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.

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.

Successfully Represented Communications Manufacturer in Proposed Debarment Before GSA

Represented a manufacturer of lightweight communications supplies that had been proposed for debarment by the General Services Administration ("GSA"). After obtaining an emergency waiver of the proposed debarment, which enabled our client to continue filling new orders, we filed a formal written response that convinced GSA to terminate the proposed debarment.

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).

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.

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.

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.

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.

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.

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.

Global Privacy Audit for Leading Consumer Electronics and Technology Companies

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.

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.

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 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.

Schneider Electric SA’s combination with AVEVA Group PLC

Represented Schneider Electric of France on CFIUS and related U.S. national security regulatory approvals in connection with the sale of its industrial software business to UK-based AVEVA Group and the acquisition by Schneider Electric of a majority interest in AVEVA Group in a transaction valued at approximately $3.88 billion.

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.

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.

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.

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.

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.

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.

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.

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

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.

Successful Representation of Microsoft in Privacy Battle

Represented Microsoft in successfully opposing a subpoena seeking the emails of a deceased customer. Following briefing and a hearing, the Court embraced Microsoft's balanced approach to this nuanced issue of digital privacy, holding that Microsoft could not be compelled by subpoena to produce the emails but was free to do so voluntarily in accordance with its policies.

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.

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.

Magellan’s Acquisition of AFSC

Represented Magellan Health as regulatory counsel during its $117.5 million acquisition of Armed Forces Services Corporation (AFSC), a provider of behavioral health and specialty services to the Department of Defense and other U.S. government agencies. We handled government contracts and national security matters for Magellan.

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.

$2.7 Billion Acquisition of the Safran Identity & Security Business

Represented the private equity firm Advent International and its portfolio company Oberthur Technologies in securing the CFIUS and U.S. national industrial security approvals for Advent’s acquisition of the Identity & Security business (d/b/a “Morpho”) from Safran, for the purpose of combining it with Oberthur.

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.

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 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 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 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.

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.

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.

Global Legislative and Regulatory Counsel

We help clients engage with policymakers developing IoT regulatory frameworks in jurisdictions worldwide. We have assisted clients with IoT products or services in identifying relevant legislative and regulatory developments, drafting and submitting comments on proposals to regulate IoT technologies, and lobbying policymakers on these issues. We monitor developments in jurisdictions across the world.

Emerging IoT Government Contracts Standards

We monitor and advise clients on legislation and regulations that affect IoT-related government contracts. For example, we track legislation that would require the development of contractual IoT security standards for IoT devices purchased from government contractors. We also advise on IoT best practices for government contractors.

Corporate Culture Investigation for Uber Technologies, Inc.

Led a three-month investigation into the corporate culture at Uber Technologies Inc. following a blog post by a former Uber engineer that alleged that the company’s work culture was biased against women and that managers ignored sexual harassment complaints. The process included more than 200 interviews with current and former employees, and resulted in a set of recommendations approved unanimously by the board that subsequently were released publicly.

Six-Year Dispute with DOJ Ends with Declination

Our client, a major aerospace manufacturer, was accused of misrepresenting key facts to a government agency, resulting in the agency's decision to move forward with a rocket launch that eventually failed. The client enlisted Covington’s representation in what ended up being a six-year, high-stakes dispute with DOJ. Our compelling presentation and mastery of the details bolstered our arguments, and DOJ ultimately advised it would not pursue a False Claims Act case against the company.

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.

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.

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The European Commission finds no illegal State aid was provided by Luxembourg’s non-taxation of McDonald’s

On 19 September 2018, the European Commission (“Commission”) issued a press release declaring that Luxembourg did not provide illegal State aid to McDonald’s with regards to two tax rulings that resulted in double non-taxation of franchise profits in Luxembourg. The Commission’s three-year-long in-depth investigation established that Luxembourg had merely acted ...

New Cases Confirm that FOIA Exemption 4 Protects Line-Item Pricing Information

Although the Freedom of Information Act (FOIA) allows citizens to request agency records and thus keep a close eye on their government, proprietary information is exempt from disclosure under Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” A substantial body of case ...

The Implications of the GDPR on Clinical Trials in Europe

On October 23, 2018, the European Federation of Pharmaceutical Industries in cooperation with the Future of Privacy Forum and the Center for Information Policy Leadership will organize a workshop entitled, “Can GDPR Work for Health Research.” In the first session, the workshop will discuss the implications of the General Data Protection Regulation (“GDPR”) on ...

AI Update: Europe Officially Joins the Race for the Next Generation of Supercomputers

On 28 September 2018 the EU reinforced its commitment to the development and deployment of high-performance computing by adopting a Regulation establishing the European High Performance Computing Joint Undertaking (“EuroHPC Joint Undertaking”). This entity is set to coordinate and pool resources to create a pan-European state-of-the-art supercomputing ...

Are You Ready For Your Congressional Investigation?

If the current polls and predictions are accurate, the Democratic party is poised to take control of the House of Representatives next year, for the first time since 2010. Congressional investigations thrive in divided government, and Democratic leaders in Congress are already promising a new wave of investigations. My new article in Law360 examines the...… ...

Are You Ready For Your Congressional Investigation?

Understanding MongoDB’s New Copyleft Open Source License

MongoDB, the developer of a popular document-oriented distributed database server by the same name, has updated the open source license that applies to versions of its software published after October 16, 2018. Previously, the MongoDB software was licensed under the GNU Affero General Public License v.3 (“AGPLv3”), which is a “strong copyleft” license. Strong ...

IoT Update: The UK publishes a final version of its Code of Practice for Consumer IoT Security

Following an informal consultation earlier this year – as covered by our previous IoT Update here – the UK’s Department for Digital, Culture, Media and Sport (“DCMS”) published the final version of its Code of Practice for Consumer IoT Security (“Code”) on Oct. 14, 2018. This was developed by the DCMS in conjunction with the...… Continue Reading

IoT Update: The UK publishes a final version of its Code of Practice for Consumer IoT Security

By Grace Kim and Siobhan Kahmann Following an informal consultation earlier this year – as covered by our previous IoT Update here – the UK’s Department for Digital, Culture, Media and Sport (“DCMS”) published the final version of its Code of Practice for Consumer IoT Security (“Code”) on October 14, 2018. This was developed by...… Continue Reading

The Week Ahead in the European Parliament – October 19, 2018

Summary Next week, there will be a plenary sitting of the European Parliament in Strasbourg, France. Several significant debates and votes will take place. On Monday, MEPs will vote on the proposal for a Single-Use Plastics Directive. The purpose of the proposal is to prevent and reduce the impact of certain plastic products on the...… Continue Reading

2018 Nobel Prize Recognizes Economic Importance of Strong Patent Rights

On October 8th, the 2018 Nobel Prize in Economics was awarded to Paul Romer, an American economist who has produced foundational work on patent rights and the policies underlying sustainable economic growth. Beginning with his Ph.D dissertation in 1983, Romer’s work has demonstrated that innovation is a product of strong intellectual property rights and ...

IoT Update: BEREC launches public consultation on the ‘Data Economy’

On the 10th October 2018, BEREC (the Body of European Regulators for Electronic Communications) launched its public consultation on the ‘Data Economy’. This comes at a time when different regulators are increasingly discussing the importance of big data, including the opportunities and risks that it brings about, how these may evolve, and how (and ...

Senate Discusses a Federal Privacy Law with Privacy Experts: Examining Lessons From the European Union’s General Data Protection Regulation and the California Consumer Privacy Act

On October 10, the Senate Committee on Commerce, Science, and Transportation held second hearing on data privacy that invited advocates and experts to discuss a federal privacy law. The panelists included Andrea Jelinek, director of the European Data Protection Board; Alastair Mactaggart, chair of Californians for Consumer Privacy; Laura Moy, executive director ...

AI Update: Senators Introduce AI in Government Bill

On September 26, a bipartisan group of senators introduced the Artificial Intelligence in Government Act, legislation that would direct certain executive agencies to specifically research and consider AI applications and strategy, as well as create an advisory board to address AI policy and issues. The bill’s sponsors cited both the promises and risks of AI...… ...

Senate Discusses a Federal Privacy Law with Privacy Experts: Examining Lessons From the European Union’s General Data Protection Regulation and the California Consumer Privacy Act

Community Reinvestment Act: rework or revamp?

Michael Nonaka is quoted in International Financial Law Review regarding the potential modernization of the Community Reinvestment Act of 1977. Mr. Nonaka says, “It’s important to make sure that with new innovative technologies and people using smartphones and the internet to connect with banks, that all those services are tracked for purposes of CRA premise. ...

CFIUS and China: The FIRRMA Factor

The Diplomat featured David Fagan in a Q&A regarding the effects of the Foreign Investment Risk Review Act of 2018 on U.S.-China commercial relations. Mr. Fagan noted the national security rationale of the new law, how U.S. companies should incorporate FIRRMA into their deal making, and how FIRRMA will affect U.S. companies seeking to attract foreign direct ...

“Economic Security Is National Security”: Key Takeaways from the Defense Industrial Base Report

(This article was originally published in Law360 and has been modified for the blog.) Peter Navarro, assistant to the president for trade and manufacturing policy, recently offered in a New York Times op-ed that “[a] strong manufacturing base is critical to both economic prosperity and national defense.” The Trump Administration’s maxim that “economic security ...

“Economic Security Is National Security”: Key Takeaways from the Defense Industrial Base Report

(This article was originally published in Law360 and has been modified for this blog.) Peter Navarro, assistant to the president for trade and manufacturing policy, recently offered in a New York Times op-ed that “[a] strong manufacturing base is critical to both economic prosperity and national defense.” The Trump Administration’s maxim that “economic security ...

Election Law Compliance for High Net Worth Individuals and Family Offices

With less than one month to go before the 2018 elections, the ground is shifting for major political donors. Developments over the last several years, and especially in the last few months, show that the rules of the road are changing with respect to many of the common election law issues faced by high net...… Continue Reading

The Week Ahead in the European Parliament – October 12, 2018

Summary Next week will be a political group week and a committee week in the European Parliament. Members of the European Parliament (“MEPs”) will hold meetings with their respective political group to prepare the plenary session, to be held from October 22 to 25, in Strasbourg. On Monday, members of the Committee on Civil Liberties,...… Continue Reading

Compliance Risks from Local Content Requirements – Considerations for Doing Business in Africa

Over the last several decades, Foreign Direct Investment (FDI) by multinational companies has become a critical engine of economic growth in Africa, with FDI in the extractive industries particularly significant. A common response by local governments in Africa to increased FDI is “local content” requirements, which are designed to ensure the participation of ...

Election Law Compliance for High Net Worth Individuals and Family Offices

California Adopts Net Neutrality Law; Court Hearing Scheduled for Nov. 14

On September 30, California Governor Jerry Brown signed a bill to apply net neutrality rules to Internet Service Providers (“ISPs”) operating in that state. California is not the first state to enact legislation on net neutrality, but its bill contains the most stringent requirements yet. The Trump Administration and multiple ISPs have sued to prevent...… ...

Covington Issues Client Advisory Concerning “Earmarked” Contributions To Politically Active Organizations

A perennial compliance issue for corporations, family offices, and individual major donors who are considering contributions to politically active outside groups involves determining whether the contributions will be treated as “earmarked” for a specific candidate or political committee, which can result in legal compliance issues as well as disclosure of the ...

Congress takes the lead on U.S.-Africa Policy

While the nation has been transfixed by the confirmation hearings of Judge Brett Kavanaugh for a seat on the Supreme Court, Congress passed significant legislation on Africa that has attracted virtually no attention. On October 3, the Senate passed the Better Utilization of Investments Leading to Development Act, better known as the Build Act. President...… ...

Pragmatism Wins the Day in GAO Buy American Protest

Last month, the Government Accountability Office (GAO) issued a bid protest decision regarding the application of Buy American Act (BAA) requirements to a solicitation for construction. In this decision, GAO rejected the agency’s determination that an offeror’s bid was nonresponsive because the offeror failed to provide certain required information for the ...

How Well Do You Know Your Supply Chain? New Policy Developments Affect Defense and Security Contractors

This post first appeared on Covington’s Global Policy Watch blog on September 7, 2018 Generating and sustaining the United States’ global economic and military superiority over more than the last half century has depended on a dominant U.S. global economic position and perpetual technological innovation. The United States has increasingly relied on a global ...

Put It In Prospectus: Reviewing the Congressional Lease Approval Process in Light of the Upcoming Lower Manhattan SEC Lease

With the General Services Administration’s (“GSA”) recent issuance of a prospectus in connection with its announced plan to acquire new office space for the Securities and Exchange Commission (“SEC”) in lower Manhattan, now is a good time for a quick refresher about the congressional lease approval process under 40 U.S.C. § 3307, which potentially gives rise...… ...

New Jersey District Judge Dismisses All Counts Against Smart TVs

On September 26, 2018, New Jersey federal district judge Madeline Cox Arleo dismissed an eight-count class action complaint in its entirety against three smart TV makers: Samsung, LG, and Sony. The plaintiffs alleged that defendants’ smart TVs continuously monitored and tracked their viewing habits, recorded their voices, and then transmitted that information ...

