North America

This website uses cookies. For more information please contact us or consult our privacy policy.

Your binder contains too many pages, the maximum is 40.

We are unable to add this page to your binder, please try again later.

This page has been added to your binder.

PDF Binder
- Create PDF
- Add to Binder
Word Document Binder

Covington has a long history of developing comprehensive business and legal solutions for our clients’ most challenging business opportunities and disputes across North America. Recognized by the Financial Times as one of the top 40 most innovative law firms in North America, our teams throughout the firm help clients navigate complex international issues at the intersection of law and policy in the United States, Canada, and Mexico. Clients benefit from the combined experience of our more than 120 former government officials, diplomats and regulators who lend their expertise to our teams of litigators, regulatory lawyers and deal makers.

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.

Tax Court Litigation Resulting in Government Concession of over $250 million in Adjustments Plus an Additional Refund of $15 million

Prior to trial, obtained a concession from the Government with respect to adjustments of over $250 million relating to a worthless partnership interest deduction, and identified computational errors resulting in additional refunds of $15 million. JELD-WEN v. Commissioner, Tax Court Docket No. 003055-14.

$1 Billion in Real Estate Formations

Representation of Hampshire, a privately-owned real estate investment manager, and its affiliates in connection with the formation of multiple related funds and private REITs for U.S. and foreign institutional investors with more than $1 billion of aggregate committed capital focused on investments in U.S. commercial real estate.

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.

Tax Court Victory Following Trial in Matter Involving over $350 million of Adjustments

Obtained a complete taxpayer victory following a trial in the Tax Court involving adjustments of over $350 million relating to homebuilder’s use of the completed contract method of accounting. The case represented, by dollar value, the largest taxpayer victory in the Tax Court in 2014. Currently represent taxpayer before the Ninth Circuit Court of Appeals in connection with the Government’s appeal of the case. Shea Homes v. Commissioner, 142 T.C. No. 3 (2014).

Tax Counseling Regarding Numerous Franchise Sales

Deal structuring and related counseling regarding numerous franchise sales, including Chris Hansen in his efforts to acquire the Sacramento Kings or another NBA franchise with a view towards a relocation to Seattle; Chris Cohan’s sale of the Golden State Warriors; the NHL’s purchase and sale of the Phoenix Coyotes; Major League Baseball’s relocation and sale of the Montreal Expos; Fenway Sports Group’s purchase of a 50 percent interest in Roush Racing; the USTA’s acquisition of the Western & Southern Financial Group Masters tournament; and John Henry’s sale of the Florida Marlins and purchase (as lead investor) of the Boston Red Sox.

BAIC and WFUM Solvent Schemes

Represented clients, including Exxon Mobil Corporation, Goodrich, Goodyear, and Textron in opposing efforts by solvent London Market companies to use so-called “solvent schemes of arrangement” to curtail their coverage obligations to policyholders facing long-tail liabilities, such as asbestos, silica, or environmental claims.

Charlesbank in Acquisition of OTC Consumer Products Brands

Represented Charlesbank Capital Partners in the formation of Blacksmith Brands and its acquisition of five OTC consumer products brands, Efferdent, Effergrip, Luden’s, Nasalcrom and PediaCare, from McNEIL-PPC and subsequent $190 million sale of Blacksmith Brands to Prestige Brands Holdings, Inc.

Changes to NYSE Rules for Banks and Broker-Dealers

Represented a leading global provider of investor communications and technology solutions in connection with its pursuit of specific changes to NYSE rules regarding the distribution of proxy materials on behalf of banks and brokers. Covington interacted with the SEC and NYSE staff and successfully persuaded the bodies to include the provisions advocated by our client.

Case of first impression arising from an FMS contract

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

Agricultural manufacturer global relationship building

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

Advocating On Behalf of Clients Before Congress

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

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

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

Advising clients regarding anti-human trafficking compliance

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

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

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

Advised client of risk mitigation techniques during contract formation

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

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

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

Advice on the monitoring of employee communications

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

Assisting with review and overhaul of FSS pricing model

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

Assisting clients with VA Schedule contracts involving medical equipment and pharmaceuticals

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

Arms Export Control Act - third party beneficiary claims

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

Antidumping and countervailing duty proceeding for freight railroad company

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

Charlesbank Capital Partners Investments

Represented Charlesbank in its investment in Universal Technical Institute, in its acquisition and sale of Aurora Organic Dairy, in its acquisition and sale of The GSI Group, in acquisitions of Zenith Products, The Horn Companies, Cedar Creek Lumber, and Peacock Engineering Company, in its sale of American Tire Distributors, and in its formation of Blacksmith Brands, which purchased the Efferdent, Luden's and PediaCare brands from Johnson & Johnson, and subsequent sale of Blacksmith Brands to Prestige Brands.

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 Large Public Companies and Investors on Corporate Governance Matters

Represented boards in the pharmaceuticals, consumer goods, health insurance, home equipment, advertising, motor vehicles, network communications, and technology industries as well as hedge funds, public pension funds, and other investors with respect to corporate governance developments regarding board and committee composition, crisis management, cybersecurity, internal controls, shareholder proposals, proxy access, political spending, and other sensitive disclosures and similar matters.

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. Income Tax Treaty

Advised concerning the application of a U.S. income tax treaty to reduce to 5% the withholding tax rate on planned dividends paid to an intermediate holding company of a publicly traded group. To satisfy the treaty’s limitation on benefits provision, Covington supervised a beneficial ownership study which established that at least 50 percent of the global parent’s public shareholders were qualified residents of the U.S. or of the treaty country, and negotiated a Pre-Filing Agreement with the IRS that approved the study’s methodology.

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.

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.

Transfer Pricing Resolution for More Than $3.3 Billion in Transactions

Served as lead U.S. counsel on negotiations for bilateral advance pricing agreement that proposed a transfer pricing methodology that was new to the industry and the two treaty countries; successfully assisted the two treaty countries in reaching agreement and voiding binding arbitration in dispute spanning 14 tax years and involving intercompany transactions of more than $3.3 billion.

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.

Representation of Knappco in PTAB Proceedings

Representing Knappco, a subsidiary of Dover Corporation, in an IPR against CHS Inc. regarding systems and methods to reduce the potential for unintentional mixing of liquid types in tank systems. In June 2016, the PTAB instituted proceedings on all claims on all grounds. The patent owner failed to file any responsive papers, and the PTAB entered adverse judgment against CHS cancelling all challenged claims.

Fifteen IPR Proceedings for Aristocrat Technologies Inc.

Representation of Aristocrat Technologies Inc. in patent infringement litigation brought by IGT on an array of patents directed to gaming devices. On behalf of Aristocrat, Covington prepared and filed IPR petitions on eleven patents, and Covington represented Aristocrat as the patent owner in four IPR proceedings initiated by IGT. The parties reached a favorable settlement ahead of the litigation, and have terminated all of the IPR proceedings.

Victory for BMS and Eli Lilly in Copyright Infringement Matter

Secured a sweeping victory for our clients BMS and Eli Lilly. In 2006, BMS/Lilly hired Consumer Health Information Corporation (“CHIC”) to develop patient education materials for their injectable diabetes drug BYETTA. The contract expressly designated these as works made for hire and assigned CHIC’s interest in these materials to BMS/Lilly. BMS/Lilly later terminated CHIC, and CHIC sued for copyright infringement in D.C. district court in 2008, but voluntarily dismissed the action in 2009. Last July, CHIC sued again in the Southern District of Indiana. In an attempt to avoid the contractual ownership provisions, CHIC alleged “economic duress” and sought rescission. CHIC's infringement claim sought to recover our clients' profits, allegedly “in excess of several billions of dollars.” Judge Pratt dismissed the complaint with prejudice, ruling that two separate statutes of limitation barred CHIC’s infringement claim. First, the Court held that the claim was barred by the Copyright Act’s three-year statute of limitations. The Court accepted Covington’s argument that, because the case turned on ownership, not use, the continuing violation doctrine did not apply. The Court pointedly noted the inequity of allowing CHIC to wait while BMS/Lilly developed a market only to “pounce on the prize” years later. Separately, the Court held that the ownership provisions expressly assigned ownership to BMS/Lilly, and that CHIC’s attempted rescission was barred by California’s four-year statute of limitations. The Court also rejected CHIC’s outrageous attempt to invoke equitable tolling by arguing that its own (former) attorneys had dismissed its 2008 action without its consent and subsequently concealed the dismissal from CHIC.

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.

Persuaded the IRS Examination Division to Close Out Transfer Pricing Audit With No Adjustment

Persuaded the IRS Examination Division to close out with no transfer pricing adjustment an audit involving a novel transfer pricing methodology and intercompany transactions in excess of $1.5 billion and to skip auditing the company for the next two years. The issues under audit were considered by a senior team of three government economists and nearly a dozen agents.

Persuaded IRS Appeals to Reverse Proposed Adjustments of More Than $250 million

On behalf of a national healthcare company, persuaded IRS Appeals Division to reverse, in their entirety, over $275 million of proposed adjustments related to the company’s income accruals. Following resolution, IRS Examination Division agreed to no longer raise the issue and to skip auditing the taxpayer for at least a year.

Pepco Holdings, Inc. in its $1.7 billion sale

Represented Pepco Holdings, Inc. in its sale to Calpine Corporation of its Conectiv Energy segment for approximately $1.7 billion. This transaction included the sale of 19 power generation plants in five states. In the approximately 10 weeks between contract and closing, we addressed and resolved over 200 significant title defects that required everything from bringing a quiet title action to negotiating multiple third-party easements and options, to obtaining mortgage indenture releases. Construction activities were ongoing at most of the plants, including Conectiv’s new 565MW plant in Delta, Pa., which was not yet operational. This required resolution of challenging transfer issues including mechanics lien title coverage under the varying lien laws of multiple jurisdictions.

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.

Yahoo! in Trademark Infringement Suit in U.S. District Court for the Central District of California

Representation of Yahoo! in a trademark infringement suit in the United States District Court for the Central District of California in which Yahoo! was accused of infringing the mark “Street Buzz” by using the term on its website in connection with web-based video segments.

Samsung ITC Section 337 Investigations

Representation of Samsung in the ITC Section 337 Investigations: Certain Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated Software, USITC Inv. No. 337- TA-882 (Respondent); Electronic Devices, Including Handheld Wireless Communication Devices, USITC Inv. No. 337-TA-673 (Respondent); and Mobile Telephones and Wireless Communication Devices Featuring Digital Cameras, and Components, USITC Inv. No. 337-TA-663 (Respondent).

Numerous amicus briefs on behalf of The ERISA Industry Committee

Filed amicus briefs on behalf of The ERISA Industry Committee in a variety of other groundbreaking cases, including Black & Decker v. Nord, 538 U.S. 822 (2003); Lockheed Corp. v. Spink, 517 U.S. 882 (1996); Patterson v. Shumate, 504 U.S. 753 (1992); Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009); Langbecker v. Electronic Data Sys. Corp., 476 F.3d 299 (5th Cir. 2007); and Montesano v. Xerox Corp., 256 F. 3d 86 (2d Cir. 2001).

Restructuring of UK Operations

Advised Fortune 50 U.S. multinational on restructuring its UK operations, including multiple foreign to foreign incorporations and transfers involving billion-dollar companies. Advised on numerous aspects of U.S. income tax law, including the impact of cross chain stock sales and distributions on creditable foreign taxes, earnings and profits and previously taxed income.

Restructuring of Asian Operations

Represented U.S. multinational corporation in complete restructuring of a significant portion of its operations in Asia. The restructuring included modifying the company’s holding company structure, replacement of the multi-billion dollar internal capital funding structure, preservation of U.S. and foreign tax benefits for a multi-billion dollar operating loss from one segment of the business operations. Covington acted as U.S. tax counsel and the advice addressed foreign tax credit planning and subpart F concerns.

