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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.

Successful Settlement of IPR Proceedings for Knowles Electronics, LLC

Representation of Knowles Electronics, LLC as patent owner in four IPR proceedings relating to silicon microphone packages and MEMS microphones, all of which were successfully terminated by settlement. Covington also represented Knowles in the co-pending litigation, which successfully settled.

$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.

Successful Resolution of Peregrine IPR Proceeding and Litigation

Representation of Peregrine Semiconductor as patent owner in an IPR proceeding brought by RF Micro Devices. The patent is directed to high frequency RF switches for 4G access technologies. Covington also represented Peregrine in the co-pending litigation. Both the IPR and the litigation were settled successfully for Peregrine.

Successfully Represented Communications Manufacturer in Proposed Debarment Before GSA

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

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).

Advocating On Behalf of Clients Before Congress

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

Agricultural manufacturer global relationship building

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

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

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

Advising clients regarding anti-human trafficking compliance

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

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

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

Advised client of risk mitigation techniques during contract formation

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

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

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

Advice on the monitoring of employee communications

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

Assisting with review and overhaul of FSS pricing model

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

Assisting clients with VA Schedule contracts involving medical equipment and pharmaceuticals

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

Arms Export Control Act - third party beneficiary claims

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

Antidumping and countervailing duty proceeding for freight railroad company

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

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.

Hatch-Waxman Victory for Omeros Corporation

Representation of Omeros Corporation in Hatch-Waxman patent litigation against Par Pharmaceutical concerning Par's application to make a generic version of the drug Omidria®, a combination drug solution used to maintain pupil dilation during cataract surgery and reduce post-operative pain. The case involved Omeros' only approved drug. Following trial, Par settled the matter on favorable terms for Omeros.

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.

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.

Tax Court Victory re: Expense Deduction Matter on Behalf of National Sports Team

Successfully litigated a matter before the Tax Court involving the taxable nature and deductibility of meal expenses on behalf of the Boston Bruins. The decision has implications for most national sports teams as well as other employers who provide meals to employees as a de minimis fringe benefit. Jacobs v. Commissioner, Tax Court Docket No. 019009-15.

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.

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.

$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.

Global Privacy Audit for Leading Consumer Electronics and Technology Companies

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

GE Capital Retail Bank CFPB Investigation and DOJ Consent Order

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

Global regulatory and legislative support

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

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

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

Proposition 65 Labeling and Chemical Safe Harbor Levels

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

NFL Financings

Advised the NFL on its multi-billion dollar league-wide credit facilities, consisting of a revolving credit facility and multiple term note offerings. Over 20 NFL teams participate in these facilities, which are negotiated by the NFL on behalf of its member clubs and allow participating clubs to obtain financing on favorable terms through a structured arrangement that gives lenders priority access to the teams’ share of national television revenues and which is otherwise secured by a pledge of all of the assets of each participating club.

NFL CBA Arbitrations

Represented the NFL in a host of arbitrations under the NFL collective bargaining agreements, including the disputes regarding the Jimmy Graham Franchise Tender, the Drew Brees Franchise Tender, the Michael Vick, Plaxico Burress, and Larry Johnson salary forfeitures, and the Washington Redskins/Dallas Cowboys salary cap reallocation.

NHL Digital Rights and Related Transactions with MLB Advanced Media

Represented the NHL in connection with entry into a six-year digital rights partnership under which the NHL licensed to MLB Advanced Media (MLBAM) rights to distribute the NHL’s out-of-market subscription packages, digital and online properties, and related rights, and in connection with negotiations for an equity stake in a to-be-formed tech company that is expected to be created by MLBAM.

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.

GRUMA S.A. de C.V.

Successful representation of two Spanish subsidiaries of GRUMA S.A. de C.V., a Mexican food conglomerate, in an ICSID arbitration proceeding against the Bolivarian Republic of Venezuela arising out of certain measures of the Republic that violated the bilateral investment treaty between Spain and Venezuela and resulted in an award of close to $500 million, including interest.

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.

Janssen Pharmaceuticals Hatch-Waxman Litigation

Representation of Johnson & Johnson subsidiary Janssen Pharmaceuticals in Hatch-Waxman litigation against Lupin relating to the Ortho Tri-Cyclen® Lo patent. After a full trial on the merits, the court held that the patent was valid and enforceable. We subsequently obtained a highly favorable settlement for our client.

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 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.

Schneider Electric SA’s combination with AVEVA Group PLC

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

Complex Procurement

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

COMPETE Representation in Federal and State Electricity Competition Issues

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

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.

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

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

Cole Taylor Bank in Federal Reserve Board Investigation

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

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.

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

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.

Successful Representation of Microsoft in Privacy Battle

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

Landmark Trademark Infringement Ruling for John Deere

Represented John Deere in a trademark infringement lawsuit against FIMCO, Inc. for dilution and false designation concerning Deere's iconic green and yellow colors on its towed agricultural equipment. After a one week bench trial, the Judge ruled in favor of Deere on every claim and issued a permanent injunction, prohibiting FIMCO from selling green and yellow agricultural equipment.

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

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

Legislative Victory in a 2016 FDA Nutrition Facts Panel Rule

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

Dismissal of Multidistrict Litigation Alleging Contractor Negligence Inside Overseas War Zones

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

Magellan’s Acquisition of AFSC

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

Secured Dismissal for Deutsche Bank in Civil Litigation Involving the Anti-Terrorism Act (ATA)

Successfully defended Deutsche Bank in an ATA litigation brought on behalf of American service members killed or injured by terrorist bombing attacks in Iraq. Covington secured a complete dismissal with prejudice, proving that Deutsche Bank's conduct did not amount, as plaintiffs contended, to a conspiracy to fund terrorism.

Counsel to Emerging Companies

We represent companies at all stages of development and in all aspects of their business, typically serving as outside general counsel. For early stage companies, we structure the relationships among founders, develop an intellectual property rights strategy, and help secure initial funding. As companies develop and expand, we provide strategic and legal advice, both domestic and international, on governance issues, capital structure, distribution, licensing and other commercial arrangements, venture capital financings, IPOs, and M&A transactions.

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.

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.

$2.7 Billion Acquisition of the Safran Identity & Security Business

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

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.

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 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.

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.

Balkrishna Industries, Ltd. Patent Litigation

Representation of Balkrishna Industries Ltd. and its affiliates BKT Tires, Inc. and BKT USA, Inc. in litigation against Bridgestone Brands, LLC and Bridgestone Americas Tire Operations, LLC concerning alleged patent infringement, trademark infringement and unfair competition issues in the U.S. District Court for the Middle District of Tennessee.

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.

Successfully defended prime contractor in data rights lawsuit

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

Successfully defended bidder against claims of misuse of competitors data

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

Successfully defeated infringement suit in the Court of Federal Claims

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

Successful resolution of best pricing investigation

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

Successful representation of major defense IT contractor in GSA IG audit

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

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

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

Successfully protested $2 billion+ biodefense award

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

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Global Arbitration Review and WWL Recognize Covington's Arbitration Practice

LONDON— Global Arbitration Review and Who’s Who Legal: Arbitration have recognized Covington’s International Arbitration Practice Group in its 2019 report. The publication named Covington partners Nicole Duclos and Jeremy Wilson as “Future Leaders,” a ranking of “the most eminent lawyers in the field under 45,” and recognized Miguel López Forastier and Stephen ...

U.S. Congress Passes the Farm Bill and Removes Restrictions on Hemp

On December 12, 2018, the House passed H.R. 2, the Agricultural Improvement Act of 2018 (“the Farm Bill”). The vote follows the Senate’s passage of the bill on December 11, 2018. If President Trump signs the bill, it would change the regulatory status of hemp and hemp products.

EU Framework for Screening Foreign Direct Investment Agreed in Principle

The first EU-level rules on the screening of foreign direct investment (FDI) are about to be agreed. These do not provide for the direct screening of FDI by the institutions of the Union, but rather create a framework for national initiatives and the exchange of information, and impose certain obligations on Member States to ensure a certain harmonization of any ...

Trump EPA Expands Rigorous Enforcement of Pesticide Law as Part of "Return to Core Mission"

Despite its deregulatory efforts in other areas, the Trump administration continues to enforce pesticide laws rigorously as part of its stated goal of returning EPA to its “core mission.” EPA is acting pursuant to its authority under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq., under which EPA regulates the ...

