from federal agencies, as well as waivers of the U.S. manufacturing requirements under the Bayh-Dole Act.

Procurement advice and protests in states across the country

We have helped clients navigate state procurement systems and have handled protests in states across the country, including: California, Texas, New York, Florida, Maryland, the District of Columbia, Oregon, North Carolina, Massachusetts, Minnesota, Georgia, Colorado, Washington, New Jersey, and others.

Privacy audit for oil and gas multinational in preparation for BCR approval

Managing a privacy audit of a U.S.-based multinational in the oil and gas industry in preparation for its BCR approval with the Dutch data protection authority as the lead authority, including reviewing and providing advice on the BCRs and the implementation strategy and assisting this client in the preparation and roll-out of various compliance tools in the framework of the BCRs.

Protection of employee personal information

Protection of IP rights for pharmaceutical companies

For pharmaceutical companies entering into R&D contracts, grants, and cooperative agreements with BARDA, NIH, and DTRA, we have successfully developed and implemented strategies for protecting our clients’ intellectual property. We have helped our clients limit or avoid government IP rights through the use of alternative contracting vehicles, specially negotiated contract clauses, properly drafted statements of work, and other means. We have also obtained waivers of U.S. manufacturing requirements under the Bayh-Dole Act.

Responding to Sophisticated Advanced Persistent Theat ("APT") Attacks

We have directed the investigations and response into APT attacks from state-sponsored actors and sophisticated criminal groups targeting intellectual property and other proprietary information. These attacks, and the responses, have spanned multiple industries and global companies, with investigations covering four continents.

Resolved hotly-contested completion disputes of U.S. Embassy in Baghdad

Negotiated resolution of concerns that the contractor building the U.S. embassy in Baghdad had thousands of unauthorized deviations from specifications, which prevented the U.S. State Department’s acceptance of the sprawling compound. Demonstrated in senior-level meetings and on-the-ground inspections that the project was materially compliant, leading to acceptance and the resolution of investigations by multiple agencies and Congress.

Legislative Victory in a 2016 FDA Nutrition Facts Panel Rule

When the 2016 Nutrition Facts Panel final rule required manufacturers to submit evidence demonstrating that their products met new standards, our client, a Midwestern food ingredients company, immediately complied. However, they were told the FDA would not be able to review the data in time to renew the company’s contracts. Faced with losing its domestic customers for its flagship products, we organized a robust appropriations strategy involving a series of high-level communications. Through our efforts, the FDA delayed compliance long enough to allow for due process. The company was able to swiftly renew its contracts with its biggest customers.

Dismissal of Multidistrict Litigation Alleging Contractor Negligence Inside Overseas War Zones

Obtained complete dismissal of 63 lawsuits brought by 800-plus named plaintiffs against KBR, the largest military services contractor in Iraq and Afghanistan. These claims challenged KBR’s use of burn pits to dispose of waste during those wars. The district court adopted our arguments in their entirety and held the claims were barred by the political question doctrine and preempted based on the “combatant activities” exception to the Federal Tort Claims Act.

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California Legislature Passes “California DISCLOSE Act,” a Complex but Clarifying Update to the State’s Political Advertising Disclosure Rules

Over the weekend, the California legislature passed AB249, the California DISCLOSE Act, a controversial set of campaign finance disclosure rules that have been years in the making. The law now awaits Gov. Jerry Brown’s approval. The law’s proponents have argued that it is necessary in order to provide voters with complete information about the sponsors...… ...

GDPR Contracts and Liabilities Between Controllers and Processors

On 13 September, the Information Commissioner’s Office (ICO) published draft guidance on GDPR contracts and liabilities on contracts between controllers and processors under the GDPR (the “Guidance”). The ICO is consulting on the Guidance until 10 October. We summarize the key aspects of the Guidance below. GDPR contracts Under the GDPR, whenever a controller ...

The EU Gets Serious About Cyber: The EU Cybersecurity Act and Other Elements of the "Cyber Package"

Last week, in his annual State of the European Union Address, the President of the European Commission Jean-Claude Juncker called out cybersecurity as a key priority for the European Union in the year ahead. In terms of ranking those priorities, President Juncker placed tackling cyber threats just one place below the EU leading the fight against climate change, ...

The Week Ahead in the European Parliament – September 15, 2017

Summary Next week is constituency week for Members of the European Parliament (“MEPs”). MEPs will go back to their home countries to handle national issues, or convene in their parliamentary delegations to work on matters related to non-EU Member States. However, this week was a plenary in the European Parliament. A number of interesting votes...… Continue ...

Welcome clarifications by the EU Court on the concept of excessive pricing

On 14 September, the Court of Justice of the European Union provided detailed guidance on the concept of excessive pricing under Article 102 TFEU, in response to questions posed by the Latvian Supreme Court. In Case C-177/16, the Latvian Supreme Court referred a number of questions to the Court of Justice of the European Union...… Continue Reading

Covington Boosts Global Public Policy Practice with Arrival of Sir Michael Leigh

BRUSSELS—Sir Michael Leigh has joined Covington’s Global Public Policy and Government Affairs practice as a Senior Advisor. Dr. Leigh was Director-General of DG Enlargement at the European Commission from 2006 to 2011 and as such served as chief European Union negotiator with candidate countries. From 2003 to 2006, he was Deputy Director-General of External ...

SEC Pay-to-Play Rule Set to Expand to Capital Acquisition Brokers

The universe of those covered by the SEC’s pay-to-play restrictions is expanding. If a newly proposed SEC rule is adopted as expected, pay-to-play restrictions will now extend to cover the recently created class of broker-dealers called Capital Acquisition Brokers (“CABs”). In this advisory, we discuss the background on the proposed rule and its implications ...

SEC Pay-to-Play Rule Set to Expand to Capital Acquisition Brokers

EU Policy Update

Brexit and International Policy Developments The usual quiet of Brussels’ August recess was disturbed by the arrival, in the middle of the month, of a flurry of position papers from the British government. The two most important of these dealt with the EU’s customs union and the border between Northern Ireland and the republic of...… Continue Reading

Juncker’s one-president proposal draws few cheers

Jean De Ruyt is quoted in a Politico article regarding EU Commission President Jean-Claude Juncker’s proposal to combine presidencies with Council President Donald Tusk. According to De Ruyt, it is a “logical idea” and has long been discussed in EU circles. The Council president and Commission president “already share around 80 percent of their competences,” De ...

SEC Pay-to-Play Rule Set to Expand to Capital Acquisition Brokers

New Ruling in European Employee Monitoring Case

On September 5, 2017, the Grand Chamber of the European Court of Human Rights (“ECtHR”) issued its ruling on appeal in the case of Bărbulescu v. Romania, concerning alleged unlawful workplace monitoring of Mr. Barbulescu’s private communications. Overturning the ECtHR’s prior ruling in the case (covered by Inside Privacy here), the Grand Chamber held that...… ...

Covington Adds State Dept. Veteran To Govt. Affairs Team

Stephen Rademaker and Roger Zakheim are quoted in a Law360 article regarding Rademaker's recent arrival to Covington's Public Policy and Government Affairs practice. According to Rademaker, an increased reliance on sanctions as a U.S. foreign policy tool, and a presidential administration that has expressed enthusiasm for restrictive trade policies, are likely ...

Congress Continues to Consider ACA-Related Legislation

While Congressional Republicans’ efforts to repeal and replace the Affordable Care Act (“ACA”) stalled at the end of July when the Senate was unable to pass repeal-and-replace legislation, a number of Senators are continuing to work on legislation to make changes to the ACA.

FTC Reaches Settlement with Influencers; Issues Updated Guidance

The FTC recently announced that it reached a settlement with two social media influencers, Trevor Martin and Thomas Cassell, for deceptively endorsing their owned and operated online gambling service “CSGO Lotto” without disclosing that they were the owners of the site, as well as paying other well-known social media influencers to promote the site without...… ...

The FCA’s First-to-File Bar and The Enduring Importance of Textualism

Two years ago, in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, the Supreme Court interpreted the “first-to-file” bar of the False Claims Act (“FCA”) in a manner that seemingly authorizes relators to pursue qui tam suits based upon the same allegations made in previously dismissed FCA actions. On remand from...… Continue Reading The post ...

Covington launches trainee secondment to Brussels

Hilary Prescott is quoted by The Lawyer in an article regarding Covington's new program in London which sends a trainee to the Brussels office for six months to work on EU competition law. According to Prescott, "We are excited to be constantly evolving the trainee programme, to keep up with the growth of our business in London and globally.”

California Looks Ahead to S.B. 100

California continues to cement its position as a global leader in renewable energy policy and climate change reform. This session, California State Senate President, Kevin de León, authored Senate Bill 100 (S.B. 100), which would require California utilities to procure 100 percent of their energy from renewable sources by 2045. S.B. 100 has been approved...… ...

The Week Ahead in the European Parliament – September 8, 2017

Summary Next week, there will be a plenary sitting of the European Parliament in Strasbourg, France. Several significant debates, votes and committee meetings will take place. On Tuesday, MEPs will debate a report of the Committee on Industry, Research and Energy (“ITRE”), authored by Carlos Zorrinho (S&D, PT) on the proposal for a regulation on...… Continue ...

3 Takeaways From The Self-Driving Car Bill

Jennifer Martin is quoted in a Law360 article following the passage of the SELF DRIVE Act in the House. Commenting on the issue of cybersecurity and privacy, Martin says, "Until regulators promulgate guidance or commence enforcement actions, it's not clear how proactive manufacturers are expected to be in discovering new vulnerabilities or as yet unknown ...

FDA Seeks Public Input on how to Rollback/Streamline Regulations

As part of the Trump Administration’s move towards regulatory efficiency, FDA announced yesterday and published today in the Federal Register, the opportunity for public input on the Administration’s comprehensive review of its regulations.

Rescission of DACA Raises Employer Considerations and Legislative Options

On Tuesday, the Trump Administration announced plans to end the Deferred Action for Childhood Arrivals (“DACA”) program, which allows qualifying, vetted undocumented immigrants who came to the United States as children to remain in the country and obtain temporary work authorization. While some components of the DACA termination will begin to take effect ...

Border Wall Protest Dismissed After Protester Fails to Timely Submit Comments

The Department of Homeland Security’s procurement for border wall prototypes is a complex, controversial procurement by any measure. But one protest of that procurement has recently been dismissed for a simple reason: the protester failed to timely submit comments on the agency report. Bid protests at the Government Accountability Office are notorious for their ...

The European Court of Justice’s Judgment in Intel

Today the Court of Justice of the EU (CJEU) issued its long-awaited judgment in Intel Corporation Inc. v European Commission. It sets aside the judgment of the General Court (GC) on the basis that the judges failed to assess the effects of the loyalty rebate schemes implemented by Intel on competition in the EEA. The...… Continue Reading

Leading National Security Advisor Joins Covington

WASHINGTON—Stephen Rademaker has joined Covington’s Public Policy and Government Affairs practice in Washington. With wide-ranging experience working on national security issues in the White House, the State Department, and the U.S. Senate and House of Representatives, Mr. Rademaker focuses on legislative and policy issues involving sanctions, trade controls, ...

Intel verdict opens door to antitrust economists

Kevin Coates is quoted in a Politico article regarding the CJEU's long-awaited judgment in the Intel case. According to Coates, “It seems to clarify the case law in the direction of more economic analysis."

Covington Snags Rademaker

Stephen Rademaker is quoted in a Politico article regarding his recent arrival to Covington, a move described as "something of a homecoming." Commenting on reuniting with familiar faces, including Howard Berman, Rademaker says, "His office is now right next to mine, so I see him every day."

Intel wins review of EU's euro 1bn antitrust fine

Kevin Coates is quoted in a Financial Times article regarding the CJEU's judgment in the Intel case where the higher court sent the case back to the general court. According to Coates, "It is more a criticism of the general court for not looking at the whole decision but only looking at a part of it."

ECJ: General Court must consider Intel arguments for rebates

Kevin Coates is quoted in a Global Competition Review article regarding the CJEU's judgment in the Intel abuse-of-dominance case, which now returns to the general court. According to Coates, the ruling incrementally moves the case law, requiring the enforcer to apply the AEC analysis if the defendant brings evidence forward in the administrative procedure, but ...

ECJ Intel judgment burdens EC, lends respite to dominant entities

Kevin Coates is quoted in a PaRR article regarding the CJEU's decision in the Intel abuse-of-dominance case. According to Coates, “When a court says the case law needs clarifying, they are moving on a little." He adds that the CJEU is “moving the dial incrementally” in favour of more economic analysis as compared to the traditional case law of the court going ...

EU Intel decision bolsters tech cos.' antitrust defences

Kevin Coates is quoted in a Law360 article regarding the CJEU's decision to send a €1.06 billion abuse-of-dominance fine imposed on Intel back to the lower court for another look. According to Coates, the high court’s decision was more of a criticism of the lower court’s handling of the case than of the commission’s conclusions about the rebates. “It’s really ...

The Congressional Agenda for September

For the first months of united Republican governance in Washington, the new administration and Congress accomplished little: confirmation of a new Supreme Court justice, repeal of some late Obama-era regulations, and reform of the Department of Veterans Affairs. The failure to repeal and replace the Affordable Care Act, despite seven years of promises lingers ...

EU Court Reverses Ruling On Employee Chat Surveillance

Helena Milner-Smith is quoted in a Law360 article regarding the European Court of Human Rights ruling on employee privacy in a case brought by Bogdan Mihai Barbulescu. "The decision serves as a reminder for employers who monitor workplace communications to ensure their monitoring practices do not go beyond what is necessary for a legitimate purpose, that ...

ECtHR backs employee over workplace communications monitoring

Helena Milner-Smith is quoted by The Law Society Gazette in an article regarding the European Court of Human Rights ruling on employee privacy in a case brought by Bogdan Mihai Barbulescu. According to Milner-Smith, "The decision serves as a reminder for employers who monitor workplace communications to ensure their monitoring practices do not go beyond what is ...

Spying on Worker Emails Gets New Hurdle in EU Court Ruling

Helena Milner-Smith is quoted in a Bloomberg article regarding the European Court of Human Rights ruling on employee privacy in a case brought by Bogdan Mihai Barbulescu. According to Milner-Smith, the ruling should remind employers not to "go beyond what is necessary for a legitimate purpose." She adds, "However, the Grand Chamber’s ruling will have very little ...