Securities disclosures

With our colleagues in Covington’s securities practice, we have helped a number of companies disclose their executive compensation arrangements to investors. We have helped companies prepare their “Compensation Discussion & Analysis” disclosures and other filings, and we have counseled them when responding to follow-up requests from SEC staff.

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.

A-DATA Technology Co., Ltd, A-DATA Technology (USA) Co. Ltd., and International Products Sourcing Group, Inc. ITC Section 337 Investigation

Representation of A-DATA Technology Co., Ltd, A-DATA Technology (USA) Co. Ltd., and International Products Sourcing Group, Inc. in the ITC Section 337 Investigation: Semiconductor Chips with Minimized Chip Package Size and Products Containing Same (III), USITC Inv. No. 337-TA-630 (Respondents).

$52 Million Jury Verdict for Caliper Life Sciences in Trade Secret Misappropriation

Representation of Caliper Life Sciences in which we secured a $52 million jury verdict of trade secret misappropriation in California state court related to microfluidics technology. Two related patent infringement cases settled shortly thereafter on terms favorable to our client.

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.

Represented Weyerhaeuser Company on $2.65 billion acquisition and integration

Represented Weyerhaeuser Company on the $2.65 billion acquisition and subsequent integration of an LLC that held a controlling interest in another timber REIT, including multiple associated stock and debt issuances totaling over $2 billion by Weyerhaeuser and subsequent integration of operations. Tax advice included structuring, negotiating and drafting agreements, and disclosure. U.S. tax issues included REIT qualification, tax basis step-up, and tax consequences for non-U.S. shareholders of the target.

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.

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 Citigroup in Multiple Divestments in Mexico and Central America

Represented Citigroup in connection with the disposition of its 16% ownership stake in Grupo Aeroméxico SAB and in the sale of its controlling interest in AFP Confía, a pension management company in El Salvador, to Inversiones Atlántida, S.A., a financial holding company in Honduras. We also advised Citigroup and its Mexican affiliate, Grupo Financiero Banamex, in the sale to an affiliate of EVO Payments International of Banamex’s merchant acquiring business. All three transactions were completed in 2015.

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.

Advised on the Restructuring of a Foreign Currency Hedging Program

Provided tax and commercial advice on the restructuring of a foreign currency hedging program to optimize the ability of client to utilize economic losses efficiently. Provide follow-on advice to prepare for potential audit and transactions to maximize regulatory benefit of deferred tax assets.

Advised a number of large employers on fiduciary governance for their benefit plans

We have helped a number of employers restructure the committees that oversee their benefit plans, to streamline process, ensure compliance, and reduce risk. In addition to governance generally, we have helped plan fiduciaries manage company stock funds in their 401(k) plans, manage fees, and improve communications with plan participants and regulators.

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.

Internal investigation for a major U.S. financial institution

A cross-office team conducting an internal investigation for a major U.S. financial institution of allegations that the bank assisted Argentine nationals evade taxes and launder money. We are also coordinating the bank's global defense strategy, which includes leading strategy meetings with local Argentine defense counsel, and interfacing with key U.S. officials in the U.S. and in Argentina.

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.

Advised one of the Largest Mutual Fund Families in the U.S.

Advised one of the largest mutual fund families in the U.S. on financial products issues affecting their funds and investors in their funds. In the past year we have advised on numerous specific products in which the funds have invested and on structuring issues related to a new type of actively managed exchange-traded fund.

Advised on groundbreaking “pension derisking” transactions involving billions of dollars, including the following:

Represented 21st Century Fox on a spinoff and termination of its pension plan, including the accompanying group annuity purchase.
Represented Verizon Communications on its pension plan’s $7.5 billion annuity purchase (one of the largest pension annuitization transactions in U.S. history), and successfully defended Verizon against an attempt by retirees to block the transaction in court.
Represented Fiduciary Counselors on two pension derisking transactions, each involving a transfer of over $500 million in liabilities to insurance companies.

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.

In re K-Dur Antitrust Litigation

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

Former CEO of IndyMac Bancorp in Litigation

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

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

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

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.

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

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

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

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

Multiple Clients on Legislative and Regulatory Policy and Litigation Issues

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

Microsoft before FCC on Issues Concerning Media Center and DRM Products

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

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

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

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

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

Transfer of major construction dispute from state to federal court

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

TINA dispute

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

Support of derivative sovereign immunity defense through Supreme Court amicus brief

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

Guidance to Governments on Telecommunications Matters

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

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.

NBA Expanded Partnerships with Turner Broadcasting and The Walt Disney Company

Represented the NBA in expanding its partnerships with Turner Broadcasting System, Inc. and The Walt Disney Company through new, nine-year agreements under which ABC, TNT, and ESPN will televise NBA games beginning with the 2016-17 season and running through the 2024-25 season.

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.

Merck ITC and District Court Litigation

Representation of Merck & Co. before the ITC and in the Eastern District of Virginia in cases involving Merck’s blockbuster NuvaRing® contraceptive product. After the first day of the evidentiary hearing, the complainant dismissed their ITC complaint and subsequently dismissed their district court complaint as well. Certain Vaginal Ring Birth Control Devices.

Outside Tax Counsel to U.S. Securities Markets Coalition

Act as outside tax counsel to U.S. Securities Markets Coalition, which consists of all U.S. options exchanges and related entities. Our representation includes advising the coalition and its members on developments that affect the taxation of options and other financial products and advocating on behalf of the options industry before Congress, Treasury and the IRS. In the past year we have been actively engaged on behalf of the Coalition with respect to proposed tax legislation that would require all exchange-traded options to be marked to market (treated as sold) at year-end, and with respect to proposed regulations that would treat certain equity options as giving rise to deemed dividends subject to U.S. withholding tax.

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.

NFL and Other Professional Sports Leagues Regarding Tax-Exempt Status

Representation of the NFL and other sports leagues in tax, corporate, legislative, and PR matters related to the relinquishment of their tax-exempt status. Projects involved tax planning, meetings with IRS executives and members of Congress, and coordination of audit defense strategy.

McGraw-Hill and Other Major Textbook Publishers in Gray Goods Trademark and Copyright Litigation

Representation of McGraw-Hill and other major textbook publishers in gray goods trademark and copyright litigation in the United States District Court for the Eastern District of New York to prevent the illegal importation and sale over the Internet of textbooks published abroad and not intended for sale in the United States.

Maximizing the value of intellectual property

Our client, a major energy company, sought to maximize the value of its intellectual property while limiting its own liability in the treacherous waters of international patent disputes. Combining U.S. and EU regulatory expertise with a multi-jurisdictional strategy, our senior advisors and lawyers designed a corporate structure that would create and generate long term value with minimal risk to the parent entity.

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.

IRS Disputes with Sports Clubs and Affiliated Cable Network

Negotiated highly favorable settlements with the IRS in the representation of a professional sports club in a $275 million dispute regarding stadium financing, player contracts, and broadcast agreements, and of a different club in a $300 million dispute regarding the club’s affiliated cable network.

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.

Multi-Billion Dollar NFL Sunday Ticket Deal

Represented the NFL in negotiating its multi-billion dollar deal with DIRECTV to extend DIRECTV's exclusive rights to carry the NFL Sunday Ticket out-of-market games package through a new multi-year agreement. The new agreement expands DIRECTV’s rights to stream NFL Sunday Ticket on mobile devices and via broadband, and provides for the NFL and DIRECTV to explore the development of an NFL Sunday Ticket over-the-top subscription service. The deal also provides for DirecTV to continue to carry NFL Network.

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.

Kayne Anderson Capital Advisors on a Range of Sports Lending Transactions and Other Investments

Represented Kayne Anderson Capital Advisors on a range of its lending transactions and other investments, including loans to (and other investments in) Sport 10 IP Limited, the holding company that owns all of Pelé’s marketing rights as well as the rights to all of Pelé commercial appearances.

Joint Ventures for Multiple Broadcast Clients

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

Successfully protested the terms of a $600 million cloud procurement

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

Successfully protested the terms of a $2 billion USAID procurement

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

Broadcasters on DTV Transition

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

WTO and NAFTA disputes

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

Veritas Capital’s investment in Alion Science & Technology

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

U.S. government sanctions investigation of international energy company

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

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

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

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

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

Veritas Capital’s investment in SolAero Technologies Corp.

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

Complicated Inbound Transaction

Represented U.S. multinational corporation in a complicated inbound transaction where a foreign holding company “domesticated” by coming onshore and converting to a U.S. corporation. Critical elements in the transaction included (1) repatriation, and (2) preservation of and receiving credit for certain U.S. tax attributes arising from the group’s foreign operations, and (3) overall entity simplification in a tax efficient manner. U.S. tax issues involved the foreign tax credit, subpart F, the cross-border M&A rules, and foreign currency issues.

Compliance Program for Multinational Manufacturer

Developed a compliance program for a multinational manufacturer for registration and reporting under the U.S. Foreign Account Tax Compliance Act, including classification and analysis of its internal treasury and cash pooling functions and its consumer lending business, as well as integrating advice from foreign advisors into compliance program.

Legislation granting visa access for New Zealand nationals

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

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

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

Complex Procurement

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

COMPETE Representation in Federal and State Electricity Competition Issues

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

Commercial Savvy

Our client, a major Middle East regional airline, issued an RFP for information technology services and a global ticket distribution arrangement. The Covington team, coordinated between our London and New York offices, deployed locally to manage the entire process—from receiving bids to negotiating the final contract valued at over one billion dollars.

Cole Taylor Bank in Federal Reserve Board Investigation

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

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

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

Creation and launch of 120 Sports

Advised the 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.

Corporate Inversion Transaction

Advised regarding tax policy and legislative issues concerning the potential execution of a corporate inversion transaction. Tax issues considered included consequences for the corporation and its shareholders as a result of inverting, consequences for corporation going forward (including future deductibility of interest), and strategic considerations involving public and government reactions to an inversion of this magnitude in light of significant press attention and Congressional concern regarding these transactions.

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.

Largest Media Rights Deal in NHL History

Represented the NHL in negotiating its 12 year, C$5.232 billion agreement with Rogers Communications for national broadcast and multimedia rights to NHL games, including the Stanley Cup Playoffs and Stanley Cup Final, in Canada. The agreement is the largest media rights deal in NHL history and one of the largest media rights deals, including the largest-ever sports-media rights agreement, in Canadian history.

Fintech Financial Regulatory and Data Privacy Compliance

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

Congressional testimony advice for cable programming company

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

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

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

Corporate, Financial and Operational Matters for Borrego Solar Systems

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

Copyright and Fair Use Advice and Counseling to Publishers

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

Congressional action on organic product marking

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

Chemtrade in the Real Estate aspects of its $860 Million Acquisition of General Chemical Corp.

Advised Chemtrade in the real estate aspects of its $860 million acquisition of General Chemical Corp., which included more than 40 chemical manufacturing facilities nationwide. The work involved negotiating extensive easement agreements, land transfers and access rights, and financing, including mortgaging more than 20 of the newly acquired sites. The cleared title matters improved the marketability of title.

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.

Defeated Claims for Museum of Fine Arts, Boston

On behalf of the Museum of Fine Arts, Boston, defeated claims by parties seeking to attach Persian antiquities in efforts to enforce a judgment against Iran, Rubin v. Museum of Fine Arts, Boston (1st Cir. 2013), and claim to Austrian expressionist painting, Museum of Fine Arts, Boston v. Seger-Thomschitz (1st Cir. 2010).

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.

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).

Debt/Equity Classification for $2 Billion Instrument

Obtained an appeals reversal of a transfer pricing adjustment involving more than $400 million of proposed adjustments, reversals of $285 million of subpart F income, and reversal of proposed earnings and profits adjustment of almost $300 million in connection with the debt/equity classification of a $2 billion instrument.