Four Covington Partners Named Law360 MVPs

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

Federal Circuit Delivers Two Important Decisions on Obviousness-Type Double Patenting

On December 7, 2018, the Federal Circuit issued two highly-anticipated decisions clarifying the application of the obviousness-type double patenting doctrine: Novartis AG v. Ezra Ventures LLC (patent term extension ("PTE")), and Novartis Pharmaceuticals Corp. v. Breckenridge Pharmaceutical Inc. (pre-Uruguay Round Agreements Act ("URAA") versus post-URAA ...

CFIUS Reform Key Questions for Private Funds to Consider

Earlier this year Congress passed and President Trump signed the Foreign Investment Risk Review Modernization Act (“FIRRMA”), transformational legislation reforming the operations of the Committee on Foreign Investment in the United States (“CFIUS”).

Reprieve in U.S.-China Trade Tensions: U.S. tariffs on $200 billion in Chinese imports to stay at 10 percent for 90 days; China to purchase U.S. goods

On December 1, during a working dinner meeting in Buenos Aires following the G20 Summit, U.S. President Donald J. Trump and Chinese President Xi Jinping agreed to temporarily ease trade tensions as both sides continue negotiating over longer-term solutions to U.S. concerns about bilateral economic relations. According to a White House press release, for a...… ...

Congressional Forecast: December

The U.S. House and Senate have convened for a lame duck session of Congress, during which they must compromise on legislation that funds the government or face a shutdown. They may also endeavor to move additional legislation and continue to confirm Trump administration nominees before the end of the 115th Congress later this month. The...… Continue Reading

Reprieve in U.S.-China Trade Tensions

Intellectual Property Issues in Blockchain and FinTech

FinTech refers to the use of new and emerging technologies in the financial services industry to improve the delivery of financial services to customers, and includes innovations such as cryptocurrencies and open banking. Recent years have ushered in the use of several key technologies in the FinTech landscape, including artificial intelligence, data analytics, ...

Small banks warned not to over-rely on fintech partnerships

Michael Nonaka is quoted in the American Banker regarding how banks focused on improving their technology have shown a propensity to quickly enter into fintech partnerships. Mr. Nonaka says, “One of the most interesting developments is now small and large banks have gotten to the point where these partnerships are just business as usual. There is a lot more ...

DoD is dragging its feet on following the law and it could be a national security issue

Scott Freling and Justin Ganderson are quoted in Federal News Network regarding the implementation of 2017 Department of Defense legislation. Mr. Freling says, “The process for updating and refining the acquisition regulation to keep pace with Congress has slowed to a glacial pace. That causes quite a bit of consternation for contractors we work with where ...

Fed supervision changes: winners and losers

Randy Benjenk is quoted in International Financial Law Review regarding the Federal Reserve’s recent proposals to the financial system. He says, “By narrowing the application of the advanced approaches to just the biggest banks, it could give the agencies a little bit more freedom to do things like implement Basel IV standards, because there are fewer banks to ...

Commerce Requests Comment on Criteria for Identifying Emerging Technologies that Are Essential to U.S. National Security

On November 19, 2018, the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) released an Advance Notice of Proposed Rulemaking (“ANPRM”) requesting public comment on the criteria to identify emerging technologies essential to U.S. national security. The comments will inform the interagency process that was authorized under the Export Control ...

FDA Advertising and Promotion Enforcement Activities Update

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

Covington Helps Achieve Legislative Victory to Promote Diversity in Innovation

WASHINGTON—Covington has helped achieve a legislative victory to advance pro-innovation policies and to further study issues of underrepresentation in inventing by women, persons of color, and veterans when Congress enacted H.R. 6758, the Study of Underrepresented Classes Chasing Engineering and Science Success (SUCCESS) Act into law, which the President has now ...

Companies Face Greater Scrutiny for Misleading Environmental Claims and Nonstandard Sustainability Reporting

As more companies recognize the value of enhanced sustainability reporting and publicize the positive environmental features of their products and services, they should also be attentive to greater public scrutiny of “green” claims.

Dem AG Gains May Spur State Financial Services Action

Jean Veta is quoted in Law360 regarding state Attorney General election results and the impact on investigations and enforcement activity on banks. Ms. Veta says, “While banks may feel some effects of the blue wave, I don’t look for banks to be swamped by that wave.” But in the current strong economic environment, she said she doesn’t see comparable scope for ...

Business Groups Push to Neutralize Proxy Advisors

Reid Hooper is quoted in Agenda regarding the Corporate Governance Fairness Act, a bill that would require proxy advisory firms to register under the Investment Advisers Act of 1940, would give the SEC examination authority over the firms, and would provide a basis for future rulemaking. Mr. Hooper says the proposed bill would be aimed at “improving transparency ...

What is the Prognosis for Health Care Issues in the Next Congress?

Joan Kutcher and Gary Heimberg delivered remarks during Covington’s post-election conference call with clients on November 8, 2018 on health care and drug pricing. The health care segment follows: The Affordable Care Act has been an issue in every election since it passed in 2010. This election was the first time the Democrats could fully...… Continue Reading

Covington Advises Standard Cognition in $40M Series A Preferred Stock Financing

PALO ALTO—Covington advised Standard Cognition, which provides artificial intelligence-powered autonomous checkout solutions for brick and mortar retailers, in raising a $40 million round of Series A Preferred Stock investment. Available to any retailer, the Standard Cognition solution allows consumers to shop and pay without waiting in line, scanning, or ...

Supreme Court Grants Review in Key Patent Law Case Handled by Covington

WASHINGTON—Covington's patent litigation team successfully petitioned the U.S. Supreme Court to hear a case on behalf of its client, Return Mail, Inc., which saw its patent on a system for handling undeliverable mail invalidated in 2015 after the U.S. Postal Service petitioned for Covered Business Method Review. The case, which will involve interpretation of ...

Trump holds fire in trade fights with Europe and China — but for how long?

John Veroneau is quoted in the Washington Post regarding the Administration’s use of potential tariffs on imported vehicles as threats in trade negotiations. Veroneau says, “The administration may view the threat of tariffs as more potent than actually imposing them. Unlike tariffs on intermediate goods, tariffs on autos will be very visible to consumers from ...

Can CNN beat the White House in court? Look to the case 40 years ago of a loner journalist named Robert Sherrill.

Mark Lynch is quoted in the Washington Post about his representation of Robert Sherrill, a journalist who successfully sued the White House to re-obtain his press credential in 1977. Mr. Lynch said that the critical finding in Sherrill v. Knight was, given the "important First Amendment rights implicated by refusal to grant White House press passes to bona fide ...

Democrats took the House. Now they want to take on corporate America

Robert Kelner is quoted in CNBC regarding Democrats plans to scrutinize publicly-traded and consumer-facing companies more closely. Mr. Kelner said Democrats have sent roughly 100 letters during the past two years to companies in four main sectors: pharmaceuticals, tech, energy and financial services. He has told clients, “Prepare, prepare, prepare. Don't wait ...

Lauren Moxley Named to Forbes "30 Under 30"

WASHINGTON—Forbes has named Covington’s Lauren Moxley to its “30 Under 30” list for law and policy. This annual recognition honors 30 people under 30 who are “the new frontier of politicians, legal entrepreneurs and attorneys.” Ms. Moxley represents clients in privacy matters, with a focus on electronic surveillance and law enforcement access. She was part of ...

National Veterans Legal Services Program Recognizes Covington as “Partner of the Year”

WASHINGTON—The National Veterans Legal Services Program has presented Covington with its “Pro Bono Partner of the Year Award.” The award recognizes the firm’s extraordinary legal service provided to veterans. For over 14 years, Covington has partnered with NVLSP, working to address systemic and individual issues that affect the lives of veterans and their ...

House Probes Like ‘Nine-Alarm Fire,’ Law Firms Prep for Democrats

Robert Kelner is quoted by Bloomberg about how law firms are preparing clients for a potential increase in congressional investigations now that Democrats have assumed the majority in the House of Representatives. Mr. Kelner said, “A congressional investigation is like a nine-alarm fire, and really essentially brings the company to a stop until the crisis has ...

Covington Ranked Among Top Ten International Law Firms by Latinvex

NEW YORK—Latinvex has named Covington among the top ten international law firms doing work in Latin America. In addition to this honor, Latinvex has recognized Covington as the top firm for Trade, among the top five for FCPA & Fraud, as well as for Arbitration, and among the top ten for Corporate/M&A. Covington’s Latin America practice draws on a dedicated team ...