China Law & Practice Names Covington “Intellectual Property Firm of the Year”

BEIJING—China Law & Practice has named Covington “Intellectual Property Firm of the Year” and Covington partner Ruixue Ran as “Intellectual Property Lawyer of the Year.” The awards highlight innovation and excellence in the China legal market and honor top law firms, lawyers, and legal departments. Ms. Ran is one of the few China-based lawyers who focus on ...

Rick Longton Named Thomson Reuters Foundation’s “TrustLaw Lawyer of the Year”

WASHINGTON—The Thomson Reuters Foundation has named Rick Longton its “TrustLaw Lawyer of the Year.” The award recognizes the commitment demonstrated in supporting pro bono clients over the last year on projects undertaken through TrustLaw, Thomson Reuters Foundation's global pro bono program that connects high-impact NGOs with law firms and corporate legal teams ...

FEC Issues New Guidance On Donor Disclosure for Entities Making Independent Expenditures

On September 18, the Supreme Court left in place the district court decision in CREW v. FEC, a case that dramatically increased the disclosure obligations for nonprofits and other entities that spend money on public communications that encourage people to vote for or against specific candidates. We previously described the anticipated effects of the CREW...… ...

Fintech Charter Interest Could Be Shaped By Litigation

Randy Benjenk is quoted in Law360 regarding the uncertainty surrounding how many fintech firms will apply for special-purpose charters from the OCC. Mr. Benjenk says, “The question is whether the benefits of the charter will outweigh its burdens and the risks involved. I think you’ll see some fintechs conclude that, if they’re going to be regulated like a bank, ...

Federal Circuit Charts New Terrain in Commercial Item Contracting

Last month, the Federal Circuit weighed in on a largely-overlooked provision in the Federal Acquisition Streamlining Act (“FASA”) that requires federal agencies, to the maximum extent practicable, to procure commercially available goods and services to meet their needs. In the case — Palantir USG v. United States — the court affirmed the decision by the...… ...

FCC Seeks Comment on Ninth Circuit’s Expansive TCPA Interpretation in Marks

Yesterday, the FCC released a Public Notice seeking comment on a recent decision issued by the U.S. Court of Appeals for the Ninth Circuit in Marks v. Crunch San Diego, LLC, No. 14-56834 (Sept. 20, 2018). The Public Notice, issued in the context of the FCC’s Telephone Consumer Protection Act (TCPA) reform proceeding, seeks comment...… Continue Reading

IoT and AI Update: California Legislature Passes Bills on Internet of Things, Artificial Intelligence, and Chatbots

The California legislature recently passed three bills meant to address rapidly-developing technologies including the Internet of Things, artificial intelligence (AI), and chatbots. Internet of Things. At the end of August, California became the first state to promulgate regulations requiring security features for Internet-connected devices. Senate Bill ...

IoT and AI Update: California Legislature Passes Bills on Internet of Things, Artificial Intelligence, and Chatbots

NTIA Requests Comments Regarding Federal Approach to Consumer Privacy

Last week, the National Telecommunications and Information Administration (NTIA) published a request for comments on how it should approach consumer privacy policy. NTIA noted that federal action is needed because a growing number of countries and U.S. states have adopted distinct policy approaches with respect to consumer privacy, which risks a fragmented ...

GDPR: Top 5 Post-Implementation Issues for Airlines

On 25 May 2018, the EU General Data Protection Regulation (GDPR) came into effect. The GDPR establishes some of the most robust privacy requirements globally and is likely to be a model followed by other jurisdictions. Airlines are uniquely affected by the GDPR with passenger data being at the heart of their business and international...… Continue Reading

AI Update: A Discussion on Global Innovation and Singapore

On September 25, 2018, Lee Tiedrich, the co-chair of Covington’s global Artificial Intelligence (“AI”) Initiative, participated in a roundtable discussion on the future of innovation, the challenges of the Fourth Industrial Revolution, and the need for multidisciplinary approaches involving the entire eco-system to address the adoption of new technologies in ...

2018 DoD Cyber Strategy: The DoD Defends Forward While the DIB Must Defend its Cyber Practices

The Department of Defense (“DoD”) recently released the summary of its cyber strategy for 2018. The 2018 DoD Cyber Strategy, which replaces the DoD’s 2015 cyber strategy, is focused broadly on “defending forward,” shaping day-to-day competition, and preparing for conflict. But the strategy includes items that are sure to be of interest to contractors and...… ...

Senate Examines Potential for Federal Data Privacy Legislation

On September 26th, the Senate Committee on Commerce, Science, and Transportation held a hearing on data privacy, focusing in part on the potential for federal privacy regulation. The discussion centered on two issues: (1) the potential for Congress to pass a federal privacy law, including the scope and model for any such law, and (2)...… Continue Reading

IoT Update: FCC Efforts to Encourage 5G Infrastructure Investment

5G deployment and availability will greatly expand and enhance the Internet of Things (IoT). As we explored in a prior post, apart from spectrum availability, one of the other primary keys to promoting 5G development is increased investment in both wireless and wireline infrastructure. Without the necessary infrastructure (e.g. small cells, fiber backhaul) to ...

California Social Media DISCLOSE Act Becomes Law, Takes Effect 2020

Earlier this week, California Gov. Jerry Brown approved the Social Media Disclose Act, to take effect in 2020. We previously blogged about the Social Media DISCLOSE Act, which will place new disclosure obligations on social networks like Facebook and Twitter; advertising platforms like Google; and anyone who engages in online political advertising. Covered ...

Mitch Kamin Named Among Top 100 Lawyers in California

LOS ANGELES—The Daily Journal has named Covington partner Mitch Kamin among its “Top 100 Lawyers” in California. The Top 100 are selected for making a significant impact on their practice area, the legal industry or the larger society. Mr. Kamin is the co-chair of Covington’s Commercial Litigation Practice and represents global media, entertainment and other ...

Michael Nonaka Named "Cryptocurrency, Blockchain & Fintech Trailblazer"

WASHINGTON—The National Law Journal has named Covington's Michael Nonaka to its inaugural list of "Cryptocurrency, Blockchain, & Fintech Trailblazers." This list profiles 50 lawyers who have "moved the needle" and are making great strides as finance and technology grow more entwined. Mr. Nonaka is co-chair of the firm’s Financial Services Group and advises ...

IoT Update: The E-Privacy Regulation – Impact on the IoT market

It is now four months after the General Data Protection Regulation (EU) 2016/679 (“GDPR”) came into force. One of its objectives is to create uniform standards for data protection in Europe and to adapt data protection to technical progress. In addition, the “Regulation of the European Parliament and of the Council concerning the respect for...… Continue Reading

Washington's FARA Frenzy Fomenting New Legal Business

Robert Kelner is quoted in The National Law Journal regarding the Justice Department’s aggressive enforcement of the Foreign Agents Registration Act and the reaction from lawyers. Mr. Kelner says, “The problem with FARA is that it’s a woefully vague statute. It’s arguably unconstitutionally vague.”

CBCA Issues Rare Decision Addressing Government Claim Accrual

The Civilian Board of Contract Appeals (“CBCA” or “Board”) recently published a decision on accrual of government claims for overpayment under the Contract Disputes Act (“CDA”). In the case, United Liquid Gas Co. d/b/a United Pacific Energy v. Gen. Servs. Admin., CBCA 5846, United Pacific Energy (“UPE”) appeals a General Services Administration (“GSA”) final ...

What California's new law on internet-connected devices means for Bay Area tech companies

Lindsey Tonsager is quoted in the San Francisco Business Times regarding California’s new cybersecurity bill regulating internet-connected devices. Ms. Tonsager believes the vagueness of the “reasonable” standard makes the law flexible. She says, “It’s really helpful that the legislation acknowledges flexibility in identifying which standards are reasonable. ...

Australia Proposes New Encryption Legislation

In August 2018, the Government of Australia unveiled a new proposed bill that would grant the county’s national security and law enforcement agencies additional powers when confronting encrypted communications and devices. The text of the draft Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (the “Assistance and Access Bill” ...

Robert Kayihura Joins Covington’s Johannesburg Office as Senior Advisor

JOHANNESBURG — Robert Kayihura has joined Covington as a senior advisor in Johannesburg. Mr. Kayihura has nearly two decades of experience advising clients across the African continent. Drawing on his experience as an entrepreneur and advisor to large, global corporations including Microsoft and Uber, he works closely with corporate decision-makers, federal ...

Yan Luo Named to Global Data Review's “40 Under 40”

BEIJING — Global Data Review has named Covington’s Yan Luo to its inaugural “40 Under 40” list, recognizing the 40 individuals who represent the best and the brightest of the data law bar around the world. Based in the firm’s Beijing office, Ms. Luo advises clients on a broad array of regulatory matters in connection with data privacy, international trade, ...

China could be exposed in trade war as US allies choose compromise

Timothy Stratford is quoted in the South China Morning Post regarding current trade tension between the U.S. and China. Mr. Stratford points to systemic differences between the two countries as a point of contention. He says, “Now that this new round of tariffs is being imposed by both sides, the most realistic goal for our countries to focus on next would be to ...

After 'major escalation' in US-China trade war, what happens next?

Timothy Stratford is quoted on CNN regarding escalating trade tensions between the U.S. and China. Mr. Stratford says, “They don't want to add to the incentive of American companies to be looking at investing elsewhere and to source products elsewhere. "It's a very difficult policy decision on China's part to find just the right touch to do this.” He adds, "They ...

Donor Disclosure Requirements Expand After Supreme Court Order

In a startling turn of events that will alter election spending decisions in the run-up to the general election, and after, the Supreme Court reversed a temporary stay issued by Justice Roberts on Friday, and left in place a district court decision that dramatically increased the disclosure obligations for entities spending on public communications that...… ...

Foreign lobbying overhaul loses steam in Congress

Robert Kelner is quoted in a Politico story about the potential impact of foreign lobbying overhaul by Congress. Commenting on the potential for forcing companies with U.S. subsidiaries to disclose every lobby contact, Mr. Kelner said it “is going to do very little to shed light on foreign lobbying activity.” He adds, “It’s just going to create a lot of ...

What they're saying about the trade war at China's 'Davos'

Timothy Stratford spoke with CNN Money regarding U.S. tariffs on Chinese imports and China’s plan to retaliate. Mr. Stratford says, "China is growing concerned that the US motivation is now trying to keep China down and contain it. I expect that we're going to have a deadlock for some time."

Calif. Starts Ball Rolling With Novel Internet Of Things Law

Lindsey Tonsager is quoted in Law360 regarding California’s newly enacted rules mandating security features for internet-connected devices. Makers of IoT devices will be required under Senate Bill 327 to equip products with "reasonable security features." Ms. Tonsager says, "The 'reasonable security' standard is quite flexible, which is good when operating in a ...

Takeaways From DoD’s Proposed Changes to Commercial Item Contracting

[This article was originally published in Law360 and has been modified for the blog.] Over the summer, pursuant to Section 874 of the FY 2017 National Defense Authorization Act (“NDAA”)[1], the Department of Defense (“DoD”) issued a proposed rule[2] to exclude the application of certain laws and regulations to the acquisition of commercial items, including...… ...

Disputes Eye: Hunting krakens – As finance and Russian work slows veteran litigators look to key trends and opportunities

Louise Freeman spoke with Legal Business regarding the latest trends in disputes. She highlights the growing potential for litigation from the rise in cyberattacks impacting major companies. Ms. Freeman observed ‘The UK courts are increasingly adapting to deal with this kind of litigation,’ and points to the Clarkson v Person or Persons Unknown High Court case ...

Governor Jerry Brown signs SB 100 and Executive Order to achieve carbon neutrality by 2045

On Monday, September 10, 2018, two days before kicking-off the Global Climate Action Summit he is co-hosting in San Francisco, California Governor Jerry Brown signed SB 100 (De León), The 100 Percent Clean Energy Act of 2018, which sets a state policy that eligible renewable energy and zero-carbon resources supply 100 percent (%) of all...… Continue Reading

Lateral Watch

Terrell McSweeny is quoted in Am Law Litigation Daily regarding her move to the firm. “I am excited to join a firm that is well positioned to guide clients through the increasingly complex global antitrust, cybersecurity and consumer protection landscape,” said Ms. McSweeny.

Former FTC Commissioner McSweeny Joins Covington

WASHINGTON— Terrell McSweeny has joined Covington as a partner in the Antitrust and Competition Law and Data Privacy and Cybersecurity Practice Groups in Washington. Ms. McSweeny most recently served as a Commissioner at the Federal Trade Commission. Ms. McSweeny has held senior appointments in the FTC, Department of Justice, White House, and United States ...