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.

Drafted comments and testified at hearings on behalf of numerous clients

Prepared comments and testified at hearings on behalf of industry groups and individual clients on a number of proposed regulations that would significantly affect the design and administration of large employers’ employee benefit plans, including regulations issued by the U.S. Treasury Department, U.S. Department of Labor, and Department of Health and Human Services. In recent years, we have advised clients on rulemaking related to health reform, hybrid and other retirement plans, and fiduciary responsibility.

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.

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.

$3.6 Million Jury Verdict in Favor of World Marketing, Inc. in Trademark Dispute

Won a $3.6 million jury verdict in California federal court after a jury found that apparel giant Quiksilver, Inc. willfully infringed World Marketing, Inc.’s longstanding federally registered “VISITOR” brand. Following a six-day jury trial, the eight-member jury unanimously found that Quiksilver willfully infringed World Marketing’s brand after launching its clothing and apparel brand VSTR, which it pronounced “visitor.” World Marketing, a family-owned company based in New York, has been selling clothing and apparel under its registered VISITOR trademark for more than 20 years, including at stores like Saks Fifth Avenue, Macy’s, and Men’s Wearhouse.

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.

Trial Win in Civil Forfeiture Case For Car Exporters Who Had to Prove Their Innocence

Following a seven-day jury trial in the Southern District of New York, our litigators won a jury verdict in favor of Efans Trading Corporation and Unicorn Tire Corporation in a high-profile civil forfeiture case involving the export of high-end luxury cars to China. Our clients ran two companies—Unicorn Tire, a tire import business, and Efans Trading Corporation, which bought and exported high-end luxury automobiles to China. In 2013, the Government seized 47 vehicles and over $3.3 million in funds based on the allegation that Efans had defrauded dealers and manufacturers, and that Unicorn had provided essential facilitation of that crime. At the February 2017 trial, because of the unusual civil forfeiture context, we had the burden of proving that our clients had not committed mail and wire fraud, as the Government alleged. Based on the evidence of dealership knowledge, lack of harm, and Claimants’ good faith belief that their business was proper, it took jurors three hours to return a verdict for our clients, answering each of 53 questions on a lengthy verdict form in our favor. We expect that this verdict will soon lead to the return of our clients’ property.

Financial services investigation

We represented a major financial services company in congressional investigations concerning the documentation of residential foreclosures. Conducted by the House Committee on Financial Services and the House Committee on the Judiciary, the investigations included document requests, interrogatory responses, and an oversight hearing. A significant complicating factor was widespread private and state attorneys general litigation on the same subject matter.

Global compliance

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

Huawei privacy class action

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

Global privacy assessment

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

Cybersecurity FCA Victory for a Services Contractor

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

Cutting-edge cost allowability victory

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

Compliance program for a defense company

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

Deep experience

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

Eight-Year FCA Investigation Ends with Declination

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

Dismissal of wrongful death case based on government contractor defense

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

Dismissal of wartime wrongful death claims brought by contractor employees

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

Dismissal of personal injury case involving military personnel

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

Addressing Regulatory Enforcement Actions

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

Internal investigations for an aircraft manufacturer

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

International procurement capacity building

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

Negotiation and vetting of state contracts for healthcare exchanges and MMIS

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

Navigation of Organizational Conflicts of Interest

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

Navigating U.S. sanctions programs for multinational corporations

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

Navigated foreign legal requirements for international contractors

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

Multi-defendant privacy class action

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

Microsoft privacy class action

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

Over-the-counter medicine investigation

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

Octavian Global Partners Fund Reorganization

Representation of the investment manager and general partner of Octavian Special Master Fund, L.P., and its onshore and offshore feeder funds in connection with a complex reorganization, including: an investment in the funds by a TPG affiliate; a concurrent offer to existing fund investors to have their interests in the funds repurchased; and the takeover by TPG affiliates of the investment management and general partner responsibilities for such funds.

Novel Lending Platform in First-of-its-Kind Transaction

Represent 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.

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.

Northwestern University Royalty Monetization

Represented Northwestern University, and an inventor affiliated with Northwestern University, in a series of royalty monetizations (structured both as sales and as financings through special purpose vehicles), including Northwestern’s 2007 sale of a portion of its worldwide royalty interest in Lyrica for $700 million, the largest monetization of a royalty stream for a single pharmaceutical product.

JFK International Airport Cogeneration Facility

Represent Calpine’s JFK Energy Center (KIAC Partners) as project counsel, including in the original structuring and planning of the project, a $175 million combined bank facility and bond financing and a $250 million Rule 144A bond refinancing, structuring and negotiating numerous commercial contracts, and achievement of commercial operations.

MedImmune in Series A Funding of Clinical-Stage Pharmaceutical Company

Advised MedImmune Ventures as lead investor in the Series A Preferred Stock financing of G1 Therapeutics. G1 Therapeutics uses small molecule therapies that act by a novel mechanism to potentially prevent the hematological side effects of exposure to ionizing radiation and cancer chemotherapy, as well as other possible uses.

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.

Representation of Teva Pharmaceuticals

We represented Teva in its strategic partnership with IBM, which enabled it to become the first multinational pharmaceutical company to deploy IBM’s Watson Health Cloud as its global technology platform. As part of the partnership, a joint Teva-IBM research team will work together using “big data” and machine-learning tools to develop disease models and advanced therapeutic solutions, including solutions designed to collect and analyze real world evidence. The deployment of these models and solutions will enable Teva to provide insights and real-time feedback directly to care providers and patients via mobile devices in order to achieve treatment optimizations and improved patient outcomes.

NBA in Live Virtual Reality Streaming with NextVR

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

Taylor v. United Technologies Corp.

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

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

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

Global assistance to international corporations on government procurement

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

Covington Avoids IPR Trial for AstraZeneca SYMBICORT® Patent

Represented AstraZeneca in defeating Complex Innovations’ attack on a patent covering SYMBICORT® inhalation aerosol for asthma and COPD. On July 24, 2017, the Patent Trial and Appeal Board denied institution of an IPR trial as to every challenged claim. The PTAB largely followed the arguments Covington presented in the preliminary response when determining that the petition failed to demonstrate a reasonable likelihood of prevailing at trial.

Representation of Eli Lilly, ImClone, and BMS

Represented Eli Lilly and Company, ImClone, and BMS in an IPR proceeding challenging the validity of a patent owned by the Trustees of the University of Pennsylvania (“Penn”). In concurrent district court litigation (in which we also represent Eli Lilly), Penn alleged that its patent covered methods of using Eli Lilly’s biologic Erbitux® for treating cancer patients. In July 2016, the PTAB instituted trial on all challenged claims, and later that month, the district court entered a stay of the litigation pending the IPR proceeding. The PTAB hearing took place in March 2017, and the final written decision found the challenged claims of Penn’s patent invalid.

The Walter and Eliza Hall Institute of Medical Research Royalty Monetization

Represented The Walter and Eliza Hall Institute of Medical Research in the sale of a portion of its royalty interests in Venetoclax for up to U.S. $325 million (A$406 million), consisting of an up-front payment of U.S. $250 million and up to U.S. $75 million of additional payments upon the attainment of certain milestones, the largest royalty monetization by a non-profit institution outside the United States.

Won Summary Judgment for DARCARS in Suit Seeking Ownership/Control

Won summary judgment for a major auto dealership network in a fight for control of a family-owned company. In this high-profile Washington, DC-area case, Plaintiff Tammy Darvish sued her father, her brothers, and her former employer in January 2015 claiming that she had been promised one-third ownership and control of DARCARS and that her brothers tortuously interfered with this alleged “contract.” Covington developed evidence showing that Ms. Darvish’s alleged “contract” was fatally vague and illusory and that her tortious interference claims were unfounded. Covington moved for summary judgment on all claims, and the court granted the motion in its entirety with trial just weeks away.

Aristocrat Leisure Ltd. Transactions

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

Consumer Financial Protection and Practices

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

Multimillion Dollar Jury Verdict in Trade Secret Dispute for Former CEO of a Medical Device Company

Representation of the former CEO of a medical device company in defeating claims of theft of trade secret and employment contract claims, and obtaining a multimillion dollar jury verdict on counterclaims based on a technology licensing agreement in which the CEO (who was also the inventor of a heart valve) licensed the technology to the company.

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.

Half-billion Dollar Trade Secrets Trial Victory for McKesson

After being retained months prior to trial following nearly a decade of litigation, Covington obtained a complete defense verdict for a subsidiary of McKesson Corporation in a bench trial in New York Supreme Court. The plaintiff had alleged breach of a non-disclosure agreement and trade secret misappropriation related to a drug discount program. Plaintiff sought the assignment of certain McKesson patents and half a billion dollars: nearly $250 million in damages and 11.5 years’-worth of prejudgment interest. PSKW, LLC v. McKesson Specialty Arizona, Inc. (S. Ct. NY).

Resort Developer on Water Project in Bahamas

Baha Mar, a prominent resort developer, in connection with the proposed development, construction, and project financing of a salt water pumping station to provide chilled water to Baha Mar’s resort property in the Bahamas, including inter-creditor aspects relating to existing financing of the resort from China Ex-Im Bank (CEXIM) and proposed new project financing for the construction of the pumping station and chilled water facility by banks led by Deutsche Bank.

Multiple IPR Proceedings on Behalf of Biogen

Represented Biogen in defeating Swiss Pharma’s attacks on three patents covering TYSABRI®, an antibody biologic for treating patients with multiple sclerosis. The PTAB declined to institute a trial on all three of Biogen’s patents. The PTAB adopted the detailed reasoning from Covington’s briefs, finding that Swiss Pharma’s evidence and expert testimony did not demonstrate a reasonable likelihood of prevailing at trial.

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.

Representation of Elbit Systems of America, LLC in IPR Proceeding

Representation of Elbit Systems of America, LLC as petitioner in an IPR proceeding relating to a patent directed toward a system and method for tracking the motion or orientation of an object relative to a moving reference frame, such as in a head-mounted display. The patent is owned by Thales Visionix, Inc., and Covington also represents Elbit in the co-pending litigation in the Court of Federal Claims. In October 2016, the PTAB issued its final written decision holding as unpatentable more than half of the challenged claims.

Representation of LifeCell as Petitioner in an IPR Proceeding

Representing LifeCell Corporation as petitioner in an IPR proceeding challenging a patent owned by LifeNet Health directed to soft tissue graft compositions. Trial was instituted in March, with a final written decision due by March 2017, and the PTAB granted the patent owner’s request for adverse judgment in August 2016, cancelling all claims in the patent and handing our client LifeCell, a complete win.

Representation of Indivior in Challenge to Patent for SUBOXONE

Represented Indivior UK Limited (f/k/a RB Pharmaceuticals Limited), as patent owner in an IPR proceeding, brought by Teva Pharmaceuticals USA, Inc., challenging one of three Orange Book listed patents for Suboxone® sublingual film, a treatment for opioid dependence. In a decision rendered on June 10, 2016, the PTAB denied Teva’s petition in its entirety, adopting the rationale presented in Covington’s patent owner preliminary response.

Representation of BMS as Patent Owner in an IPR Proceeding

Represented Bristol-Myers Squibb Company, as patent owner in an IPR proceeding brought by Momenta Pharmaceuticals, Inc., challenging the validity of a patent covering the formulation of BMS’s biologic ORENCIA. The PTAB entered a final written decision in December 2016 entirely rejecting Momenta’s challenges and upholding all claims of the patent.