Drug Pricing In The New Congress

Drug pricing presents intriguing political dynamics. Whether and what policy prescriptions actually come to fruition in the next two years remain to be seen, but the rhetoric around the imperative to lower drug pricing — and the political pressure to act — will be more intense than we have seen to date. President Trump and...… Continue Reading

Covington & Burling Partner Gerald Hodgkins on the SEC Proposal to Limit the Size of Whistleblower Awards

Gerald Hodgkins is featured in an interview with Corporate Crime Reporter regarding the SEC proposal to limit the size of whistleblower awards. Under current SEC rules, whistleblowers are entitled to an award of ten to thirty percent of the recovery. The securities industry is now pushing to limit the size of SEC whistleblower awards. Under a proposed SEC rule, ...

Vance Center Recognizes Covington for International Pro Bono Excellence

NEW YORK—The Cyrus R. Vance Center for International Justice has presented Covington with the “Good Governance Program” award at its third annual Celebration of International Pro Bono Excellence. The Vance Center recognized Covington for its work on behalf of ACOS Alliance, a coalition of news organizations, freelance journalist associations, and NGOs working ...

Gridlocked Government May Not Be Bad For Capital Markets

Donald Murray is quoted in Law360 regarding the effect of the 2018 midterm elections on capital markets. Mr. Murray said he spent the past few days discussing the election with bankers, noting that the outcome was anticipated. He adds, “It seems to be full speed ahead for capital markets deals. The pipeline is strong; it seems to continue growing. To my ...

Emboldened Dems May Push Back On Trump's Trade Agenda

John Veroneau is quoted in Law360 regarding whether Democrats in the House of Representatives will support the Administration’s new U.S.-Mexico-Canada Agreement, which includes a tightening of the agreement’s automotive rules of origin and a tethering of automotive tariff benefits to a $16 minimum wage. Mr. Veroneau says, “While the agreement includes much of ...

FDA Announces Final Guidance on Nutrition and Supplement Facts Labels

Last Friday (November 2, 2018), FDA announced the availability of its final guidance, "Nutrition and Supplement Facts Labels: Questions and Answers Related to the Compliance Date, Added Sugars, and Declaration of Quantitative Amounts of Vitamins and Minerals: Guidance for Industry." The guidance is in the form of a Q&A that presents FDA's position on the ...

Canadian Privacy Commissioner Releases Official Guidance as Data Breach Law Takes Effect

Canada’s new data breach law, The Personal Information Protection and Electronic Documents Act (“PIPEDA”), took effect on November 1. Official guidance released by the country’s Privacy Commissioner explains a few of the law’s key provisions that will affect organizations, specifically, breach reporting and notification obligations, their triggers, and record ...

SEC Annual Report Indicates Shift in Enforcement Focus

Gerald Hodgkins is quoted in Corporate Counsel regarding the SEC’s annual enforcement report. Reflecting on the data, Mr. Hodgkins says, “You’re seeing more cases that are really honed in on the operating metrics and financial goals of the company. These newer cases are focused on particular operating goals, operating metrics. It has increasing emphasis by the ...

Inside the daring mission to rescue ancient artefacts from the bottom of the sea

James Goold is featured in Wired UK regarding his involvement identifying and protecting underwater archaeological sites. The article highlights a case from 2007 where he successfully represented Spain in securing the return of 15 tons of gold coins -- estimated at $600 million -- found inside a sunken Spanish gunboat from rogue treasure hunters.

Artificial Intelligence: Useful—But Risky, Deloitte Survey Says

Lee Tiedrich spoke with Legaltech News regarding a recent survey on the legal and regulatory risks of artificial intelligence. Ms. Tiedrich suggested clients take a global perspective when assessing what laws are relevant to a particular AI program. She notes that artificial intelligence is not limited to a single jurisdiction, and clients should seek advice on ...

SEC Increases Enforcement Activity in 2018, Shifting Focus to Offering Frauds and Investment Advisers

Due to a flurry of enforcement activity in the last quarter of Fiscal Year 2018, which closed at the end of September, the Securities and Exchange Commission filed nearly 10% more cases in 2018 than in the year before. The agency topped last year's numbers in every major category of cases except issuer disclosure and accounting, which were down about 13% from ...

Trump Administration Spares Corporate Wrongdoers Billions in Penalties

Gerald Hodgkins is quoted in The New York Times regarding SEC enforcement activity during the first 20 months of the current Administration. Mr. Hodgkins says there was an uptick in enforcement in 2018 against fraudulent stock offerings and investment advisers accused of lying and stealing. At the same time, the SEC brought fewer market manipulation cases, which ...

“Hey Big Spender . . .”: GAO Reiterates That Agencies Must Meaningfully Consider Price In Best Value Tradeoffs

In three related bid protest decisions made public last week, the Government Accountability Office (“GAO”) reaffirmed the principle that agencies must meaningfully consider price when making best value tradeoff decisions. GAO sustained the protests, stressing that merely paying lip service to price while selecting a more expensive, higher-rated offeror is not ...

State interventionism may spur policy advice work for law firms

Sergio Urias participated in the “Latin Lawyer Live 9th Annual Private Equity Conference,” where he discussed regulatory and corporate issues, and is quoted in Latin Lawyer. Commenting on FIRRMA, Mr. Urias says, “This results in the most complex investment trade and transactional environment in many years and it won’t go away.” Although he thought FIRRMA will ...

Covington Represents Illumina in $1.2 Billion Deal with Pacific Biosciences

NEW YORK—Covington advised Illumina, Inc. in its announced $1.2 billion acquisition of Pacific Biosciences. Illumina is a leading developer, manufacturer, and marketer of life science tools and integrated systems for large-scale analysis of genetic variation and function, and the company’s products are used for applications in life sciences, oncology, ...

US regionals may get $8 billion capital break in Fed proposal

Randy Benjenk is quoted in Risk regarding the Federal Reserve’s new proposal to assess risk in a more targeted way, splitting banks into four categories. US global systemically important banks (G-Sibs) land in the first category; banks with more than $700 billion in assets, or more than $75 billion in cross-jurisdictional activity, are in the second. Those ...

Litigation Options For Post-Cyberattack ‘Active Defense’

In March 2017, Rep. Tom Graves, R-Ga., introduced a draft bill titled the Active Cyber Defense Certainty Act. The bill would amend the Computer Fraud and Abuse Act to enable victims of cyberattacks to employ “limited defensive measures that exceed the boundaries of one’s network in order to monitor, identify and stop attackers.”[1] More specifically,...… ...

Two Covington Lawyers Named "Top Music Lawyers" by Billboard

NEW YORK—Billboard has named Jacqueline Charlesworth and Jonathan Sperling among its “2018 Top Music Lawyers.” This annual list recognizes the music industry’s leading lawyers in fields including talent representation, music publishing, streaming, and litigation. Recognized in the Music Publishing category, Billboard highlights Ms. Charlesworth’s work on ...

Congressional Investigations: Four Things to Know [Video]

Covington Partners Rob Kelner and Brian Smith outline key factors about congressional investigations that companies should be aware of—before receiving an inquiry letter from Capitol Hill. <video data-video-id="5854044423001" data-account="5748441668001" data-player="default" data-embed="default" data-application-id="" class="video-js" controls="" ...

New Laws Expand Requirements for Pharmaceutical Companies to File Agreements With FTC and DOJ

President Trump on October 24 signed the SUPPORT for Patients and Communities Act (H.R. 6), which together with the Patient Right to Know Drug Prices Act (S. 2554), signed October 10, expands the scope of pharmaceutical product-related agreements subject to filing requirements under subtitle B of Title XI of the Medicare Prescription Drug, Improvement, and ...

SEC Report Calls for Better Internal Accounting Controls for Cyber-Related Threats

On October 16, 2018, the Securities and Exchange Commission (the “Commission”) issued a Section 21(a) report of investigation (the “Report”) warning public companies about the importance of assessing the likelihood of cyber-related threats when designing internal accounting controls. The Report described the Division of Enforcement’s investigation of nine ...

#MeToo Spurs New California Workplace Harassment Protections and Gender Equality on Corporate Boards

California Governor Jerry Brown recently signed into law a number of landmark bills aimed at strengthening sexual harassment protections in the workplace and boosting gender equality in the boardroom. Here is an overview of the new statutes; unless otherwise specified, they take effect on January 1, 2019.

