MSLaw Blog

Over the last week, the U.S. Court of Appeals for the District of Columbia Circuit stayed two high-profile litigations concerning the regulation of carbon dioxide emissions from new and existing coal-fired power plants. By granting the U.S. Environmental Protection Agency’s requested stays, the Court provided the agency with additional time to weigh its options on whether to suspend, revise, or rescind the rules. Clean Power Plan Litigation Stayed Additional 60-Days On August 8, 2017, the Court extended the stay of the Clean

While the Environmental Protection Agency’s (“EPA”) Superfund program under the Comprehensive Environmental Response and Liability Act or “CERCLA” has often been dubbed the “Comprehensive Employment and Retirement Lawyers Act,” due to the arduous and time consuming process of remediating Superfund sites---EPA is seeking to expedite this process with sweeping changes (which could lead to an earlier retirement for environmental lawyers).   An EPA Superfund Task Force, specially convened on May 22, 2017 by EPA Administrator Scott Pruitt, completed its work in

Universities have traditionally been reluctant to enforce their intellectual property (IP) against third parties. There are many reasons for this position, including adverse publicity associated with such suits, the time required to pursue such actions, and the risk associated with these suits. The failure by universities to enforce their IP rights against third party infringers has had a negative effect on diminishing the potential value of university originated IP. However, the wind may be shifting on this issue. A recent example

In our previous installment, we looked at the issues related to Carpenter 1. That discussion can be found here.   Another case involving the Stored Communications Act 2 may also come before the U.S Supreme Court in the upcoming October term. In Microsoft 3 the Court of Appeals for the Second Circuit found that the warrant did not apply to emails stored on a server in Dublin because there was no indication in the statute that Congress intended to authorize a search outside the United States. On June 22nd, the

A report from the FBI and the Department of Homeland Security warns of malware attacks targeting mainly nuclear power stations and energy facilities. The attacks started in May of this year. These attacks have received an “amber” terrorism threat rating, the second highest threat rating available on the Department of Homeland Security’s advisory system, and thus far appear to be credential spear phishing 1 attacks attempting to map infiltrated networks. The attackers targeted employees at the affected energy organizations through phony resumes with

In 1986, Congress passed an obscure statute called the Stored Communications Act 1 that has become much more relevant 30 years later. The U.S. Supreme Court will have two opportunities to help define the scope of digital privacy under a law enacted when cellphones and email hardly existed. To obtain electronic communications, the government must obtain a warrant for any information that is held for 180 days or fewer by a computer service provider. This means the government must establish probable cause that the

Each business day, shortly before 12:00 p.m. London time, the London Interbank Offered Rate, or LIBOR, is published. The rate, which is the average of up to 20 banks’ estimates of the interest rate at which they can borrow from other banks, is a benchmark for financial contracts estimated to be worth approximately $350 trillion, including corporate loans, mortgages, derivatives, and tax-exempt bonds. However, the rate’s days appear to be numbered, and market participants must prepare for the possibility that

For those of you who have received a Freedom of Information Act (“FOIA”) notice from the U.S. Consumer Product Safety Commission (“CPSC” or “Commission”) within the past year, you may – or worse, may not – have noticed new disclosure language. As most of you know, the CPSC has unique regulations that govern its public disclosure of information. Specifically, Section 6(b) of the Consumer Product Safety Act (“CPSA”) prohibits the Commission from disclosing information about a consumer product that identifies

The Supreme Court case Pavan v. Smith, 582 U.S.____ (2017), in a per curiam opinion on June 26, 2017, strengthened the rights protected in Obergefell v. Hodges, 576 U.S. ___ (2015). The decision confronted an attempt by the State of Arkansas to undermine the rights and privileges extended to same-sex married couples through the legal recognition of the parentage. The case concerns Arkansas laws governing the issuance of birth certificates. Arkansas allows male spouses in heterosexual marriages to be placed on birth certificates

As the number of states legalizing the use of marijuana for medical purposes has steadily grown, employers have been anxiously asking whether they are required to accommodate the use of medical marijuana if the use is related to an employee’s disability. Employers have felt comfortable that the use of medical marijuana is not protected under the federal Americans with Disabilities Act. Courts have routinely concluded that that because the ADA does not cover employees who use illegal drugs, and because

The “tiny house” movement is all the rage right now. The cause of the craze may be many faceted. Whether the popularity and demand is being driven by a shift in peoples’ preference to downsize to a more simplified lifestyle (remember Henry David Thoreau’s advice to “…simplify, simplify”) or whether it is driven by economic factors and the need for more affordable housing, the “tiny house” is becoming more popular and common. So how will local governments deal with the demand