Representation of Warner Chilcott in an IPR Proceeding

Representation of Warner Chilcott as patent owner in an IPR proceeding, brought by the generic company Mylan Pharmaceuticals, challenging the patent claiming LO LOESTRIN, Warner Chilcott’s oral contraceptive. After Mylan filed its petition, the parties settled favorably without a single claim being invalidated or the PTAB instituting review on a single claim of the LO LOESTRIN Patent. Covington successfully represented Warner Chilcott in ANDA litigation against prior generic filers on LO LOESTRIN, obtaining a favorable judgment after a bench trial which was upheld by the Federal Circuit.

Representation of Elbit Against Petitions Filed by Hughes

Representation of Elbit Systems Land and C4I Ltd. in securing the PTAB’s denial of four separate Patent Office challenges over the course of 2016. In the latest decision, issued in mid-July 2016, the PTAB denied the fourth and final patent office challenge filed by Hughes Network Systems, LLC against Elbit’s patents. In November 2015, Hughes filed two petitions for inter partes review against Elbit’s ’073 patent, and one petition against Elbit’s ’874 patent, both of which are asserted against Hughes in the co-pending district court litigation. Hughes filed a second petition against the ’874 patent in January 2016. The PTAB denied the first challenge to the ’874 patent, and both challenges to the ’073 patent, in April. Hughes’s request for rehearing on the first petition also was rejected in July 2016.

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.

Solar Project Joint Venture

SunShare, LLC, a developer of community solar farms, in connection with its construction and project development and financing plan, including in a senior secured bridge financing provided by Solar Construction Lending, a joint venture between MMA Capital Management and Fundamental Advisors, for community solar power farm projects in Colorado and Minnesota.

Stadium Construction and Renovation Projects

The National Football League in the structuring and negotiation of League “G-3” loans to support construction of new or renovated stadiums for the Chicago Bears, Dallas Cowboys, Denver Broncos, Detroit Lions, Indianapolis Colts, New England Patriots, Philadelphia Eagles, and Seattle Seahawks, and, most recently, in the financing of the new stadium for the New York Jets and Giants and League approvals of the first-of-its-kind joint venture relating to the New Meadowlands Stadium.

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.

Securities Counsel to Numerous Fortune 500 companies

Represent numerous Fortune 500 companies in the pharmaceuticals, consumer goods, health insurance, home equipment, advertising, motor vehicles, network communications, and technology industries with respect to the resolution of shareholder proposals concerning executive compensation, majority voting, proxy access, the right to call special meetings, political spending and lobbying disclosures, and a host of other topics.

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.

Shareholder Proposals in Proxy Materials

Represented a global life sciences company with respect to selected securities disclosure and governance matters, including obtaining no-action relief allowing the exclusion of several shareholder proposals from its proxy materials. We also successfully defended and achieved favorable outcomes for this client in related litigation.

View More View Less

The Top Three Political Law Risks for Hedge Funds, Private Equity Funds, and Investment Firms

Perhaps no industry faces more scrutiny and regulation of its political activities than the financial industry. Even though these rules are often not intuitive, failure to comply with them can result in big penalties, loss of business, and debilitating reputational consequences. This primer describes three sometimes overlooked risk areas for investment firms: ...

Newly-Released CFIUS Annual Report for 2015 Foreshadows Heightened Scrutiny of Foreign Investment

The Committee on Foreign Investment in the United States (“CFIUS”) this week released its long-awaited Annual Report to Congress regarding foreign acquisitions of U.S. businesses reviewed by CFIUS in 2015. The report provides important data that yields insights into the types of transactions the Committee reviewed and the Committee’s treatment of those ...

In Brief—A tribute to Ted Garrett, whose superb service was anything but brief

The American Bar Association published a tribute to Theodore Garrett highlighting his many contributions to Trends, published by the Section of the Environment, Energy, and Resources. Garrett served as Contributing Editor of the "In Brief" column for over 25 years.

FDA Advertising and Promotion Enforcement Activities Update

This e-alert is part of a series of e-alerts summarizing publicly available FDA enforcement letters (i.e., warning letters and untitled letters) relating to the advertising and promotion of prescription drugs, medical devices, and biologics.

FDA Reauthorization Act of 2017: Key Provisions Related to Medical Devices

On August 18, 2017, President Trump signed H.R. 2430, the FDA Reauthorization Act of 2017, which became Public Law No. 115-52 (“FDARA”). Principally, FDARA reauthorizes the Food and Drug Administration (“FDA” or “the agency”) user fee programs, including the Medical Device User Fee Amendments, the Prescription Drug User Fee Amendments, the Biosimilars User Fee ...

Clara Shin Named Litigation "Game Changer" by The Recorder

SAN FRANCISCO—The Recorder recognized Covington partner Clara Shin as a “Game Changer” for her successful representation of McKesson Corporation in a half-billion-dollar trade secrets case. Awarded in conjunction with the publication’s California Litigation Department of the Year awards, the recognition highlights individual litigators “who won big where others ...

Pensions Come Out Swinging on Board Composition

Keir Gumbs and David Martin are quoted in an Agenda article regarding the “Boardroom Accountability Project 2.0.” According to Gumbs, the companies that received the letter from the New York City Pension Funds as well as those that didn’t should understand that the issues outlined by NYC comptroller Scott Stringer reflect the current level of shareholder ...

Defense Bill Amendment Pushes Fraud Punishment for Contractors

Fred Levy is quoted in a Federal Contracts Report article regarding a provision in the 2018 National Defense Authorization Act that would require the Pentagon to file a report to Congress on contracting fraud. According to Levy, the amendment appears to be a way for Congress to try to keep tabs on DoD, which was subjected to appropriations bills starting in 2012 ...

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

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

President Trump Bars Acquisition of U.S. Semiconductor Company as Congress Conducts First Hearing on Potential CFIUS Reform

We are writing to provide our perspective on two significant developments involving the Committee on Foreign Investment in the United States (“CFIUS”).

Practical Tips for Insurance Recoveries After Storms

Hurricane Irma has battered much of Florida, Puerto Rico and the Caribbean, just days after tropical storm Harvey devastated Houston and its environs. This e-alert provides practical tips to help maximize insurance recoveries for those organizations whose property was damaged or whose business was interrupted by these catastrophic events.

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

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

Fighting Trump’s Policies is Personal for This Lawyer

Bloomberg Law featured Lanny Breuer in a Q&A regarding his and the firm's involvement as co-counsel at the University of California against the Department of Homeland Security regarding the decision to end the Deferred Action for Childhood Arrivals (DACA) program. Commenting on the firm's decision to join the lawsuit, Breuer says, "We feel very strongly that the ...

Congress Continues to Consider ACA-Related Legislation

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

Covington Adds State Dept. Veteran To Govt. Affairs Team

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

FDA Seeks Public Input on how to Rollback/Streamline Regulations

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

Napolitano Sues Trump to Save DACA Program She Helped Create

Alex Berengaut is quoted by The New York Times in an article regarding the lawsuit filed by the University of California system against the Department of Homeland Security regarding the decision to end the Deferred Action for Childhood Arrivals (DACA) program. Berengaut, a member of the Covington team representing former Secretary of Homeland Security Janet ...

3 Takeaways From The Self-Driving Car Bill

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

Rescission of DACA Raises Employer Considerations and Legislative Options

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

Legal 'Fistfight' Expected When Transgender Ban Gets to Court

David Zionts is quoted in a Stars & Stripes article regarding the recent ban on transgender personnel in the military. Zionts, who is a member of the Covington team serving as co-counsel with the ACLU challenging the ban, says the issue is "equality before the law." When “the government wants to discriminate and treat one class of people different, it needs a ...

Leading National Security Advisor Joins Covington

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

Covington Snags Rademaker

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

The Congressional Agenda for September

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

GOP Faces Pileup of Urgent Tasks Topped by Debt Limit Extension

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

Brexit: squaring the circle

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

FY17 Reconciliation Instructions Expire September 30.

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

D.C.'s Rising Stars: Shankar Duraiswamy, 37

Shankar Duraiswamy was named a "D.C. Rising Star" by The National Law Journal, recognizing him as one of the “region’s 40 most promising lawyers age 40 and under.” Commenting on his biggest accomplishment, Duraiswamy says, "I am proudest of the results I have secured for my pro bono clients. A highlight was a landmark settlement in 2013 that we secured for deaf ...

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

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

Shankar Duraiswamy Named "D.C. Rising Star"

WASHINGTON—The National Law Journal has named Covington partner Shankar Duraiswamy a “D.C. Rising Star,” recognizing him as one of the “region’s 40 most promising lawyers age 40 and under.” In his profile, Mr. Duraiswamy highlights a number of experiences and lessons learned in his career. When asked about a key to his success, he credited one of his early ...

Impact of fall legislative calendar on Pentagon

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

Industry Pushes CFTC to Prioritise Cross-Border Clarity

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

Covington Advises Howard Bancorp On $163.4 Million Acquisition

NEW YORK—Covington advised Howard Bancorp, Inc., the bank holding company for Howard Bank, in its acquisition of First Mariner Bank, a community bank headquartered in Baltimore, Maryland. The transaction value is approximately $163.4 million. The Covington team consisted of Michael Reed, Rusty Conner, Chris DeCresce, Matt Wood, Nora Diamond-Jones, and Chris Yen ...

NAACP Honors Eric Holder with Inaugural Award for Public Service

WASHINGTON—The National Association for the Advancement of Colored People (NAACP) honored Covington partner and the 82nd Attorney General of the United States Eric Holder with the Nathaniel R. Jones Award for Exceptional Public Service at the 108th NAACP National Convention. Named after the Honorable Nathaniel R. Jones, who served for 23 years as a judge on the ...

CFTC Enforcement and Regulatory Report 2017 Activity and Outlook

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

Covington Joins ACLU in Latest Suit Against Trump Administration

Bloomberg highlights Covington's role as co-counsel with the ACLU in a lawsuit challenging the ban preventing transgender men and women from serving in the armed forces. “When the memorandum was issued on [August 25] it was apparent to us that this was going to cause immediate harm to the transgender community serving in the military," says David Zionts. Mitch ...

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

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

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

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

FTC Blogs Help Define Reasonable Data Security Attorneys Say

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

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

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

Code Linked to MalwareTech and Kronos Published in 2009

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

Cybersecurity attorney: How constitutional is the Hutchins indictment?

Alex Berengaut's Law360 article regarding the constitutionality of the Marcus Hutchins indictment is heavily cited in this Becker's Hospital Review article. As Berengaut notes, the indictment "does not articulate a clear nexus between [Mr.] Hutchins and the United States."

How 5 Firms Are Building More Diverse Ranks

Law360 features Covington in an article examining how "firms are making substantial progress on diversifying their ranks." According to Anne Lee, "The firm is thoughtful about creating opportunities for developing attorneys, and that’s what has kept me here. It’s helping me grow.” Commenting on the firm's collaborative culture that aligns with diversity goals, ...

The Greening of America

Andrew Jack is quoted in a Corporate Board Member article regarding the pressures facing boards to increase companies' sustainability efforts. "The direction of global capitalism is still toward reducing the carbon intensity of the energy infrastructure and continuing to invest in technology that drives greater efficiency," Jack says. "Capital tries to get the ...

Covington Advises Mexichem on its $1.8 Billion Acquisition of Israeli Irrigation Firm

WASHINGTON—Covington is advising Mexichem, S.A.B. de C.V. on its $1.895 billion acquisition of an 80 percent stake in Netafim, Ltd., the world’s largest irrigation company, from private equity and buyout firm Permira, Kibbutz Magal and Kibbutz Hatzerim. Kibbutz Hatzerim will retain a 20 percent stake. Covington has also been assisting with the related ...

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

Two recent federal district court decisions involving computer “spoofing” scams highlight the uncertainty about whether such incidents may be covered under standard “computer fraud” provisions in widely used crime insurance forms. The conflicting results in these cases provide a stark reminder to policyholders that seemingly minor differences in policy wordings ...