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

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

Compliance Hot Spots: CFIUS Changes in Focus

David Fagan is quoted in The National Law Journal regarding a CFIUS pilot program which will require short-form notices of foreign investments involving critical technology in 27 industries, including defense, telecommunications and metal production. The pilot program could bring an unprecedented number of transactions under the purview of CFIUS. Mr. Fagan ...

‘Winter is coming’: Companies brace for flurry of investigations

Rob Kelner is quoted in Politico regarding the potential impact of a Democratic takeover of the House of Representatives in 2019 on congressional investigations. Mr. Kelner said Covington has tracked public statements in which lawmakers criticized companies and every letter sent from members of Congress to corporations over the past two years. He said the firm ...

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

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

Covington Receives Pickering Award from Pro Bono Institute

WASHINGTON—The Pro Bono Institute has presented Covington with the 2018 John H. Pickering Award, recognizing the firm’s outstanding institutional commitment to pro bono and the extraordinary pro bono efforts of its lawyers and staff. In 2017, Covington lawyers devoted more than 146,000 hours to representing organizations and individuals in pro bono matters. ...

Community Reinvestment Act: rework or revamp?

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

CFIUS and China: The FIRRMA Factor

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

Court of Appeal upholds 'surprising' Morrisons data leak ruling

Daniel Cooper spoke with The Law Society Gazette regarding a UK Court of Appeal decision that could make employers vicariously liable for employees’ actions even if they had taken preventative steps and bore no criminal responsibility. Mr. Cooper said the employer should bear the enterprise risk and assume liability for the actions of its employees, as long as ...

Election Law Compliance for High Net Worth Individuals and Family Offices

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

Covington Celebrates 10th Anniversary With New Silicon Valley Digs

The Recorder featured the firm's move to Palo Alto and its tenth anniversary in Silicon Valley. It calls Covington "the high-powered firm known for its connection in the nation's capital" and quotes Emily Leonard, the managing partner of the firm's Palo Alto office and Tom DeFilipps, head of the firm's California Corporate practice. Ms. Leonard says, "We had a ...

CFIUS Update: Treasury Department Issues Interim Rules, Expands Jurisdiction to Certain Non-Controlling Investments, and Establishes Mandatory Filing Requirements

On October 10, the U.S. Department of the Treasury, as chair of the Committee on Foreign Investment in the United States (“CFIUS”), issued interim rules (the “Interim Rules”) that update the CFIUS regulations to address certain definitional and procedural aspects of the Foreign Investment Risk Review Modernization Act (“FIRRMA”) and, for the first time, (i) ...

Election Law Compliance for High Net Worth Individuals and Family Offices

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

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

SEC's Disclosure Simplification Amendments to be Effective Soon: Important Considerations for Upcoming Filings

As described in our earlier alert, in August the Securities and Exchange Commission (the “Commission”) adopted amendments to its disclosure rules to eliminate requirements it deemed “redundant, duplicative, overlapping, outdated, or superseded” (the “Amendments”) based, in part, on other Commission rules and generally accepted accounting principles in the United ...

Contributions to Politically Active Outside Groups: Risk Areas and Advice for Donors

As the midterm elections rapidly approach, contributions to nonprofits and other politically active organizations that support candidates and ballot initiatives will draw greater scrutiny from state and federal campaign finance regulators.

New Jersey District Judge Dismisses All Counts Against Smart TVs

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

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

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

Catharina Min Awarded Inaugural “Trailblazer Award” by the Korean American Bar Association

SILICON VALLEY—The Korean American Bar Association of Northern California has awarded Covington partner Catharina Min its inaugural “Trailblazer Award.” The “Trailblazer Award” recognizes the outstanding achievements, commitment, and leadership of a lawyer who has paved the way for the advancement of Korean-American lawyers in the Bay Area. Ms. Min represents ...

UK Government Issues “No Deal” Brexit Notices for the Food & Beverage Sector

Over the past months, the Government has regularly posted technical guidance notices on what it calls a “no deal” Brexit, i.e., a scenario in which the UK and the EU will not reach an agreement and the UK will become a third country on 29 March 2019. The UK Government has now published four notices...… Continue Reading

Rulemaking Commenters Debate the SEC's Proposed Changes to Its Whistleblower Program

Over 3,000 commenters submitted letters to the Securities and Exchange Commission ("SEC") concerning the agency's recently proposed amendments to its whistleblower rules. This response reflects the perceived importance of the SEC's proposal to companies and employees.

Fintech Charter Interest Could Be Shaped By Litigation

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

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

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

California Social Media DISCLOSE Act Becomes Law, Takes Effect 2020

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

Covington Promotes 20 New Partners

WASHINGTON—Covington has promoted 20 lawyers to its partnership. “This group covers a wide range of the firm’s most important practices and reflects the ongoing imperative of continuing to build and expand our strengths and to position the firm most effectively to be vibrant in the years ahead,” said Timothy Hester, Covington’s chair. "The size of our class is a ...

Mitch Kamin Named Among Top 100 Lawyers in California

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

Michael Nonaka Named "Cryptocurrency, Blockchain & Fintech Trailblazer"

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

Attorneys address the disputed future of Nazi-looted art

Simon Frankel participated in a conference called “Righting a Wrong: The Future of Nazi Looted Art” and is quoted in the San Francisco Daily Journal. Mr. Frankel says, “A museum faced with a restitution claim to a daily accessioned work cannot restitute the work unless it determines that the claim is well-founded.” He adds, “The institution must reasonably ...

Second Circuit Declines to Expand FCPA’s Jurisdictional Reach Using Conspiracy or Accomplice Liability Theories

On August 24, 2018, the Second Circuit issued its much-anticipated decision in U.S. v. Hoskins.Emphasizing on multiple occasions that Congress defined “with surgical precision” who could be liable under the anti-bribery provisions of the Foreign Corrupt Practices Act (“FCPA”), the court held that the government may not employ conspiracy or accomplice liability ...

Washington's FARA Frenzy Fomenting New Legal Business

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

FDA Publishes Guidance on “Public Availability of Lists of Retail Consignees to Effectuate Certain Human and Animal Food Recalls”

This morning (September 26, 2018), FDA announced the availability of a draft guidance for industry and FDA staff, “Public Availability of Lists of Retail Consignees to Effectuate Certain Human and Animal Food Recalls,” that explains how and when FDA intends to publicize retail consignees that may have received recalled human or animal foods.

Veronica Yepez joins Covington & Burling

Veronica Yepez is quoted in Latin Lawyer regarding her recent move to the firm. Ms. Yepez says, “Covington offers clients true global compliance capabilities. The deep bench of former prosecutors and former DOJ senior offices with oversight over FCPA enforcement is unparalleled.” Don Ridings, chair of the firm’s anti-corruption practice, says, “Veronica built a ...

15 Firms To Lead IPOs Exceeding $1.1B Amid Peak Season

Donald Murray is quoted in Law360 regarding 13 public offerings expected to raise more than $1.1 billion during the week of September 24. Mr. Murray expects technology and biotechnology companies to do well in the run-up to the midterm elections. He says, “Everyone is out making hay while the sun shines.”

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

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

U.S. Releases Final List of Tariffs on $200 Billion in Chinese Imports

On September 17, the Office of the U.S. Trade Representative (USTR) released its final list of approximately $200 billion in Chinese imports subject to an additional ad valorem tariff. The final list, which covers 5,745 product categories, will take effect on September 24, 2018. The tariff rate will initially be set at 10 percent and...… Continue Reading

Get Ready for an 8-Justice Supreme Court, as Kavanaugh Controversy Persists

Beth Brinkmann spoke at a Washington Legal Foundation event previewing the upcoming Supreme Court term. She is quoted in The National Law Journal regarding the current 8-Justice Supreme Court saying the justices may “try to avoid affirming by 4-4” by crafting narrow rulings that would attract more than four votes, or else by dismissing the cases altogether.

Congressional Forecast: September

The House and Senate are entering their respective final runs before the November midterm elections, following a two-day break for Rosh Hashanah, the Jewish New Year — even though the possibility of Hurricane Florence entering the Washington, D.C. metropolitan area cut short an already shortened week. The pressing items of business are funding the government...… ...