GOP Faces Pileup of Urgent Tasks Topped by Debt Limit Extension

Muftiah McCartin is quoted in a Bloomberg article regarding tasks Congress must tackle before September 30. According to McCartin, “It’s hard enough when you’re working all together," commenting on Republicans in the White House and Congress.

Brexit: squaring the circle

Bart Van Vooren is quoted in a Commercial Dispute Resolution article regarding the government's plans for post-Brexit enforcement and dispute resolution. Commenting on the Department for Exiting the European Union's position paper on the topic, Van Vooren says, it is “about much more” than just its title. He adds, “A number of suggested alternate mechanisms to ...

The Week Ahead in the European Parliament – September 1, 2017

Summary Next week will be a committee and political groups week in the European Parliament. Members of the European Parliament (“MEPs”) will slowly increase their activities ahead of the plenary sitting, to be held from September 11 to 14 in Strasbourg. On Monday, the Subcommittee on Security and Defence will host a Public Hearing on...… Continue Reading

FY17 Reconciliation Instructions Expire September 30.

Procedural questions over when a budget resolution’s reconciliation instructions become stale have swirled for years. There were three options: the end of a fiscal year; until the next budget resolution overtakes it (and next budget resolution could certainly affirmatively preserve it); or the end of a Congress. The huge news out of the Senate today...… ...

UK Government Proposes Cybersecurity Law with Serious Fines

Earlier this month, the UK Government published a consultation on plans to implement the EU Directive on security of network and information systems (the “NIS Directive”, otherwise known as the Cybersecurity Directive). The consultation includes a proposal to fine firms that fail to implement “appropriate and proportionate security measures” up to EUR 20 ...

Another Large Equity Fund Sharpens its Focus on Climate Risk Disclosures

Today The Vanguard Group, the Nation’s second largest fund group with over $4 trillion in assets under management, issued three publications — a press release, an open letter by Vanguard’s CEO, and its 2017 Investment Stewardship Annual Report — highlighting Vanguard’s evolving view that responsible disclosure and management of climate risk is an essential ...

China Seeks Comments on Updated Draft of Cross-Border Data Transfer Security Assessment Standard

On August 31, 2017, China’s National Information Security Standardization Technical Committee (“NISSTC”), a standard-setting committee jointly supervised by the Standardization Administration of China (“SAC”) and the Cyberspace Administration of China (“CAC”), released an updated draft of the Information Security Technology - Guidelines for Data Cross-Border ...

Digital Health Check-Up: Key Questions Market Players Should Be Asking

On our sister blog, CovingtonDigitalHealth, our global cross-practice digital health team has launched a three-part series on the key questions the technology, life sciences and communications industries should be considering as they fit together the regulatory and commercial pieces of the complex digital health puzzle. Read the first post in the series here.… ...

Impact of fall legislative calendar on Pentagon

Roger Zakheim appeared on Government Matters to discuss the impact of the fall legislative calendar on the Pentagon. According to Zakheim, "We'll be on a short-term [continuing resolution] almost certainly, and then the question is can we get beyond that by the calendar year."

Industry Pushes CFTC to Prioritise Cross-Border Clarity

Stephen Humenik is quoted in a Risk article regarding the industry push for an overhaul of cross-border aspects of U.S. regulation in order to compliment rules expected to be implemented around the world. According to Humenik, “Previously, only the CFTC had its full rule sets up and running, but now all the other global regulators are getting to that point. This ...

GAO Releases New Vehicle Data Privacy Report

On August 28, 2017, the U.S. Government Accountability Office (“GAO”) publicly released a report regarding consumer privacy issues associated with the rapidly increasing number of cars that are “connected”—i.e., capable of wirelessly monitoring, collecting, and transmitting information about their internal and external environments. The report examines four key ...

Recent Cases on E-Mail “Spoofing” Coverage Highlight the Impact of Specific Crime Policy Wordings

By Benjamin Duke, Matt Schlesinger, and Scott Levitt [This article was also published as a Client Alert.] Two recent federal district court decisions involving computer “spoofing” scams highlight the uncertainty about whether such incidents may be covered under standard “computer fraud” provisions in widely used crime insurance forms. The conflicting results in ...

Delaware Amends Data Breach Notification Law to Require Credit Monitoring, Attorney General Notification

Delaware Gov. John Carney has signed into law a bill that will impose more stringent obligations for notifying affected Delaware residents in the event of a data breach, in addition to establishing requirements for Delaware businesses to maintain “reasonable” data security practices. In addition to expanding the types of information that would require ...

United States Imposes New Economic Sanctions on Venezuela; Sanctions 16 Entities and Individuals for Dealings with North Korea

Last week, President Trump issued an Executive Order imposing new economic sanctions on the Venezuelan government in response to President Nicolás Maduro’s increasingly authoritarian actions. The new sanctions expand the U.S. restrictions against Venezuela, which previously were comprised of sanctions against a few key individuals, but they do not amount to a ...

US Launches Investigation into China’s Technology Transfer & IP Practices

United States Trade Representative (“USTR”) Robert E. Lighthizer launched an investigation under Section 301 of the Trade Act of 1974 (“Section 301”) into acts, policies, and practices of the Chinese government as they relate to “technology transfer, intellectual property [IP], and innovation.” The August 18 announcement of the investigation came just days after ...

Ninth Circuit Holds That Spokeo Plaintiff Has Standing to Proceed on Claim Over Inaccurate Information

The closely watched lawsuit alleging Spokeo, Inc., violated the Fair Credit Reporting Act (“FCRA”) may proceed, after a federal appeals court ruled — on remand from the Supreme Court — that publication of the inaccuracies alleged by the plaintiff would constitute a sufficiently “concrete” harm to give the plaintiff standing to sue in federal court. ...… Continue ...

Mavuno Harvest plants seeds of small-business expansion in sub-Saharan Africa

Witney Schneidman is quoted by the Philadelphia Inquirer in an article regarding the impact of Mavuno Harvest, which imports dried fruits from sub-Saharan Africa to sell at Whole Foods and other retailers, on African economic development. "In taking those mangoes and bananas and drying them and then connecting them with Whole Foods and other retailers in the ...

CFTC Enforcement and Regulatory Report 2017 Activity and Outlook

The U.S. Commodity Futures Trading Commission (the “CFTC” or the “Commission”) has been very active since the beginning of this year, despite the change in Presidential Administration, the lack (until recently) of appointed Commissioners, and the turnover of leadership at both the Commission and Division level. Notably, the Commission has announced over 20 ...

The Week Ahead in the European Parliament – August 25, 2017

Summary Next week will be a committee week in the European Parliament. All Members of the European Parliament (“MEPs”) will slowly resume their activities. Only a few committee meetings will take place as MEPs gear up for the increase in activities during the week of September 4 ahead of the plenary sitting, to be held...… Continue Reading

Final US position limits rule will take ‘at least a year’

Stephen Humenik is quoted in a Risk article regarding plans by the new CFTC Commissioners to finalize position limits for commodity exposures. “It will take months to get to the point of finalizing position limits, just because there is so much history there. Plus you have new CFTC commissioners coming on board who haven’t worked on the rules before, haven’t ...

FTC Blogs Help Define Reasonable Data Security Attorneys Say

Kurt Wimmer is quoted by Bloomberg BNA in an article regarding the FTC's weekly data security investigation blog. According to Wimmer, the FTC’s "Stick With Security” blog is “serving a highly useful role.” He adds that the initiative is “taking many of the key principles from the ‘Start with Security’ program and the FTC’s consent orders and rolling them out in ...

FERC Requests More Comments on Grid Service Proposal

In November 2016, FERC issued a Notice of Proposed Rulemaking (NOPR) that would require new generating facilities to install and operate equipment that provides primary frequency response service to the grid. Based on some of the comments received on the NOPR, FERC issued a request for supplemental comments. The reliable operation of the alternating ...

POLITICO Brussels Playbook: UK Brexit 'fairy tale' —Theresa May's pink line — Italy's Northern League goes soft

Bart Van Vooren is quoted in Politico's "Brussels Playbook" regarding the UK's ECJ Brexit position paper. According to Van Vooren, “Although it reads like a non-committal overview of possible options, there is a clear focus on the most advanced forms of institutional integration currently in existence (other than the EU itself, of course)."

Arbitration panel proposed for post-Brexit dispute resolution

Bart Van Vooren is quoted by The Law Society Gazette in an article regarding the UK's position paper which dismisses the European Commission’s demand for disputes to be handled by the CJEU. According to Van Vooren, the paper "has the seeds of a compromise on the CJEU."

Central Bank of Kenya Issues Guidance Note on Cybersecurity

On August 18, 2017, the Central Bank of Kenya (“CBK”) used its authority under Section 33(4) of the Banking Act to publish a Guidance Note on identifying and mitigating cyber risk. The Guidance Note directs institutions licensed under the Banking Act (Cap. 488) (“Institutions”) to develop and implement a comprehensive set of program requirements to...… Continue ...

Brexit Bulletin: ‘Confused and Puzzled’

Bart Van Vooren is quoted in Bloomberg's "Brexit Bulletin" regarding a position paper from Theresa May's government on how it sees the post-Brexit relationship with Europe. According to Van Vooren, in the August 21 paper, the UK asked for British drug manufacturers to be able to release medicines to the European market after Brexit. Yet that would only work if ...

Marcus Hutchins' Arrest: Did FBI Bite the Hand That Feeds?

Alex Berengaut's Law360article weighing the constitutionality of the Marcus Hutchins indictment is cited in a Bank Info Security story examining questions raised by the case. According to Berengaut, it's not clear that federal prosecutors have a right to bring charges against Hutchins.

CIA Torture Case Is A Cautionary Tale for Contractors on The Battlefield

By Alex L. Sarria and Marianne F. Kies The recent settlement of a noteworthy “contractor-on-the-battlefield” case should serve as a cautionary tale to government contractors that perform high-risk work in support of military operations. In Suleiman Abdullah Salim v. James E. Mitchell and John Jessen, No. CV-15-0286, three foreign plaintiffs filed Alien Tort ...

Code Linked to MalwareTech and Kronos Published in 2009

Alex Berengaut's Law360 article on the constitutionality of the Marcus Hutchins indictment is cited in a Security Week story examining recent case developments. “Since Hutchins’ indictment, commentators have questioned whether the creation and selling of malware—without actually using the malware—violates the two statutes under which Hutchins was charged: the ...

EU Insists on Orderly Brexit as UK Battles for Upper Hand

Bart Van Vooren is quoted in a Bloomberg article regarding the release of UK position papers outlining its goals of a future relationship with Europe. “Without the U.K. making a fundamental choice on its future relationship to the EU, it cannot expect to receive this depth of mutual recognition,” says Van Vooren. “Without making that choice clear now, the ...

What It's Like to Be the FDA's Top Lawyer

Peter Barton Hutt was interviewed by Bloomberg BNA to discuss his time as FDA Chief Counsel following the appointment of Rebecca "Becky" K. Wood to the role. “You need essentially an inside and an outside chief counsel,” says Hutt. “Figure out your own agenda and proceed to implement it.” Commenting on the topic of off-label communications, Hutt says, "FDA does ...

NIST Releases Fifth Revision of Special Publication 800-53

The National Institute of Standards and Technology (“NIST”) released on August 15, 2017 its proposed update to Special Publication (“SP”) 800-53. NIST SP 800-53, which was last revised in 2014, provides information security standards and guidelines, including baseline control requirements, for implementation on federal information systems under the Federal ...

FERC IS BACK AND FACES A FULL PLATE OF ELECTRICITY ISSUES (Volume 3)

This is the third and final of three posts on this blog providing short summaries of the generic electricity policy initiatives already teed up and awaiting possible action by the newly-constituted FERC. Together, these three posts describe initiatives that address fundamental market and resource issues spanning a broad range of FERC’s electricity authorities. ...

China’s State Council Releases Draft Revisions to Process for Formulating Administrative Regulations

For years, the foreign business community has called for greater transparency and opportunities to provide more input into China’s legislative and regulatory rule-making processes. In a small step forward, on July 19, the Legislative Affairs Office of the State Council (“SCLAO”) released draft revisions to the Regulations on Procedures for Formulating ...

Covington Advises Aristocrat in Acquisition of Plarium and Related Acquisition Financing

WASHINGTON—Covington, together with Israeli-based law firm Allens and Herzog Fox & Neeman, is representing Aristocrat Leisure Limited, a leading provider of gaming solutions, in its acquisition of Plarium Global Limited and the related acquisition financing. Aristocrat will make an upfront cash payment of $500 million plus earn-out payments based on Plarium’s ...

Mitch Kamin Among LA’s "Most Influential IP Attorneys"

LOS ANGELES—The Los Angeles Business Journal has named Covington partner Mitch Kamin one of the “Most Influential IP Attorneys” in Los Angeles. The Los Angeles Business Journal highlighted Mr. Kamin’s representation of entertainment industry leaders such as 21st Century Fox and Sony Music Entertainment in complex, high profile intellectual property disputes, ...

FERC IS BACK AND FACES A FULL PLATE OF ELECTRICITY ISSUES (Volume 2)

This is the second post of three on this blog providing short summaries of the generic electricity policy initiatives already teed up and awaiting possible action by the newly-constituted FERC. Together, these three posts describe initiatives that address fundamental market and resource issues spanning a broad range of FERC’s electricity authorities. Today’s ...

Two Covington Partners Named Among Law360's "Rising Stars”

WASHINGTON—Law360 named Covington partners Elizabeth Canter and Shankar Duraiswamy to its list of “Rising Stars for 2017.” This annual recognition honors top attorneys under 40 “whose legal accomplishments transcend their age.” Ms. Canter advises multinational companies on privacy, cyber security, and technology transaction issues. She has special expertise in ...