After a decade of atrophy, opinions of counsel may again be an essential part of any defensive patent strategy due to recent changes in the law.  The Supreme Court in Halo overruled the Federal Circuit’s Seagate test for enhanced damages. 1 By eliminating Seagate’s requirement for objectively reckless conduct on the part of the accused infringer and lowering the patent owner’s burden of proof, Halo has undoubtedly made it easier for patent owners to seek enhanced damage awards, i.e. up to treble damages. In contrast to enhanced damages, opinions of counsel could

On July 25, 2017, President Trump announced that he would nominate Acting Chairman Buerkle to be the permanent Chairman of the U.S. Consumer Product Safety Commission. Anne Marie Buerkle was appointed to the CPSC by President Obama and confirmed by the Senate in June 2013. In February, she became Acting Chairman when Commissioner Kaye resigned as Chairman at the request of the administration. Commissioner Buerkle’s current term expires in October 2018. The nomination as Chairman is for a new seven year term beginning

The CPSC has announced it is seeking “suggestions for ways the Commission could potentially reduce burdens and costs of its existing rules, regulations, or practices without harming consumers.” The CPSC requests that suggestions be submitted by September 30, 2017, and that “information and data be submitted in support” of suggestions.   CPSC Acting Chairman Ann Marie Buerkle stated that the request “is not limited to existing rules. CPSC is interested in hearing any and all ideas, big or small, that might help ease regulatory

For those of you who have recently conducted a recall, you may have noticed that the U.S. Consumer Product Safety Commission has been paying more attention to monthly progress reports on the status of recalls. Every corrective action approved by the CPSC requires submission of progress reports every month, typically for a year after the recall. In the past, companies have sometimes fallen behind in filing progress reports, and CPSC on occasion let that go by. But no more. Starting

Green Bonds and Social Impact Bonds are examples of sustainable investment products. These investments are issued with a particular sustainable purpose in mind. In the case of Green Bonds, the proceeds of such bonds must be for an environmentally friendly project, such as renewable energy, energy efficiency or water/waste sustainability that will have measurable environmental impact.  Social Impact Bonds are used to finance the testing of social impact programs (such as prevention of recidivism), and the investors are only paid

Historically, our understanding of University Business Collaborations (UBC) is based on the role of barriers in the development of cooperation. During the June 2017 University Industry Innovation Network (UIIN) annual meeting, various participants discussed strategies and practices to manage and overcome barriers to support successful UBC. One assumption is that once barriers are overcome, the road is paved for collaborations. This assumption by questioning the barrier’s significance in UBC is discussed below. Are barriers the main influencing factor in the process

Phishing, the fraudulent practice of sending emails purporting to be from reputable companies in order to induce individuals to reveal personal information (such as passwords and credit card numbers) is something that we have grown accustomed to. Today, the bad guys are getting more sophisticated. For example, they are using SMiShing 1 attacks. SMiShing (SMS phishing) is a type of phishing attack where mobile phone users receive text messages containing a Web site hyperlink, which, if clicked would download a Trojan horse

On July 3, 2017, revised Guidelines for Examination of Computer Related Inventions (CRIs) were released. The full text of the guidelines may be found here. The revised guidelines omit the onerous requirement of pairing software-invention claims with novel hardware, wherein the contribution of the latter lies in the implementation of the computer program via a method. This will broaden the scope of patentability of computer related inventions in India.   The guidelines suggest that “it is important to ascertain from the nature of the

On Thursday, June 29, 2017, Sens. Hatch and Markey introduced the “Promoting Good Cyber Hygiene Act” that would direct the National Institute of Standards and Technology (NIST) to establish a set of baseline voluntary best practices for safeguarding against cyber intrusions that would be updated annually. The legislation would also direct the Department of Homeland Security (DHS) to study cybersecurity threats to internet-connected devices generally referred to as the “Internet of Things.” Similar legislation was introduced in the House by

A recent holding of the Court of Special Appeals of Maryland is of significance to companies defending personal injury lawsuits—particularly those where the nature or extent of a plaintiff’s alleged injuries is in dispute. In Lamalfa v. Hearn, No. 87, Sept. Term 2016 (Md. Ct. Spec. App. June 28, 2017), the Court of Special Appeals affirmed a trial judge’s decision to admit copies of four of the plaintiff’s medical records into evidence during the testimony of the defendant’s expert witness, pursuant