Former FTC Commissioner, Obama Admin. Adviser Lands at Covington

Deborah Garza is quoted in The National Law Journal regarding Terrell McSweeny joining the firm. Ms. Garza says, “Having served both at the FTC and in the Antitrust Division, Terrell has an exceptionally broad base of experience to draw upon in helping clients understand and manage the antitrust enforcement, privacy, and data security issues. She also has ...

McSweeny joins Covington

Terrell McSweeny and Deborah Garza are quoted in Global Competition Review regarding Ms. McSweeny’s move to the firm. Ms. McSweeny says that Covington is a “wonderful fit” due to its bench of former DOJ and FTC lawyers. She added that it will be good to work with colleagues who have had similar experiences. Ms. Garza praised McSweeny’s excellent reputation and ...

Litigation Luminaries

Eric Holder and Craig Pollack are featured in Commercial Dispute Resolution regarding the firm’s ambitions to be at the forefront of international dispute resolution. Mr. Holder and Mr. Pollack discussed managing complex disputes, diplomatic solutions, culture of collaboration, Brexit, and structure and strategy of a case. Mr. Holder said in the interview, “We ...

Former FBI official joins Covington

Trisha Anderson and James Garland are quoted in Global Investigations Review regarding Ms. Anderson rejoining the firm. Mr. Garland believes Ms. Anderson will be a valuable asset to helping navigate the U.S. Cloud Act. He says, “Trisha has that ability to spot the pain points for both the clients and the government and help figure out a way forward. Sometimes ...

OIG Report Chronicles Recent Attempts To Construct FBI Headquarters Through Public-Private Partnership, Highlights Proposed Use of Federal Capital Revolving Fund

Last week, the GSA Office of Inspector General (“OIG”) released a Report explaining how GSA decided to abandon previous plans to build a new suburban campus for the FBI, and instead demolish and then rebuild the J. Edgar Hoover (“JEH”) building in Washington, D.C. Although much of the coverage of the Report has focused on...… Continue Reading The post OIG ...

British Irish Chamber calls for State supports to Brexit-proof Ireland’s agri-food sector

Maree Gallagher is quoted in the Irish Examiner regarding Brexit’s impact on Ireland’s agri-food sector. Ms. Gallagher, also Chair of the British Irish Chamber of Commerce Agri-Food Committee, says, “The agri-food sector is Ireland’s largest indigenous industry employing around 250,000 people enabling €12.6bn in exports a year.” Ireland, who is a major source of ...

California’s New “Social Media DISCLOSE Act” Regulates Social Media Companies, Search Engines, Other Online Advertising Outlets, and Political Advertisers

California’s new “Social Media DISCLOSE Act” takes on the trending topic of online political advertising disclosure. Assuming Gov. Jerry Brown signs the bill, then come 2020, social media networks like Twitter and Facebook, as well as Google and similar tools, may face burdensome new obligations related to California political advertising. Political advertisers ...

Leading National Security Lawyer Rejoins Covington

WASHINGTON—Trisha B. Anderson, an experienced national security and cybersecurity lawyer who has held senior positions at multiple federal agencies, has rejoined Covington as a partner in Washington. Ms. Anderson most recently served as Principal Deputy General Counsel of the Federal Bureau of Investigation, where she handled complex national security and cyber ...

California Legislature Passes Bill Putting State on Path to 100% Renewable and Zero-Carbon Power

A bill that would set California on a trajectory toward carbon-free emissions from its electric power sector cleared a major hurdle with its passage through the California State Legislature. SB 100 (De León), The 100 Percent Clean Energy Act of 2018, sets a state policy that eligible renewable energy and zero-carbon resources supply 100 percent...… Continue ...

PSE&G Becomes First Public Utility to Secure SAFETY Act Liability Protections from DHS

Public Service Electric and Gas Company (PSE&G), New Jersey’s oldest and largest regulated gas and electric delivery utility, recently became the first utility in the United States to secure liability protections under the Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act) of 2002 for its internal physical security program. The July 9, ...

China 'keeping wary eye' on US and EU as trade pressure mounts

Timothy Stratford is quoted in the South China Morning Post regarding the United States and European Union’s pressure on China to reform its economy. Mr. Stratford says of the Chinese state-led economic model, “The global trading rules are based on assumptions that market economies are more efficient than state-led economies and that countries benefit from the ...

Lifetime Achiever: Eric Holder, Covington & Burling

The American Lawyer has recognized Eric Holder in its annual “Lifetime Achiever” series. The article highlights his esteemed legal career and his “desire to make America more fair and equal.” Mr. Holder sees this theme running throughout his career and says, “I get to do things that are consistent with what I think lawyers should be doing as change agents, while ...

A major hurdle in trade talks: US and China ‘play by different economic rules'

Timothy Stratford is featured in a South China Morning Post article about his views on U.S.-China trade relations. Mr. Stratford says multinational companies with Chinese or U.S. operations have been caught in crossfire of the trade war between the nations. “What’s happening now is that the current deadlock is causing companies from both countries to rethink ...

Three Covington Lawyers Named Among Law360's "Rising Stars"

WASHINGTON— Law360 named Covington lawyers Alexander Berengaut, Michael Nonaka, and Ursula Owczarkowski to its list of “2018 Rising Stars.” This annual recognition honors top attorneys under 40 “whose legal accomplishments transcend their age.” Alex Berengaut represents clients in civil litigation, international arbitrations, and government enforcement ...

PLI Current Highlights New Wave of FARA Enforcement

As the Foreign Agents Registration Act continues to receive national attention, an article in this quarter’s PLI Current journal describes the Justice Department’s increased focus on the statute. The article, authored by Covington’s Rob Kelner, Zack Parks, and Alex Langton, discusses the shifting FARA enforcement landscape, analyzes how the statute works, and ...

Solar Energy Jobs: Opportunities to Enhance Safety Compliance

As demand for solar energy has grown, employment in the U.S. solar industry has boomed to more than double the number of coal industry workers and nearly equal to employment in the natural gas industry. While solar energy jobs are among the safest in the energy sector, over the past 18 months the Occupational Health...… Continue Reading

CFIUS Update: FIRRMA Enacted into Law

Earlier today, President Donald Trump signed into law the Foreign Investment Risk Review Modernization Act (FIRRMA) as part of the John S. McCain National Defense Authorization Act. As we have previously reported, FIRRMA will transform the jurisdiction, authority, and operation of the Committee on Foreign Investment in the United States (CFIUS).

Survey of the Pay-to-Play Laws of the United States

Companies doing business with state and local governments or operating in regulated industries are subject to a dizzying array of “pay-to-play” rules. These rules effectively prohibit company executives and employees (and in some cases, their family members) from making certain personal political contributions. Even inadvertent violations can be dangerous: a ...

U.S. Releases Final List of Tariffs on $16 Billion in Chinese Imports and Other Recent U.S.-China Tariff Developments

The Trump Administration has released its final list of approximately $16 billion in Chinese imports that will be subject to an additional 25 percent ad valorem tariff, which will go into effect on August 23, 2018. The Administration has announced that it will provide an opportunity to request that "particular products" subject to the additional duties be ...

New Executive Order Re-Imposing U.S. Sanctions Against Iran and Entry Into Force of Updated EU Blocking Statute

On August 6, 2018, President Trump issued Executive Order 13846 (the “Executive Order”) that re-imposes -- and to a limited extent broadens the scope of -- certain U.S. secondary sanctions targeting Iran that had been suspended in January 2016 pursuant to the Joint Comprehensive Plan of Action (“JCPOA”) with Iran.

Federal Court Issues Important Ruling Concerning Donor Disclosure for Groups Making Independent Expenditures

On Friday, the Chief Judge of the United States District Court for the District of Columbia issued a surprise decision that vacated a Federal Election Commission regulation that since 1980 has guided disclosure of the funding of independent expenditures.

DOE Fast Tracks Small Scale LNG Exports and Provides Assurance on Export Orders

The Department of Energy (DOE) recently acted in two separate orders to clear the path for small volume exports of LNG and allay concerns about the durability of its export authorizations. In July, 2018, DOE adopted a rule to streamline its standards and process for approving small-scale LNG exports. In a separate policy statement issued...… Continue Reading

US Treasury Calls for Consumer Protection in Fintech Industry

David Stein is quoted in Global Data Review regarding the U.S. Department of Treasury’s recommendation to introduce data protection regulations in the fintech industry. Mr. Stein suggested that such a law may have to be modeled on existing state-level legislation. He says, “There likely would be pressure to enhance existing federal data security laws that apply ...

“And the winners are…”

Jason Workmaster sat down for an interview with the Federal News Network’s “Off the Shelf” podcast and analyzed the Department of Defense’s Defense Federal Acquisition Regulation Supplement commercial item rule and what it means for contractors doing business with the DoD. He also provided analysis of the Palantir decision and what it means for commercial item ...

A Step Along the Road to a Legally Binding Treaty on Business and Human Rights

We reported following the 2017 UN Forum on Business and Human Rights on the progress of an international treaty on the subject. On 19th July 2018, the Open-ended Intergovernmental Working Group (OEIGWG) presented the draft text of a treaty to the High Commissioner for Human Rights (through the Permanent Mission of Ecuador, acting as Chair in the process).

Covington’s Pay-to-Play Survey Offers One Stop Shop for Compliance Departments

Covington Adds Environmental Law Expert From Paul Hastings

Kevin Poloncarz spoke with The Recorder regarding his move to Covington. Mr. Poloncarz says, “Covington [is] renown for regulatory expertise in D.C. on federal matters, and that was very much a draw for me. I do environmental and energy work, and it is regulatory in nature, and so I really felt that was a great fit between my practice and the firm.” Mr. ...

Leading California Energy and Environmental Lawyer Joins Covington

SAN FRANCISCO— Kevin Poloncarz has joined Covington as a partner in its Energy Industry Group in San Francisco. Mr. Poloncarz represents electric power, petroleum, and chemicals companies, financial institutions, and project developers on federal and state air quality regulation and carbon markets matters. He has been deeply involved in legal and regulatory ...

Fintechs Hope Treasury Boost for 'MaddenFix' Leads to Action

Michael Nonaka is quoted in Bloomberg Law on the fintech industry’s enthusiasm regarding the Treasury Department’s recommendation that Congress support the “valid when made” doctrine. Mr. Nonaka adds, “The [recommendation] shows that these issues are not going away and that the uncertainty created from a growing body of inconsistent court opinions isn't a stable ...

OCC Will Accept Fintech Charter Applications

Michael Nonaka is quoted in Law360 regarding the Office of the Comptroller of the Currency accepting applications for special-purpose national bank charters from financial technology companies. Mr. Nonaka says it will be a while before any fintech firms operate as national banks, and they may ultimately decide the special purpose charter does not suit their ...

US FDA's Software Pre-Cert Program: Is The Authority On The Books?

Wade Ackerman is quoted in Medtech Insight regarding the FDA’s software pre-certification program and what that means for device and digital health firms interested in getting new products to the market. Mr. Ackerman says, "The agency has been transparent in that it is considering various legal mechanisms available to the agency to establish the program – ...

Covington Advises GSK on 23andMe Collaboration and $300M Investment

SILICON VALLEY—Covington advised GlaxoSmithKline on its multi-year collaboration with and $300 million equity investment in 23andMe. GSK will become 23andMe’s exclusive collaborator for drug target discovery programs. The collaboration will focus on research and development of innovative new medicines and potential cures using human genetics as the basis for ...

More Officials Appointed to Lead Film and Media Authorities in China

On May 24, 2018, China filled the top positions at the State Bureau of Film (Film Bureau) and State Administration of Press and Publication (SAPP). Both appointments fill vacancies created by the dismantling of the State Administration of Press, Publication, Radio, Film and Television (SAPPRFT) and continue apparent Communist Party of China (CPC) efforts to ...

Why the EU will only extend the Brexit deadline for a second referendum

Bart Van Vooren is quoted in The Telegraph regarding an extension of the Brexit deadline. According to Mr. Van Vooren, “For that to happen, Article 50 requires that the European Council decides unanimously on the extension in agreement with the UK.” Mr. Van Vooren added, “An extension is not likely if it will merely extend the painful process of the last 15 ...

California Energy News Update

California continues to see growth in alternative and clean energy initiatives. Below is a sample of recent notable developments. Solar Panels on Every Home Starting 2020 The California Energy Commission (CEC) voted on May 9, 2018 to impose additional energy efficiency building standards, including the requirement that starting in 2020, new homes (with some ...

IRS Announces Major Change To Nonprofit Donor Disclosure Requirements

In a significant and unexpected development, the U.S. Treasury Department announced yesterday that certain nonprofits — including trade associations and 501(c)(4) social welfare organizations — would no longer be required to disclose the names and addresses of their donors on the annual “Form 990” they file with the Internal Revenue Service. Although the IRS ...

Sarah Crowder Named to GIR's "Women in Investigations"

LONDON—Global Investigations Review has named Covington’s Sarah Crowder to the second edition of “Women in Investigations,” highlighting 100 female practitioners from across the globe. Nancy Kestenbaum and Mythili Raman were selected to the list’s first edition in 2015. The survey highlights a variety of women not previously recognized by the magazine—from ...