FERC IS BACK AND FACES A FULL PLATE OF ELECTRICITY ISSUES (Volume 1)

With two new Commissioners confirmed by the Senate and sworn in, FERC’s seven-month period without a quorum is over and it can get back to business. And with another two nominations now before the Senate with a hearing scheduled for September 7, the agency should be at full strength within the next few months and...… Continue Reading

Covington Represents IFM Therapeutics in $300 Million Sale of Assets to BMS

NEW YORK—Covington is representing IFM Therapeutics in its sale to Bristol Myers Squibb for $300 million in cash and the right to receive contingent payments upon achievement of specified milestones that could total in excess of $1 billion for each of its two oncology programs. Prior to closing, IFM will spin off its inflammation program to a newly-formed ...

Could Congress stop Trump from bombing North Korea?

Roger Zakheim is quoted in a CNN article regarding President Trump's authority to take military action against North Korea. "The Constitution gives tremendous authority for the president of [the] United States to act on his own," says Zakheim. "Both in terms of constitutional law and in practice, for the President to take military action there's a lot of ...

The Morning Risk Report: More Data Security Compliance on EU Horizon

Mark Young is quoted in The Wall Street Journal's "Morning Risk Report" in an article regarding the Network and Information Systems directive. According to Young, “This is another data-related compliance requirement and it carries heavy penalties for failure to have in place appropriate network security measures."

A Summary of the Recently Introduced “Internet of Things (IoT) Cybersecurity Improvement Act of 2017”

On August 1, 2017, a bipartisan group of Senators introduced legislation (fact sheet) that would establish minimum cybersecurity standards for Internet of Things (“IoT”) devices sold to the U.S. Government. As Internet-connected devices become increasingly ubiquitous and susceptible to evolving and complex cyber threats, the proposed bill attempts to safeguard ...

UK data laws enter Facebook era

Lisa Peets is quoted in a Financial Times article regarding the EU's new General Data Protection Regulation which will be introduced into UK law later this year. "Under the regulations, the definition of 'personal data' will be extraordinarily broad—any information that is related to a person," says Peets. "Companies are finding out that they are processing a ...

Avoiding State and Local Lobbying Compliance Violations

Corporate legal and compliance departments are usually well aware of the laws regulating lobbying the federal government. Recent news reports, however, indicate that companies have more trouble with state and local lobbying laws. A few features of state and local lobbying make it a tricky blind spot. This increases the risk of failing to properly...… Continue ...

Avoiding State and Local Lobbying Compliance Violations

UK Imposes New Sanctions Disclosure Obligation on Legal Professionals, Certain Other Businesses

On July 18, 2017, the UK published a new statutory instrument, The European Union Financial Sanctions (Amendment of Information Provisions) Regulation 2017 (S.I. 2017/754) (hereinafter, the “AIP Regulation”). The Regulation comes into force on August 8, 2017.

Protecting Intellectual Property as Government R&D Funding Rises

The U.S. Government’s research and development (“R&D”) spending is on the rise. For instance, the U.S. Government spent $139 billion in on R&D in FY 2015 and approximately $148 billion in FY 2016. It is slated to spend as much as $154 billion on R&D in FY 2017. With this funding comes great opportunities for...… Continue Reading The post Protecting ...

Spain's 'veto' over Brexit deal for Gibraltar could be illegal

Bart Van Vooren is quoted by The Telegraph in an article regarding the legality of Spain's veto over whether the Brexit deal will apply to Gibraltar. According to Van Vooren, "This is actually a complex question of EU constitutional law." He adds, "Could such a legal issue become an obstacle to the withdrawal agreement with the UK? That certainly cannot be ...

Rising Star: Covington & Burling's Elizabeth Canter

Libbie Canter was named a "Rising Star" by Law360, recognizing her as a top lawyer under 40 in Privacy & Cybersecurity law. In its profile of Canter, Law360 highlights her advisory role on significant transactions, including Microsoft’s $8.5 billion acquisition of video call service Skype.

Missing Data Hinders Contractor Disclosure Rule Nine Years In(1)

Fred Levy is quoted in a Federal Contracts Report article regarding the effectiveness of the Mandatory Disclosure Rule, enacted almost a decade ago. “I’ve heard anecdotally that some government people complain that they get mostly the small stuff, and that there must be bigger matters out there,” says Levy. “On the other hand, from my perspective as somebody who ...

Six Takeaways from President Trump’s Executive Order on Assessing Manufacturing and the Defense Industrial Base

[This article was originally published in Law360.] On July 21, 2017 – and during “Made in America Week” – President Trump issued Executive Order 13806 on “Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States” (the “Manufacturing EO”). The Manufacturing EO sets forth a policy stressing the...… ...

Marketplace Tweak May Halt DOD Commercial Buying Slide

Jason Workmaster is quoted in a Law360 article regarding a legislative proposal in the 2018 National Defense Authorization Act that would allow the Department of Defense to purchase certain commercial items through online commercial marketplaces. “If that happens, that would be a sea change," says Workmaster. “I think it’s fair to say, from industry’s ...

Cyber Insurance Offerings Growing In Response To New Threats

Marialuisa Gallozzi, John Buchanan, and Jeff Kiburtz are quoted in a Medtech Insight article regarding the growing interest in the healthcare sector in buying cyber insurance. According to Gallozzi, "We are in the midst of an evolution of the insurance market right now in this area." She says cyber insurance policies have been a growing trend but unlike other ...

Congress Adopts Significant New Sanctions Against Russia, Iran, and North Korea

Congress has passed and sent to President Trump, for his signature or veto, a bill that would impose significant new sanctions against Russia, Iran, and North Korea. The legislation—the Countering America’s Adversaries Through Sanctions Act—enjoys broad bipartisan support, having passed the U.S. House of Representatives on July 25 by a vote of 419-3, and the ...

Senate Committee Directs DoD to Reduce Drug Prices

In its Report on the National Defense Authorization Act for Fiscal Year 2018, the Senate Armed Services Committee (the “Committee”) included an “Item of Special Interest” directing the DoD to exercise its rights under the Bayh-Dole Act “to authorize third parties to use inventions that benefited from DOD funding whenever the price of a drug,...… Continue ...

UK MasterCard Ruling Won't Doom Young Class Regime

Elaine Whiteford is quoted in a Global Competition Review article regarding the UK Competition Appeal Tribunal's decision to block a £14bn class action lawsuit against MasterCard from proceeding. "Some people possibly thought when the jurisdiction was introduced that the CAT would want to encourage lots of claims in early years and would want to get a bit more ...

UK Government’s negotiating position on CJEU seen lacking, legally unsound

Bart Van Vooren is quoted in a PaRR article regarding the UK Government's negotiating position on the role of the Court of Justice of the European Union following the completion of Brexit. According to Van Vooren, the EU was “in a slightly stronger position from an international law perspective” regarding pending cases and that the UK would likely “still be ...

Recent Developments from the Trump Administration and Capitol Hill Impacting Food, Beverage, and Dietary Supplements

A few interesting developments took place in Washington DC last week that are relevant to the food, beverage, and dietary supplement sectors. Last Thursday, July 20, 2017, the Trump Administration published its Spring 2017 Unified Agenda with the aim to significantly limit agency activity. The same day, the Senate Appropriations Committee proposed a FY 2018 budget for USDA and FDA, and the following day, issued its FY 2018 report with a wish list of action items directed at the two agencies. While not exactly at odds with each other, the Unified Agenda pulls back hard on agency activity while the Senate report urges USDA and FDA to complete specific regulatory tasks.

Parliamentarian Singles Out More GOP Health Bill Provisions

Muftiah McCartin is quoted by CQ Healthbeat in an article regarding Senate Parliamentarian Elizabeth MacDonough's ruling against two provisions in the GOP healthcare rule. According to McCartin, the Planned Parenthood language previously deemed a Byrd rule violation is likely to continue to have issues. She adds that Republicans are trying to broaden the ...

Certification of £14 billion Class Action Against MasterCard Refused

On Friday July 21, 2017 the UK’s Competition Appeal Tribunal (the “CAT”) handed down its second class certification decision under the class actions regime introduced by the Consumer Rights Act 2015 (the “Act”). It dismissed the application for two reasons. First, the proposed representative failed to show that it could reasonably estimate damages in the aggregate for the class as a whole. Second, even if loss had been suffered and could be estimated across the class as a whole, there was no way to ensure that any payment to an individual class member would bear any reasonable relationship to actual losses. The decision is another indication that the CAT is scrutinizing applications carefully. On the other hand, the CAT’s finding that undistributed proceeds may be used to provide a litigation funder’s investment return will give the litigation funding industry comfort that a return can be made on cases in England.

UK court rejects class action against MasterCard

Elaine Whiteford is quoted in a Global Competition Review article regarding the UK Competition Appeal Tribunal's decision to block a £14bn class action lawsuit against MasterCard from proceeding. According to Whiteford, it is surprising that Merricks was not afforded an opportunity to serve an amended claim form - as was permitted in the Gibson mobility scooters ...

Breaking: CAT rejects MasterCard consumer action

Elaine Whiteford is quoted in a Commercial Dispute Resolution article regarding the UK Competition Appeal Tribunal's decision to block a £14bn class action lawsuit against MasterCard from proceeding. “Given that this is a new regime, and given that in the Gibson case, the CAT adjourned the hearing of the application for the CPO to afford the claimant the ...

Court rejects landmark application for £14bn group action against MasterCard on group certification in Freshfields win

Elaine Whiteford is quoted in a Legal Business article regarding the Competition Appeal Tribunal's decision to block a £14bn class action lawsuit against MasterCard from proceeding. According to Whiteford, "From a perspective of funding of claims, the judgment is encouraging as it clarifies a funders’ uplift can be paid from undistributed damages," one of ...

Cash surges to lobby firms in Trump era

Muftiah McCartin is quoted by The Hill in an article regarding second-quarter spending on lobbying. According to McCartin, “Although there have not been any high-profile legislative accomplishments during the first six months of the Trump Administration, the legislative wheels of government are clearly grinding away.”

Repeal Debate Clouds Next Important Health Bill

Denise Esposito is quoted in a CQ Quarterly article regarding the possible reduction in FDA staff if the bill to renew funding is not authorized by Congress. According to Esposito, "Not only does it create regulatory uncertainty and affect employee morale, but, in advance of a possible lapse in appropriations, FDA is required to divert valuable resources from ...

MasterCard Wins Dismissal of $18 Billion Class Action Suit

Elaine Whiteford is quoted in a Bloomberg article regarding the UK Competition Appeal Tribunal's decision to block a £14bn class action lawsuit against MasterCard from proceeding. “The mobility scooters case ended up being modest to the point it became uneconomic,” says Whiteford. “If you look at MasterCard, it’s the other extreme -- a very ambitious claim -- ...

Wash. Expands Biometric Privacy Quilt With More Limited Law

Kurt Wimmer is quoted in a Law360 article regarding the State of Washington's new law governing the collection and use of consumers’ biometric information. According to Wimmer, the law “is more sensible and targeted than some other biometric laws because it applies only to biometric identifiers stored in a database that matches those identifiers to specific ...

China Releases Draft Export Control Law for Public Comment

On June 16, 2017, China’s Ministry of Commerce (MOFCOM) released for public comment a draft of the Export Control Law (“the Draft Law”). While China has a number of regulations relating to export controls and has signed numerous nonproliferation agreements, the Draft Law would be China’s first law specifically addressing export controls and would implement an export controls system that protects China’s national security and consolidates its nonproliferation efforts. This new law, if enacted as drafted, would bring China’s system somewhat closer to other export control regimes, although certain provisions are still inconsistent with the approach of other jurisdictions. The Draft Law also introduces new restrictions on the provision of “export control-related” information” outside of China, highlighting the government’s desire to tighten the control of cross-border transfers of technical data related to controlled items. The Draft Law is expected to be introduced to the National People’s Congress for a first reading in 2018.

Department of State Releases 2017 TIP Report

The Department of State has released its 2017 Trafficking in Persons (“TIP”) Report. As with prior versions of the annual report, the State Department reviewed efforts made by more than 180 countries to address the minimum Prosecutorial, Protective, and Preventative standards necessary for effective anti-trafficking measures, as these standards are outlined in ...

EU wants power to impose huge fines on Britain for years after Brexit

Bart Van Vooren is quoted by The Telegraph in an article regarding the push by EU negotiators to impose fines on Britain for breaking European laws after Brexit. According to Van Vooren, "The way that infringement proceedings are brought is very much under the discretion of the commission…and they are extremely politicised." He adds that there would be a huge ...

Ross, Mulvaney issue 'Buy American' guidance to federal agencies

Inside U.S. Trade's Daily Report highlights a Law360 article by the firm's Government Contracts lawyers regarding President Trump's "Buy American and Hire American" Executive Order. The firm's lawyers predict an increased "emphasis on procuring domestic end products" and state that "it will be prudent" for contractors and manufacturers "to take a fresh look at ...

MSRB Pay-to-Play Challenge Stymied by Sixth Circuit over Standing

Over the past few years, a few state political party committees have relentlessly sought to block or overturn pay-to-play laws overseen by the Securities and Exchange Commission (SEC). Yesterday, the Sixth Circuit delivered another defeat to an ongoing effort to challenge federal pay-to-play laws. Last year, we noted that the Municipal Securities Rulemaking ...

Covington Secures State Aid Victory for the Belgian State in Nuclear Guarantee Scheme

BRUSSELS—Covington successfully represented the Belgian State in a state aid investigation, raising a series of previously unexplored issues. The European Commission final decision adopted a novel approach to the Market Economy Investor principle, to the establishment of the relevant market benchmark, and to calculating the comparable market price in such a ...

What Brexit means for drug regulation

Grant Castle is quoted in a Pharmafile article regarding how Brexit may affect drug regulation. “Even if we enter into a close free-trade agreement, the UK will lose influence in the development of pharmaceutical legislation and policy, and will also lose influence in the pharmaceutical regulatory procedures,” says Castle. “And that must inevitably mean that ...

Battlefield Immunity Fights Rage On, CIA Torture Case Shows

Alex Sarria is quoted in a Federal Contracts Report article regarding the assertion of immunity defenses by contractors on the battlefield. According to Sarria, major decisions over the past decade and a half have illustrated the overwhelming federal interests that are at stake when government contractors accompany forces into a foreign war zone. Allowing ...