Covington Advises Aristocrat in Acquisition of Plarium and Related Acquisition Financing

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

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

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

Covington Secures $21 Million Jury Trial Win for Elbit Systems in Patent Case

SILICON VALLEY—Covington secured a significant patent infringement victory on behalf of Elbit Systems Ltd. over its groundbreaking patent relating to high-speed satellite communications. A jury in the Unites States District Court for the Eastern District of Texas awarded Elbit Systems $21,075,000 in damages, exclusive of pre-judgment interest and post-verdict ...

A lawyer who has been a defender of USC now must investigate the dean scandal. But can she be impartial?

Aaron Lewis is quoted in a Los Angeles Times article regarding an internal investigation by the University of Southern California reviewing what its leaders knew about the conduct of former medical school dean Dr. Carmen Puliafito.

Covington Wins Two American Lawyer Global Legal Awards

WASHINGTON—The American Lawyer honored Covington with two Global Legal Awards, recognizing the firm’s success in “navigating complex international legal issues.” The firm was recognized for “Global M&A Deal of the Year: Japan” and “Global Dispute of the Year: Investigations (Asia).” Covington advised Tencent Holdings Limited, a leading provider of internet ...

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

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

Covington Advises Underwriters in $138 Million Stock Offering by Repligen

NEW YORK—Covington advised the underwriters in a $138 million follow-on public offering of common stock by Repligen Corporation. Covington previously represented the underwriters in Repligen's $115 million convertible note offering in May 2016. Repligen is a bioprocessing company focused on the manufacture of Protein A ligands, cell culture growth factors, and ...

Could Congress stop Trump from bombing North Korea?

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

Law360's Weekly Verdict: Legal Lions & Lambs

Covington's patent infringement victory on behalf of Elbit Systems was featured by Law360 as the leading item in the "Legal Lions" roundup. The team, which secured $21.1 million in damages for Elbit, was led by Kurt Calia and Ranganath Sudarshan.

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

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

7th Circ. Spoofing Decision Buoys Gov't Crackdown

Anne Termine is quoted in a Law360 article regarding the Seventh Circuit's decision to uphold the conviction of Michael Coscia for "spoofing." According to Termine, “The short takeaway is that it was a complete win for the government." She adds, “There wasn’t a single portion of Coscia’s argument that the court accepted.”

Avoiding State and Local Lobbying Compliance Violations

Corporate legal and compliance departments are usually well aware of the laws regulating lobbying the federal government. Recent news reports, however, indicate that companies have more trouble with state and local lobbying laws.

Bodog, ‘Black Friday’ Cases Winding Down With A Whimper

Arlo Devlin-Brown is quoted in a Gambling Compliance article regarding the crackdown by U.S. law enforcement on offshore gambling following the conclusion of Bodog founder Calvin Ayre's U.S. criminal case. According to Devlin-Brown, the resolution of Ayre’s case, “very likely reflects the fact-specific circumstances and cleaning up of an old case rather than the ...

If OCC Charter Case Is Dismissed, State Regulators Will Likely Sue Again, Say Fintech Attorneys

Michael Nonaka is quoted in a Corporate Counsel Magazine article regarding the Office of the Comptroller's argument that it cannot be sued over its plans for a special purpose national bank charter. According to Nonaka, "it's a fair assumption" the Conference of State Bank Supervisors would continue to pursue litigation against the OCC if the case is thrown out, ...

Rising Star: Covington & Burling's Elizabeth Canter

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

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

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

The Congressional Agenda for August

A brief column for a brief work period. The House left at the end of last week for its annual August break. The Senate had been scheduled to join the House too, but in the run-up to the debate on the failed healthcare-reform bill, Senate Majority Leader Mitch McConnell announced the Senate would remain in...… Continue Reading

A new driver: Graham Vinter

Graham Vinter was interviewed by The Law Society Gazette about his move to Covington and the importance of respect for the rule of law. Vinter, who serves as chair of a new independent body that aims to promote the rule of law across the international business community, says, "As multinational companies develop their supply chains and markets both at home and ...

Allentown Indictment A Warning To Attys Seeking Gov't Work

Arlo Devlin-Brown is quoted in a Law360 article regarding the complications surrounding political contributions for lawyers working with the public sector following the indictment of Allentown Mayor Ed Pawlowski. According to Devlin-Brown, "The Supreme Court has indicated that in the context of campaign contributions, compared to other benefits that go to ...

Covington Again Named to The American Lawyer’s “A-List"

WASHINGTON—The American Lawyer has named Covington to its 2017 “A-List,” an annual ranking of the top 20 firms based on revenue per lawyer, pro bono commitment, diversity, associate satisfaction, and, for the first time, the percentage of female equity partners. Covington has now appeared on the “A-List” twelve times since this honor was introduced in 2003. The ...

Marketplace Tweak May Halt DOD Commercial Buying Slide

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

Spanish Flour Production Cos. Win $490M From Venezuela

Law360 highlights Covington's successful representation of Valores Mundiales SL and Consorcio Andino SL before the International Centre for the Settlement of Investment Disputes. The tribunal found that Venezuela had breached its international obligations with regard to the company's flour production business and ordered the country to pay nearly half a billion ...

Why Big Law is Betting Big on Africa

Witney Schneidman is quoted in a Bloomberg Law article regarding the opportunities stemming from Africa's legal market. "[Covington] understands that many of its client’s issues aren’t legal issues,” says Schneidman. “In many respects, it’s best to stay out of the courts.” In Nigeria, it can take seven years for the Supreme Court to issue a decision, and "[if] ...

Cyber Insurance Offerings Growing In Response To New Threats

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

Covington Represents Australian Medical Research Institute in Landmark Royalty Monetization

NEW YORK—Covington advised The Walter and Eliza Hall Institute of Medical Research (WEHI), Australia's oldest medical research institute, in its landmark monetization of a portion of its royalties relating to the cancer drug Venetoclax. The purchaser, a wholly owned subsidiary of Canada Pension Plan Investment Board, paid US$250 million upfront, and agreed to ...

Parliamentarian Singles Out More GOP Health Bill Provisions

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

Companies Win More Proxy Contests in 2017

Keir Gumbs is quoted in an Agenda article regarding the increased number of proxy fights won by companies this year when compared to those won by activists. “Boards are much more aware of understanding the way to deal with activists, and I think that’s a huge factor [in settlements],” Gumbs says. “Companies can get activists to settle when persuading that the ...

Cash surges to lobby firms in Trump era

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

Repeal Debate Clouds Next Important Health Bill

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

Wash. Expands Biometric Privacy Quilt With More Limited Law

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

In Juries, Lawyers Now Favor the Uninformed

Former Chief of the Public Corruption Unit for the U.S. Attorney's Office in the Southern District of New York Arlo Devlin-Brown is quoted by The New York Times in an article regarding trends in jury selection. Generally, prosecutors look for “people who are community-minded,” like people who are married, employed in a role that requires dealing with others or ...

Rising Star: Covington's Shankar Duraiswamy

Shankar Duraiswamy was named a "Rising Star" by Law360, recognizing him as a top attorney under 40 in Product Liability law. In its profile of Duraiswamy, Law360 highlights his defense of Takata Corp. in the wake of the largest public safety recall in U.S. history and his dedication to pro bono work.

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

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

How the Supreme Court Has Reined in Federal Prosecutors

The New York Law Journal highlights an article by Arlo Devlin-Brown and Erin Monju on the Supreme Court's decision in McDonnell. “The reality is that McDonnell is of limited significance: It prevents prosecutors from bringing only the weakest of public corruption cases, those where the prosecution lacks even circumstantial evidence that a corrupt payoff was for ...

Battlefield Immunity Fights Rage On, CIA Torture Case Shows

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

'Buy American' Rules Have Major Implications for Defense

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

Trump Puts China Under Microscope With WTO Envoy Nom

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

Covington Advises Central European Media Enterprises on $262.2 Million Deal

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

The Congressional Agenda for July

The three-week July work period is set to begin on Capitol Hill this week, with members returning from the Independence Day recess only to resume debate on the same issues that have consumed their attention for the first half of 2017. Health care repeal-and-replace efforts are again front and center as the Senate continues to...… Continue Reading

Germany's plan to lure more private investment to Africa

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

CFPB Publishes Final Rule on Pre Dispute Arbitration Agreements

Today the Consumer Financial Protection Bureau (the “CFPB” or the “Bureau”) published a final rule substantially curtailing the ability of financial services providers and consumers to enter into pre-dispute arbitration clauses. The final rule, like the proposed rule that preceded it, would:

prevent financial services providers from including arbitration clauses in consumer contracts unless those arbitration clauses expressly permit class actions to proceed in court; and
require financial services providers to provide copies of consumer arbitration agreements, claims, and decisions to the Bureau for possible publication.

The final rule will become effective 60 days after its publication in the Federal Register, but apply only 180 days after its effective date.

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

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

Buyers Struggle To Stomach Valuation Gap Amid Uncertainty

Jack Bodner is quoted in a Law360 article regarding the U.S. mergers and acquisitions market. “We've seen and I think we'll continue to see good M&A activity in the nonmegadeal and middle market tier. We've seen less and I think we'll continue to see less activity than the most robust years in the megadeal area, but overall it's been a busy year for M&A in ...

Covington Snags Undefeated Litigator From O'Melveny

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

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

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

Covington's LA Office Makes Another Lateral Addition

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

Tessera, Covington Deal Blows to Broadcom in ITC and PTAB

The National Law Journal highlights Covington's successful representation of Tessera at the ITC regarding a patent infringement dispute with Broadcom over semiconductor chips. According to Sturgis Sobin, who led the Covington team, "They tried for more than two years to work out a deal, but were unsuccessful."

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

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

Leading Trial Lawyer Joins Covington

LOS ANGELES—Carolyn Kubota, a nationally acclaimed trial and white collar defense lawyer and former federal prosecutor, has joined Covington’s Litigation and White Collar Defense and Investigations practices in Los Angeles. Ms. Kubota has served as lead counsel on high-profile investigations, criminal trials, and high-stakes commercial litigation matters, ...

Covington Secures Tax Court Victory for Boston Bruins

WASHINGTON—The U.S. Tax Court ruled in favor of Covington’s client the Boston Bruins in a dispute with the IRS over away-game meal costs. The IRS had argued that the Bruins were entitled to deduct only 50 percent of the costs of meals that the club served to its players and other employees during road trips. The Tax Court declined to accept this view and ...

SEC Permits All Companies to File Certain Registration Statements Confidentially

On June 29, 2017, the Division of Corporate Finance of the Securities and Exchange Commission (the “Division”) announced that it will permit all companies to submit drafts of certain registration statements to the Division on a confidential basis, expanding a popular privilege that was made available to emerging growth companies (“EGCs”) under the Jumpstart Our Business Startups Act (known as the JOBS Act) in 2012.

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

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

SEC & the new rules on hyperlinks - Wolters Kluwer Thought Leadership

Keir Gumbs discusses the rules that the SEC adopted requiring companies to include active hyperlinks to exhibits in a video for the Wolters Kluwer International Group. For most companies, this rulemaking means "adding an additional step to the filing process for their SEC filings," says Gumbs.

Pentagon demands contractors up cybersecurity

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

Law Firms That Police the Police

Benjamin Haley is quoted by The American Lawyer in an article highlighting ways in which law firms are shining a light on police departments and their practices. Commenting on Covington's representation of Reginald Adams, a former prisoner in New Orleans who spent 34 years in prison for the murder of a police officer's wife, Haley says, "These cases are ...

What The Experts Said About High Court Rulings This Term

Jacqueline Charlesworth is quoted in a Law360 article providing a roundup of impressions on some of the Supreme Court's most significant decisions from this term. In her article on Star Athletica v. Varsity Brands, Charlesworth writes, "It is refreshing to encounter a copyright decision that does not contain the terms 'fair use' or 'Digital Millennium Copyright ...