Branching out: foreign banks seek shelter from Fed rules

Randy Benjenk is quoted in a Risk article regarding U.S.-based branches of foreign banks experiencing a rise in total branch assets because they are exempt from the Federal Reserve's enhanced prudential standards for foreign banking organizations, such as requirements to set up intermediate holding companies (IHC), the Fed's annual stress test--the Comprehensive ...

IRS Announces Major Change To Nonprofit Donor Disclosure Requirements

In a significant and unexpected development, the U.S. Treasury Department announced yesterday that certain nonprofits — including trade associations and 501(c)(4) social welfare organizations — would no longer be required to disclose the names and addresses of their donors on the annual "Form 990" they file with the Internal Revenue Service.

USTR Releases a Third Proposed List of Tariffs on $200 Billion in Chinese Imports

Last night, the Office of the U.S. Trade Representative (“USTR”) released a new proposed list of $200 billion worth of products from China that could face an additional 10 percent ad valorem tariff. The list covers 6,031 product categories, including a multitude of consumer goods such as luggage, tires, furniture, apparel, mattresses, household goods, components ...

Enforcement Down at the Four-Member FEC, but Risks Remain for the Unwary

After a surprisingly active 2017, the Federal Election Commission’s enforcement efforts have slowed noticeably in the early months of 2018. In February, former Commission Lee Goodman’s departure from the agency left the Commission with only four members. While the remaining Commissioners can still form a quorum, unanimity is required for all official agency ...

Investigations of Pruitt are likely to continue

Robert Kelner is quoted by The Washington Post in an article regarding continuing investigations into former Environmental Protection Agency Administrator Scott Pruitt. According to Kelner, there is no "guiding principle" as to whether a congressional inquiry or one by an agency's inspector general continues once a public official resigns. When it comes to ...

First Set of U.S. Section 301 Tariffs Goes into Effect; China Retaliates in Kind

As anticipated, an additional 25 percentage point ad valorem tariff on $34 billion worth of Chinese imports into the United States (covering 818 product categories in sectors including aerospace, information communication technology, machinery, and medical instruments) went into effect on July 6, 2018.

China Seeks Public Comments for Draft Regulations on Cybersecurity Multi-level Protection Scheme to Implement the Cybersecurity Law

On June 27, 2018, China’s Ministry of Public Security (“MPS”) released for public comment a draft of the Regulations on Cybersecurity Multi-level Protection Scheme (“the Draft Regulation”). The highly anticipated Draft Regulation sets out the details of an updated Multi-level Protection Scheme, whereby network operators (defined below) are required to comply ...

In Tariff Fight With Trump, China Scraps Plan to Strike First

Timothy Stratford is quoted by The Wall Street Journal in an article regarding China's anticipated response to new tariffs on $34 billion of Chinese products starting on July 6. A Chinese head start "would not be moving hearts and minds on both sides toward the positive direction of de-escalation," says Stratford.

California Passes Expansive Consumer Privacy Law

On June 28, 2018, the Governor of California signed the California Consumer Privacy Act of 2018 (“CCPA”). The new law is the most comprehensive data privacy statute in the United States and introduces significant privacy requirements for covered businesses. The CCPA takes effect on January 1, 2020, but based on comments from both the public-interest and business ...

Cost-Sharing Reduction Class Action in Court of Federal Claims Continues to Move Forward

In April, in Common Ground HealthCare Cooperative v. United States, 17-877C (Fed. Cl. April 17, 2018) the Court of Federal Claims granted Common Ground Healthcare Cooperative’s motion for class certification. The certified class includes all insurers offering Qualified Health Plans (QHP) under the ACA for the 2017 or 2018 benefit year that reduced cost-sharing ...

Recent Developments in U.S. Sanctions Against Iran

In furtherance of President Trump’s May 8, 2018 announcement that the United States is withdrawing from the Joint Comprehensive Plan of Action (“JCPOA”) (discussed in our recent alert), on June 27 the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) announced several changes to the U.S. sanctions against Iran.

New EU Requirements on Products Containing REACH Candidate List SVHCs

The European Union has adopted a new obligation on suppliers of articles that contain substances listed in the REACH Candidate List of SVHCs in concentrations above 0,1% to submit a notification to the European Chemicals Agency (“ECHA”). The new requirement is intended to facilitate the recycling of products and was introduced by a new Directive...… Continue ...

DOL Finalizes Rule to Expand Access to Association Health Plans

In January, the Department of Labor (DOL or the “Department”) proposed a rule to allow more Association Health Plans (AHPs) to be regulated as large group health plans. The proposed rule garnered national attention and the Department received over 900 stakeholder comments from consumer groups, individual employers, employer associations, health insurance ...

California lawmakers wallop tech companies on privacy

Lindsey Tonsager is quoted in a Politico article regarding a bill passed by California lawmakers that imposes stricter consumer privacy rules on companies. Should the California law trigger other states to put their own restrictions on consumer privacy, industry lobbyists and advocates will likely look to Congress to create consistent standards, says Tonsager. ...

USA: Carpenter v. U.S. a "Watershed Moment" for Digital Privacy

Kate Goodloe is quoted in a DataGuidance article examining the significance of the Supreme Court's decision in Carpenter v. U.S. “While Carpenter does not overrule the third party doctrine, it substantially limits its application. [Furthermore,] the decision anticipates that users have a legitimate expectation of privacy in data created, owned, and maintained by ...

ACI Dietary Supplements Regulatory Forum: A 'New' FTC, Changing Supplements Facts panels, and Navigating Retailer Demands

Miriam Guggenheim spoke at the Legal, Regulatory, and Compliance Forum on Dietary Supplements and is quoted in a NutraIngredients article. Guggenheim said that a popular question she gets from industry clients around new dietary ingredients (NDIs) is whether or not an ingredient can be classified as ‘old.’ Despite lobbying from trade associations, Guggenheim ...

Update on CFIUS and Foreign Investment Regulation President Affirms Support for FIRRMA and CFIUS

We write to report on two important developments regarding the Foreign Investment Risk Review Modernization Act (FIRRMA), a bi-partisan effort to reform the Committee on Foreign Investment in the United States (CFIUS), and the broader policy debate within the U.S. government on regulatory mechanisms to address foreign investment, particularly from China.

European Commission Launches New Antitrust Investigation into LNG Destination Clauses

On June 21, 2018, the European Commission (“Commission”) started a new investigation to determine whether so-called destination clauses in Qatar Petroleum’s liquefied natural gas (“LNG”) supply contracts with European buyers infringe the European Union (“EU”) antitrust rules. The investigation comes in a context of revived regulatory focus globally into these ...

The Roggeveld Wind Farm in South Africa

On 4 April 2018, Covington’s client Building Energy, a multinational company operating in the renewable energy industry, signed a power purchase agreement (PPA) with the South African state owned utility Eskom Holdings SOC Ltd (Eskom) to build, own and operate a 147 MW wind plant in Roggeveld (on the border of the Western and Northern...… Continue Reading

FDA Could Stick With Current Advice On NDI Notifications, Old Ingredient Evidence

Miriam Guggenheim spoke at the American Conference Institute and Council for Responsible Nutrition's Legal, Regulatory, and Compliance Forum and is quoted by The Rose Sheet in an article regarding FDA's current draft guidance on new dietary ingredient (NDI) notifications. According to Guggenheim, the agency has little priority, and limited resources available ...

Medicare Advantage Organizations Provided New Opportunities to Offer Telehealth Benefits

Earlier this year, President Trump signed into law the Bipartisan Budget Act of 2018 (BBA), which incorporates provisions from the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (CHRONIC) Care Act of 2017 and improves access to telehealth services in Medicare Advantage. Pub. L. No. 115-123.

European Commission Launches New Antitrust Investigation into LNG Destination Clauses

FDA's Intentional Food Adulteration Guide Offers Flexibility, Expert Says Details Needed

Jessica O'Connell is quoted in an Inside Health Policy article regarding FDA's draft guidance aimed at helping the food industry reduce the risk of intentional adulteration. According to O'Connell, industry has had some concerns about how prescriptive the food defense plans would be and how burdensome recordkeeping would be. She adds that many companies already ...

New Tactic Emerges in Fight to Compel Companies to Disclose So-Called “Dark Money” Contributions

A new corporate political disclosure trend is coming. For years, those advocating increased corporate political disclosure have looked for ways to force companies to publicly reveal the names and amounts of corporate contributions to so-called “dark money” 501(c)(4) social welfare nonprofits and 501(c)(6) trade associations.

State Investments in Electric Vehicle Charging Infrastructure

Various studies indicate that an overall lack of charging infrastructure serves as an impediment to the widespread adoption of electric vehicles (EVs). However, the road to transportation electrification is officially under construction following several major state investments. At the end of May, in the largest single state-level investment in EV charging ...

Fed plans reform of US bank ownership rules

Randy Benjenk is quoted in a Risk article regarding the Federal Reserve's plan to reform bank holding company (BHC) rules. According to Benjenk, the most common case of ambiguity around control determinations is whether investors such as private equity firms “can make a capital infusion into a bank without becoming a BHC or requiring approval from a federal ...

China-U.S. Trade Tensions Rage On

Timothy Stratford appeared on CGTN's "The Point" to discuss the current state of China-U.S. trade tensions following the announced threat of a new round of $200 billion tariffs on Chinese goods. “The things that the U.S. hopes China will do are things that China doesn’t believe are in their own interest to do, so I think we have a stalemate," says Stratford.

FDA Releases the First of Three Draft Guidances on FSMA’s Food Defense Requirements

Today (June 20, 2018), FDA published in the Federal Register the availability of the first four chapters of a nine-chapter draft guidance (“IA draft guidance”) intended to address the requirements in its final rule, Mitigation Strategies to Protect Food Against Intentional Adulteration (“IA rule”).

Christopher Yeung Named One of New York Law Journal's "Rising Stars"

NEW YORK—New York Law Journal has named Covington commercial litigation partner Christopher Y. L. Yeung as a winner of its 2018 "Rising Stars" award. Mr. Yeung represents clients in trials and other complex litigation. Within the past year, Mr. Yeung has helped secure the affirmance on appeal of a trade secrets trial victory with half a billion dollars at ...

U.S. Releases Final List of Tariffs on $34 Billion in Chinese Imports

As anticipated, the Trump Administration today released its final list of Chinese imports subject to an additional 25 percent ad valorem tariff. The imposition of the tariffs follows the Administration’s determination in March that China’s technology transfer and intellectual property (“IP”) policies are harming U.S. companies, and the submission of public ...

How Can We Make Best Use of Health Data?

Kristof Van Quathem participated in a Financial Times podcast to discuss the impact of the General Data Protection Regulation on medical research and health technology companies. According to Van Quathem, "One of the main concerns I think that we see in the research circle is the uncertainty that is being created by the GDPR, and in particular, when it comes to ...

Covington Secures CFIUS Approval for Genworth Financial Transaction

WASHINGTON—On June 9, 2018, Genworth Financial, Inc. ("Genworth") announced that the Committee on Foreign Investment in the United States ("CFIUS") had cleared its $2.7 billion acquisition by China Oceanwide. Covington represented Genworth in securing CFIUS approval, which is the largest China-related transaction approved in the Trump Administration. Reuters ...

3 Takeaways From Once-Secret Justice Department Memos on Foreign-Agent Lobbying

Robert Kelner is quoted by The National Law Journal in an article regarding the release of FARA advisory opinions by the Justice Department. “In general, I would say this is not quite the Rosetta Stone for interpreting DOJ’s position on FARA that some might have hoped for,” says Kelner. “The opinions cover a lot of ground but they do it in some cases at a fairly ...

U.S. drone-strike policy threatens to backfire as other nations acquire technology

Peter Lichtenbaum is quoted in a Washington Times article regarding U.S. policy on drone strikes. “We can set whatever rules we want, but we need to understand that we are setting a precedent, and other countries are watching very closely what we do,” says Lichtenbaum. “If we assert a certain prerogative, that will make it difficult for us to argue against other ...

Justice Department releases FARA advisory opinions

Robert Kelner is quoted in a Politico article regarding the Justice Department's release of FARA advisory opinions. Kelner describes the decision as "a long time coming.” “FARA practitioners have been asking for years to see DOJ's secret trove of FARA advisory opinions,” Kelner says. “This isn't by any means all of them, but it's a good start. DOJ is beginning ...

Post-Brexit Border solution could take years, says former EU negotiator

Sir Michael Leigh and Lord Francis Maude recently participated in a roundtable with The Irish Times to discuss Brexit developments. Commenting on the status of finding a solution to the Irish Border issue, Leigh and Maude said that they do not envisage a solution to maintain an invisible border being agreed until there is a deal on the future EU-UK trading ...

Tariffs Imposed on Steel and Aluminum from Canada, Mexico, and the EU

On May 31, 2018, the Trump Administration announced that it would implement tariffs on steel and aluminum imports from Canada, Mexico, and the European Union (EU). The tariff rates will be 25 percent on steel and 10 percent on aluminum, and are effective June 1.