'Buy American' Rules Have Major Implications for Defense

Justin Ganderson is quoted in a Real Clear Defense article regarding the implications that President Trump's "Buy American" rules may have on the defense industry. Ganderson warns that failures to comply could lead to civil of criminal False Claims Act violations, contract terminations, and suspension or debarment. “A decision to ‘wait and see’ how agencies will ...

Predictability of Outcomes in Discovery Disputes at CBCA Improves During its First Ten Years

In recognition of the decennial anniversary of the U.S. Civilian Board of Contract Appeals (“Civilian Board”), we set out to determine notable trends in Civilian Board practice. Among other things, we identified a recent marked increase in the number of published decisions containing substantial discussions of discovery issues – more than half of the 24...… ...

Covington Advises Central European Media Enterprises on $262.2 Million Deal

LONDON—Covington is advising Central European Media Enterprises Ltd. (CME) on the sale of its broadcast operations in Croatia and Slovenia to Slovenia Broadband S.à r.l for approximately $262.2 million. The transaction is expected to close by the end of 2017. CME is a NASDAQ-listed media and entertainment company operating leading businesses in six Central and ...

Trump Puts China Under Microscope With WTO Envoy Nom

John Veroneau is quoted in a Law360 article regarding President Trump's appointment of Dennis Shea to serve as the deputy U.S. trade representative in Geneva. “The main focus of this administration has been the impact of China’s accession to the WTO," says Veroneau. “To the extent that there are concerns about the WTO these days, it’s often revolved around ...

China Seeks Public Comments on Draft Regulation on the Protection of Critical Information Infrastructure

On July 11, 2017, the Cyberspace Administration of China (CAC) released the draft Regulation for the Protection of the Critical Information Infrastructure (“Draft Regulation”) for public comment (official Chinese version available here). The comment period ends on August 10, 2017.

A Review of Modern Working Practices in the UK

In October 2016, the UK Prime Minister, Theresa May, commissioned Matthew Taylor, the Chief Executive of the Royal Society of Arts and former policy adviser to Tony Blair, to look at how employment practices need to change in order to keep pace with modern business models.

China Ready For More Medtech Market Access Simplifications

Medtech Insight references an Inside Medical Devices blog post in an article regarding the impact of China's draft circulars on medical device manufacturers. According to Covington's post, the four proposals represent important reforms to the existing drug and medical device regulatory regimes, and are intended to reduce obstacles that have delayed the launch of ...

Kentucky Raises Contribution Limits in July, Adjusts Reporting

Starting this month, nearly all of Kentucky’s campaign contribution limits increase, excepting contributions that remain either unlimited in amount or prohibited. Perhaps the most substantial change is the establishment of building fund accounts for political party executive committees, which may now accept unlimited funds from corporations. Also of note is the ...

Germany's plan to lure more private investment to Africa

Witney Schneidman participated in an interview with CNBC Africa to discuss Germany's Marshall Plan with Africa. According to Schneidman, "I think the German government is very serious about trying to put in place an initiative as it relates to the continent."

Trump missing chance to steer antitrust as key FTC slots go unfilled

Deborah Garza is quoted in a Reuters article regarding the Trump Administration's delay in choosing a permanent chair for the Federal Trade Commission. Garza notes, "The chair sets the priorities. It's important to have that person in to set the direction and pursue initiatives."

Covington Snags Undefeated Litigator From O'Melveny

Carolyn Kubota and John Hall are quoted in a Law360 article regarding Kubota's arrival to Covington's Los Angeles office as a partner in the firm's Litigation and White Collar Defense and Investigations practices. “A friend of mine once said, [trials] are the most fun you can have wearing a suit, and I’m a strong believer in that,” Kubota says. “I find [that], ...

Covington Hires Kubota from O'Melveny After 17-Year Long Stay

John Hall and Carolyn Kubota are quoted in a Daily Journal article regarding Kubota's recent arrival to Covington's Los Angeles office. According to Hall, "Carolyn is a world-class litigator with an exceptional track record of trial success, and her tenacity and depth of experience will be highly valuable to our clients," adding that her track record of handling ...

Covington's LA Office Makes Another Lateral Addition

Carolyn Kubota and John Hall are quoted by The Recorder in an article regarding Kubota's recent arrival to Covington's Litigation and White Collar Defense and Investigations practices in Los Angeles. “I hope I’ll be able to expand the work I’m doing for pharma companies to other companies and broaden, rather than change, [my practice],” Kubota says. According to ...

Covington's Garza Testifies Before House Judiciary Committee on International Antitrust Enforcement Trends

WASHINGTON—Covington partner Deborah Garza testified on Thursday before the U.S. House of Representatives Subcommittee on Regulatory Reform, Commercial and Antitrust Law to present the International Competition Policy Expert Group’s (ICPEG) report and recommendations. Ms. Garza currently serves as co-chair of ICPEG. Assembled by the U.S. Chamber of Commerce last ...

U.S. House Considering Major Change to Trade Association PAC Fundraising Rules

The U.S. House Committee on Appropriations is considering a major change to the way trade associations are allowed to raise money into their political action committees (PACs). Currently, if a trade association wants to solicit money from its member companies’ employees, it must first get advance approval from the company, and each company can authorize...… ...

Pentagon demands contractors up cybersecurity

Susan Cassidy is quoted in a San Antonio Express-News article regarding new cybersecurity requirements for contractors. According to Cassidy, "Essentially, the DOD wants its contractors to protect its information, because the DOD is a huge target, and its contractors are also a target." Commenting on the fact that over the years, contractors have been working ...

Congress addresses foreign antitrust against US companies

Deborah Garza is quoted in a Global Competition Review article following her testimony before the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law where she presented the findings and recommendations of the International Competition Policy Expert Group's report on mitigating international abuses of competition law that harm U.S. ...

Supreme Court Narrows Nationwide Injunctions on Travel Ban Executive Order, Effectively Reinstating Key Provisions

Earlier this week, the Supreme Court issued a ruling staying certain parts of the injunctions entered by the Fourth and Ninth Circuit Courts of Appeal against Executive Order No. 13780, the so-called "travel ban" Executive Order (the “Order”), and the State Department issued clarifying guidance on June 28. The effect of the Supreme Court ruling is to allow implementation of the Order to move forward with respect to foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (the “Restricted Countries”) who do not have “bona fide relationships” with persons or entities in the United States. (For further background on the Order, see our prior alert.) As we have previously advised, U.S. employers who employ foreign nationals from the Restricted Countries should carefully consider whether international travel for such employees is necessary; if so, such employees should carry extensive documentation reflecting his or her ties with the U.S. employer to establish a “bona fide relationship.”

Experts Split On Group To Curb Int'l Antitrust Abuse

Deborah Garza is quoted in a Law360 article following her testimony before the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law where she presented the findings and recommendations of the International Competition Policy Expert Group's report on mitigating international abuses of competition law that harm U.S. companies. According ...

FTC Adds Online Parental Consent Method to Privacy Guidance

Lindsey Tonsager is quoted in a Bloomberg Law article regarding the FTC's updated guidance that includes adding online-based questions as a method of obtaining parental consent under the Children's Online Privacy Protection Act. According to Tonsager, the new methods are a quick way for parents to give consent without having to mail in forms, and will largely ...

USDA Releases Questions for Input on the National Bioengineered Disclosure Standard Proposed Rule

Today, USDA’s Agricultural Marketing Service (AMS) released 30 questions to gather input from stakeholders that it will use in drafting a proposed rule as required by The National Bioengineered Food Disclosure Standard enacted last year on July 29, 2016 (click here for Covington’s client alert). By statute, AMS has two years--until July 29, 2018--to establish a national disclosure standard and the procedures necessary to implement the standard.

Rep. Gowdy Plans Deeper Oversight

The new chairman of the House Committee on Oversight and Government Reform, Representative Trey Gowdy (R-S.C.), outlined his plans for the Committee last week. As we expected, Mr. Gowdy said that he would pursue more methodical investigations. Noting that hearings are “an inefficient way to gather facts,” Mr. Gowdy said that the Committee would pursue...… ...

As EPA Issues TSCA’s Framework Rules, Bipartisan Law Faces Challenges

Donald Elliott is quoted in a Risk Policy Report article regarding the release of the EPA's framework rules to implement the new Toxic Substances Control Act. According the Elliott, the law is "quite durable," adding that "[w]e haven't seen any indicators from the Trump administration that they're targeting it." However, Elliott also notes that there will be ...

Changing Perceptions on Display at U.S.-Africa Business Summit in DC

Witney Schneidman is quoted in an All Africa article providing highlights from the U.S.-Africa Business Summit. In his Brookings blog post on Secretary Ross' speech, Schneidman writes, "The good news is that the Trump administration appears to understand the importance of the African market."

Efforts to End Super PACs Moving Forward, Face Uphill Climb

Last summer there was much ado about the two parallel efforts of a “Dream Team” of attorneys to “end Super PACs.” Their goal was to get the Supreme Court to overturn the decision of the D.C. Circuit in SpeechNow v. FEC, and similar decisions in other circuits, which led to the creation of Super PACs....… Continue Reading The post Efforts to End Super PACs ...

Update on CFIUS Developments: Proposed Legislation and Reflections on CFIUS Under the Trump Administration

We are writing to provide our perspective on recent developments regarding the Committee on Foreign Investment in the United States (“CFIUS”), including the plans of Senator John Cornyn (R-TX) to introduce significant legislation to reform CFIUS, and the operation of CFIUS in the first six months of the administration of President Donald Trump.

FEC Eyes Moves to Curb Foreign Influence

Robert Lenhard's blog post on Covington's Inside Political Law blog is referenced in a Bloomberg BNA article regarding the FEC's focus on foreign influence in U.S. elections. According to Lenhard, the FEC appeared to be “headed to yet another deadlock” on the foreign influence issue because of “a fundamental disagreement among the commissioners about how serious ...

Will the FEC Declare War on Russia?

Noting that we are at an “all hands on deck” moment for our democracy, FEC Commissioner Ellen Weintraub circulated to the Commission yesterday a document citing former Vice President Dick Cheney for the proposition that the United States is now at war with Russia, and that “[e]very part of our government that has jurisdiction over...… Continue Reading The post ...

The FEC Revisits the Ban on Foreign Nationals’ Financing of American Elections

On Thursday, the FEC will return to the question of foreign nationals’ involvement in United States elections. This is an important question that deserves appropriate attention from our government. Be it the role of Chinese government-linked funds in the 1996 presidential campaign or the Russian government-linked cyber intrusion in the 2016 presidential race, ...

What To Watch As LabMD, FTC Square Off Over Data Security

Kurt Wimmer is quoted in a Law360 article regarding LabMD Inc. v. FTC , where the FTC will attempt to justify its data security enforcement authority. “The LabMD argument will provide an important window into how the new FTC will deal with the all-important question of 'harm' in the context of data security enforcement actions,” says Wimmer. “The argument ...

Oral Argument in LabMD Case to Test FTC’s Enforcement Authority

Kurt Wimmer is quoted in a Bloomberg BNA article regarding LabMD Inc. v. FTC , where the FTC will attempt to justify its data security enforcement authority. According to Wimmer, "[o]ral argument “presents an opportunity for the FTC to explain its current view of ‘harm,’ and how it should be applied in the LabMD case."

U.S. Tightens Cuba Embargo; Senate Passes Iran/Russia Sanctions Bill; Arab Nations Boycott Qatar

On Friday, June 16, 2017, President Donald J. Trump announced a tightening of the United States’ long-standing Cuba embargo, rolling back some of the easing implemented during the Obama Administration and described in our prior client alerts. The Trump Administration’s approach is outlined in a National Security Presidential Memorandum, but the full scope of this policy shift will not be known until the Treasury Department’s Office of Foreign Assets Control (“OFAC”) adopts new regulations in the coming months. As OFAC clarified in its Frequently Asked Questions, none of the changes announced by the President last week take effect until the new regulations are issued.

The U.S. Senate has also passed a bill that would codify existing sanctions and impose new sanctions against Russia, and also impose new sanctions against Iran. This bill now goes to the House of Representatives. Additionally, the boycott of Qatar by Saudi Arabia, the United Arab Emirates, and other countries raises issues under the U.S. antiboycott regimes administered by the U.S. Treasury and Commerce Departments. These recent developments potentially present legal risks for companies operating in Russia and the Middle East.

National Law Journal Names Gary Guzy "Energy & Environmental Trailblazer"

WASHINGTON—The National Law Journal has named Covington’s Gary Guzy as one of its “Energy & Environmental Trailblazers.” The list profiles 50 lawyers who “continue to make their mark in various aspects of legal work in the areas of energy and environmental law” and have “shown a deep passion and perseverance in pursuit of their mission.” Mr. Guzy has over three ...

Covington Lawyers Win Three “Europe Women in Business Law Awards"

LONDON—Euromoney Legal Media Group has selected three Covington lawyers for its annual “Europe Women in Business Law Awards.” The awards honor women in the legal sector across Europe. The Covington lawyers recognized are: Louise Nash, Best in Mergers & Acquisitions. Ms. Nash focuses on M&A and other transactional matters for clients in the consumer brands, ...

U.S. FDA's New Game Plan For Digital Health

Wade Ackerman is quoted in a Medtech Insight article regarding FDA's regulatory strategy in relation to digital health. "While Congress addressed some aspects of FDA's regulation of health software in the 21st Century Cures Act last year, the digital landscape continues to evolve rapidly," Ackerman says. "FDA's intent to outline a new digital health innovation ...

Attys Dish On Escobar's FCA Impact One Year Later

Peter Hutt II is quoted in a Law360 article evaluating how the Supreme Court's decision in Escobar has been applied over the last year. According to Hutt, "Escobar is such a powerful case because it establishes rules that align with common sense. As to 'implied certification,' courts are instructed to determine if defendants were lying to the government by ...

SEC steps up enforcement against escalating cybercrime

Jennifer Martin is quoted in a Global Investigations Review article discussing the SEC's response to the rising rates of cybercrime. “The cyber criminals go where the money is,” says Martin. “They’re constantly figuring out new ways to monetize information.” She adds that whether it’s extorting hospitals through ransomware or going after valuable healthcare ...