Congress addresses foreign antitrust against US companies

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

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

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

Experts Split On Group To Curb Int'l Antitrust Abuse

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

U.S. Fed gives a nod on capital plans for all 34 reviewed banks

Randy Benjenk is quoted in a Reuters Regulatory Intelligence article regarding the completion of the Federal Reserve Board's review of capital planning practices. According to Benjenk, “An issue that will be closely watched is whether the Federal Reserve now takes the next step and exempts the largest institutions from the qualitative assessment next year, as it ...

FTC Adds Online Parental Consent Method to Privacy Guidance

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

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

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

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

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

Efforts to End Super PACs Moving Forward, Face Uphill Climb

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

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

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

FEC Eyes Moves to Curb Foreign Influence

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

Fed Change Should Make Tests Less Stressful For Most Banks

Randy Benjenk is quoted in a Law360 article regarding how a change in the way the Federal Reserve evaluates a bank's ability to withstand financial shock could provide some relief to the stress testing process. According to Benjenk, “The quantitative results of [the Dodd-Frank Act Stress Tests] this year will be a better indicator of whether the regional banks ...

Trump and Cordray Are 'Two Bulls Circling Each Other,' GOP Lawmaker Says

John Dugan is quoted by The National Law Journal in an article regarding the future of the CFPB and the agency's director, Richard Cordray, under President Trump. Commenting on a report published by the Treasury Department offering recommendations for financial regulation reform, Dugan states that the report could help the legislative prospects of reforms to the ...

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

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

Supreme Court Rules That Law Prohibiting Offensive Trademarks Offends

In a case that has drawn significant media attention for its potential effect on the Washington Redskins organization, the U.S. Supreme Court held on Monday, June 19, that the United States Patent and Trademark Office (“PTO”) cannot deny a trademark registration on the basis that the proposed mark may “disparage” “persons, living or dead, institutions, beliefs, or national symbols.” Instead, the Court held that the 70-year-old law prohibiting registration of such marks, 15 U.S.C. § 1052(a), “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Treasury Issues Regulatory Reform Recommendations for Banking Industry

On June 12, 2017, the U.S. Department of the Treasury released the first of a series of reports recommending changes to the financial system in a manner consistent with a set of Core Principles set forth in President Trump’s Executive Order No. 13,772 of February 3, 2017 (the “Report”). The Report focuses on the depository system, including banks, savings associations, and credit unions, and notes that three subsequent reports will focus on capital markets; asset management and insurance; and non-bank financial institutions, financial technology, and financial innovation.

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

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

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

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

Attys Dish On Escobar's FCA Impact One Year Later

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

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

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

Eric Holder Honored by the Washington Lawyers’ Committee for Commitment to Civil Rights

WASHINGTON—The Washington Lawyers’ Committee for Civil Rights and Urban Affairs honored Covington partner and former U.S. Attorney General Eric Holder with the 2017 Wiley A. Branton Award for his “unremitting commitment to civil rights and leadership on critical equal justice issues inside government and in the private bar.” The Wiley A. Branton Award is the ...

Options open to the SEC following High Court enforcement disgorgement loss

David Kornblau is quoted in a Regulatory Compliance Watch article regarding the Supreme Court's decision mandating a five-year statute of limitations on disgorgement assessed by the SEC. Commenting on the SEC's options, Kornblau says that one thing that the agency could do is rename disgorgement, “calling it restitution." The agency could argue that restitution ...

American Regulators Playing FinTech Catch-Up

Michael Nonaka is quoted in a Law360 article examining how U.S. regulators are fostering fintech innovation. According to Nonaka, the CFTC and FINRA initiatives are important steps to get the agencies up to speed on fintech issues. “It’s certainly a step forward, it’s a step in the right direction for the regulators to be able to do new initiatives that will ...

Savvy PE Attys Can Cash In On Blazing Secondaries Market

Loretta Shaw-Lorello, Kelly Labritz, and William Sturman are quoted in a Law360 article regarding the private equity secondaries market. “The market has gained new prominence in the last few years,” says Shaw-Lorello. According to Labritz, working on secondaries transactions involves a combination of skills from multiple different practice types. In order to ...

SEC steps up enforcement against escalating cybercrime

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

Covington’s Insurance Recovery Practice Wins Chambers "Award for Excellence"

WASHINGTON—Covington’s Insurance Recovery practice has received the 2017 Chambers USA "Award for Excellence" in Insurance, marking the sixth time the firm has received this honor in the 11 years it has been awarded. The "Award for Excellence" is given to one U.S. firm representing policyholders in the insurance coverage field. In addition to the award, Covington ...

Supreme Court ruling may curtail SEC disgorgement attempts

David Kornblau is quoted in a Business Insurance article regarding the effect of the Supreme Court ruling in Kokesh on SEC disgorgement attempts. According to Kornblau, “It’s a highly significant ruling, not only because of the statute of limitations, but because it puts into play whether the SEC has the power to obtain disgorgement from a federal court in any ...

CFTC, Watchdog Disagree Over Futures Association Oversight

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

Three Covington Partners Among Top 100 Women Lawyers in California

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

The new dealmaking in Congress reveals an old truth: majority wins

Majority party coalitions can be hard to manage, but a functioning congressional majority requires both wings of the Republican Party to come together on tough votes to produce at least 218 votes in the House and (most often) 60 votes in the Senate. The conservative House Freedom Caucus has a reputation for “refusing to get...… Continue Reading

Is CFPB being stretched thin by litigation?

Eric Mogilnicki is quoted in an American Banker article regarding the impact of legal challenges on the Consumer Financial Protection Bureau. According to Mogilnicki, "Obviously, litigation soaks up resources that could be used to begin and proceed with investigations."

Key Questions About Move To Privatize Air Traffic Control

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

Energy and Environmental Trailblazers

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

The Congressional Agenda for June

As we noted at the end of our last weekly column, we intend to write on a monthly basis to outline what to expect in Congress for the next month. Here we present the first such column. Members of Congress will return to Washington, D.C. this week for a four-week work period before the scheduled...… Continue Reading

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

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

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

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

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

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

Barriers Remain to Letting US Fintechs Play in the Regulatory 'Sandbox'

Michael Nonaka is quoted by The National Law Journal in an article regarding the likelihood that the U.S. will introduce a regulatory sandbox for fintech companies to test new products and business models without regulatory consequences. According to Nonaka, there is "great value" in a sandbox for entrepreneurs, but "in order for a sandbox to work, you have to ...

Former DHS Assistant Secretary Joins Covington

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

The Firms That Grew Fastest Without Merging

Covington was profiled by Law360 as one of the fastest growing U.S. firms in 2016 following the release of the Law360 400 survey. Commenting on the firm's decision to increase lawyer headcount without merging, Timothy Hester says, "One of the reasons we have continued to focus on this strategy is we think it has worked well for us." He adds, “We have gotten ...

New court members, an addition to its board and a ‘robust’ 2016 caseload marks an acceleration in pace for the London Court of International Arbitration.

Allan Moore is quoted in a CDR News article regarding his recent appointment to the London Court of International Arbitration. Moore comments, “I am deeply honoured. I have long viewed the LCIA Court and staff as consummate professionals and preeminent leaders in our field. It is also an enormously gracious group of people with whom to work on important matters ...

Tammy Albarrán and Nicole Duclos Among Latinvex’s Top Female Lawyers

SAN FRANCISCO AND NEW YORK—Latinvex has again selected Covington partners Tammy Albarrán and Nicole Duclos to its annual list of the “Top 100 Female Lawyers” focusing on Latin America at international law firms. Ms. Albarrán was selected a top practitioner in the FCPA & Fraud category, while Ms. Duclos was selected in the Arbitration & Litigation category. Ms. ...

Senators push for enhanced powers to battle botnets

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

Allan Moore Appointed to London Court of International Arbitration

WASHINGTON—Covington partner Allan B. Moore has been appointed a Member of the LCIA Court, the supervisory administrative body of the London Court of International Arbitration, one of the world’s leading institutions for international commercial dispute resolution. Mr. Moore, who co-chairs Covington’s International Arbitration Practice Group, represents a broad ...

Covington Named One of America’s Best by Corporate Board Member

NEW YORK—Corporate Board Member magazine has once again named Covington to its list of the top 25 corporate law firms. The “America’s Best Corporate Law Firms” survey asks directors and general counsels at publicly traded companies to identify the firms they would most likely retain for corporate legal matters of national scope. “Covington is proud that we are ...

The Morning Risk Report: U.S., Saudis Announce Counter-Terrorism Financing Center

James Garland is quoted in The Wall Street Journal's "Morning Risk Report" regarding the announcement of the Terrorist Financing Targeting Center which will be co-chaired by the U.S. and Saudi Arabia. It's "hard to know whether this will amount to much," says Garland, noting no funds from existing programs will be diverted to support the center. He adds, ...

The CFPB Is Fighting for Its Life. Here's What to Know.

Eric Mogilnicki is quoted by The National Law Journal in an article regarding the future of the Consumer Financial Protection Bureau ahead of the D.C. Circuit's ruling on the constitutionality of the agency's single-director structure. According to Mogilnicki, “The bureau was designed to be largely immune from politics, and has governed accordingly. The court’s ...

CFDA Releases Groundbreaking Drug and Device Policies for Public Comment

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

This Week in Congress – May 22, 2017

Members of the House and Senate are in session for one more week before the planned Memorial Day recess. The House is scheduled to take up a number of bills related to child protection while the Senate continues to work through nominations to the Trump Administration. Outside events, however, are again likely to overshadow the...… Continue Reading

DC Circ. Could Punt On CFPB Constitutionality Question

Eric Mogilnicki is quoted in a Law360 article regarding the upcoming rehearing of a case challenging the constitutionality of the single-director leadership structure of the Consumer Financial Protection Bureau. According to Mogilnicki, “I think the threshold issue, if that gets the most attention, it will suggest that the court is likely to pull back rather ...

An update on the Transactional Data Reporting rule

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

Anthony Weiner Pleads Guilty to Federal Obscenity Charge

The New York Times highlights Arlo Devlin-Brown's representation of Anthony Weiner during a federal investigation into the exchange of sexually explicit messages with a minor. Under Devlin-Brown's counsel, Weiner entered into a plea agreement which ended the investigation on May 19, 2017. Devlin-Brown said that his client had “accepted full responsibility” for ...

Weiner's Plea Deal Promises to Reduce Sentence by More Than Half

The New York Law Journal describes the plea agreement with the Department of Justice obtained by Arlo Devlin-Brown in his representation of Anthony Weiner in connection with the federal investigation into the exchange of sexually explicit messages with a minor. While Mr. Weiner could have been charged with an offense requiring a mandatory minimum sentence of 15 ...

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

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

Covington Advises Kate Spade’s Financial Advisor in its $2.4 Billion Sale to Coach

NEW YORK—Covington advised Perella Weinberg Partners as financial advisor to Kate Spade & Company in connection with its sale to Coach, Inc. for approximately $2.4 billion. Kate Spade & Company is a fashion company that designs and markets a range of women's and men's apparel, accessories, and fragrance products under the Kate Spade New York and Jack Spade ...

D.C. Circuit Dismisses Major Case Concerning Attorney-Client Privilege in Congressional Investigations

The long saga of the legal challenge by Carl Ferrer, CEO of Backpage.com, to a subpoena issued by the Senate’s Permanent Subcommittee on Investigations (“PSI”) appears to have reached a conclusion. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit this week dismissed the case as moot and additionally vacated a series of...… Continue Reading

Administration submits notice of NAFTA renegotiation

On May 18, 2017, newly-confirmed U.S. Trade Representative Robert Lighthizer formally notified Congress that President Trump intends to renegotiate the North American Free Trade Agreement (NAFTA). The Trump Administration has indicated that it will request public input on the “direction, focus, and content” of these negotiations, and will publish notice in the ...