Compliance Hot Spots: White-Collar Prosecutions Wither | DOJ's Foreign Lobbying Guidance | Plus: Who Got the Work

Robert Kelner is quoted in Law.com's "Compliance Hot Spots" briefing. Commenting on the Justice Department's decision to release FARA advisory opinions, Kelner says, "I think this could make a big difference in how firms advise clients on FARA compliance because, up until now, we’ve all had to do a great deal of reading the tea leaves rather than having actual ...

Trump’s fluid approach to national and economic security is leaving his allies baffled

John Veroneau is quoted by The Washington Post in an article regarding potential tariffs on foreign cars. “While U.S. trading partners have been fairly measured in responding to the steel and aluminum tariffs, they will have no choice but to exhaust every option in opposing tariffs on autos,” says Veroneau. “Also, unlike steel and aluminum tariffs which hit U.S. ...

Justice Dept. Plans to Open Up About Its Views on Foreign Agent Lobbying Registration

Robert Kelner is quoted by The National Law Journal in an article regarding the Justice Department's plan to publish FARA advisory opinions. “I think this could make a big difference in how firms advise clients on FARA compliance because, up until now, we’ve all had to do a great deal of reading the tea leaves rather than having actual legal precedents to look ...

Trumps car tariffs highlight threat of retaliatory trade war

John Veroneau is quoted in a Financial Times article regarding the federal government's decision to begin a Section 232 investigation into automotive imports. “Everyone was in on the joke that 232 tariffs on steel were thinly veiled protectionist measures. There's not even a veil on this one—just naked protectionism,” says Veroneau. “Because it would unleash ...

GDPR Has Companies Big and Small Racing to Comply

Henriette Tielemans is quoted by The Wall Street Journal in an article regarding the upcoming deadline for companies to comply with the General Data Protection Regulation. “Companies are struggling with the concrete deliverables—the record of processing activities, the transfer agreements, the notices, the website—because of the sheer volume,” says Tielemans. ...

Chemical firms rush to meet final REACH regulation deadline

Cándido García Molyneux is quoted in a Chemical and Engineering News article regarding the May 31 REACH regulation deadline. Many other companies won’t be done dealing with REACH on June 1 either, says García Molyneux. He anticipates ongoing disputes between REACH registrants over sharing the cost of developing chemical safety data.

Trump Directs Commerce to Open Section 232 Investigation of Auto Imports

On May 23, 2018, President Trump directed U.S. Secretary of Commerce Wilbur Ross to initiate an investigation of the U.S. automobile, SUV, light truck, van, and auto parts sectors to determine whether imports of those products threaten to impair U.S. national security. This investigation will be conducted under Section 232 of the Trade Expansion Act of 1962, ...

What Attys Need To Know About The Evolving CFIUS Bill

David Fagan is quoted in a Law360 article regarding potential changes to a draft bill that could alter the CFIUS process. According to Fagan, the first draft of the Foreign Investment Risk Review Modernization Act (FIRRMA) also ensnared outbound transfers of technology even in situations that do not involve an acquisition of a U.S. company, like what may happen ...

CFIUS Developments House and Senate Committees Hold Markup of CFIUS

On Tuesday, May 22, 2018, the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services each held a markup of the Foreign Investment Risk Review Modernization Act (“FIRRMA”), a bill introduced by Senator John Cornyn (R-TX) in the Senate and Congressman Robert Pittenger (R-NC) in the House to reform CFIUS. A number of ...

US, Global Law Firms Look to Ireland for 'Brexit Insurance Policy'

Michael Labson is quoted by The American Lawyer in an article regarding Covington's presence in Ireland. "We were focused on whether it’s a strategic fit with the firm’s overall strengths,” says Labson. “With Brexit, we saw the Irish office would be of growing importance. A lot of large pharmaceutical companies have significant operations in Ireland and large ...

CMS Finalizes Changes to the Regulations Governing the ACA

Last month, the Centers for Medicare & Medicaid Services (CMS) finalized the 2019 Notice of Benefit and Payment Parameters, which includes changes to the Affordable Care Act’s (ACA) implementing regulations. 83 Fed. Reg. 16,930 (April 17, 2018). In this advisory, we analyze the most significant of these regulatory changes, focusing on the key differences between ...

Time for a Break? Britain’s Big Four Auditors Come Under Threat

Elaine Whiteford is quoted in a Bloomberg article regarding the push for the Competition and Markets Authority to take a more aggressive role in overseeing the top accounting firms. There’s some momentum with the CMA,” says Whiteford. “They want to make a splash, they’re keen to get some big wins to justify themselves. The auditors are never going to be flavor ...

"Dont Let the Door Hit You on the Way Out": A Primer on Revolving Door Restrictions

The scenario is all too common: After months of searching for the right candidate and weeks negotiating duties and compensation, a company finally hires a new employee to a position that will entail work on certain government policy issues. The employee seems to be a perfect fit, but after a few days on the job, someone asks whether “revolving door” rules ...

FDA Extends the Compliance Date for Removal of Partially Hydrogenated Oils From Food

FDA announced that it has extended the June 18, 2018 compliance date for removal of industrially-produced partially hydrogenated oils (PHOs) from food. Simultaneously, FDA announced that it had denied approval a 2015 food additive petition (FAP) on limited uses of PHOs.

ISO and U.S. NIST Focus on Privacy by Design

Susan Cassidy is quoted in a Global Data Review article regarding the focus on privacy by design by the International Organization for Standardization and the U.S. National Institute of Standards and Technology. Cassidy says that the anecdotal evidence she has from speaking to her private sector clients is that they are increasingly considering NIST guidelines, ...

United States Re-Imposes Sanctions Against Iran: Impact on European Business

On May 8, 2018, the United States announced the decision to end its participation in the Joint Comprehensive Plan of Action (“JCPOA”) and re-impose sanctions against Iran that had been suspended as part of this 2015 nuclear agreement between the United States, Iran, Germany, France, the UK and China.

Music Modernization Act, Digital Rights Issues Take Center Stage At Music Biz 2018

Jacqueline Charlesworth participated in the Music Biz 2018 conference and is quoted in a Billboard article providing highlights from the event. According to Charlesworth, who spoke on a panel focusing on the Music Modernization Act, “The [Notice of Intent system] doesn’t work in the digital age."

Back to Drawing Board for CFTC Cryptocurrency Guidance?

Jason Grimes is quoted in a Bloomberg Law article regarding the CFTC’s approach to cryptocurrency regulation following a federal judge’s decision to dismiss an enforcement action against Monex. According to Grimes, “This requirement [which requires a dealer not to retain an interest in a virtual currency to gain the actual delivery exemption] would appear ...

Three Covington Partners Among Top 100 Women Lawyers in California

LOS ANGELES—Covington partners Carolyn Kubota, Robyn Polashuk, and Sonya Winner have been named to the Daily Journal’s 2018 “Top 100 Women Lawyers” list, recognizing the “top women lawyers in California.” Based in the firm’s Los Angeles office, Ms. Kubota is a member of the American College of Trial Lawyers and has served as lead counsel on high-profile ...

United States Ends Participation in Iran Nuclear Deal, Re-Imposes Sanctions Against Iran

On May 8, 2018, President Trump announced his decision to end U.S. participation in the Joint Comprehensive Plan of Action (“JCPOA”) and re-impose sanctions against Iran that had been suspended as part of this 2015 nuclear agreement between the United States, Iran, and certain other governments. This action will have far-reaching effects for both U.S. and ...

U.S.-China Trade Talks End Without Agreement as U.S. Finalizes Unilateral Measures

The Trump Administration’s senior economic and trade officials held talks with their Chinese counterparts in Beijing, May 3-4. The talks concluded with no agreement, and each side tabled expansive demands that appear well beyond what the other side would be able to accept.

BAE Is Doing F-16 Victory Flyby Despite South Korea Defense Costs

Alan Pemberton and Ryan Burnette are quoted in a Federal Contracts Report article regarding a Fourth Circuit ruling that shielded BAE from liability under the Foreign Military Sales program. According to Pemberton and Burnette, although the court didn't definitively address the issue of foreign enforcement, the ruling is favorable for contractors overall because ...

UK leader's position difficult if she agreed a deal close to EU customs union: Ex-lawmaker

Lord Francis Maude appeared on CNBC to discuss the UK's future trading relationship with the EU. According to Maude, “It remains the case that it is hugely in the interest of the UK and of the EU 27 for there to be a sensible, pragmatic deal that, with good will on both sides, means that Britain remains in a deep and special partnership with the EU.”

Covington Advises Elbit Systems in $120 Million Acquisition

WASHINGTON—Covington advised Elbit Systems Ltd. in its $120 million acquisition of the assets and operations of the privately owned U.S. company, Universal Avionics Systems. Elbit Systems is an international high technology company engaged in a wide range of defense, homeland security, and commercial programs throughout the world. Universal Avionics is a ...

Emboldened by Trump, banks push to throw off old rule constraints

Randy Benjenk is quoted in a Reuters article regarding the push by banks to revise rules they say are "outdated, costly, and hurt economic growth." According to Benjenk, consumer advocate groups may claim that changes to the Community Reinvestment Act rules could lead to discrimination of some groups of borrowers or create “banking deserts” where consumers do ...

Senators Are Worried About How Trump Is Picking His Cabinet Secretaries

Robert Kelner is quoted in a Buzzfeed article regarding Senators' concerns about the White House’s vetting process for cabinet secretaries. According to Kelner, the Trump Administration still does an ethical vet, which includes disclosing financial holdings and is required by law, but has not focused that much on a political vetting. “This Administration ...

BIA Head Attacks Rapporteur Reallocation, But Welcomes Further Clarity On Transition Period

Grant Castle is quoted by The Pink Sheet in an article regarding comments from head of the UK BioIndustry Association stating that authorities are jumping the gun by reallocating all UK centralized rapporteurships to other EU member states before it is clear whether there will be some form of continued regulatory relationship between the UK agency, the MHRA, and ...

Covington Hires Ex-Wilson Sonsini Tech Deals Pro

Suzanne Bell and Tom DeFilipps are quoted in a Law360 article regarding Bell's arrival to Covington's Technology Transactions practice. Bell says she is excited to join Covington and looks forward to helping it build its tech practice and advise clients on incorporating new technologies into their businesses. “The firm’s collaborative approach will allow me to ...

Eric Mogilnicki Quoted in Bloomberg Law Article

Eric Mogilnicki is quoted in a Bloomberg Law article regarding the CFPB leadership dispute between Mick Mulvaney and Leandra English. According to Mogilnicki, even if Trump's choice of Mulvaney to lead the CFPB is taken out by the D.C. Circuit, the president is going to get another shot to name both acting and permanent directors at the bureau. “It seems to me ...

BigLaw On Track For A Big Lobbying Year In 2018

John Veroneau is quoted in a Law360 article regarding first quarter LDA filings. "The Administration's determined efforts to address long-standing trade issues with China through tariffs and other means creates both risks and opportunities for many American businesses,” Veroneau says. “Recognizing that U.S.-China trade relations are likely to remain uncertain ...

Covington Advises BenevolentAI on £80m Funding and Acquisition

LONDON—Covington advised BenevolentAI on an £80 million equity investment by new and existing investors, including Woodford Investment Management, at a pre-money valuation of £1.4 billion. The firm also recently advised BenevolentAI on its acquisition of Proximagen Limited, a Cambridge, UK-based drug discovery and development company, for an undisclosed ...

BTI Names Smith, Sperling, and Topol "Client Service All-Stars"

WASHINGTON—The BTI Consulting Group has named Covington lawyers Andrew Smith, Jonathan Sperling, and Allan Topol to its 2018 “Client Service All-Stars” list, which recognizes “the leaders in superior client service.” Mr. Smith, based in Washington, advises clients on retail financial services, credit reporting, privacy, technology, and e-commerce issues. He ...

Quarles: Fed would recalibrate eSLR if Crapo bill passes

Randy Benjenk is quoted in a Risk Magazine article regarding Randal Quarles' indication that the Federal Reserve will need to revisit its plans to recalibrate the enhanced supplementary leverage ratio for the largest banks if changes to the eSLR also become law. According to Benjenk, the agencies’ attempt to front-run the Crapo bill now looks too little, too ...

Covington Nabs Veteran Tech Dealmaker From Wilson Sonsini

The Recorder highlights the arrival of Suzanne Bell to Covington's Technology Transactions practice. Bell says she was attracted to the firm's strong regulatory practice given the increased intersection between the technology sector and government regulations. Bell adds that she is looking forward to using her experience in technology transactions to assist ...

CQC report on online primary health services shows progress

Brian Kelly and Raj Gathani are quoted in a Digital Health Legal article regarding a report published by the UK’s Care Quality Commission on "The state of care in independent online primary health services." According to Kelly and Gathani, “The report illustrates some of the teething problems in the inspection system, particularly when applied to online ...