Three Covington Partners Among Top 100 Women Lawyers in California

LOS ANGELES—Covington partners Robyn Polashuk, Clara Shin, and Sonya Winner have been named to the Daily Journal’s 2017 “Top 100 Women Lawyers” list, which recognizes the leading women lawyers in California who “try complex commercial disputes and put together industry-transforming deals.” Managing partner of the firm’s Los Angeles office, Ms. Polashuk focuses ...

CFTC, Watchdog Disagree Over Futures Association Oversight

Anne Termine is quoted in a Law360 article regarding the Commodity Futures Trading Commission's reaction to a recent internal watchdog review of the agency's oversight of the National Futures Association. According to Termine, it appeared the CFTC's Division of Swap Dealer and Intermediary Oversight was saying that it has a core mission and a core duty and that ...

Special Coverage: The UK Decides

Lord Francis Maude appeared on Bloomberg following the close of the UK election polls. "This was absolutely a good election for [Theresa May] to call, but the absolute rule should have been don't take risks," says Maude when commenting on the exit poll results which showed the Tories falling short of a majority. He adds that, at this point, the outcome is still ...

Lord Maude: Theresa May needs to offer 'outward-looking Britain'

Lord Francis Maude appeared on Sky News' Ian King Live ahead of the UK election where he discussed the upcoming Brexit negotiations and the need for Britain to be "outward looking" and as supportive of business as it can be.

China’s Labor Ministry Overhauls Regime for Resolving Labor and Personnel Disputes

Pursuant to the State Council’s directive to build harmonious labor relationships and to strengthen the system for resolving labor disputes, the Ministry of Human Resources and Social Security (MOHRSS) recently revised two sets of arbitration rules. The revisions address new issues and provide clarification of existing regulations. The key objectives are to streamline the dispute settlement process and provide more effective and efficient mechanisms for resolving labor and personnel disputes. These rules will apply to both foreign-invested and domestic companies with employees in the People’s Republic of China.

Key Questions About Move To Privatize Air Traffic Control

Jack Schenendorf is quoted in a Law360 article regarding questions that Congress will have to answer when tackling air traffic control reform. Commenting on who is going to pay for the new ATC entity, Schenendorf remarks, "The only entities that would not have to pay in are the federal entities using the system, so they say everyone should contribute something ...

Energy and Environmental Trailblazers

Gary Guzy was profiled by The National Law Journal as a part of the publication's "Energy & Environmental Trailblazer" feature honoring 50 lawyers who “continue to make their mark in various aspects of legal work in the areas of energy and environmental law” and have “shown a deep passion and perseverance in pursuit of their mission.”

FDA Advertising and Promotion Enforcement Activities: Update

This e-alert is part of a series of e-alerts summarizing publicly available FDA enforcement letters (i.e., warning letters and untitled letters) relating to the advertising and promotion of prescription drugs, medical devices, and biologics. In May, FDA’s Office of Prescription Drug Promotion (OPDP) posted the following letter on FDA’s website: Untitled ...

New cyber law in China stirs alarm

Yan Luo is quoted by The Hill in an article regarding some of the uncertainties surrounding China's new Cybersecurity Law. Under the new law, cross-border data transfers for operators of "critical information infrastructure" are subject to security reviews and restrictions. According to Luo, "We don’t really have a definition of critical information ...

Comment: Licensing drugs post-Brexit amounts to surmountable administrative task

Robin Blaney is quoted in an MLex article regarding pleas from the EMA urging UK drugmakers to relicense their products in another EU country before Brexit. According to Blaney, the transfer of authorizations is "primarily an administrative exercise," and there is no legal obstacle to using a shell company in the European Economic Area to hold marketing ...

Former DHS Assistant Secretary Joins Covington

WASHINGTON—Alan Bersin, former Assistant Secretary for International Affairs at the U.S. Department of Homeland Security, has joined Covington as a Policy Consultant in the firm’s Public Policy and Government Affairs practice. Mr. Bersin has led a highly regarded career of government service, having held a number of senior level positions within the Department ...

Inside the U.S.-China '100-Day Plan' on Trade

Timothy Stratford appeared on Bloomberg Markets: Asia to discuss the U.S.-China trade relationship and what the "100-Day Plan" on trade means for both countries. Although Stratford believes people are encouraged by the Mar-a-Lago summit, he says that it is "important to recognize… that there is very likely going to be a significant call on the United States for ...

Can your off-hours political activism get you in trouble at work?

Lindsay Burke is quoted by The Washington Post in an article regarding employee rights when it comes to off-duty political activity. Commenting on whether freedom of speech protections offer job protections for nongovernment workers, Burke says, "[I]f it's a private employer, there's no particular freedom of speech." She adds, "There are no particular First ...

Stratford: U.S. Should Look at 'Belt & Road' Plan

Timothy Stratford appeared on Bloomberg Markets: Asia to discuss China's "Belt & Road" initiative focused on infrastructure development and U.S. trade relationships. According to Stratford, "I think the basic idea of a 'Belt & Road' is a very positive idea. I think that we have parts of the globe that are really not well integrated into the global trading system ...

The European Commission takes stock on the Digital Single Market

The European Commission launched its Digital Single Market strategy in May 2015 and with their term to finish in October 2019, the Commission is now taking stock on the progress made with this initiative so far. On May 10, the Commission released the mid-term review of its Digital Single Market strategy, see press release here...… Continue Reading

Senators push for enhanced powers to battle botnets

Jennifer Martin is quoted by The Hill in an article regarding the increased focus by law enforcement on botnets and the threats they pose to national security. "One of the reasons botnets are growing in prevalence is the growth of the Internet of Things,” says Martin. “As more and more things are connected, you can expect more and more things to be compromised ...

Are You Ready for the European General Data Protection Regulation? A Practical Checklist for Employers

One year from today, on May 25, 2018, employers will have to comply with a new data protection law, commonly referred to as the General Data Protection Regulation (the “GDPR”). This alert provides a practical checklist of key considerations for employers and human resources professionals preparing for the new regime, ahead of its implementation next year.

CFDA Releases Groundbreaking Drug and Device Policies for Public Comment

On May 11 and 12, 2017, the China Food and Drug Administration (“CFDA”) published drafts of four proposed policies in the form of circulars (or notices) for public comment. These “Proposed Policies” include significant reforms in the areas of the new drug and device approval process (“Circular 52”), clinical trial regulation (“Circular 53”), life-cycle management and post-marketing surveillance (“Circular 54”), and regulatory data protection and patent linkage (“Circular 55”). Comments for each circular are due on June 10, 2017, but CFDA recommends that the comments be submitted by email before May 25, 2017.

An update on the Transactional Data Reporting rule

Jason Workmaster appeared on Federal News Radio's “Off the Shelf” to provide an update on Transactional Data Reporting (TDR) implementation. According to Workmaster, GSA is "going to maintain this as a fairly voluntary pilot for at least some additional amount of time." He adds, that there is a decent question as to whether the transactional data rule is longed ...

China Makes Strides Toward Western Drug, Device Standards

Shaoyu "Andrew" Chen is quoted in a Bloomberg Law article regarding the latest series of announcements from China's Food and Drug Administration on accelerating drug and medical device approvals. According to Chen, “The four documents proposed many critical policies that will bring China much closer to Western countries in the regulatory oversight of drugs and ...

China Releases Near-final Draft of Regulation on Cross-border Data Transfers

On May 19, 2017, the Cyberspace Administration of China (“CAC”) invited international stakeholders to attend a seminar to discuss an updated version of the Measures on Security Assessment of Cross-border Data Transfer of Personal Information and Important Data (“the Measures”). Given that the Measures have an intended effective date of June 1, 2017, it is likely that they are in final form and the framework established by the Measures will govern China’s cross border data transfers going forward. This alert summarizes the key changes from the previous version.

China-U.S. two-way FDI reaches all-time high in 2016

Robert Wang is quoted by Xinhua in an article regarding the historically high amount of Foreign Direct Investment between China and the U.S. Citing the initial results of a 100-day action plan for China-U.S. comprehensive economic dialogue, Wang says there is a lot of optimism injected to the U.S.-China relations in recent months. Wang believes that it is ...

Administration Submits Notice of NAFTA Renegotiation

On May 18, 2017, newly confirmed U.S. Trade Representative Robert Lighthizer formally notified Congress that President Trump intends to renegotiate the North American Free Trade Agreement (NAFTA). The Trump Administration has indicated that it will request public input on the “direction, focus, and content” of these negotiations, and will publish notice in the Federal Register regarding such input. In a letter to House and Senate leaders regarding this renegotiation, Lighthizer indicated that he would also “consult closely with Congress” in developing U.S. negotiating positions. Negotiations with Canada and Mexico will begin no earlier than August 16, 2017. The Administration’s announcement of renegotiation offers stakeholders a significant opportunity to engage with USTR, Congress, and other government bodies to ensure that their priorities are included in the U.S. negotiating positions.

CFTC Announces Innovation Lab for Fintechs

Anne Termine is quoted by The National Law Journal in an article regarding the U.S. Commodity Futures Trading Commission's new initiative, LabCFTC, designed to engage innovators in the financial technology industry. “As progressive as this effort might be for the CFTC, it is not the same as a regulatory sandbox, as other regulators around the world have ...

Manage Ransomware Risks Now

Last Friday may mark the start of a new era in cyber crime. The first worldwide ransomware attack, commonly dubbed “WannaCry,” emerged on May 12. The malware is believed to have infected more than 300,000 computers in 150 countries to date. A cyber criminal or ring of criminals, taking advantage of an exploit made available by the ShadowBrokers hacker group that reportedly uses tools stolen from the U.S. National Security Agency, propagated an attack that installs malware to encrypt users’ data unless a ransom in Bitcoin is paid within a few days. While the actual ransom payment losses have reportedly been minimal, the more serious result of these attacks has been the disruption to victims’ business activities.

Suniva Requests Global Safeguards For U.S. Solar Industry Under Section 201

On April 26, 2017, the U.S.-based solar manufacturer Suniva, Inc. filed a petition for global safeguards with the U.S. International Trade Commission (“ITC”). In particular, Suniva requests the imposition of tariffs on solar cells and the establishment of a minimum price for solar modules imported into the United States. The petition was filed under Section...… ...

PTAB: no longer a death squad

Scott Kamholz and Peter Chen are quoted in a World Intellectual Property Review article examining the current landscape of the U.S. Patent Trial and Appeal Board. According to Kamholz, the PTAB has never been “out to get” patents. Kamholz also believes that trial procedures have changed "remarkably little." He says, “I remember discussing all sorts of issues in ...

European Commission Proposes New Powers to Request Confidential Information From Companies and Trade Associations

On May 2, 2017, the European Commission published a legislative proposal for a Regulation on a Single Market Information Tool. If adopted, the proposed Regulation would empower the Commission to request information from companies and trade associations, from a wide variety of industrial, technological and services sectors, if the Commission finds that serious difficulties in applying European Union (“EU”) law may undermine an important Union policy objective. Companies and trade associations failing to provide the requested information would be subject to significant fines.

Proposed Restrictions on Mexican Remittances Could Hinder Fintechs, Probably Not Banks

Michael Nonaka is quoted in a Forbes article regarding the prospect of President Trump's taxing remittances for a Mexico border wall, and the possibility of an increase in the use of digital currencies as a result. In discussing banks and payment companies' experience in this field, Nonaka indicates that these institutions have taken the proposed rules in ...

The Brexit Club featuring Barclays, Cambria Automobiles and Gear4music

Bart Van Vooren is quoted in PaRR's "Brexit Club" column regarding the two-part approach to the Brexit negotiation process, following the publication of draft negotiating directives for “phase one” of the talks. According to Van Vooren, there are real legal problems with this two-part approach, regardless of the parties' up-front negotiating positions. One ...

The DSM mid-term Platform Proposals

The Commission published the mid-term review of its Digital Single Market strategy today. The report reviews the development of the strategy over the last two years, and announces a number of new initiatives, including initiatives relating to important areas where action is needed to address digitization, including: (i) the free flow and accessibility of ...

Covington & Burling’s Emily Johnson Henn | Women of Influence 2017

Emily Henn was profiled by Silicon Valley Business Journal as a part of the publication's "Women of Influence" feature, honoring 100 of the most influential business women in Silicon Valley.

Brussels sidesteps calls to block unwanted foreign takeovers

Sebastian Vos is quoted by the Financial Times in an article which examines Brussels' resistance to its EU counterparts' request for the European Commission to create additional hurdles for foreign investment, particularly in China. Vos indicates that an EU mechanism to monitor foreign investment "would be an interesting tool for the commission to have in ...

FDA 'Cures' Fund Breakdown: Breakthrough Devices, HDEs, IRB Flexibility And More

Wade Ackerman is quoted by MedTech Insight in an article covering the May 5 Food, Drug and Law Institute's annual meeting in Washington. Ackerman provided his insights on the hiring trajectory for those individuals tasked to implement the 21st Century Cures Act, and noted that the funds can be viewed as having broad applications for hiring. Ackerman stated, ...

China Releases Draft Encryption Law for Public Comment

On April 13, 2017, China’s State Cryptography Administration (“SCA”) published a draft Encryption Law (“the draft Law”) for public comment.

After several years of drafting, the draft Law, if enacted as drafted, would be the first Chinese statute to systematically address encryption, covering “the research, production, management, import and export, testing, authentication, use, and regulation of encryption.” China has long regulated the import, export, sale, use, and scientific research of “commercial” encryption. The draft Law, however, provides rules for three categories of encryption—“ordinary” encryption, “core” encryption, and “commercial” encryption—with a view to establishing a uniform regulatory framework that would govern all types of encryption and providing SCA with greater enforcement authority.

How Trump's 'Buy America' Push Could Harm This US Steel Mill

Sandy Hoe is quoted by The Daily Signal in an article regarding the potential impact of President Trump's 'Buy America' policy on steel mills. Despite steel mill operators' concerns surrounding increased costs and potential layoffs, Hoe explains that "[t]he April executive order doesn't change any law." He adds, "It is a lot like a lot of [Trump's] executive ...