U.S. Releases Final List of Tariffs on $200 Billion in Chinese Imports

On September 17, 2018, the Office of the U.S. Trade Representative (USTR) released its final list of approximately $200 billion in Chinese imports subject to an additional ad valorem tariff. The final list, which covers 5,745 product categories, will take effect on September 24, 2018.

Foreign lobbying overhaul loses steam in Congress

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

Calif. Starts Ball Rolling With Novel Internet Of Things Law

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

District Court Dismisses Major Part of FTC Deceptive Advertising Case

On August 16, 2018, the U.S. District Court for the Northern District of California dismissed a major portion of the Federal Trade Commission's ("FTC") lawsuit against DIRECTV, which involved broad allegations of deceptive advertising in promotional offers for its annual subscriptions.

Past is Prologue: A New Approach to Cross-Border Application of Dodd-Frank Swaps Provisions

On September 4, 2018, in a speech to the City Guildhall in London, Chairman Giancarlo previewed a new approach to cross-border application of Dodd-Frank swaps provisions, which will be memorialized in a forthcoming white paper. Chairman Giancarlo began his remarks with a historical overview of cross-border swaps regulation, highlighting post Dodd-Frank reforms. ...

Lateral Watch

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

Former FTC Commissioner McSweeny Joins Covington

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

Former FTC Commissioner, Obama Admin. Adviser Lands at Covington

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

McSweeny joins Covington

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

Litigation Luminaries

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

Former FBI official joins Covington

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

California Legislature Passes Amendments to Expansive Consumer Privacy Law

Less than three months ago, California enacted the California Consumer Privacy Act of 2018 (“CCPA”). Industry and privacy watch groups alike have scrutinized the law. This summer saw fierce negotiations all in the name of improving the CCPA. Last Friday, on August 31, 2018, the California legislature passed SB 1121 to amend the CCPA. The...… Continue Reading

SEC Becoming More User-Friendly With Disclosure Trims

David Engvall is quoted in Law360 regarding the SEC’s decision to move forward with several measures to simplify disclosure requirements, most of which could create a more issuer-friendly regulatory environment. Mr. Engvall says, “It’s definitely progress and it’s helpful. But it’s not going to really significantly affect any company’s overall disclosure costs.”

Leading National Security Lawyer Rejoins Covington

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

Who’s in Your Supply Chain? Contractors Face Increasing Compliance Obligations and Restrictions

How well do you actually know your supply chain—from the materials you acquire to the software you include in your products or services? If you have not answered this question recently, you should consider adding it to your “to do” list. Not only does the U. S. Government want to know, it is increasingly imposing new compliance obligations on its contractors.

U.S. Imposes Chemical Weapons-Related Sanctions Against Russia

On August 27, 2018, the Department of State imposed sanctions against Russia pursuant to the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (CBW Act) in response to Russia’s use of a chemical nerve agent against a UK citizen.

The Securities and Exchange Commission Simplifies Disclosure Rules

The Securities and Exchange Commission (the Commission) recently adopted amendments to its disclosure rules to eliminate requirements that it deems “redundant, duplicative, overlapping, outdated, or superseded” based, in part, on other Commission rules and generally accepted accounting principles in the United States (U.S. GAAP).

Don't Stop The Presses: Canadian Newsprint Tariffs Axed

Shara Aranoff is quoted in Law360 regarding the firm’s victory before the U.S. International Trade Commission’s regarding tariffs imposed Canadian imports on newsprints. Ms. Aranoff says, “This is really a win-win both for newspapers in the U.S. and for the paper mills who supply them."

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

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

Few Will Benefit From Narrow Exec Comp Transition Tax Rule

William Woolston is quoted in Law360 regarding recent IRS guidance on tax deduction for performance-based executive compensation. Mr. Woolston says of grandfathered contracts, “I think it’s fair to wonder just how many companies will be able to take advantage of the grandfather rule. It’s still new guidance and there’s still more to come and more thinking to do ...

Lifetime Achiever: Eric Holder, Covington & Burling

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

Brazil’s New General Data Privacy Law Follows GDPR Provisions

On August 14, Brazilian President Michel Temer signed into law the new General Data Privacy Law (Lei Geral de Proteção de Dados Pessoais or “LGPD”) (English translation), making Brazil the latest country to implement comprehensive data privacy regulation. The law’s key provisions closely mirror the European Union’s General Data Privacy Regulation (“GDPR”), ...

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

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

Covington Achieves "Mansfield Rule Certification Plus" for Promotion of Diversity

WASHINGTON—The Diversity Lab, an incubator for ideas and solutions that boost diversity and inclusion in law, has certified Covington as having achieved “Mansfield Rule Certification Plus” after completing the inaugural one-year pilot program. The Mansfield Rule Certification measures whether law firms have affirmatively considered at least 30 percent women and ...

Covington Secures First SAFETY ACT Protections for Public Utility

WASHINGTON—Covington represented Public Service Enterprise Group and its subsidiary Public Service Electric & Gas in securing liability protection under the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 from the U.S. Department of Homeland Security. PSE&G is the first public utility in the United States to be awarded SAFETY Act ...

Effort To Boost Diversity In Leadership Touts Top Law Firms

Timothy Hester is quoted in Law360 regarding Covington’s certification as “Mansfield Rule” compliant. The Mansfield Rule Certification measures whether law firms have affirmatively considered at least 30 percent women and lawyers of color for leadership and governance roles, equity partner promotions, and senior lateral positions. Covington received a “Plus” ...

Patent Litigation In The Netherlands: What You Need To Know

Nitin Subhedar is quoted in a Law360 article regarding patent litigation in the Netherlands. Mr. Subhedar says, “If you can get a finding of infringement and an injunction in the Netherlands, you can effectively use that as a chokepoint to stop a lot of the inflow of the infringing products into the rest of the EU. That's why the Netherlands is a particularly ...

Trump calls for study on ending quarterly earnings reports

David Martin is quoted by Bloomberg regarding the President’s request of the Securities and Exchange Commission to study ending quarterly reporting for U.S. businesses in order to ease regulations and spur growth. Mr. Martin says “You’re probably going to get a debate where you have people saying these reports are unnecessary, and I don’t think that will ...

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

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

Arizona Fintech Sandbox Begins Accepting Applications

Arizona recently became the first state in the U.S. to create a “regulatory sandbox” program to facilitate the development of innovative financial products and services. Such products would either incorporate new or emerging technology or reimagine uses of existing technology. The program would exempt participants from certain state financial regulations, but ...

PLI Current Highlights New Wave of FARA Enforcement

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

New Restrictions on Deductibility of Settlement Payments

New restrictions on the deductibility of certain payments will require companies facing government investigations to pay close attention to the tax treatment of any settlement or court judgment, and to address this treatment in their negotiations with regulatory agencies. There is a risk under new tax rules that the amount paid to resolve these disputes may be ...

NTIA’s International Internet Policy Priorities for 2018 and Beyond

On July 20, 2018, the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) published comments it received from a wide array of tech and telecom companies, trade groups, civil society, academia, and others regarding its “international Internet policy priorities for 2018 and beyond.” NTIA’s Office of International ...

CFIUS Update: FIRRMA Enacted into Law

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

Covington Represents Emergent BioSolutions in $270M Acquisition

WASHINGTON—Covington advised Emergent BioSolutions in its $270 million acquisition of PaxVax. PaxVax is majority owned by an affiliate of Cerberus Capital Management. Emergent is a global life sciences company focusing on providing specialty products for civilian and military populations that address public health threats. PaxVax is a company focused on ...

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

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

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

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

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

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

Covington Represents WSFS Financial in $1.5 Billion Acquisition

WASHINGTON—Covington advised Wilmington, Delaware-based WSFS Financial Corporation in its acquisition of Philadelphia-based Beneficial Bancorp, Inc., in a transaction valued at approximately $1.5 billion. This is the second bank M&A deal in two weeks where Covington is representing the acquiring institution. Covington is also representing Dallas-based Veritex ...

US Treasury Calls for Consumer Protection in Fintech Industry

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

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

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

Equity Plan Votes Scrapped After Tax Reform

William Woolston and Megan Woodford are quoted in Agenda regarding the Tax Cuts and Jobs Act of 2017’s effect on incentive plans. Mr. Woolston suspects public companies not conducting a shareholder vote on incentive plans is the “ beginning of a trend.” However, he believes that shareholders can still rely on other measures to hold companies accountable for ...