NAFTA Arbitration Substitutes May Spur Issues Of Their Own

Marney Cheek is quoted in a Law360 article regarding issues that could exist under USTR Lighthizer's proposed alternatives to investor-state arbitration in a renegotiated NAFTA. "I think the main problem with his proposed solutions is that they're all limited in scope, and so there's very serious enforcement gaps," says Cheek. Commenting on the fact that ...

PTO Director: 'Something Must Be Done' to Clarify Section 101

Scott Kamholz is quoted by The Recorder in an article regarding USPTO Director Andrei Iancu's ideas for reforming the patent system. “My sense is that [Iancu] is not focused on harmonizing outcomes at the PTAB and district court, but rather to give both the PTAB and district judges more basis to rely on each other’s claim constructions,” Kamholz says. “That will ...

Leaders call for free trade for Africa

Witney Schneidman is quoted in an African Law & Business article regarding a continental free trade agreement signed by over 40 African governments. According to Schneidman, “The signing of the [African Continental Free Trade Area (AfCFTA)] is a significant development and should be supported by all of the region's partners.” He notes, “AfCFTA culminates years ...

What will happen on May 26? We asked Helen Dixon

Henriette Tielemans participated in a session at the Global Privacy Summit and is quoted in an IAPP article regarding what happens once GDPR goes into effect. "For a lead regulator for the one-stop shop, you need a mean establishment. You lose a lot of the benefits of the GDPR if you're unable to come up with what your main establishment is," Tielemans said.

Covington Expands in EU With Opening Of Frankfurt Base

Timothy Hester and Thomas Heymann are quoted in a Law360 article regarding the opening of Covington's new Frankfurt office. According to Hester, “Covington will offer German companies a unique capability to help them navigate through their most complex and consequential business issues in their most important international markets." He adds, “Our new German team ...

China’s internet lenders fall foul of data privacy rules

Yan Luo is quoted in a Financial Times article regarding survey findings that suggest that more than half of Chinese internet finance lenders are failing to comply with data privacy regulations. According to Luo, “Investors should certainly expect more government scrutiny on their business model from a data protection perspective."

FDA Commissioner Gottlieb Launches FDA’s New Nutrition Strategy

Yesterday (March 29), FDA Commissioner Scott Gottlieb kicked off the agency’s Nutrition Innovation Strategy in his keynote address, “Reducing the Burden of Chronic Disease,” delivered at the National Food Policy forum. The Strategy is intended to promote public health through improved nutrition, encourage industry innovation to create more healthful products, ...

Irish Regulator To Eye Transparency In GDPR Enforcement

Henriette Tielemans spoke at an IAPP event and is quoted in a Law360 article regarding the Irish privacy authority's focus once GDPR takes effect. According to Tielemans, while “the GDPR has 150 articles, and businesses are worried about all 150 of them,” companies are most concerned about the regulators’ ability to issue massive fines of up to 4 percent of ...

FTC Signals Tougher Stance on Mobile Privacy Protection

Yaron Dori is quoted in an E-Commerce Times article regarding the FTC's recent report on mobile privacy protection. According to Dori, "The FTC is limited in its ability to bring enforcement actions against telecommunications carriers because of the 'common carrier' exemption in the FTC Act." A federal appeals court recently ruled that this exemption does not ...

Covington Opens Frankfurt Office

LONDON—Covington will open an office in Frankfurt, Germany on April 3 led by eight partners. Frankfurt will be the firm’s third European office and will work closely with the firm’s five offices in the United States, its three offices in Asia, and its offices in the Middle East and Africa. “Covington will offer German companies a unique capability to help them ...

Why tariff lobbying may trigger FARA

Politico highlights a recent Covington alert examining how lobbying on aluminum and steel tariffs may have FARA implications. "Companies that are engaging with Congress and the executive branch on trade issues may be surprised to find that their advocacy could have FARA implications," the alert reads. "FARA is a notoriously tricky statute, with broadly worded ...

Covington wades into Germany with Frankfurt launch

Thomas Heymann and Louise Nash are quoted by The Lawyer in an article highlighting the opening of Covington's Frankfurt office. According to Heymann, “We proudly look back on 12 years as an independent German law firm and we thank our clients for the trust they have placed in us and for the many years of great cooperation. We are convinced that adding ...

Covington launches in Frankfurt as Dentons takes chunk of Australia player

Timothy Hester and Thomas Heymann are quoted in a Legal Business article regarding the opening of Covington's new Frankfurt office. According to Hester, "Our new German team is of outstanding quality and will provide important synergies with the firm, including our London and Brussels offices and will allow us to serve the needs of our clients who have legal ...

Covington & Burling Absorbs German Firm for Frankfurt Launch

Thomas Heymann and Louise Nash are quoted by The National Law Journal in an article regarding the opening of Covington's new Frankfurt office. “Covington will be a fantastic platform to further develop our technology and transaction practices,” says Heymann. “This will be a great fit.” According to Nash, “There is a strong, untapped opportunity for Covington ...

Eric Holder, Unleashed

Eric Holder was featured by The AmLaw Litigation Daily in an article describing his many roles and responsibilities both at the firm and beyond. According to Timothy Hester, Holder is "involved in a lot of important issues of the day, but he’s also involved in very important issues for our client base." Hester adds, “He’s thrown himself into the life of our ...

FTC Recommends Greater Transparency, Better Recordkeeping and Further Streamlining of Mobile Security Practices

Yaron Dori is quoted by The Cybersecurity Law Report in an article regarding the FTC's report, “Mobile Security Updates: Understanding the Issues." “The FTC has long been interested in data security and the extent to which consumer data—especially personally identifiable or sensitive consumer data—is protected from unauthorized disclosure,” say Dori. Dori calls ...

Covington’s Henriette Tielemans Receives Prestigious Data Privacy Award

BRUSSELS—Henriette Tielemans, co-chair of Covington’s global Data Privacy and Cybersecurity practice, has today received the IAPP Privacy Vanguard Award, the industry's top honor, for her lifelong services to the data privacy community. The International Association of Privacy Professionals (IAPP) is the world’s largest and most comprehensive global information ...

Brexit Transition Deal Doesn't Remove Legal Risks For City

Bart Van Vooren is quoted in a Law360 article regarding the draft treaty signed by European Union leaders to move forward Brexit negotiations, including a 21-month transition deal. As a matter of international law, EU law will apply “in and to” the UK up to and during the transition period, says Van Vooren. But, he adds, “this is not the same as ‘equating’ the ...

GDPR drives global privacy compliance now, but still unclear whether it will become de facto global standard, experts say

Lindsey Tonsager recently spoke at the BCLT Privacy Law Forum in Silicon Valley is quoted in an mLex article discussing whether GDPR will automatically become a global privacy standard. Tonsager said that working with companies that depend on AI technology to become compliant with the GDPR “is incredibly, incredibly challenging." Commenting on modifications to ...

International Trade Commission Drops US Steel's Antitrust Claims Against Chinese Steelmakers

Derek Ludwin and James O'Connell are quoted by The American Lawyer in an article examining a decision by the ITC stating that United States Steel cannot bring antitrust claims against 40 Chinese steel manufacturers over alleged price-fixing. Ludwin, who represents Baosteel America with O'Connell and Sturgis Sobin, says that even though Section 337 is not often ...

China hits back at up to $60 billion in U.S. tariffs with only with $3 billion of its own

Timothy Stratford is quoted in a CNBC article regarding China's response to U.S. tariffs on Chinese imports. "They want to show that they have taken note of U.S. actions and are going to be strongly resisting, but they don't want to be seen as escalating things further," says Stratford. "The Chinese recognize that everyone has a lot to learn if the U.S. and ...

USTR Finds China’s IP Practices Cause at Least $50 Billion in Harm: Proposed Tariffs and Investment Restrictions Ratchet Up U.S.-China Trade Tensions

Earlier today, the administration announced its findings that China’s theft of U.S. technologies and intellectual property (“IP”) have caused at least $50 billion in harm to the U.S. economy per year.

China to Target Trump's Base in Tariff Response

Timothy Stratford is quoted by The Wall Street Journal in an article regarding plans by China to impose tariffs in response to President Trump's punitive measures. According to Stratford, the current trade environment could prompt U.S. companies to reconsider the long-term importance of the Chinese market. “Gradually we may feel compelled to diversify until ...

Adam Studner Named One of Washington's Top Lawyers Under 40

WASHINGTON—DCA Live has named Covington’s Adam Studner to its “2018 Rising Stars of Law 40 Under 40” list. Mr. Studner’s practice focuses on white collar criminal matters, internal corporate investigations, and compliance counseling. He regularly represents clients in Foreign Corrupt Practices Act and corruption-related internal investigations and risk ...

CFIUS Developments: House Committee on Foreign Affairs Considers CFIUS Reform and Related Export Control Regimes

We are writing to report on the latest Congressional hearings related to reform of the Committee on Foreign Investment in the United States (“CFIUS”) and potential efforts to enhance and reform the U.S. export control regime.

UK And EMA Could Work Together Informally After Brexit

Bart Van Vooren and Peter Bogaert are quoted by The Pink Sheet in an article regarding the future relationship between the UK and the European Medicines Agency following Brexit. According to Van Vooren, the EU "considers that cherry-picking the benefits of the internal market on a sector-by-sector basis, combined with a request to be able to influence the rules, ...

Next Up: Section 301 - Companies and Global Markets Should Prepare for the Risk of Rising U.S.-China Trade Tensions

Following the recent U.S. announcement of tariffs on steel and aluminum imports under Section 232 of the Trade Expansion Act of 1962, the United States is now poised to implement trade sanctions against China stemming from an investigation of that country’s intellectual property (“IP”) practices.

Oregon HB 4005: New Reporting Requirements for Drug Manufacturers, Health Insurers

On Tuesday, March 13, 2018, Oregon Governor Kate Brown signed into law House Bill 4005 (HB 4005), which imposes substantial new state reporting requirements on pharmaceutical manufacturers regarding drug pricing, including details on manufacturer-sponsored patient assistance programs.

House Weighs Export Controls, National Security At Hearing

Alan Larson recently spoke at a House Committee on Foreign Affairs hearing regarding export control regulations and foreign investment reviews that would protect national security and is quoted in a Law360 article. “It is important to manage the resources of CFIUS efficiently, so that it focuses especially intensely on transactions that are the most complex and ...

FCC Media Deregulation Should Tackle Kidvid, Biennial Ownership, Attorneys Tell FCBA

Ann Bobeck spoke at an FCBA event and is quoted in a Communications Daily article discussing views from broadcast lawyers who would like the FCC's monthly media deregulation effort to tackle kids' video rules, quarterly issues, and program lists and ownership reports. With content for kids available on nonbroadcast platforms and time-shifted viewing common, it's ...

EU Reactions to the U.S. Steel and Aluminum Tariffs

In our March 9 client alert we outlined the proclamations issued by President Trump announcing tariffs on imports of steel and aluminum in the United States, which will go into effect on March 23. The European Union—which is the second-largest foreign supplier of steel and aluminum to the United States, after Canada—has expressed concern about the imposition of ...

Trump Administration Proposes Rules to Expand Access to Short-term Health Plans

On October 12, 2017, President Trump issued an executive order, entitled “Promoting Healthcare Choice and Competition Across the United States”, that, among other things, instructed the Secretaries of Health and Human Services (HHS), Labor, and Treasury to “consider proposing regulations or revising guidance, consistent with law, to expand the availability of ...

China-Focused U.S. Treasury Department Official Joins Covington

WASHINGTON—Christopher Adams has joined Covington as a Senior Advisor in the Public Policy and Government Affairs and International Trade practices in Washington. Mr. Adams will focus on China policy and trade issues. Mr. Adams most recently served as the Senior Coordinator for China Affairs at the Treasury Department. He coordinated China policy issues across ...

Does the EU competition watchdog need a shorter lead?

Andrea Zulli is quoted by The Times in an article regarding action taken by UPS to sue the EU's antitrust watchdog for blocking its merger with TNT Express. According to Zulli, the European Commission is “highly competent” in its merger reviews. “However, it would be a welcome move if the ECJ confirmed the General Court’s judgment in the UPS case. It is key for ...

CIT denies Canadian solar companies’ plea to suspend safeguard measures

Shara Aranoff spoke at an event hosted by Georgetown Law and is quoted in an Inside U.S. Trade article regarding the U.S. Court of International Trade's decision to deny a request by three Canadian solar panel producers for a temporary restraining order that would have suspended safeguard measures the U.S. imposed on all countries in January. According to ...

It's omnibus week

Timothy Hester is quoted in a Politico article regarding Christopher Adams' recent arrival as a Senior Advisor in Covington's Public Policy and Government Affairs and International Trade practices. “Chris’ addition further strengthens the firm’s China practice and deepens our expertise and capability to help clients in one of the world’s largest and most ...

Disputing Proposed Tax Regs Is Growing, Panel Says

Starling Marshall spoke at an event hosted by the Federal Bar Association and is quoted in a Law360 article regarding the growing legal strategy to challenge proposed tax regulations. According to Marshall, lawyers can challenge tax regulations on several grounds. Courts have ruled that the IRS must follow the Administrative Procedures Act, giving notice and ...