Wade Ackerman Named to California Life Sciences Association's Board of Directors

LOS ANGELES—The California Life Sciences Association (CLSA) has named Covington partner Wade Ackerman to its board of directors. Founded in 2015, CLSA works closely with industry, government, academia and other stakeholders to shape public policy, drive business solutions, and grow California’s life sciences innovation ecosystem. CLSA serves biotechnology, ...

China Releases Final Regulation on Cybersecurity Review of Network Products and Services

On May 2, 2017, the Cyberspace Administration of China (“CAC”) released the final version of the Measures on the Security Review of Network Products and Services (Trial) (“the Measures”), with an effective date of June 1, 2017 (official Chinese version available here). The issuance of the Measures marks a critical first step toward implementing China’s Cybersecurity Law (“the Law”), which was promulgated on November 7, 2016 and will take effect on June 1, 2017 (the same date as the Measures).

Congress Makes Deal, Gives DoD 2017 Spending Boost

Roger Zakheim appeared on ABC7's 'Government Matters' to discuss the increase in Defense Department funding for the remainder of FY 2017. According to Zakheim, "This has been a long time coming for the department of defense…they really needed to have these appropriations pass." When asked to how to best proceed with the DoD's budget for FY 2018, Zakheim ...

F-16 Fallout Clouds Future Foreign Deals, May Alter National Security

Peter Lichtenbaum and Fred Levy are quoted in a Federal Contracts Report article regarding the dispute, which is on appeal in the Fourth Circuit, between South Korea and BAE following the failure to finalize a deal to upgrade the F-16 jet. According to Lichtenbaum, the contracting community would expect the Fourth Circuit not to enforce the BAE-South Korea ...

FCC Chairman Releases Draft of New Net Neutrality Plan; Vote Scheduled for May 18

In a widely anticipated step, FCC Chairman Ajit Pai has released the text of a draft Notice of Proposed Rulemaking (“NPRM”) proposing to change the legal framework that governs broadband providers, eliminate the “Internet conduct standard” for evaluating broadband provider practices on a case-by-case basis, and seek comment on whether to keep, modify, or eliminate other open Internet (also known as net neutrality) rules previously adopted by the FCC. Chairman Pai has circulated the draft NPRM to his fellow Commissioners for a vote at the Commission’s next monthly meeting, scheduled for May 18.

Windstream v. Canada: How Regulatory Winds of Change Affected a Clean Energy Project

A recently-published NAFTA arbitration award in Windstream Energy LLC v. Government of Canada illustrates the perils of investing in clean energy projects in jurisdictions with ever evolving regulatory and policy frameworks. The case is also a good reminder of the importance of investing in foreign jurisdictions through vehicles incorporated in countries that ...

Trump tax proposal won't include federal infrastructure funding

Jack Schenendorf is quoted in a Bond Buyer article regarding the relationship between President Trump's tax proposal and infrastructure funding. According to Schenendorf, the fate of Trump's infrastructure plan is directly tied to tax reform. "My view has always been that how the Trump plan is funded and where the money will come from would be determined in the ...

Where lawyers and experts meet

Louise Freeman spoke on a panel at CDR’s Spring Competition Litigation Symposium and is quoted in a Commercial Dispute Resolution article regarding the role of expert evidence in class action proceedings and how lawyers can work effectively with economists and industry experts. According to Freeman, “Lawyers need to think a little bit more before getting ...

CNN Video Data Win Leaves Spokeo Door Open For App Users

Kurt Wimmer is quoted in a Law360 article regarding the Eleventh Circuit's decision to reject a proposed class action brought by a CNN app user claiming that CNN violated the Video Privacy Protection Act. According to Wimmer, "Unlike the Yershov court, the CNN panel seems to understand how apps actually work, which will be helpful going forward."

Trump's Trade Agenda: The First 100 Days

John Veroneau is quoted in a Law360 article providing an analysis of the biggest international trade developments since President Trump took office. According to Veroneau, “Relative to the rhetoric around NAFTA, most people saw it as a fairly reasonable approach, and it reflected the fact that this is going to Congress, and Congress shares power with the ...

Trump Tax Reform Proposal

On April 26, 2017, U.S. Treasury Secretary Steven Mnuchin and National Economic Council Director Gary Cohn introduced the Trump Administration’s tax reform proposal (the “Trump Proposal”) in a briefing. The proposal appears to borrow heavily from the tax reform plan put out by Mr. Trump during his presidential campaign with the significant exception that this reform proposal advocates adoption of a territorial tax system.

The proposal, set forth in a bulleted one-page document, was notably short on details, and Secretary Mnuchin stated that many details will be finalized in subsequent discussions with Congress. We highlight the major components in the Trump Proposal that we anticipate will be of the greatest interest to our clients.

Suniva Requests Global Safeguards For US Solar Industry Under Section 201

On April 26, 2017, the U.S.-based solar manufacturer Suniva, Inc. filed a petition for global safeguards with the U.S. International Trade Commission (“ITC”). In particular, Suniva requests the imposition of tariffs on solar cells and the establishment of a minimum price for solar modules imported into the United States. The petition was filed under Section 201 of the Trade Act of 1974, as amended, which authorizes global safeguards investigations, also known as “escape clause” investigations. Throughout the proceedings, affected parties will have multiple opportunities to submit their views not only to the ITC but also to the Trump Administration, which will have the final say on any relief recommended by the ITC.

Robyn Polashuk Among LA’s "Most Influential Women Lawyers"

LOS ANGELES—The Los Angeles Business Journal has named Covington partner Robyn Polashuk one of the “Most Influential Women Lawyers” in Los Angeles. The Los Angeles Business Journal recognized Ms. Polashuk’s “unique practice that lies at the intersection of traditional and digital media.” The profile highlighted Ms. Polashuk’s representation of entertainment ...

Emily Henn Named One of Silicon Valley’s Most Influential Women

SILICON VALLEY—Silicon Valley Business Journal has named Covington partner Emily Henn to its annual “Women of Influence” list, honoring “100 of the most influential business women in Silicon Valley.” Ms. Henn serves as co-chair of the firm’s Class Action Litigation Practice, specializing in defending antitrust, consumer, and other types of class actions. Ms. ...

Causation and quantum

Elaine Whiteford chaired a panel at CDR's Spring Litigation Symposium on the European Union Directive on Antitrust Damages Actions and is quoted in a Commercial Dispute Resolution article. According to Whiteford, the Directive provides that national courts are able to order the defendant, the claimant or a third party to disclose relevant evidence. “The ...

Spending on lobbying approached $1 billion in first quarter, highest in 5 years

Muftiah McCartin is quoted in a Washington Post article regarding first-quarter spending on lobbying. “The first 100 days of the Trump administration have been extremely chaotic,” says McCartin. “As a result, companies across the globe are seeking assistance to help navigate the new Administration.”

Defense Contractors Should Have Shutdown Plan, Attorneys Say

Scott Freling is quoted in a Bloomberg BNA article discussing why defense contractors should prepare for a possible government shutdown. According to Freling, a certain amount of complacency, especially in the Washington area, has crept into companies regarding brinksmanship surrounding federal funding deadlines. “My sense is that contractors are refreshing ...

Trump Moves on Steel Under Section 232

On April 20, 2017, President Trump issued a memorandum announcing that the Secretary of Commerce had initiated an investigation to determine the effects of imported steel on national security. The investigation was initiated under Section 232 of the Trade Expansion Act of 1962, as amended. While it remains to be seen what actions the Administration might ultimately take pursuant to the findings of the Section 232 investigation, the Administration’s invocation of this rarely used trade tool further suggests the Administration's interest in “Buy America” strategies.

K Street bouncing back under Trump

Muftiah McCartin is quoted by The Hill in an article regarding first-quarter spending on lobbying. According to McCartin, the growth in spending can be attributed to the “extremely chaotic” first months of the Trump Administration, which left clients scrambling to figure out how to navigate the new environment.

New EU Regs Will Offer No Reprieve From Borderline Classification Chaos

A post by Charlotte Ryckman on Covington's Inside Medical Device blog is quoted extensively in a Medtech Insight article regarding the impact of the new EU regulatory structure on the classification of borderline and combination products. According to the post, there is not enough clarity in the new medtech regulations around the definitions of the physical ...

9th Circ. Ruling Generates Copyright Preemption Confusion

Earlier this month, in Maloney v. T3Media Inc.,[1] the Ninth Circuit held that former college athletes could not assert a right of publicity to prevent the NCAA and its licensee, T3Media, from distributing images of the players. The court ruled that the players’ right of publicity was preempted by Section 301 of the Copyright Act because photographs of the college athletes were within the “subject matter” of copyright. While the outcome of the case may be justifiable on the facts, the decision raises more questions than it answers, further muddying the already difficult terrain of copyright preemption under Section 301.

4 Takeaways From The 'Buy American' Executive Order

President Donald Trump took a significant step this week toward implementing his often touted objective of protecting U.S. manufacturers and workers by signing the “Presidential Executive Order on Buy American and Hire American” on April 18, 2017. In addition to addressing reforms to the H1-B visa program to protect U.S. workers, the EO sets forth a policy and action plan intended to “support the American manufacturing and defense industrial bases” by “maximiz[ing]” the federal government’s procurement of “goods, products, and materials produced in the United States,” and mandates strict compliance with the statutory and regulatory regimes for domestic sourcing preferences and restrictions (jointly referred to as “Buy American laws”), such as the Buy American Act (41 U.S.C. §§ 8301–8305) and other buy America legislation, and implementing regulations.

Introduction to Practicing Before the Federal Boards of Contract Appeals, Webinar

Two things seem to be relatively certain in the Trump Administration: Federal government contracting will continue, and as a result, there still will be disputes between federal agencies and contractors. In fact, based on reports about increasing infrastructure and defense spending, some areas of government contracting may even be on the rise.

This is Part 1 of a set of back-to-back webinars that will provide a comprehensive introduction to practicing before the Federal Boards of Contract Appeals—the busiest forms for the resolution of such disputes. The expert panels feature board judges and experienced practitioners representing both government and industry perspectives.

Snap election: Conservatives seek stronger mandate for Brexit negotiations

Lisa Peets is quoted in a LexisPSL article regarding the Conservative Party's mandate for a hard Brexit. According to Peets, "An increased majority gives the Prime Minister greater flexibility to push for a harder or a softer Brexit, depending on what she actually wants." She adds, "A healthy majority helps May show the EU that she can deliver on her ...

Trade experts urge use of Section 301 to fight abusive competition laws

Deborah Garza spoke at an event hosted by the U.S. Chamber and is quoted in an Inside U.S. Trade article regarding recommendations included in the International Competition Policy Expert Group’s recent report. “I thought the Chamber was smart and our group was smart in recognizing that the best way to approach the issue though was through a combined one-two ...

Federal Contractors Bear Brunt Of 'Buy American' Crackdown

Fred Levy is quoted in a Law360 article regarding the effect of President Trump’s “Buy American, Hire American” Executive Order on federal contractors. Commenting on supply-chain adjustments made to items from overseas, Levy says, “If they change the Buy American Act to flow those requirements all the way back down again so it’s not just components, but any ...

CMS Finalizes Market Stabilization Rule

Last Thursday, the Centers for Medicare & Medicaid Services (CMS) finalized the Affordable Care Act (ACA) market stabilization rule, which it originally proposed in February, 82 Fed. Reg. 10,980 (Feb. 17, 2017). This final rule was published today in the Federal Register and will become effective on June 19, 2017. 82 Fed. Reg. 18,346. The final rule includes ...

China Seeks Public Comments on Draft Regulation of Cross-Border Data Transfer

On April 11, 2017, the Cyberspace Administration of China (“CAC”) released a draft of the Measures on Security Assessment of Cross-border Data Transfer of Personal Information and Important Data (“the Draft Measures”) for public comment (official Chinese version available here; Covington’s translation of the Draft Measures is appended at the end of this alert).

Philip Howard Named to President Trump's CEO Council

NEW YORK — Covington’s Philip Howard has been appointed to President Donald J. Trump’s “Strategic and Policy Forum” by its chair, Stephen A. Schwarzman, the Chairman, CEO, and Co-Founder of Blackstone. Composed of CEOs and business leaders, the “Strategic and Policy Forum” is charged with providing their views to the President — informed by their unique vantage ...

German Ministry for Economy Publishes a White Paper on Digital Platforms

On 20 March 2017, the German Federal Ministry for Economic Affairs and Energy (the “Ministry”) published its Digital Platforms White Paper (the “White Paper” and launched a dedicated web portal), reflecting at least in part the results of its consultation on its Green Paper on Digital Platforms. The White Paper sets out several proposals for...… Continue Reading

Can Washington narrow its trade deficit with Beijing in 100 days?

Timothy Stratford is quoted in a South China Morning Post article regarding plans between China and the U.S. to tackle trade disputes over a three month period. According to Stratford, concrete results such as greater China access for U.S. companies could be short-lived and reversed if relations soured. One option for attaining something of far-reaching ...

Brexit: What's Next

Carl Bildt was interviewed by Bloomberg to discuss the UK’s withdrawal from the European Union after it triggered Article 50. According to Bildt, “[At] the end of the day there has to be some sort of agreement…and I think we are heading towards a deep and comprehensive free trade agreement.” He adds that there will need to be an interim agreement as it’s going ...

CFDA Seeks to Remove Some Barriers to Foreign Drug Entry into China

On March 17, 2017, the China Food and Drug Administration (“CFDA”) released a notice to seek public comments on four proposed adjustments to China’s drug registration requirements (“Proposed Adjustments”) that will remove some barriers to applications for clinical trials and drug registrations of imported drugs (drugs that are manufactured outside of China). The Proposed Adjustments could substantially impact the strategies for bringing imported drugs to China. Imported drug manufacturers should understand the potential impact of the Proposed Adjustments, consider submitting comments, and closely monitor future developments in this area. Comments are due on April 20, 2017.

Class Certification in the UK: The Model Is Canada, Not the U.S.

The UK’s Competition Appeal Tribunal (the “CAT”) has handed down its first class certification judgment in relation to the class actions regime introduced by the Consumer Rights Act 2015 (the “Act”). The result? The hearing has been adjourned, with the proposed representative allowed to file and serve an amended Claim Form and revised expert evidence, if so advised, and a revised costs budget, potentially having first sought evidence from third parties. In practice, there must be considerable doubt whether the claim will be able to continue. However, the judgment provides valuable guidance as to the shape and form of the UK’s new class actions regime.