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

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

Administration Submits Notice of NAFTA Renegotiation

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

CFTC Announces Innovation Lab for Fintechs

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

Manage Ransomware Risks Now

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

This Week in Congress – May 15, 2017

Following their one-week recess, members of the House of Representatives will join their Senate colleagues back in Washington, D.C. this week, where the news of FBI Director James Comey’s sudden dismissal continues to reverberate. President Trump’s unexpected decision to fire Director Comey dominated the news cycle last week and commanded the attention of the ...

PTAB: no longer a death squad

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

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

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

Equity Crowdfunding Struggles To Gain Steam At 1-Year Mark

Keir Gumbs is quoted in a Law360 article evaluating the efficacy of equity crowdfunding rules, which took effect one year ago. According to Gumbs, “The rules were a step in the right direction, but there are so many hoops that have to be jumped through both in terms of the companies doing the fundraising but also the investors.” Gumbs discusses how crowdfunding ...

ICSID Highlights Transparency, Efficiency In Rule Reform

Miguel López Forastier is quoted in a Law360 article examining the International Centre for Settlement Investment Disputes' updates to its rule amendment project. According to López Forastier, “The Centre is focusing on all the critical areas that require updates to keep up with the changes and developments of the last ten years.” He adds, “The process also ...

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

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

Big Suits: PSKW v. McKesson Specialty Arizona

Corporate Counsel features Covington's "across-the-board trial win" on behalf of McKesson in a trade secrets case with half a billion dollars at stake. Clara Shin, who led the Covington team, says, "I'm proud of the fact we came in five months before trial and took a fresh look at the record.” She adds, "In addition to showing [PSKW] was not able to prove their ...

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

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

China Releases Draft Encryption Law for Public Comment

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

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

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

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

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

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

Covington announces Johannesburg opening with Chadbourne hires

Timothy Hester and Graham Vinter are quoted in an African Law & Business article regarding the expansion of Covington's Project Finance practice with the arrival of four new partners and the opening of offices in Johannesburg and Dubai. According to Hester, the additions are “a natural progression of our strategy to build a leading projects practice.” He adds ...

The Man Who Could Stop Jeff Sessions

Mónica Ramírez Almadani is quoted in a Slate article that discusses the role and potential impact of Deputy Attorney General Rod Rosenstein. Almadani explains that, "Obviously the attorney general is the final decision-maker and the visionary for the department. He's in charge…but the DAG's office is essentially the nucleus of the department. It's where major ...

Covington Hires Reed Smith's Former Silicon Valley Leader

Catharina Min and Tom DeFilipps are quoted by The Recorder in an article regarding Min's arrival to the firm's M&A practice. Min, who predominantly represents technology industry clients, notes that her interest in Covington was largely due to the firm's regulatory expertise. "They're just at the forefront of so many cutting-edge issues," says Min. "Most of ...

Covington Adds Reed Smith Tech M&A Partner in Calif.

Catharina Min and Tom DeFilipps are quoted in a Law360 article regarding Min's arrival to Covington's Mergers and Acquisitions practice. According to DeFilipps, who has worked with Min in the past, “Her ability to advise companies navigating an ever-changing technology landscape will enhance the firm’s corporate practice as we continue to build our ...

Supreme Court Imposes Jurisdictional Requirement for FSIA Expropriation Suits—a Cautionary Reminder of the Benefits of Investment-Protection Treaties

Investments in developing economies offer substantial benefits for many reasons, including their growth potential. But they often come with greater economic and political risks. Investment-protection treaties are an important and relatively inexpensive tool to manage some of those risks.

Most bilateral and multilateral investment treaties provide foreign investors with substantive and procedural protections, including the right to bring a claim directly against the foreign country before an independent arbitration tribunal. That right is all the more important following the ruling this week by the Supreme Court in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling. In a unanimous opinion for the eight-Justice Court (Justice Gorsuch did not participate), Justice Breyer addressed the provisions of the Foreign Sovereign Immunities Act (FSIA) that allow for an exception to sovereign immunity when a foreign sovereign expropriates property “in violation of international law” and that property is owned or operated by an instrumentality of the foreign state engaged in a commercial activity in the United States. 28 U.S.C. § 1605(a)(3).

Policyholder Right to Damages for Late Payment Comes Into Force in England

With effect from today, policyholders may recover damages from insurers for late payment of some insurance claims.

For insurance contracts agreed or renewed on or after May 4, 2017 and governed by English law, the UK Enterprise Act 2016 introduces an implied term, affording the policyholder the right to recover losses caused by the insurer’s failure to pay valid claims within a reasonable time. The insurer has the burden to prove reasonable grounds for a delayed payment. The parties to business insurance contracts may agree to exclude damages for delayed payments that are neither deliberate nor reckless; but the insurer must specifically notify the policyholder of any such provision before entering the contract.

Policyholders should be alert to this new right, both at renewal and in future claims under UK insurance contracts.

House Considers Amended ACA Repeal-and-Replace Bill

Last week, Representative Thomas MacArthur (R-N.J.) proposed an amendment (the “MacArthur Amendment”) to the American Health Care Act (AHCA) in an effort to resuscitate the Republican bill that Speaker Paul Ryan pulled from the House floor last month. The MacArthur Amendment makes several changes to the AHCA, which we summarized in Advisories 17-9 and 17-10.

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

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

Technology M&A Lawyer Joins Covington

SILICON VALLEY—Catharina Min has joined Covington as a partner in its Corporate practice in Silicon Valley. Recently named among the “Top 50 Multicultural Leaders in Technology” by the National Diversity Council, Ms. Min handles a range of transactions for U.S. and international technology companies, including M&A, private financings, joint ventures, strategic ...

Congress Makes Deal, Gives DoD 2017 Spending Boost

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

Critical Mass: How A Decade Of Upheaval Changed Class Action Firms

Emily Henn is quoted in a Law360 article regarding the evolving state of class action litigation following the Class Action Fairness Act (CAFA) and 2011 Concepcion decision. According to Henn, “There’s a level of attention that courts pay to certification decisions now that makes them much more predictable now that class actions are increasingly brought in ...

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

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

Choice Act 2.0: Key Capital Markets and Securities Law Provisions

On April 19, 2017, the House Financial Services Committee (the “Committee”) released a new “discussion draft” of the Financial CHOICE Act (“CHOICE Act 2.0”), its comprehensive regulatory reform bill aimed at revising or repealing many features of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). The Committee released the first version of the bill in June 2016.

Prospects for enactment of the CHOICE Act 2.0 are dim, at best. In its omnibus form, the bill is not expected to have substantial, if any, bipartisan support, and in the Senate, the legislative filibuster probably dooms its fate. However, it is possible that discrete pieces of the bill could have bipartisan appeal and thus might be able to be passed separately, and perhaps in short order.

This client alert summarizes some of the more noteworthy provisions that would affect the securities laws and regulation of capital markets. The bill also includes significant changes to the regulation of banks and other financial institutions, which we described in our client alert published on April 24, 2017.

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

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

Trump moves on aluminum under Section 232; Steel investigation update

Just one week after launching a national security investigation of steel imports under Section 232 of the Trade Expansion Act of 1962, President Trump has announced plans to institute a similar investigation regarding aluminum. In a memorandum of April 27, 2017, President Trump announced that the Secretary of Commerce had initiated an investigation under ...

Trump tax proposal won't include federal infrastructure funding

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

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

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

Trump Tax Reform Proposal

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

Covington Opens Two New Offices After Adding Chadbourne Team

Timothy Hester is quoted in an American Lawyer article regarding the expansion of Covington's Project Finance practice with the arrival of four new partners and the opening of offices in Dubai and Johannesburg. According to Hester, the firm’s Chadbourne recruits in Dubai and Johannesburg will create a bridge between Covington’s outposts in Africa, Asia, Europe ...

Covington hires Chadbourne quartet ahead of office launches

Timothy Hester and Graham Vinter are quoted by The Lawyer in an article regarding the expansion of Covington's Project Finance practice with the arrival of four new partners and the opening of offices in Dubai and Johannesburg. According to Hester, “We have been looking to build our project finance team for a long time." He adds, "This group became available to ...

Team of Chadbourne partners opt against Norton Rose merger to launch two offices for Covington

Timothy Hester is quoted in a Legal Week article regarding the expansion of Covington's Project Finance practice with the arrival of four new partners and the opening of offices in Dubai and Johannesburg. According to Hester, “We have been focused on building our project finance capabilities for many years, and these opportunities fit very well with that ...

CNN Video Data Win Leaves Spokeo Door Open For App Users

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

Trump's Trade Agenda: The First 100 Days

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

Trump Tax Reform Proposal

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

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

Suniva Requests Global Safeguards For US Solar Industry Under Section 201

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

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

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

Gretchen Hoff Varner Named to Daily Journal's "Top 40 Under 40"

SAN FRANCISCO—The Daily Journal has named Covington partner Gretchen Hoff Varner one of its “Top 40 Under 40” lawyers in California. The Daily Journal praised Ms. Hoff Varner for her insurance coverage practice, which has successfully recovered millions of dollars from insurers on behalf of a diverse array of clients. The profile also highlighted Ms. Hoff ...

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

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

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

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

Defense Contractors Should Have Shutdown Plan, Attorneys Say

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

CHOICE Act 2.0: House Financial Services Committee Revises Regulatory Reform Bill

On April 19, 2017, the House Financial Services Committee (the “Committee”) released a new “discussion draft” of the Financial CHOICE Act, its comprehensive regulatory reform bill (“CHOICE Act 2.0”). The Committee released the first version of the bill (“CHOICE Act 1.0”) in June 2016.

Trump Moves on Steel Under Section 232

On April 20, 2017, President Trump issued a memorandum announcing that the Secretary of Commerce had initiated an investigation to determine the effects of imported steel on national security. The investigation was initiated under Section 232 of the Trade Expansion Act of 1962, as amended. I. Conduct of Section 232 Investigations Under Section 232, Secretary...… ...

Trump, Xi Kick Off Economic Relationship

On Friday, April 14, the U.S. Department of Treasury published a widely anticipated semi-annual report detailing the foreign exchange practices of America’s major trading partners. Although he regularly called for China to be labeled as a “currency manipulator” as a candidate, President Donald J. Trump and his administration declined to use the occasion of ...

Trump Moves on Steel Under Section 232

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

K Street bouncing back under Trump

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

9th Circ. Ruling Generates Copyright Preemption Confusion

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

4 Takeaways From The 'Buy American' Executive Order

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

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

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

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

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

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

Federal Contractors Bear Brunt Of 'Buy American' Crackdown

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

CMS Finalizes Market Stabilization Rule

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

SEC Signals Some Relief on Conflict Minerals Rule

On April 7, 2017, the SEC’s Division of Corporation Finance (the “Division”) issued a statement indicating that it will not recommend enforcement action to the SEC if companies subject to the SEC’s conflict minerals reporting rule only file disclosure under the provisions of paragraphs (a) and (b) of Item 1.01 of Form SD, and not under paragraph (c) of Item 1.01. As discussed below, the statement means that a company will not face the risk of an enforcement action if it fails to conduct the supply chain due diligence called for by paragraph (c) of Item 1.01 and does not file a Conflict Minerals Report, even when it would otherwise be required to take such steps. The Division’s statement is available here.

The Massive Accutane Litigation Just Fell Apart After Judge Boots Expert ‘Hired Guns’

The Litigation Daily highlights Covington’s representation of Roche in the ongoing Accutane litigation, which recently saw a momentous defense ruling, likely leading to the dismissal of the nearly 3,000 remaining cases. Covington’s Product Liability team is led by Paul Schmidt and Michael Imbroscio.