President Trump Imposes Steel and Aluminum Tariffs, Announces Process for Seeking Exemptions and Exclusions

On March 8, 2018, President Trump issued two proclamations announcing tariffs on steel and aluminum imports to the United States. As foreshadowed on March 1, the tariff levels will be 25 percent on steel imports and 10 percent on aluminum imports. These tariffs will go into effect on March 23.

Dialogue with Yang Rui

Timothy Stratford appeared in CGTN's "Dialogue with Yang Rui" to discuss President Trump's announced tariffs on steel and aluminum imports. According to Stratford, "Usually what happens when you impose these sorts of measures is you're trying to protect one particular industry but often the overall costs to the economy are great."

Transition period unlikely to threaten City of London

Lord Francis Maude is quoted in a Global Risk Regulator article regarding the proposed transition period after the UK leaves the EU. "I’m not worried about the transition period if it is for a couple of years,” says Maude. “Typically, when new regulation is introduced, there is at least a two-year implementation period. It is possible some new regulation is ...

Trade wars: Trump’s national security argument to rock global trading system

John Veroneau is quoted in a Borderlex article regarding President Trump's planned tariffs on steel and aluminum imports. “The systemic concern is that at the WTO, there has been a practice of allowing countries to effectively self-define their own notions of national security and there has been an understandable deference to WTO members on this basis,” says ...

3rd Circ. Gives 'Hybrid' Med Devices New Liability Shield

John DeBoy is quoted in a Law360 article regarding a recent Third Circuit ruling that gives medical device makers a legal shield for products composed of parts with various levels of regulatory approval. "[The decision] marks a step forward in clarifying the law on the component question,” says DeBoy. “Some federal district courts have applied an analysis ...

Federal District Court Vacates Part of CMS’s ACA Risk Adjustment Methodology

Last week, in New Mexico Health Connections v. United States Department of Health and Human Services (HHS), No. 16-cv-0878 (D.N.M.), the U.S. District Court for the District of New Mexico granted summary judgment for plaintiff-New Mexico Health Connections (NMHC) in a case challenging the Centers for Medicare & Medicaid Services’ (CMS) methodology implementing ...

Covington Named Among Top Entertainment & Sports Firms by China Business Law Journal

BEIJING—China Business Law Journal has recognized Covington as one of the top international law firms in the Entertainment & Sports category. Covington’s Entertainment and Media practice in China has advised nearly every major Hollywood studio and many of the leading independents on their China activities and has been involved in some of the most significant ...

FDA Issues Guidance on Dietary Fiber and Added Sugars and Announces “Next Steps”

On March 1, FDA issued several guidance documents related to the nutrition facts label (NFL) final rule, including: the long-awaited final guidance on the scientific evaluation of petitions requesting approval of ingredients as dietary fiber; a draft guidance on how to declare added sugars on honey, maple syrup, and certain cranberry products; a final guidance ...

Covington Advises In Deal Uniting Two of the Largest U.S. Auto Service Providers

NEW YORK—Covington advised Mavis Tire Holdings LLC, and its family owners, and other owners, including investment funds managed by ONCAP, in its agreement to merge with Express Oil Change & Tire Engineers, a Golden Gate Capital portfolio company, creating one of the largest independent automotive service platforms in the United States. Mavis Discount Tire, based ...

The five-minute management idea: wearable tech

Daniel Cooper is quoted in a Chartered Management Institute article regarding wearable technology. Providing the legal perspective, Cooper says, "Any employer processing personal information is subject to a range of obligations–this includes making sure they’re very transparent about what they collect, ensuring they have a legal basis for processing that data. ...

Trump finally gets his tariffs — and much of the world recoils

John Veroneau is quoted by The Washington Post in an article regarding President Trump's plan to impose tariffs on imported steel and aluminum. According to Veroneau, “Applying tariffs to Canada, despite its being part of the U.S. defense industrial base since the 1940s, will strengthen WTO claims that this decision is not really about national security."

Panel Convening at LSU to Discuss State of U.S. Patent System

Matthew Shapanka is quoted in a Greater Baton Rouge Business Report article regarding the state of the U.S. patent system. “The patent system is the backbone of invention,” says Shapanka. “The Stronger Patent Act tries to bring back some of the fairness to the patent system.”

Experts Worry Controlled Substances Bills Could Stifle Research

Thomas Cosgrove spoke at the Energy & Commerce health subcommittee hearing to discuss bills that would amend the CSA with a goal to stem the opioid crisis and is quoted in an FDA Week article. According to Cosgrove, "Virtually all manufacturers of 'solid oral' drugs in the United States use tableting or encapsulating machines in some form," including ...

China unlikely to suffer the consequences from Trump tariffs

John Veroneau is quoted in a Financial Times article regarding President Trump's decision to impose new tariffs on imports of steel and aluminum. “This will either close the door on being able to self-define ‘national security’ or open the door on being able to block imports simply by waving the ‘national security’ flag," says Veroneau.

Companies, Nonprofits Put Brakes on Foreign Lobbying Bills

Robert Kelner is quoted in a CQ News article regarding the current status of foreign lobbying bills. According to Kelner, the bills take a “blunt” approach to foreign lobbying that could inadvertently sweep in even U.S.-based companies as foreign agents.

SEC Adopts New Guidance on Public Company Cybersecurity Disclosures and Insider Trading

On February 21, 2018, the U.S. Securities and Exchange Commission (the “Commission”) approved a statement and interpretive guidance that provides the Commission’s views on a public company’s disclosure obligations concerning cybersecurity risks and incidents (the “2018 Commission Guidance”).

Covington Successfully Represents Discovery Communications In DOJ Investigation Into Its Acquisition of Scripps Networks

WASHINGTON—Covington successfully represented Discovery Communications, Inc. in a U.S. Department of Justice investigation into Discovery’s acquisition of Scripps Networks Interactive. Discovery announced earlier today that the DOJ closed its investigation into the transaction. Discovery announced in July 2017 that it had reached a definitive agreement to ...

David Luttinger Joins Covington’s Insurance Practice

NEW YORK—David Luttinger has joined Covington as a partner in the firm’s Insurance Recovery practice in New York. Mr. Luttinger has more than 20 years of experience representing clients in the insurance coverage field, including extensive trial work in judicial and arbitral forums across the country. His experience in the coverage area includes disputes over ...

CFTC Collaborates With UK in First Non-US Fintech Partnership

Stephen Humenik is quoted by The National Law Journal in an article regarding the CFTC's collaboration with the UK Financial Conduct Authority to enhance innovation in the financial technology sector. According to Humenik, “The approach here is important because the derivatives markets are global in nature and these cross-border initiatives are very important to ...

US eyes global tariff of ‘at least’ 24% on steel imports

John Veroneau is quoted in a Financial Times article regarding U.S. Commerce Secretary Wilbur Ross' recommendation to impose a global tariff on imports of steel and aluminum. According to Veroneau, the “failure to categorically exclude Canada” and other allies “shows that this is not really about national security." He adds, “Section 232 is simply being used as ...

Gas-Tax Hike Finds Few Friends in Congress Despite Trump Support

Jack Schenendorf is quoted in a Bloomberg article regarding a proposal to raise gas tax. Increasing tax in an election year “will be quite difficult," says Schenendorf. “It’s quite necessary and Congress has known it’s necessary for a long, long time,” he adds. “This is a real opportunity with the president on board.”

ITC Says Delta's Bombardier Order Didn't Harm Boeing

Shara Aranoff is quoted in a Law360 article regarding an opinion issued by the ITC stating that Boeing was not harmed when Delta ordered Canadian plans from Bombardier. According to Aranoff, who represents Bombardier, “We are pleased with the ITC's decision, which gives Bombardier a resounding victory in this dispute."

Futures Regulator, Broker Settle Lax Cybersecurity Charges

Anne Termine is quoted in a Bloomberg Law article regarding the settlement reached with AMP Global Clearing LLC following charges from the CFTC stating that AMP's failure to diligently supervise a cybersecurity vendor resulted in a data breach. According to Termine, cybersecurity is “an area of increasing concern and scrutiny for the CFTC as it goes directly to ...

Do Regulators Need a Hand From Congress to Police Virtual Currency Market?

Stephen Humenik is quoted by The National Law Journal in an article regarding questions raised by the Senate committee hearing on virtual currency. According to Humenik, the CFTC will have hearings itself, including its upcoming meeting for the CFTC’s technology advisory committee. He adds that “the CFTC traditionally has also held roundtables trying to ...

Wade Ackerman and Aaron Lewis Named Among LA's Most Influential Diverse Lawyers

LOS ANGELES—The Los Angeles Business Journal recognized Wade Ackerman and Aaron Lewis in its second annual list of the most influential diverse lawyers in Los Angeles. The list recognizes 50 "stellar diverse lawyers in the LA region." In Mr. Ackerman’s profile, the Business Journal emphasized his work in the FDA regulatory space. The profile noted that “with a ...

Covington Earns Five “Practice Group of the Year” Awards

WASHINGTON—Law360 has named five Covington practice groups among its “2017 Practice Groups of the Year.” The practice groups recognized by Law360 are as follows: Government Contracts International Trade Product Liability Sports White Collar

Lawyers Expect FDA To Continue Regulating Cosmetics With Warning Letters In 2018

Inside Health Policy highlights a Covington alert in an article regarding FDA's approach to the regulation of cosmetics. "As we begin 2018, the cosmetic industry marketing products in the United States faces a range of legal and regulatory considerations -- from labeling and marketing claims to ingredient safety and environmental issues," the alert says.

Sports Group Of The Year: Covington & Burling

Covington was named a 2017 Sports Practice Group of the Year by Law360. According to Ben Block, one of the most rewarding aspects of the sports group is the opportunity to work with repeat clients. "But," he adds, "every year and every day is a new, different, and exciting challenge." Commenting on the Tax Court victory on behalf of the Boston Bruins in a ...

ECJ referred first case on damages directive

Elaine Whiteford is quoted in a Global Competition Review article regarding the anticipated European Court of Justice ruling that will determine whether the EU damages directive can be applied to a damages action in Portugal. According to Whiteford, the high court will likely respond to the questions by referring to principles of EU law and not the damages ...

Robyn Polashuk Named Among Multichannel News’ “Women to Watch”

LOS ANGELES—Multichannel News has named Covington partner Robyn Polashuk to its 2018 class of “Women to Watch.” Ms. Polashuk is the only outside counsel named to the list. “This year’s group of Women to Watch is pushing the boundaries in both personal and professional achievements,” said Mark Robichaux, Editorial Director of Multichannel News. The award ...

#MCNWW 2018: Women to Watch

Robyn Polashuk was named to Multichannel News' 2018 class of “Women to Watch.” Commenting on what she likes most about her job, Polashuk says, "I love the diversity of the clients and projects, and the interesting new issues I am asked to address nearly every day in our evolving industry." In her profile, Polashuk also stresses the importance of growing ...

An Unexpected Win for Covington in a Trade Case with Big Implications

The Litigation Daily highlights Covington's successful representation of Bombardier before the International Trade Commission (ITC). After finding that Bombardier's C-Series commercial jets are not threatening to U.S. producer Boeing, the ITC struck down a planned 300-percent tariff on the Canadian jetliners. "The unanimous decision in our favor was particularly ...

Covington Prevails for Bombardier in Significant ITC Victory

WASHINGTON—Covington won a significant trade case today before the U.S. International Trade Commission (ITC) on behalf of its client Bombardier. In a 4-0 ruling, the ITC rejected Boeing Co.’s complaint that it was threatened with material injury by imports of Bombardier’s new C Series aircraft. The decision means that the U.S. Department of Commerce can no ...

Bombardier Spared Tariffs After ITC Finds Boeing Not Harmed

Law360 highlights Covington's successful representation of Bombardier before the International Trade Commission (ITC). The ITC recently ruled that Bombardier's C-Series commercial jets are not threatening to U.S. producer Boeing, and therefore, should not be subject to hefty tariffs.

FCA's anti-competitive scrutiny is here to stay

Louise Freeman is quoted in a Behavox article regarding the UK Financial Conduct Authority's (FCA) statement of objections to four asset management firms, signifying the first time the FCA has used its competition enforcement powers. According to Freeman, firms should expect further scrutiny, and to prepare accordingly. “They started with a very wide asset ...

China’s toolbox to turn the retaliatory screws in trade tensions with the United States

Timothy Stratford is quoted in a South China Morning Post article regarding China's retaliatory options that might be considered if a trade war breaks out with the U.S. According to Stratford, there are a number of things that foreign companies could be worried about in terms of retaliatory action from China. “Some foreign companies may have a more difficult ...

Gov't Contracts Group Of The Year: Covington & Burling

Covington was named a 2017 Government Contracts Practice Group of the Year by Law360. According to Fred Levy, the group is unique due to the breadth and depth of experience that its attorneys have, and its seamless interaction with other top-tier practice groups at the firm. “I think we’re a very cohesive practice group,” he says. “It really incentivizes our ...