“And the winners are…”

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

AT&T Overpaid Some Pensioners. Now It Wants the Money Back.

Richard Shea is quoted in The Wall Street Journal regarding AT&T’s miscalculation and overpayment of retirement benefits. Mr. Shea says that some pension experts have concluded that overpayments essentially never harm plan finances because employers must set aside enough money to cover a lifetime of benefits based on what retirees actually receive. He adds, “The ...

New Jersey Expert Admissibility Standard: “Reconciled” with Daubert

On August 1, 2018, the New Jersey Supreme Court issued a unanimous decision affirming a trial court’s exclusion of scientifically unfounded expert causation testimony in the Accutane litigation. The decision, which ends over 2,100 lawsuits against Hoffmann-La Roche Inc. and Roche Laboratories Inc. (“Roche”), represents the Supreme Court’s first statement on New ...

Covington Adds Environmental Law Expert From Paul Hastings

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

Leading California Energy and Environmental Lawyer Joins Covington

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

Fintechs Hope Treasury Boost for 'MaddenFix' Leads to Action

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

Foreign Lobbying Overhauls Stall as Manafort Trials Approach

Robert Kelner is quoted in Roll Call regarding legislation to overhaul the Foreign Agents Registration Act. Mr. Kelner says, “They [lawmakers] are all are focused on ‘toughening’ the statute, which is a political approach, but not an approach that will make it more effective. FARA has been in need of a major overhaul for decades. It’s an extremely vague statute, ...

OCC Will Accept Fintech Charter Applications

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

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

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

Export Control Reform Act Is Finalized in Congress

On July 23, the final text of the Export Control Reform Act of 2018 (“ECRA”) was released as part of the Conference Report to accompany the National Defense Authorization Act (“NDAA”) for fiscal year 2019. The NDAA is a must-pass piece of legislation that authorizes funding for the Department of Defense, and we expect it to be enacted and signed within the next ...

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

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

What You Need To Know About Patent Litigation In Germany

Michael Plimack is quoted in Law360 regarding the importance of Germany as a global patent litigation venue. Mr. Plimack says, “Any company that is really thinking about one of these large-scale patent wars will have to look very carefully at Germany.” Because Germany does not allow for the same scope of pretrial discovery as the United States, Mr. Plimack adds, ...

Merger Spats Keep 2018 Securities Class Suit Numbers High

Mark Gimbel is quoted in a Bloomberg Law story regarding an uptick in merger-related class action suits shifting from state to federal courts according to the Stanford Law School Securities Class Action Overall Clearinghouse. Mr. Gimbel has noticed an increase in these suites in other state courts and predicted this will emerge as a trend in the second half of ...

The GDPR and Blockchain

Blockchain technology has the potential to revolutionise many industries; it has been said that “blockchain will do to the financial system what the internet did to media”. Its most famous use is its role as the architecture of the cryptocurrency Bitcoin, however it has many other potential uses in the financial sector, for instance in...… Continue Reading

EU struggles to counter US sanctions on Iran

Jean De Ruyt is quoted in the Financial Times regarding EU plans to protect its businesses investing in Iran and mitigate a new wave of U.S. sanctions. Mr. De Ruyt notes, “It’s a European policy that’s totally in contradiction to the American policy: that doesn’t happen very often.”

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

WASHINGTON—The American Lawyer has named Covington to its 2018 “A-List,” an annual ranking of the top 20 firms based on revenue per lawyer, pro bono commitment, diversity, associate satisfaction, and the percentage of female equity partners. Covington has appeared on the “A-List” thirteen times since this honor was introduced in 2003. In 2018, Covington was ...

Federal Courts of Appeals Clarify Scope of Computer Fraud Coverage

Phishing, spoofing, and computer-based scams pose a significant threat to businesses. Yet in recent years many victims of these scams — also variously referred to as "business email compromise," "social engineering," "fake creditor," or "fake president" fraud — have found that their insurers refused to pay claims for their computer-related fraud losses.

In SEC v. Cohen, Court Continues Trend of Limiting SEC Enforcement Powers

Last week, in SEC v. Cohen, a federal district court dismissed an SEC enforcement action, in its entirety, on statute-of-limitations grounds. Most notably, citing the Supreme Court’s 2017 Kokesh decision, the court held that the injunction sought by the SEC in the case "would function at least partly to punish Defendants and is therefore a penalty" for purposes ...

Congressional Forecast: July

Congress returned from the July 4 recess to the much anticipated announcement by President Donald Trump of his nominee to succeed retiring U.S. Supreme Court Justice Anthony Kennedy. Former Kennedy law clerk Judge Brett Kavanaugh, a highly credentialed Washington, D.C., veteran with a dozen years of service on the D.C. Circuit Court of Appeals, is...… Continue ...

IRS Announces Major Change To Nonprofit Donor Disclosure Requirements

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

Patent Owners Taking Global View In Enforcement Efforts

Michael Plimack is quoted in Law360 regarding companies in high-stakes patent disputes adopting global enforcement strategies. Mr. Plimack provided insight into why many patent disputes are litigated in German courts. He says, “Because Germany is such a large economy in the world and in Europe, it's not uncommon for battles over things like smartphones, for ...

Prospanica DC Names Covington Litigator to its “40 Under 40”

WASHINGTON—Prospanica DC has named Covington’s Jazzirelle Sepulveda to its “40 Under 40” list, recognizing Washington’s top Hispanic professionals who have demonstrated exemplary leadership, service, and commitment to advancing the Hispanic community. Ms. Sepulveda was honored for her excellence in private sector work and her dedication to serving the community ...

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

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

IRS Announces Major Change To Nonprofit Donor Disclosure Requirements

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

Branching out: foreign banks seek shelter from Fed rules

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

Covington Artificial Intelligence Update: China’s Framework of AI Standards Moves Ahead

China has set out on an ambitious agenda of aiming to become the world leader in artificial intelligence by 2030. Policy experiments for a critical part of China’s AI development strategy, and to that end multiple government think tanks have set out formulating standards that may impact AI innovation in China. The China Electronics Standardization...… Continue ...

China Issues New Foreign Investment Negative List, New Market Access Openings

Through a newly published foreign investment negative list, the Chinese government is offering incrementally greater market access to foreign investors in China. The 2018 Special Administrative Measures on Access to Foreign Investment (“2018 Foreign Investment Negative List” or “2018 FI Negative list”), issued by the Ministry of Commerce and the National ...

Few Execs Leave Money on the Table Upon Departure

Michael Francese is quoted in the Agenda regarding compensation guarantees for at-will executives. Francese says that almost all employees are technically employed “at will, in the sense that their employer can terminate their employment at any time for any nondiscriminatory reason.” He adds that the biggest advantage of an employment agreement is the severance ...

Covington Secures Key Preliminary Injunction for Indivior

WASHINGTON—Covington's patent litigators secured a significant win on behalf of Indivior, obtaining a preliminary injunction preventing Dr. Reddy's Laboratories from launching a generic version of Indivior's SUBOXONE® Sublingual Film used in treatment of opioid addiction. The court's decision recognizes that Indivior had shown a likelihood of success on the ...

GAO Testimony Before Congress Regarding Emerging Opportunities, Challenges, and Implications for Policy and Research with Artificial Intelligence

Timothy M. Persons, GAO Chief Scientist Applied Research and Methods, recently provided testimony on artificial intelligence (“AI”) before the House of Representatives’ Subcommittees on Research and Technology and Energy, Committee on Science, Space, and Technology. Specifically, his testimony summarized a prior GAO technological assessment on AI from March ...

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

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

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

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

China Seeks Public Comments for Draft Cybersecurity Regulations

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

Stronger patents dominate IP agenda in 115th Congress

Patents have been mainstay of the Judiciary Committee agenda in both chambers for more than a decade, but never before has the debate seemed so firmly focused on strengthening patent rights. Significant patent bills are pending in both chambers, and the House and Senate Judiciary Committees have summoned Andrei Iancu, the new director of the...… Continue Reading

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

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

Investigations of Pruitt are likely to continue

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

Recent Developments in the Joint Select Committee on Solvency of Multiemployer Pension Plans

The solvency crisis bearing down on the multiemployer pension plan system has captured the attention of Capitol Hill. Since March, the Joint Select Committee on Solvency of Multiemployer Pension Plans (the “Committee”) has held a series of hearings examining the multiemployer pension system. Although it is unclear whether the bipartisan Committee ultimately ...