Chao says infrastructure plan by May; Advocates question path forward

Jack Schenendorf is quoted by The Bond Buyer in an article regarding the Trump Administration’s plan to release infrastructure legislation as early as May. According to Schenendorf, moving the infrastructure package up to May looks like an effort by the Trump Administration to get some positive momentum. "They ran into problems with healthcare reform and tax ...

A Century of Women in Congress: Muftiah McCartin

The Office of House Historian featured Muftiah McCartin in its project displaying women’s roles in American politics and their contributions to Congress during the past century. In her interview, McCartin traces her first 10 years on the Hill as the only woman in the House Parliamentarian’s Office. According to McCartin, "The House is such a part of the fabric ...

Ignore the Tweets! Merger Enforcement in Trump Era

Theodore Voorhees is quoted by The Street in an article regarding concern over President Trump’s involvement in merger enforcement. Commenting on Trump’s tweets, Voorhees says, "There is a danger here with public perception. We've already seen that the president has difficulty restraining himself from tweeting things but the Administration that been put around ...

White House Choices Shape Africa Policies [analysis]

Witney Schneidman is quoted in an All Africa article regarding the Trump Administration’s impact on Africa policy. "The Trump Administration needs to strike the right balance between hard and soft power if it is going to be successful in advancing U.S. interests in Africa," says Schneidman. "Africa appears to be on the back burner for this Administration.”

Will Trump's NAFTA revamp reflect all that tough talk on trade deals? Not exactly

John Veroneau is quoted by the Los Angeles Times in an article regarding the Trump Administration’s proposed changes to the North American Free Trade Agreement (NAFTA). According to Veroneau, the draft hardly qualifies as “protectionist and the first shots of a trade war. People may take issue with different items in the letter, but there’s nothing alarmist or ...

Trump No Threat To Antitrust Policy, Former Officials Say

Thomas Barnett is quoted in a Law360 article regarding competition policy under President Trump. Barnett recalls that one of the first competition policy acts of the Obama Administration was to formally withdraw the contentious report on monopoly conduct under Section 2 of the Sherman Act that had just been issued at the end of the Bush administration. Although ...

White House calls for changing, but not scrapping, NAFTA in draft letter

John Veroneau is quoted by The Washington Post in an article regarding the Trump Administration’s proposed changes to the North American Free Trade Agreement (NAFTA). “Compared to some of the campaign rhetoric, the letter [to Congress] seemed quite reasonable and measured,” says Veroneau. “It didn’t strike me as suggesting a departure from the status quo in any ...

UK Government Outlines Plan for Initial Continuation of EU Law in Post-Brexit UK Law

Today, the UK Government published a White Paper envisaging an initial continuation of EU law in the UK “wherever practical and appropriate” on withdrawal from the EU (“Brexit”). Today’s White Paper comes one day after the UK notified the EU of its intention to leave which triggers the two-year Brexit negotiation period.

The UK Government intends on achieving this continuation through legislation in the form of the “Great Repeal Bill.” At the same time as removing the legal supremacy of EU law and the formal influence of EU laws in the UK, the Great Repeal Bill will convert the body of existing EU law into UK domestic law. The effect will be that on day one of Brexit, “wherever practical and appropriate,” the same rules and laws of the EU will apply in the UK. Thereafter, the UK Government will review those laws derived from EU law and seek to either amend, repeal, or maintain those laws. Today’s White Paper sets out the UK Government’s plans. The scope of the Great Repeal Bill will likely change once it is proposed as a draft Act of Parliament later this year and after it is debated and reviewed by the UK Parliament.

Courts may dodge binding enforcement decisions

Elaine Whiteford was a panelist at GCR Live Cartels and is quoted by Global Competition Review in an article regarding ways in which EU member state judges could avoid provisions in the EU’s Damages Directive. Whiteford said European Commission and EU member state enforcers’ decisions being binding on courts is a phrase that “trips very easily off the tongue – ...

Brexit's Impact on Businesses

Following the triggering of Article 50, Lord Francis Maude was interviewed by Bloomberg to discuss the impact of Brexit on businesses. “I think there’s a deep recognition on both sides that there is a joint self-interest in reaching a sensible, orderly agreement.” He adds that there are “huge numbers of issues affecting lots of different sectors” and businesses ...

Expect Clear Brexit Negotiating Positions by the Summer

Following the triggering of Article 50, Sebastian Vos was interviewed by CNBC to discuss the Brexit negotiation process. According to Vos, “It’s a very compressed timeline.” He adds, “The aim is to achieve a mutually beneficial post-Brexit relationship between the EU and UK, but…the various member states have to take account of differing national interests.”

UK Triggers Brexit Process

Today, the UK Prime Minister, Theresa May, formally triggered the process of the UK’s withdrawal from the EU (“Brexit”) by invoking Article 50 of the Treaty on European Union. This is the first time an EU Member State has used the Article 50 mechanism. This marks the beginning of the two-year period in which an arrangement for Brexit must be agreed and finalized. If no agreement is reached—and if there is no unanimous agreement among all other EU Member States to extend the two-year period—the UK will cease to be a member of the EU with no replacement or transitional arrangement in place. The letter triggering Article 50 has been described by Prime Minister May as “one of the most important documents in [the UK’s] recent history and will start to deliver the result of the referendum and set the tone for [the UK’s] new relationship with Europe and the world.”

Delrahim, DOJ antitrust chief nominee, wins praise, but Trump could complicate the job

Deborah Garza is quoted in an mLex article regarding the appointment of Makan Delrahim to head the Justice Department’s Antitrust Division. Commenting on Delrahim’s interest in the nexus between intellectual property and antitrust law, Garza predicts there may be a “rebalancing” related to intellectual property rights and antitrust with Delrahim and FTC acting ...

EU Adopts Final Regulation On Importation of Conflict Minerals

On March 16, 2017, following a lengthy legislative process, the European Parliament approved a final regulation implementing a new due diligence and reporting regime for “conflict minerals” (i.e., tin, tantalum and tungsten, their ores, and gold) imported in the EU. The regulation will enter into force 20 days after formal approval by the Council of Ministers and publication in the Official Journal of the European Union. The regime will be applicable as from January 1, 2021. The adopted text can be found here.

Large Equity Funds Are Demanding Greater Boardroom Attention to Sustainability and Climate Risks

While the direction of Trump Administration policymaking on climate risk appears to deny concern, the largest U.S. public equity funds are sharpening their focus and concern about this subject. Last week BlackRock, the Nation’s largest funds group with $5.1 trillion in assets under management, updated its investment stewardship guidance and highlighted climate ...

Delrahim Pick Signals Traditional Republican Antitrust Tack

Deborah Garza is quoted in a Law360 article regarding the appointment of Makan Delrahim to head the Justice Department’s Antitrust Division. Given President Trump’s comments on the proposed merger between AT&T and Time Warner, there is some concern about caving to White House pressure. However, according to Garza, it wouldn't be the first time the division had ...

What does the future hold for Belt & Road?

Timothy Stratford participated in a discussion hosted by CGTN’s “The Point” and is quoted in a Global Times article providing highlights from the event, “Follow the Money 2017.” Commenting on President Trump’s Trade Agenda for 2017 and the need for freer and fairer trade, Stratford says, “I think, ideally, you have to have both of them. And you can only have ...

Wall to Mexico: Beautiful She Is, and Insurmountable

Jennifer Plitsch is quoted in a Die Zeit article regarding the Department of Homeland Security’s request for U.S.-Mexico border-wall prototypes. Commenting on the short time frame interested companies have to create a concept, Plitsch says, “The schedule is breathtakingly close.”

Blockchain Goes Solar

A recent New York Times article reported on an early-stage, solar energy microgrid being formed in Brooklyn, called the Brooklyn Microgrid, that relies on blockchain technology, the innovative database technology used by cryptocurrencies like Bitcoin that promises to transform industries as diverse as financial services, health care, retail, and manufacturing. ...

Experts call for US government to coordinate against unfair trade

Deborah Garza is quoted in a Global Competition Review article examining the new report released by the U.S. Chamber of Commerce’s International Competition Policy Expert Group. According to Garza, who co-chairs the group, “there is legitimate concern that some countries may be using their competition laws to distort competition and to favour their own interests ...

DOT Budget Undermines Trump’s $1T Infrastructure Promise

Jack Schenendorf is quoted in a Law360 article regarding President Trump’s 2018 budget blueprint, which would cut the Department of Transportation’s funding by 13 percent, and its effect on the promised infrastructure investment plan. “Transit systems going forward would seem to be taking a big hit, but in today’s world it’s important to have good seamless ...

The defense budget and emergency war spending: Does it help more than it hurts?

Roger Zakheim participated at an American Enterprise Institute event discussing the future of the Overseas Contingency Operations (OCO) account and the role that this emergency war spending will play as the Trump Administration and Congress seek to increase defense spending. According to Zakheim, the major factor that…has really altered the way OCO is looked at ...

White House 'skinny budget' faces congressional headwinds

Roger Zakheim is quoted in a Defense News article regarding the release of the highly anticipated 2018 budget blueprint by the Trump Administration. According to Zakheim, the Overseas Contingency Operations (OCO) will “for sure” end up playing a part in the budget discussions, despite Mick Mulvaney's previous attempts to restrict the use of the funding ...

Experts Want Coordination Of Competition, Trade Policies

Deborah Garza is quoted in a Law360 article examining the new report released by the U.S. Chamber of Commerce’s International Competition Policy Expert Group. According to Garza, who co-chairs the group, “The U.S. has long supported the use of antitrust law to promote competitive markets that drive economic development and prosperity.” She adds, “But there is ...

Expert Group Co-Chaired by Deborah Garza Offers Plan for International Competition Issues

WASHINGTON—The International Competition Policy Expert Group (ICPEG), a bipartisan, independent committee of leading experts in trade and competition law and economics formed at the invitation of the U.S. Chamber of Commerce and co-chaired by Covington’s Deborah Garza and Sidley’s Andrew Shoyer, has released a policy analysis and recommendations for a more ...

A Special "Long Table" Edition of The Point: Follow the Money 2017

Timothy Stratford participated in a discussion hosted by CGTN’s “The Point” on the future of China’s international economic role. Commenting on President Trump’s trade agenda which calls for freer and fairer trade, Stratford says, “I think ideally you have to have both of them. And you can only have a sustainable relationship if you have both of them.” He adds, ...

Ethics Watchdogs Make a Career of It

Robert Kelner is quoted in a Congressional Quarterly article regarding the impact of President Trump on government ethics law and the increased demand for experts. Commenting on the argument made by Citizens for Responsibility and Ethics (CREW) in its lawsuit against Trump alleging that the president’s business ties violate the Emoluments Clause in the ...

How Russian Oil Giant Rosneft Could Claim U.S. Oil

Mark Plotkin is quoted in a CBS News article regarding Rosneft’s potential right to claim an ownership stake in U.S. oil company Citgo Petroleum. Commenting on the CFIUS process and whether committee members with potential conflicts have recused themselves, Plotkin says, “We don’t know because of the nature of the CFIUS process, which is confidential.”

A look at China’s sweeping new cyber-security law

Compliance Week references a Covington client alert on China’s draft regulation on cybersecurity review of network products and services. According to the alert, “As the draft measures come into force in the coming months, such companies will need to carefully assess the implications of the draft measures, including whether to voluntarily seek security reviews ...

President Issues Narrower Executive Order on Immigration

Yesterday, President Trump issued a new Executive Order (the “Order”) titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” This new Order replaces the so-called “travel ban” Executive Order issued January 27 (the “Prior Order”) which was subject to a nationwide temporary restraining order issued by the U.S. District Court for the Western District of Washington, a stay of which was denied by the United States Court of Appeals for the Ninth Circuit. The new Order, which has narrowed the class of foreign nationals affected, replaces the Prior Order in full and will go into effect on March 16, 2017 (the “Effective Date”).

Too much information on chat can leave employers in legal lurch

Lindsay Burke is quoted in a Business Insurance article regarding the risks associated with internal office chat applications. “People think of it as a casual form of communication,” Burke says, “and they forget that it’s business and usually the company is keeping a record of the communication. And if the company finds itself in litigation, then the discovery ...

Springing forward into a bright future

Elaine Whiteford and Louise Freeman spoke at Commercial Dispute Resolution’s second Spring Competition Litigation Symposium on the EU Damages Directive and are mentioned in an article providing highlights from the event. According to Freeman, lawyers should enable economists to give the best evidence they can, emphasizing that the same lawyers should completely ...

Leading M&A Lawyer Joins Covington

NEW YORK—Tom Kuhn has joined Covington’s Mergers and Acquisitions practice, and will focus on media and technology transactions. He will be based in the firm’s New York office. Mr. Kuhn is a seasoned M&A deal maker, with experience both as a lawyer and as a banker. He also advises on corporate governance matters and provides strategic counseling. He has ...

Covington Advises Intersil on $3.2 Billion Sale to Japan's Renesas

WASHINGTON—Covington represented semiconductor manufacturer Intersil Corporation in its $3.2 billion sale to Japan’s Renesas Electronics Corporation. The firm advised Intersil on aspects of the transaction involving Committee on Foreign Investment in the United States (CFIUS), Foreign Ownership, Control, or Influence (FOCI), trade controls, and government ...

Trump's six hidden trade weapons

Politico references a Law360 article by John Veroneau and Catherine Gibson uncovering Section 338 of the Trade Act of 1930 in a roundup of “hidden trade weapons” that can be used by President Trump. According to Veroneau and Gibson, they have “uncovered no public record relating to Section 338” since a telegram from Secretary of State Dean Acheson mentioned it ...

President Issues New Executive Order, Requires Agencies to Establish Regulatory Reform Task Forces

On February 24, 2017, President Donald Trump signed an executive order entitled “Enforcing the Regulatory Reform Agenda” (the “Executive Order” or the “Order”). The Order is one of several actions the Trump Administration has taken concerning regulatory reform since inauguration.