Communication breakdown risks escalating Sino-US trade row, say former officials

Timothy Stratford is quoted in a South China Morning Post article regarding escalating trade tensions between the U.S. and China, and how the World Economic Forum in Davos might be a place for officials to discuss trade issues. "As far as we’ve been able to tell, there has been a strong debate going on at the most senior level in Washington on how to deal with ...

Covington Represents Bacardi in Acquisition of Patrón Tequila

WASHINGTON—Covington advised Bacardi Limited in its definitive agreement to acquire Patrón Spirits International AG and its PATRÓN® brand, the world’s top-selling ultra-premium tequila, from John Paul DeJoria, a founder of Patrón. The transaction reflects an enterprise value for Patrón of $5.1 billion. The transaction follows the successful relationship the ...

Feds to Ramp Up Online Purchasing Presence

Susan Cassidy is quoted in an E-Commerce Times article regarding efforts to create an online marketplace for government purchasers. "One model that was discussed would require a portal provider to contract with GSA to provide an online interface. Under this approach, suppliers would then sign up to use the portal, potentially via a contract with the portal ...

DoH expands CQC healthcare quality rating powers

Raj Gathani is quoted in a Digital Health Legal article regarding the UK Department of Health's decision to expand the Care Quality Commission's (CQC) quality rating powers. “In a sense, the announcement simply corrects an imbalance between NHS and private providers,” says Gathani. “The announcement comes after a year in which online doctor services have come ...

International Trade Group of the Year: Covington & Burling

Covington was named a 2017 International Trade Group of the Year by Law360. According to Peter Lichtenbaum, the Bombardier trade remedies case, which "presents very significant economic, legal, and political issues," was one of the group's biggest from the past year. "The company remains confident that the ITC will conclude that Boeing will not be harmed by the ...

Beware of Employment Law Issues Amidst a Potential Government Shutdown

As Congress scrambles in a last ditch attempt to pass a funding proposal, government contractors face the various employment law implications of furloughs caused by the potential government shutdown. During the last government shutdown in 2013, many federal agencies furloughed employees and instructed contractors to implement similar reductions in contract ...

Leading CFIUS Risk Analyst Joins Covington

WASHINGTON—Brian Williams has joined Covington as a Senior Advisor in the firm’s Cross-Border Investment and National Security practice. Mr. Williams draws on over 20 years of public and private sector experience advising on issues at the intersection of national security, technology, and law. A non-lawyer, he led multi-agency analyst teams that authored the ...

House Judiciary Advances Foreign Lobby Overhaul

Robert Kelner is quoted in a Roll Call article regarding steps taken by House Republicans to overhaul the nation’s foreign lobbying disclosure regulations. “DOJ’s career staff have long wanted the authority to investigate FARA violations more aggressively, and the Democratic-aligned government reform community has generally agreed,” says Kelner. “So it was a bit ...

English Jurisdiction As Effective As Ever: A Response to the European Commission's “Notice to Stakeholders”

This article “fact-checks” the “Notice to Stakeholders” published by the European Commission on November 21, 2017 (the “Notice”). The Notice has received widespread press attention, due to its stark warnings about the risks of choosing to litigate in the English Courts post-Brexit. We consider whether the Notice is factually accurate (yes), whether it gives an ...

Covington Named to GCR's Global Elite

WASHINGTON—Global Competition Review has once again named Covington to its 2018 "Global Elite," a list of the top 25 antitrust practices worldwide, as well as including the firm in the list of top ten practices globally for both Mergers and Antitrust Litigation. Each year, GCR undertakes extensive analysis of antitrust and competition law groups in 50 ...

NDRC Releases Final Outbound Investment Regulations

On December 26, 2017, China’s National Development and Reform Commission (“NDRC”) released the final Administrative Measures for Enterprise Outbound Investment (the “Final ODI Rules”), which will go into effect as of March 1, 2018 and govern NDRC's regime for reviewing Chinese outbound investment projects. The Final ODI Rules contain limited changes relative to ...

The Foreign Agents Registration Act (“FARA”): A Guide for the Perplexed

Eighty years ago, Congress enacted the Foreign Agents Registration Act (“FARA”), requiring “foreign agents” to register with the Attorney General. As amended over the years, it applies broadly to anyone who acts on behalf of a “foreign principal” to, among other things, influence U.S. policy or public opinion. Until recently, it was a backwater of American ...

FSIS Releases Proposed Egg Products HACCP Rule

On Tuesday, January 9, 2018, USDA’s Food Safety and Inspection Service (FSIS) released a proposed rule that would require egg products plants to develop and implement hazard analysis and critical control point (HACCP) plans, Sanitation Standard Operating Procedures (SOPs), and include safe-handling instructions on the labels of certain egg products.

Competition Law Enforcement Trends in the U.S., Europe and China: Looking Ahead to 2018

2017 was another year of active enforcement globally—including in the U.S., despite the start of a new Presidential Administration touting an aggressive deregulatory agenda. Transactions in consolidated industries drew enforcement fire in both Europe and the United States (Dow/DuPont, ChemChina/Syngenta, Bayer/Monsanto, AT&T/TimeWarner). And, in March, the UK ...

Republicans, Democrats Far Apart on Deal as Shutdown Clock Ticks

Muftiah McCartin is quoted in a Bloomberg article regarding the government spending bill that could lead to a government shut down if Republicans and Democrats in Congress do not reach an agreement. According to McCartin, if both parties can agree this week on raising budget limits, Congress may be able to pass a short-term spending bill, known as a continuing ...

FTC Studies Effectiveness of Disclosures in Contexts of Search Engines and Native Ads

In late December, the Federal Trade Commission (“FTC”) released a Staff Report titled Blurred Lines: An Exploration of Consumers’ Advertising Recognition in the Contexts of Search Engines and Native Advertising. This Report is the most recent sign of the FTC’s continuing interest in native advertising and effective online disclosures. This study builds upon the ...

Russian hacker claims there's proof of his DNC breach

Susan Cassidy is quoted in Politico Pro's "Morning Cybersecurity" newsletter regarding the December 31st deadline for defense contractors to meet minimum cybersecurity requirements for the systems they operate for the Pentagon. According to Cassidy, the cybersecurity rule presents “a problem for DoD because there’s a lot of subjectivity in what is ‘adequate ...

5 Cybersecurity And Privacy Policies To Watch In 2018

Kristof Van Quathem and Yan Luo are quoted in a Law360 article regarding cybersecurity and privacy policies to watch in 2018. Commenting on the General Data Protection Regulation (GDPR), Van Quathem says that although one of the legislation's aims is to harmonize a splintered set of national data privacy laws within Europe, it may end up causing companies aiming ...

Cybersecurity & Privacy Predictions For 2018

Kurt Wimmer and John Buchanan are quoted in a Law360 article providing cybersecurity and privacy predictions for 2018. Wimmer says, once Europe's General Data Protection Regulation (GDPR) is in force, non-EU countries around the world will begin looking at privacy regimes based on the 1995 Directive [which the GDPR will replace] and think about whether they ...

Cybersecurity & Privacy Cases To Watch In 2018

Kurt Wimmer is quoted in a Law360 article providing a roundup of cybersecurity and privacy cases to watch in 2018. Commenting on LabMD Inc. v. Federal Trade Commission, Wimmer says, "Both the courts and the FTC are grappling with the meaning of 'harm,' and I believe 2018 will be the year when these efforts will converge, with a more sophisticated understanding ...

Lord Maude: Expect Theresa May to still be PM in 2019

Lord Francis Maude appeared on CNBC to discuss the backlash faced by Theresa May as UK Prime Minister and what lies ahead. According to Maude, "It is very easy in the moment to see things as more stark than they are. And if Theresa May gets through this period, which I would expect her to, then I think we will look back and see this as a bit of turbulence. But ...

Financial Times Names Covington to 2017 North America Innovators List

SILICON VALLEY—The Financial Times has recognized Covington among the most innovative firms in 2017 in the category of "Enabling Business Growth," for advising "Tencent in its acquisition of a $8.6bn majority stake in Supercell, the Finnish gaming company, while maintaining Supercell’s creative culture and retaining its employees by introducing incentive ...

Asia Trade In The New Global Order

Timothy Stratford participated in Asia House's inaugural Hong Kong event and is quoted in a Thailand Business News article providing highlights. Speaking on the panel discussing "Asia and the New Global Era," Stratford, said he “could not preclude a [U.S.] trade war with China” adding that member economies should resolve their differences through the World Trade ...

The battle to save private activity bonds may not be over

Jack Schenendorf is quoted by The Bond Buyer in an article regarding the Trump Administration's long-awaited infrastructure plan. According to Schenendorf, "I think the tax bill was a missed opportunity." Commenting on public-private partnerships (P3s), Schenendorf says, "I think P3s will be an important part of the overall proposal.” He adds that he thinks ...

Four Covington Partners Named Law360 MVPs

WASHINGTON—Law360 has named four Covington partners as MVPs in their respective practice areas. The awards single out lawyers from across numerous practice areas based on their success in high-stakes litigation, complex global matters, and record-breaking deals. The Covington lawyers recognized as Law360 MVPs are: Ray Biagini, Government Contracts. Mr. ...

FDA Outlines Updated Approach to Regulating Digital Health Technologies

On December 8, FDA addressed the agency’s evolving approach to digital health by issuing two new draft guidance documents: “Clinical and Patient Decision Support Software” (the “CDS Draft Guidance”) and “Changes to Existing Medical Software Policies Resulting From Section 3060 of the 21st Century Cures Act” (the “Software Policies Draft Guidance”). These draft ...

Global Mobility Update

In 2012 the G20 initiated the Base Erosion and Profit-Shifting (BEPS) project, headed by the Organisation for Economic Co-operation and Development (OECD). This aimed to tackle and reduce tax planning strategies which artificially shifted corporate profits to low- or no-tax jurisdictions.

Brexit Summit

Lord Francis Maude appeared on Sky News to discuss phase two of the Brexit negotiation process. "Well it's good news it's progressing," says Maude. He added, however, that it is not going to be easy as there is a lot to discuss, and it will take time. Maude also said that he believes the process can be more cordial now. "I think…in the early days, there was a ...

Britain Gets OK To Start Negotiating Exit With European Union

Jean De Ruyt appeared on NPR following the decision by European leaders to allow Britain to begin negotiating its future trading relationship with the European Union. According to De Ruyt, if European negotiators push too hard, they risk toppling Prime Minister May, who's weak at home. "Honestly, they want to reinforce her. She leads encouragement. Who else ...

Section 301 seen as wrong way to handle trade issue

John Veroneau is quoted in a China Daily article regarding the recently launched investigation into China's policy and practice of intellectual property under Section 301 of the U.S. Trade Act of 1974. Commenting on the potential negative impact of the action, Veroneau says that it will depend on how the U.S. threatens unilateral actions, in a full-blown way or ...

In this virtual world of data national borders still matter

Eric Holder participated in Microsoft's #TechTalk series to discuss "Law Enforcement & Data." Topics included the role of national borders when it comes to accessing electronic evidence, the significance of e-evidence in investigations, the protection of fundamental rights online, the need for international police cooperation, and the unnecessary barriers to ...

FDA's First 90-Day Letters To Deliver Inspection Outcomes After Jan. 1

Tom Cosgrove spoke at the Food and Drug Law Institute's enforcement conference and is quoted by The Pink Sheet in an article regarding FDA's anticipated release of the first 90-day letters. According to Cosgrove, "You will be getting these classifications in 90 days and final means final. What does that mean for people working on these classifications? That ...

The Brexit battle over food

Brian Kelly spoke at November's Food Matters Live event in London and is quoted in a Better Wholesaling article examining challenges facing the food industry in the wake of Brexit. Commenting on the threat of new tariffs, Kelly said, "It is very complicated and businesses will need to upskill on this.”

CMS Issues Wide-Ranging Proposed Rule on Part D and Medicare Advantage

On November 28, 2017, the Centers for Medicare & Medicaid Services (CMS) published in the Federal Register a proposed rule touching on a range of issues under the Prescription Drug Benefit (Part D) and Medicare Advantage (MA) programs, and implementing certain provisions of the Comprehensive Addiction and Recovery Act (CARA) and of the 21st Century Cures Act. 82 ...

Five Takeaways from the 2017 UN Forum on Business and Human Rights

Last week, the United Nations hosted the sixth annual Forum on Business and Human Rights in Geneva. The three-day event provided attendees with informative panels and important updates on the state of the field. Lawyers from Covington’s business and human rights initiative were in attendance and suggest five important takeaways for business.

Covington Lures Back FDA Drug Quality Leader

Tom Cosgrove is quoted in a Law360 article regarding his return to Covington's Food, Drug and Device Practice Group. “I think companies are looking hard at their supply chain risks and wondering how much they can trust other companies that make up the links in that chain,” Cosgrove says. “These challenges, brought about by increased globalization, will only ...

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