SEC Expands Definition of Smaller Reporting Company

On June 28, 2018, the Securities and Exchange Commission (the “SEC”) issued a final rule amending the definition of “smaller reporting company” (“SRC”) to expand the number of registrants that will qualify for the scaled disclosure requirements applicable to SRCs.

GC Cheat Sheet: The Hottest Corporate News Of The Week

Lee Tiedrich's comments from the U.S.-China AI Tech Summit are highlighted in this Law360 article providing a roundup of the top corporate news stories from the past week. According to Tiedrich, there’s a recognition that the new technology brings new legal challenges.

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

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

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

California Passes Expansive Consumer Privacy Law

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

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

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

Recent Developments in U.S. Sanctions Against Iran

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

Covington, Microsoft Attys Say AI Trust Key To Use In Law

Lee Tiedrich recently spoke at the U.S.-China AI Tech Summit to discuss "AI in the Law" and is quoted in a Law360 article. According to Tiedrich, there is a recognition that the new technology brings new legal challenges. “One issue that’s been getting a lot of attention in the United States is whether and to what extent AI applications need to provide ...

Does AI Have a Place in the Courts? Here’s How Experts Weigh the Risks and Benefits

Lee Tiedrich recently spoke at the U.S.-China AI Tech Summit and is quoted by The Recorder in an article examining the pros and cons of introducing AI into the judicial process. According to Tiedrich, AI in the justice system also implicates questions of transparency and intellectual property. In cases where it’s alleged that AI perpetuates hiring discrimination ...

DOL Finalizes Rule to Expand Access to Association Health Plans

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

Covington Ranked Top Five in American Lawyer's Pro Bono Rankings

WASHINGTON—Covington was ranked second among Am Law 200 firms in The American Lawyer’s annual Pro Bono Survey. The American Lawyer ranks firms by a pro bono score that considers the average number of pro bono hours per lawyer and the percentage of lawyers who performed more than 20 hours of pro bono work. “Legal services are often unaffordable for the people who ...

California lawmakers wallop tech companies on privacy

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

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

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

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

NEW YORK—Corporate Board Member 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 to be regarded by our ...

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

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

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

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

Big Law Acted on Impulse in Outpouring of Pro Bono Effort

Alan Pemberton is quoted by The American Lawyer in an article accompanying the publication's Pro Bono Survey results. According to Pemberton, "The 2016 election acted as a kind of catalyst as it awakened in many of our lawyers a sense of engagement in public service matters generally." He adds that the current political climate spurred lawyers to do pro bono ...

Medicare Advantage Organizations Provided New Opportunities to Offer Telehealth Benefits

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

European Commission Launches New Antitrust Investigation into LNG Destination Clauses

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

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

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

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

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

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

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

Fed plans reform of US bank ownership rules

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

Supreme Court Leaves In-House Judges in Limbo Governmentwide

David Kornblau is quoted in a Bloomberg Law article regarding the Supreme Court's ruling that SEC in-house judges are constitutional officers, a decision that left open the status of 1,900 other officials in similar roles at agencies including the Federal Energy Regulatory Commission, National Labor Relations Board, and the Environmental Protection Agency. ...

Jeffrey Davidson Named to Daily Journal's "Top 40 Under 40"

SAN FRANCISCO—The Daily Journal has named Covington partner Jeffrey Davidson one of its “Top 40 Under 40” lawyers in California. In its profile of Mr. Davidson, the Daily Journal highlights his representation of the University of California in its challenge to the federal government’s attempted rescission of the Deferred Action for Childhood Arrivals (DACA) ...

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

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

China-U.S. Trade Tensions Rage On

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

Covington Named Among Best Firms for Minority Lawyers and Partners

SILICON VALLEY—Covington was ranked sixth among “The Best Law Firms for Minority Attorneys” and ranked seventh among “The Best Law Firms for Minority Partners” by Law360 for firms with more than 600 lawyers. "While there is much progress still to be made, these results are a reflection of Covington's sustained efforts to recruit, mentor, develop, promote, and ...

Covington Represents Boston Children's Hospital in Royalty Monetization

NEW YORK—Covington advised Boston Children's Hospital in its monetization of a portion of its royalties relating to Vonvendi, a recombinant drug used to treat a common bleeding disorder called von Willebrand disease. The purchaser, Barings Alternative Investments, part of Barings LLC, on behalf of institutional investors, paid $51.5 million. Boston Children’s ...

US Makes Good on Trade Threats – What Now?

We are moving into uncharted waters with the Trump Administration’s announcement that the U.S. will move forward to impose $50 billion in tariffs against a wide range of Chinese products, with the first tranche of $34 billion beginning on July 6; as well as tariffs against Canadian, Mexican, European and Japanese steel and aluminum imports. ...… Continue Reading

Congressional Forecast: June

As the weeklong July 4 recess approaches, members of Congress are pursuing a busy legislative schedule, focused on the fiscal year 2019 National Defense Authorization Act, some lesser FY 2019 appropriations bills, reform of the Committee on Foreign Investment in the United States, immigration reform and border security, the farm bill authorization (set to ...

John Veroneau on Bloomberg Regarding U.S. Tariffs Imposed on Chinese Goods

John Veroneau was interviewed on “Bloomberg Daybreak: Americas.” He was discussing the U.S. announcement of a target list of Chinese goods as part of tariffs on $50 billion of Chinese imports. The video clip can be found here. … Continue Reading

Postcard-sized agreements could solve trade disputes

While overshadowed by other remarks during the recent Group of Seven meetings, President Trump suggested that trade agreements could be “much simpler” and that they should eliminate all barriers to trade. The president’s instincts that trade agreements could be both simpler and more comprehensive are correct. Paradoxically, simpler agreements could go further ...

The June 28 European Council: Four Challenges to EU Solidarity

Transatlantic trade tensions, the Brexit negotiations, migration, and Eurozone reform will dominate the June 28 European Council. Each of these issues are potentially divisive, and the leaders know that a new dose of solidarity will be needed to address them properly. They also know that next year will see additional challenges to the cohesion and...… Continue ...

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

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

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

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

European Union Amends Blocking Regulation in Effort to Counter Implementation of Certain U.S.-Iran Sanctions

As described in our May 9, 2018, alert, the United States determined on May 8, 2018, to end its participation in the Joint Comprehensive Plan of Action (“JCPOA”) and re-impose sanctions against Iran that had been suspended as part of this 2015 nuclear agreement between the United States, Iran, Germany, France, the UK, and China.

Biggest Insurance Decisions Of 2018: Midyear Report

Gretchen Hoff Varner and Michael Greenberg are quoted in a Law360 article regarding the biggest insurance decisions of 2018. Commenting on Liberty Surplus v. Ledesma & Meyer Construction, Hoff Varner says that the state high court injected more certainty into liability coverage litigation by making clear that the question of whether an accident has occurred must ...

MABF Honors Eric Holder with Pioneer for Justice Award

LOS ANGELES—The Mexican American Bar Foundation (MABF) honored Covington partner and the 82nd Attorney General of the United States Eric Holder with the Pioneer for Justice Award at its 27th Annual Scholarship & Awards Gala. MABF recognized Mr. Holder for his commitment to equal justice for all Americans and for providing inspiration to advocates in the pursuit ...

Covington Files Memorial in International Court of Justice on Behalf of Ukraine in Case Against the Russian Federation

WASHINGTON—Covington submitted a Memorial to the International Court of Justice on behalf of Ukraine that documents violations of international law by the Russian Federation. The Memorial, accompanied by a substantial evidentiary record, establishes that the Russian Federation has violated the International Convention for the Suppression of the Financing of ...

Covington Secures CFIUS Approval for Genworth Financial Transaction

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

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

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

Eleventh Circuit LabMD Decision Potentially Limits FTC’s Remedial Powers

The Eleventh Circuit has issued its decision in LabMD v. FTC, a closely watched case in which LabMD challenged the Federal Trade Commission’s authority to regulate the data security practices of private companies. The Court of Appeals declined to decide that issue, instead finding that the FTC’s order requiring LabMD to implement certain data security...… ...

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

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

Lindsay Burke Quoted in Variety Article Regarding Importance of Workplace Cultural Reviews

Lindsay Burke is quoted in a Variety article regarding the importance of cultural risk assessments in the workplace. “If you’re going to get into brand crisis level allegations, you need more resources,” Burke says. “You need resources to review a larger set of documents. You need corporate governance expertise.”