Covington & Burling Adds Ex-Tyco Counsel In M&A Practice

Thomas Repke is quoted in a Law360 article regarding his arrival to the firm’s Mergers and Acquisitions practice. “This is an opportunity to share best practices, put the best teams together, which the firm is really conducive to,” Repke says. “Providing excellence in client service and that’s really the goal. Having been in-house for the past seven years, ...

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

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

SEC Requires Hyperlinks to Exhibits

The U.S. Securities and Exchange Commission (“SEC”) has adopted amendments to its rules and forms that will require companies filing registration statements and reports subject to the exhibit requirements of Item 601 of Regulation S-K to include an active hyperlink to each exhibit listed in the exhibit index, whether or not the exhibit is incorporated by reference. To facilitate the use of hyperlinks, subject to a small exception, the amendments also require companies to file such registration statements and reports on the SEC’s electronic filing system, EDGAR, in HyperText Markup Language (“HTML”) format.

The SEC also has proposed rule amendments that would require the use of the Inline eXtensible Business Reporting Language (“XBRL”) format for public companies and mutual funds that submit financial statement information and risk/return summaries using XBRL. The proposed amendments would also eliminate the current requirement for such filers to post XBRL data files on their websites.

Philip Howard Named to President Trump's CEO Council

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

Laterals of note

Andrea Reister is quoted in a Commercial Dispute Resolution article regarding the arrival of Peter Chen and Scott Kamholz to the firm’s Patent Office Trials Practice. According to Reister, “Virtually all significant patent litigation matters involve co-pending IPRs, so having a strong patent office trials practice with a deep bench of senior attorneys is ...

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

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

Eric Mogilnicki Named to the American College of Consumer Financial Services Lawyers

WASHINGTON—Covington partner Eric Mogilnicki has been named a Fellow of the American College of Consumer Financial Services Lawyers. Mr. Mogilnicki is the third Covington lawyer to be named a Fellow, joining Andrew Smith and David Stein. Mr. Mogilnicki focuses his practice on assisting clients with investigations, examinations, and enforcement actions by the ...

Covington Holds Second International Arbitration Academy

NEW YORK—Covington has partnered for the second year with Columbia Law School and its Center for International Commercial and Investment Arbitration to hold the Covington Academy on International Arbitration (CAIA). The program is open to Columbia’s J.D., LL.M., and S.J.D. students. The three-day program consists of training followed by practical exercises and ...

Chao says infrastructure plan by May; Advocates question path forward

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

Covington Adds Senior M&A Partner

WASHINGTON—Thomas Repke, who has extensive M&A private practice and in-house experience, has joined Covington as a partner in its Mergers and Acquisitions practice in Washington. Most recently, Mr. Repke served as lead counsel for Tyco on all M&A, divestiture, joint venture, and investment transactions across all business units. While at Tyco, he helped ...

Four Iconic DC Law Firms Travel Distinct Paths to Growth

The National Law Journal featured Covington among Washington’s four most iconic law firms. Commenting on the firm’s growth strategy, Timothy Hester says, "We said to ourselves, one of the things we wanted to do is achieve more scale. We had grown from 2008 to now quite substantially, but it's been our own path. We like to control our own destiny."

A Century of Women in Congress: Muftiah McCartin

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

Lateral Report: The Few, the Proud, the March Movers

Andrea Reister is quoted in a Litigation Daily article regarding the arrival of Peter Chen and Scott Kamholz to Covington’s Patent Office Trials Practice. According to Reister, “We are thrilled to add Peter and Scott to our team as we expect the demand for patent office trials to continue to grow in the coming years.”

Big Suits: PSKW v. McKesson Specialty Arizona

Covington’s successful representation of McKesson in a trade secrets case with half a billion dollars at stake is featured in The American Lawyer’s “Big Suits” section. According to Clara Shin, "In addition to showing [PSKW] was not able to prove their case, we used documents we found to tell an affirmative story that [McKesson] developed" the co-pay method on ...

Too Much of a Good Thing? An Illustrated Guide to Solar Curtailment on California’s Grid

Bud Earley is quoted in a Green Tech Media article examining how California is managing oversupply of solar power. According to Earley, wind generators are not curtailing because they “generally receive -- in addition to market revenues -- production tax credits, renewable energy credits, and contractual energy payments, which amount to about $130/MWh for the ...

What Comes Next for Health Care Reform?

On March 24, 2017, Speaker Ryan pulled the American Health Care Act (“AHCA”) from the House floor and announced that the Affordable Care Act (“ACA”) would remain in place “for the foreseeable future.” Since that time, there has been considerable speculation about what comes next for the ACA, both in Congress and with respect to administrative action by the Trump ...

Ignore the Tweets! Merger Enforcement in Trump Era

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

White House Choices Shape Africa Policies [analysis]

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

FERC Clarifies Cost Recovery Flexibility for Electronic Storage Resources

The Federal Energy Regulatory Commission issued a Policy Statement clarifying the flexibility electric storage resources have regarding rate designs to recover their costs. Wilbur ("Bud") Earley discusses these policies and rules, which are of interest to storage operators and investors, grid managers, other participants in Regional Transmission Organizations, and consumers of storage services.

Pair of Ex-PTAB Judges Join Covington

Scott Kamholz, Peter Chen, and Andrea Reister are quoted by The Recorder in an article regarding the recent additions to the firm’s Patent Office Trials Practice Group. According to Kamholz, Covington’s team stood out for its sophistication. “I was very impressed with their level of skill and preparation, and I found through working that case with them that we ...

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

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

Covington's Robert Kelner, Navigating the 'Wild West,' Pushes Michael Flynn Deal

The National Law Journal featured Robert Kelner and highlighted his representation of General Michael Flynn, President Trump’s former National Security Advisor. According to Marc Elias, former general counsel for Hillary Clinton’s presidential campaign, Kelner is “a first rate criminal defense lawyer” and Flynn “wisely chose.” Kelner has significant experience ...

Covington Adds Two Former PTAB Judges To Patent Group

Andrea Reister, Peter Chen, and Scott Kamholz are quoted in a Law360 article regarding the recent additions to the firm’s Patent Office Trials Practice Group. According to Reister, “We are thrilled to add Peter and Scott to our team as we expect the demand for Patent Office trials to continue to grow in the coming years. Their experience in the high-tech and ...

Two Former Patent Trial Board Judges Join Covington & Burling

Simon Frankel and Peter Chen are quoted in a Daily Journal article regarding the arrival of Chen and Scott Kamholz to the firm’s Patent Office Trials Practice. According to Frankel, while the firm’s patent litigation activity spans the coasts, most of its patent office practice has been based in Washington D.C. Chen’s addition will help expand the firm’s patent ...

Trump No Threat To Antitrust Policy, Former Officials Say

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

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

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

Two Former PTAB Judges Join Covington's Patent Office Trials Practice

SILICON VALLEY—Former Patent Trial and Appeal Board (PTAB) judges Peter Chen and Scott Kamholz have joined Covington’s Patent Office Trials Practice. Mr. Chen and Dr. Kamholz are the only former PTAB judges to enter private practice who have overseen Leahy-Smith America Invents Act of 2011 (AIA) trial proceedings from institution through final decision. Peter ...

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

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

Delrahim Pick Signals Traditional Republican Antitrust Tack

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

Supreme Court Sets the Standard for Separability in Copyright

In a highly anticipated copyright decision issued on March 22, the Supreme Court held that the designs on Varsity Brands’ cheerleading uniforms are eligible for copyright protection. In reaching that ruling, the Court set out a standard that aims to harmonize a multitude of tests across the country.

What does the future hold for Belt & Road?

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

Wall to Mexico: Beautiful She Is, and Insurmountable

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

Trump Comments Highlight Need for a Plan When Clients Go Rogue

Ben Razi is quoted by The National Law Journal in an article about clients who make bold, public statements and how they can impact litigation. According to Razi, it's crucial to be aware of any and all public statements a client made before taking a litigation position. He adds that if lawyers aren't aware of every word, they risk "taking a position that's ...

Experts call for US government to coordinate against unfair trade

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

North America

Representative Matters

Abbott Laboratories de-merger

AA Pharma

A&P Company

$9.5 billion proposed acquisition of the New York Stock Exchange

50 state pay-to-play survey

$5.8 billion Atlas Pipeline Merger

$3 billion CNOOC investment in Chesapeake Energy

$220 Million Acquisition of Align Aerospace

$15 billion acquisition of Nexen by CNOOC

$1 Billion Breach-of-Contract Recovery

$1.75 billion divestiture of IBM’s personal computers division

$750 million Dassault Systèmes acquisition of Accelrys

Tax-efficient acquisition vehicles

Strategic advice to companies facing foreign investment challenges

Strategic advice for defense prime contractor regarding ground combat vehicles

State Super PAC

State of Louisiana

State lobbying registration laws

State Department of Taxation Audits of Clubs Dropped

State and local Super PAC

Spin-Off of The Timken Company

Special reports related to the European Securities and Markets Authority consultation process

Strategies and Comments on EPAs Proposed Emissions Regulation

Tax Court Litigation Resulting in Government Concession of over $250 million in Adjustments Plus an Additional Refund of $15 million

Tax Counsel to OCC

Tax and fiduciary issues relating to VEBAs

Superfund Site Deletion from National Priorities List

Superfund Site Advice for Aerospace Company

Tax efficient compensation

Successful representation of Public Television Stations in FCC matter

Success in federal copyright infringement lawsuit

Aabar's investment in Virgin Galactic

Tax-Efficient Compensation for Executives and Athletes

$500 million in recoveries for oil and gas companies

$5.6 billion acquisition of Invensys plc

$3.7 billion acquisition of Sapient by Publicis Groupe

$2.1 billion acquisition of IBM server business by Lenovo

$1 Billion in Real Estate Formations

Acquisition of the New Orleans Hornets

Strategic advice to companies facing international regulatory challenges

Strategic advice to a defense contractor competing for a US Air Force contract

Strategic advice in a land-holdings dispute

State Taxation of Visiting Players and Teams

State health information privacy laws

State Campaign Finance Advice to Major Corporation

Sports Leagues on Broadband Issues

Specialty Pharma cross-border licensing agreement

Sony Network Services' Negotiation of Agreement with Alltel

Strategic advice to multinational corporations facing global market challenges

Tax Court Victory Following Trial in Matter Involving over $350 million of Adjustments

Tax Counseling Regarding Numerous Franchise Sales

Tax Audits for Sports Leagues and Affiliates

Sweepstakes and Other Commercial Promotions Relating to Advertising

Successful Transfer of Operating Licenses Before NRC

Successful Representation in Exploratory Well Plugging Litigation

Successful Challenge to Federal Renewable Fuel Standards Under the Clean Air Act

Structuring and Guidance on Multi-Faceted Sponsorship Arrangements

Pathnet Telecommunications

Acquisition of Unilever’s Global Prestige Fragrance Business

Acquisitions by British Telecommunications

Approval of Renewable Fuels under EPA's Renewable Fuel Pathways Regulation

Boycott request analysis

Boston Generating

Borrego Solar Project Finance Fund

Bespoke CDO Products

Bernard Madoff Investment Securities LLC

Bellicum Pharmaceuticals IPO and Follow-On Offering

BCD Semiconductor Manufacturer Acquisition

BBVA in Fintech Acquisition

Bankwell Financial IPO

Bank of New England Corporation

BAIC and WFUM Solvent Schemes

BAE Systems acquisitions

BAA and TAA compliance counseling

B&C Corporation

Association of Public Television Stations in Office of Communication of the United Church of Christ Inc., v. FCC

Cleantech Company in Series D Funding

Chrysler