Covington Earns Four Law360 “Practice Group of the Year” Awards

WASHINGTON—Law360 has named four Covington practice groups among its “Practice Groups of the Year.” The practice groups recognized by Law360 are as follows: International Trade Life Sciences Product Liability Sports

Trump team looks to bypass WTO dispute system

John Veroneau is quoted in a Financial Times article regarding exploration by the Trump Administration to circumvent the World Trade Organization’s dispute system. “There is growing frustration that this [WTO] system alone is not enough to get countries to honour their trade commitments,” says Veroneau. “It is clear that the Trump administration is sympathetic ...

States Look To NEPA Review Power To Spur New Projects

Gary Guzy is quoted in a Law360 article regarding the states’ ability to use the Surface Transportation Project Delivery Program to expedite surface transportation improvement projects while waiting for President Trump’s infrastructure plan. “That’s very innovative and could be effective in avoiding duplication, facilitating more rapid permitting,” says Guzy. ...

Washington eyes closer review of Chinese investments in U.S.

China Daily highlights Covington’s client alert, CFIUS and Foreign Direct Investment Under President Donald Trump, in an article regarding efforts by lawmakers to strengthen the government’s scrutiny of Chinese investment in the U.S. According to the CFIUS Practice Group alert, "while the legislative landscape in the new Congress is still being defined, there is ...

Forensic Firms: Understanding and Leveraging Their Expertise From the Start (Part One of Three)

Steve Surdu was interviewed by The Cybersecurity Law Report for a three-part series on the role of forensic firms during a cyber breach. Part one discusses how to understand and leverage the expertise of forensic firms from the start. According to Surdu, forensic consultants have specialized skills and knowledge “that are very difficult for most organizations to ...

Lawmakers Push for Tighter Scrutiny of Chinese Investment in U.S.

The Wall Street Journal highlights Covington’s client alert, CFIUS and Foreign Direct Investment Under President Donald Trump, in an article regarding efforts by lawmakers to strengthen the government’s scrutiny of Chinese investment in the U.S. According to the CFIUS Practice Group alert, there is "a greater chance now than at any time in the last decade of ...

China to slash drug distribution groups in price drive

Eric Carlson is quoted in a Financial Times article regarding an initiative by the Chinese Government to reduce marked-up prices and corruption in multi-tier distribution chains of pharmaceuticals, known as the “two invoice reform.” According to Carlson, the crackdown on small distributors would accelerate sector consolidation, “centralising distribution in a ...

A time of challenge and change

John Hall and Deborah Garza are quoted in a Commercial Dispute Resolution article regarding likely litigation challenges in 2017. According to Hall, Covington’s workload is at historic highs, with “no sign of that upward trend abating,” noting that the changing legal and regulatory environment would continue to create demand. Commenting on antitrust and the ...

Is This the Next Trade Deal on the Chopping Block?

Witney Schneidman is quoted in an OZY article regarding the impact of the Trump Administration on the future of the Africa Growth and Opportunity Act (AGOA). According to Schneidman, “There’s a fair chance that it will be seen as a trade deal that’s disadvantageous to the United States.”

Does AGOA unfairly benefit Chinese firms?

Witney Schneidman is quoted in an African Business Magazine article regarding claims that the African Growth and Opportunity Act unfairly benefits Chinese firms more than African entrepreneurs. According to Schneidman, “I think the criticism is a red herring to be honest.” He adds, “Chinese companies have been at the forefront of helping to expand the ...

Speed Limits on Trump’s Infrastructure Drive: Federal Laws, Rare Species and Nimbys

Gary Guzy is quoted by The Wall Street Journal in an article regarding President Trump’s infrastructure plans. Commenting on attempts by Presidents Obama and Bush to accelerate projects with Executive Order, Guzy says the Obama Administration was concerned prolonged reviews could hold back stimulus spending under the 2009 American Recovery and Reinvestment Act.

BTI Names Nields and Shin "Client Service All-Stars"

SAN FRANCISCO—The BTI Consulting Group has named Covington lawyers John Nields and Clara Shin to its 2017 “Client Service All-Stars” list, which recognizes “remarkable attorneys and their ability to rise above all others with the most demanding clients.” Mr. Nields, based in Washington, is a highly regarded trial lawyer and member of the firm’s litigation and ...

Life Sciences Group Of The Year: Covington & Burling

Law360 selected Covington’s Life Sciences practice as a “Practice Group of the Year,” highlighting the firm’s involvement in billion-dollar transactions, success in contentious litigation, and regulatory advice on cutting-edge technology. According to Michael Labson, “What we offer and bring to complicated, complex issues is a mixture of deep subject-matter ...

Update for Employers on the Immigration-related Executive Order

Following last week’s advisory concerning President Trump’s Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States (the “Order”), numerous lawsuits were filed challenging the Order. One such challenge, filed by the State of Washington and the State of Minnesota, culminated in yesterday’s unanimous decision by the United States Court of Appeals for the Ninth Circuit, which left in place a temporary restraining order (“TRO”) barring enforcement of core provisions of the Executive Order pending further consideration of the case. Though the so-called “travel ban” is currently on hold, employers should continue to monitor developments closely.

General counsel to US Copyright Office joins Covington

Simon Frankel and Jacqueline Charlesworth are quoted by Intellectual Property Magazine in an article regarding Charlesworth’s recent arrival. According to Frankel, “Jacqueline’s experience includes a rare combination of litigation, transactional and policy work in both public service and private practice.” He adds, “At a time of significant technological ...

Covington Copyright Hire

Simon Frankel is quoted in a Commercial Dispute Resolution article regarding Jacqueline Charlesworth’s arrival to Covington. “Jacqueline’s experience includes a rare combination of litigation, transactional and policy work in both public service and private practice,” says Frankel. “At a time of significant technological developments and potential revisions to ...

Jacqueline Charlesworth, former General Counsel of U.S. Copyright Office, Joins Covington

Simon Frankel and Jacqueline Charlesworth are quoted in an IPWatchdog article regarding Charlesworth’s recent arrival to Covington’s Intellectual Property Rights and Communications and Media practices. “Jacqueline’s experience includes a rare combination of litigation, transactional and policy work in both public service and private practice,” says Frankel. “At ...

Contracting industry groups praise Trump’s regulations order

Roger Zakheim is quoted in an Inside Defense article regarding the contracting industry’s reactions to President Trump’s plan to reduce government regulations. Commenting on the Pentagon’s stance, Zakheim says that while it will see the executive order applied to it, the Defense Department has "very active congressional oversight and regular annual legislation, ...

Trump’s ‘America first’ vow sparks fears for Africa initiatives

Witney Schneidman is quoted in a Financial Times article regarding how President Trump may affect Washington’s Africa policy. Schneidman, who is hopeful that President Trump can be persuaded that what is good for Africa is good for America, says, “The key question is how will Africa help America be great again? How does Africa fit into this?” He adds that even ...

Ex-Copyright Office GC Joins Covington In NY

Jacqueline Charlesworth and Simon Frankel are quoted in a Law360 article regarding Charlesworth’s arrival to Covington’s Intellectual Property Rights and Communications and Media practices. According to Charlesworth, the firm’s outstanding legal talent and highly collaborative culture drew her to Covington. “And, even though I am based in New York, I will have ...

Two Birds doubles down on disputes

Péter Balás is quoted in a Commercial Dispute Resolution article regarding forthcoming Brexit negotiations and the impact on tax and customs duties. Commenting on Theresa May’s signal of a changed relationship with the EU’s customs union, Balás says that such a relationship made the application of customs controls “unavoidable,” with the United Kingdom aiming ...

Environmental Policy During the Trump Presidency

Barely two weeks after taking the oath of office, President Trump is already moving quickly to implement his campaign agenda. This alert addresses the actions Donald Trump has already taken with respect to environmental policy, and what can be expected going forward.

China Seeks Public Comments on Draft Regulation on Cybersecurity Review of Network Products and Services

On February 4, 2017, the Cyberspace Administration of China (“CAC”) released the draft Measures on the Security Review of Network Products and Services (“the draft Measures”) for public comment (official Chinese version available here; Covington’s translation of the draft Measures is here). The comment period ends on March 4, 2017.

Former General Counsel of U.S. Copyright Office Joins Covington

NEW YORK—Jacqueline C. Charlesworth has joined Covington’s Intellectual Property Rights and Communications and Media practices in the New York office. She most recently served as General Counsel and Associate Register of Copyrights of the U.S. Copyright Office. While at the Copyright Office, Ms. Charlesworth had primary responsibility for interpretation of the ...

Covington Adds Ex-Deputy Assistant AG To Appellate Group

Beth Brinkmann is quoted in a Law360 article regarding her recent arrival to Covington’s Appellate and Supreme Court Practice Group. According to Brinkmann, “The teamwork and collaboration at Covington is incredible and the strength of its appellate practice attracted me to the firm.”

KWM London's former head of fraud and investigations joins Covington

Ian Hargreaves and David Lorello are quoted in a Global Investigations Review article regarding Hargreaves’ recent arrival to Covington. According to Hargreaves, the firm’s “pre-eminence in dispute resolution, and its immense strength and global recognition as a market-leader in white-collar crime matters and investigations” fueled his decision. Lorello says, ...

Battle Lines Take Shape, Fight Heats Up Over Border Adjustable Tax Proposal

John Veroneau was a panelist at the Washington International Trade Association’s “Border Adjustment Taxes: Tax Reform and Trade” event and is quoted in an Inside U.S. Trade article examining the tax proposal. According to Veroneau, the WTO-consistency of the tax plan could influence its fate in the Congress, adding that a loss at the WTO would cut into any of ...

Senior FCC Official Rejoins Covington

WASHINGTON—Matthew S. DelNero has rejoined Covington as a partner in its Communications and Media Practice Group in Washington. Mr. DelNero most recently served as Chief of the Federal Communications Commission’s Wireline Competition Bureau. Mr. DelNero was a Covington partner from 2011 until January 2014, when he became Deputy Chief of the Wireline Competition ...

DelNero Returns to Covington

Matt DelNero is quoted in a Broadcasting & Cable article regarding his return to Covington’s Communications and Media practice. According to DelNero, “I look forward to handling a diverse array of issues for clients in the content, telecommunications, and technology sectors and to helping develop the firm’s Media & Communications practice into the future.”

Africa in 2017: Innovation, employment, and governance

Witney Schneidman appeared on the Brookings Institution's “Intersection” podcast series to examine the top priorities for Africa in 2017, as laid out in the Africa Growth Initiative’s annual Foresight Africa report. According to Schneidman, a key challenge for 2017 is “how to get more growth in…key economies” and “how to get growth in the non-oil sectors.”

Former Senior Official At FCC Rejoins Covington

Matt DelNero and Yaron Dori are quoted in a Law360 article regarding DelNero’s return to Covington as a partner in its Communications and Media Practice Group where he will oversee a diverse portfolio of telecom issues, including broadband expansion, privacy, data security and merger activity, bringing to the practice a new appreciation for the policy process ...

White Collar and Fraud Specialist Joins Covington’s European Practice

LONDON—Ian Hargreaves has joined Covington as a partner in the firm’s European Dispute Resolution practice resident in London. Mr. Hargreaves’ arrival follows that of litigation partners Craig Pollack, Greg Lascelles, Elaine Whiteford, and Louise Freeman over the past six months. Mr. Hargreaves advises on major European white collar and related civil and ...

Deputy Assistant Attorney General Joins Covington

WASHINGTON—Beth Brinkmann has joined Covington as a partner in the firm’s Appellate and Supreme Court Practice Group in Washington. Ms. Brinkmann served as Deputy Assistant Attorney General in the Civil Division of the U.S. Department of Justice from 2009 to 2016. She has argued 24 cases before the Supreme Court of the United States. Ms. Brinkmann is an ...

Navigating anti-competition enforcement globally

Michael Fanelli and Kevin Coates are quoted in a Compliance Week article examining how companies are navigating the global enforcement landscape. Commenting on global antitrust investigations, Fanelli says, “[Cooperation] involves a real thorough investigation to show you’re doing everything you can to root out the problem.” Applying for leniency may not always ...

Covington Bags Brinkmann to Bolster Appellate Expertise

Beth Brinkmann is quoted by The National Law Journal in an article regarding her arrival to Covington’s Appellate and Supreme Court Practice Group. "Covington turned out to be just a really unique opportunity," Brinkmann says. The firm is "a longstanding presence in the legal community," she adds, praising the "culture of teamwork."

The Laterals Audit: Tax Attorney Moves In January

Law360 featured Ed McClellan’s addition to Covington’s Public Policy and Government Affairs practice in a round-up of notable tax attorney moves in January. According to McClellan, there is tremendous private sector interest in GOP plans to cut corporate tax rates, provide a 100 percent exemption for foreign earnings, allow full expensing of capital investments ...

Dealing with Trump Administration Appointees? Watch Out for These Major New Restrictions in the “Drain the Swamp” Executive Order

President Donald Trump this weekend signed his promised “drain the swamp” Executive Order, which imposes ethics restrictions on incoming and outgoing Trump Administration appointees. Incoming appointees would, of course, do well to carefully review the provisions of the Executive Order. But companies that deal with the Administration—whether by lobbying the executive branch, by seeing a former executive take a Presidentially appointed position, or by hiring a former Administration appointee—must also be mindful of these, in some cases, extremely restrictive provisions, lest they unwittingly get caught up in an ethics scandal.

Covington Represents India-Based Healthcare Company In Drug Portfolio Acquisition

WASHINGTON—Covington represented India-based Piramal Enterprises and its wholly owned Critical Care subsidiary in the UK in its agreement to acquire a portfolio of intrathecal spasticity and pain management drugs from Mallinckrodt LLC. The purchase price was $171 million, plus an earn-out of up to an additional $32 million. This is the third acquisition that ...

Brexit: mutual recognition hope for lawyers

Lord Francis Maude and Carl Bildt are quoted by The Law Society Gazette in an article regarding post-Brexit mutual recognition arrangements. According to Maude, it would be “very surprising if mutual recognition arrangements” could not be sorted out relatively easily. He adds that continuation is likely because the “benefits on both sides” are now ...

Practical Considerations for Employers on the Immigration-related Executive Order

As has been widely reported, President Trump issued an Executive Order (“the Order”) on Friday, January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” which, among other directives, bans individu