Justice Department releases FARA advisory opinions

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

Bank Loans to Federal Candidates

FEC audit reports often address obscure topics, but today one touched on an important issue for banks. At an open meeting, a majority of FEC Commissioners would not support a staff recommendation that a bank violated the campaign finance laws when it made a loan based on collateral that was commercially reasonable under the banking...… Continue Reading

How The New ITC Rules Change Litigation Strategy

Daniel Valencia is quoted in a Managing Intellectual Property article regarding new ITC rules that will significantly impact litigation strategies. Commenting on the changes, Valencia says, "If anything, they’ll help create additional certainty about how the game is played at the ITC." One important rule will now allow the Commission and administrative law ...

Miami Surges as International Arbitration Hub, but NYC Undaunted

Miguel López Forastier is quoted by The American Lawyer in an article regarding a recent report about the most popular venues for arbitration in the Americas. Commenting on Miami's strategy to become a more favorable venue, López Forastier says, "The practitioners have been engaged in a concerted effort to market the place as a city that is good to arbitrate a ...

Google Staff in Rare Push Want Executive Pay Tied to Diversity

Andrew Jack is quoted in a Bloomberg article regarding the push by employees and investors of Google's Alphabet Inc. to tie executive pay to progress on workplace diversity, According to Jack, investors care about environmental, social, and governance (ESG) issues. “Boards and compensation committees would be well advised to review their company’s published ESG ...

Del. TIAA Case May Reshape Disgorgement Claims Coverage

Mitchell Dolin is quoted in a Law360 article regarding a case before the Delaware Supreme Court in which three insurers are asking to upend a state court’s holding under New York law that TIAA’s costs in connection with a trio of underlying class actions constituted an insurable loss. “Here, the policy defines loss as including settlements, so coverage exists in ...

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

WASHINGTON—Covington’s Insurance Recovery practice has received the 2018 Chambers USA "Award for Excellence" in Insurance, marking the seventh time the firm has received this honor in the 12 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, ...

Dodd-Frank Changes Could Nudge Midsize Banks Into Deal-Making

Michael Reed is quoted in a Bloomberg Law article regarding the impact the recent Dodd-Frank Act rollback may have on dealmaking among midsize banks. “I would say that for some of us in the industry, we thought there would be consolidation even in the absence of this bill," says Reed.

Covington Hosts Project Finance Master Class in Nairobi

JOHANNESBURG—Covington has partnered with Power Africa, Kaplan & Stratton, and Fieldstone Africa, with support from the African Legal Support Facility of the African Development Bank, to launch the inaugural Project Finance Master Class that will be held in Nairobi, Kenya from June 4 - 6, 2018. The Master Class is designed to strengthen the environment for ...

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

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

Covington & Burling's Emily Leonard | Women of Influence 2018

Emily Leonard was recognized among Silicon Valley Business Journal's "2018 Women of Influence." In discussing her career at Covington, Leonard says, "I have had the privilege of partnering with a large number of industry clients on challenging transactions that involve innovative technologies—some of which turn out to be life-changing therapies."

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

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

Fintech Fears in Small-Dollar Guidance Much Ado About Nothing

Michael Nonaka is quoted in a Bloomberg Law article regarding guidance from the Office of the Comptroller of the Currency on small-dollar installment loans. The OCC was likely making an observation and statements of fact “rather than trying to write into the policy any discouragement of any bank-fintech partnership," says Nonaka. But the provision “does stick ...

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

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

The 2018 DC Litigation Departments of the Year: Covington & Burling

Covington was selected among The National Law Journal's DC Litigation Departments of the Year. The publication notes that Covington "appeared at the center of Washington’s hottest controversies perhaps more frequently than any other DC firm," pointing to the firm's representation of Michael Flynn, the University of California in a case challenging the federal ...

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

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

Trump Directs Commerce to Open Section 232 Investigation of Auto Imports

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

Trumps car tariffs highlight threat of retaliatory trade war

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

What Attys Need To Know About The Evolving CFIUS Bill

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

CMS Finalizes Changes to the Regulations Governing the ACA

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

Two Partners Leave Kirkland to Lead Covington's Private Equity Practice

Amy Wollensack and Sergio Urias are quoted by The New York Law Journal in an article regarding their move to Covington where they will serve as co-chairs of the firm's Private Equity practice. “When someone calls you and says, ‘We have an opportunity for you to co-chair a practice group,’ particularly at a firm like Covington, where the practice is stellar,” ...

ALI Gives Final OK On Liability Insurance Guidelines

In an article regarding the approval of the final iteration of the Restatement of Law, Liability Insurance, Law360 highlights David Goodwin and John Buchanan's efforts that resulted in deleting a provision of the guidelines that would have allowed an insurer to deny coverage for its policyholder's costs to defend a claim that the policyholder became aware of ...

Covington Picks Up 2 Kirkland Partners To Lead PE Practice

Scott Smith, Amy Wollensack, and Sergio Urias are quoted in a Law360 article regarding Wollensack and Urias' arrival to Covington, where they will serve as co-chairs of the firm's Private Equity practice. According to Smith, the pair have strong reputations in the private equity community. "They bring the needed leadership for the future growth of our private ...

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

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

Private Equity Team Joins Covington

NEW YORK—Amy Wollensack and Sergio Urias have joined Covington in New York as co-chairs of its Private Equity practice. Ms. Wollensack and Mr. Urias represent private equity sponsors in the acquisition and disposition of portfolio companies and investments across a wide range of industries. Mr. Urias, who practiced in Mexico before practicing in New York, also ...

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

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

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

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

5 Controversial Rules In The ALI's Insurance Law Project

John Buchanan and David Goodwin are quoted in a Law360 article regarding the final version of the American Law Institute's Restatement of the Law on Liability Insurance. Commenting on Section 3, which addresses foundational principles of insurance law, Buchanan says that a strong presumption rule would already have been more favorable to insurers than the ...

DACA Program’s Fate Considered by Appeals Court

Jeffrey Davidson is quoted by the Society for Human Resource Management in an article regarding oral arguments before the Ninth Circuit in a case challenging the federal government's attempted rescission of the Deferred Action for Childhood Arrivals (DACA) program. Davidson, who represents the University of California in this case, argued that the government's ...

Season Tickets? Steak Dinners? Small Firms Rethink Client Events After Losing Tax Break

Marianna Dyson is quoted by The Wall Street Journal in an article regarding changes in the tax law that reduce limits on deductions for entertainment and meals. Among the uncertainties is whether companies will still be able to claim a 50% deduction for business meals with customers or business associates, or whether those expenses will be considered ...

Banking Regulators' Examination Authority Does Not Override Attorney-Client Privilege

Notwithstanding the venerable status of the attorney-client privilege and the important purposes it serves, the federal bank regulators and the Consumer Financial Protection Bureau have taken the position that they have the legal authority to override the privilege and compel supervised institutions to produce information protected by the privilege.

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North America

Representative Matters

Successful Settlement of IPR Proceedings for Knowles Electronics, LLC

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

$2.1 billion acquisition of IBM server business by Lenovo

$3.7 billion acquisition of Sapient by Publicis Groupe

Acquisition of the New Orleans Hornets

$1 Billion in Real Estate Formations

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 Resolution of Peregrine IPR Proceeding and Litigation

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

Samsung ITC Section 337 Investigation

Successfully Represented Communications Manufacturer in Proposed Debarment Before GSA

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

China market access

China Investment Corporation’s investment in AES Corp.

China Based Gaming Company in Popular Messenger App Investment

China-Based Gaming Company Corporate Venture Investments

Children’s privacy FTC inquiry

Children's Online Privacy Protection Act

Children’s Advertising Review Unit inquiry

CHEP USA IT Outsourcing

ChemTrade in Cross-Border Acquisition

Avnet Notes Offering

Check Point Software Technologies acquisitions

Charlesbank in Acquisition of OTC Consumer Products Brands

Changes to NYSE Rules for Banks and Broker-Dealers

Cengage Learning, Inc.

Case of first impression arising from an FMS contract

Calpine Project Financings

Charter Communications

Bristol-Myers Squibb €1.15 billion Eurobond Offering

Automotive manufacturer transfer pricing inquiry

Advocating On Behalf of Clients Before Congress

Agricultural manufacturer global relationship building

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

Advising Internet companies on advertising claims