Effective July 8, 2017, new rules went into effect regarding revival of abandoned applications, reinstatement of abandoned applications and cancelled or expired registrations, and petitions to the director. 1 The rules have two goals: Identify the existing deadlines and requirements for filing a petition to revive, petition to the director, and request for reinstatement; and Promote the integrity of the Trademark database by generally not reinstating or reviving applications or registrations more than six months after they have abandoned, cancelled, or expired.   Thus, if you

Next term the Supreme Court hopefully will provide an answer to the hotly debated question whether the Dodd-Frank Act’s anti-retaliation provision (Section 21F) protects only those whistleblowers who report violations to the Securities and Exchange Commission (“SEC”), or if the protections extend to those who report concerns internally. The U.S. Court of Appeals for the Second Circuit was the first court to take up this issue in Berman v. Neo@Ogilvy LLC, No. 14-4626. The court decided that employees who make internal complaints of suspected

Co-working space offers the amenities of a large sophisticated office to companies of varying size without the hassle of dealing with buying furniture, securing utility hookups, or buying coffee. The upside to spaces popularized by companies like “WeWork” is that they are turn-key. No hassle, no fuss, just show up and work. This new way of using space may be good for some, but first, we must evaluate the form in which this space is often provided to companies—via a

IP litigation is expensive and risky. A patent owner relies on costly experts and attorneys, and confronts the possibility that the entire case could be dismissed at any point during a lengthy litigation process (likely against a well-heeled, seasoned opponent). The patent legal landscape has continued to become more challenging, with patent owners now virtually guaranteed to be required to dual-track Patent Trial and Appeal Board proceedings alongside litigation. Given increased demand for litigation finance in the IP space, it’s more crucial

Merger and purchase agreements involving Maryland corporations and REITs may be governed by Maryland law. For lawyers accustomed to agreements governed by Delaware or New York law, we are frequently asked to describe key differences that arise under Maryland law so that parties may make informed decisions during negotiations. This is the second post of a multipart series that will describe some common issues that arise in relation to Maryland law. The first post on open performance terms is available here. In

One of the most common types of litigation facing employers is the Fair Labor Standards Act (“FLSA”) collective action. These lawsuits are generally a lose-lose situation for employers because they must wage a defense through the lengthy class certification process while attorneys’ fees for both sides stack up. Even if the employer’s pay practices are fully compliant with the FLSA, courts generally do not consider the merits of the case until well into the litigation. Read more about this in

It is rare, but there are times where one will file a European Application (EA) and then change their mind due to business considerations. Filing fees are a significant part of the fees associated with filing an EA. The rules relating to the refund of fees is found in Article 11 of the European Patent Convention (EPC). Article 11 was amended on June 29, 2016 to clarify when fees can be refunded.  From now on, the examination fee shall be refunded: a) 

In April of 2015, the National Labor Relations Board (“NLRB”) issued its new Election Rule (“Rule”) governing representation case procedures. The NLRB recently construed a portion of the Rule in a way which will make it more difficult for an employer to comply. One provision of the Rule requires an employer to furnish a voter list (generally referred to as an Excelsior List) to the Regional Office and the union within 2 business days after the approval of a stipulated election agreement or

In 2009, the Indian government implemented provisions under the Competition Act of 2002 for prohibition of anti-competitive agreements and abuse of dominant positions in India. 1 More recently, antitrust litigation has picked-up in India as the general public has become aware of various issues such as price fixing, cartel formation, tying arrangements and predatory pricing. 2 On June 1, 2017, the Competition Commission of India (CCI) passed an order on a complaint between Fight for Transparency Society (Society) and WhatsApp Inc. (WhatsApp) alleging abuse of a dominant

The United States is one of a handful of countries in which private real property owners can hold and own subsurface mineral rights. In a majority of countries, only the government can own and benefit from these rights. Therefore, if you own real property, you should be aware of the legal concept of mineral rights and how these rights can impact the value of your property. First, what are Mineral Rights? The term “mineral rights” generally refers to the right to explore,

For years, the Wage and Hour Division of the Department of Labor (WHD) provided official guidance, in the form of opinion letters, to employers and employees. The opinion letters issued by the WHD addressed the application of the Fair Labor Standards Act (FLSA), the Davis-Bacon Act (DBA), and the Walsh-Healy Public Contracts Act (PCA) to specific fact patterns. Employers who relied on an opinion letter were provided with a good-faith reliance defense to certain claims under the FLSA, DBA, and

In my previous blog post, “Development Rights and Responsibility Agreements: The Give and Take of Development,” I discussed the purpose and requirements for a Development Rights and Responsibility Agreement (“DRRA”) between a land developer and the local government having jurisdiction over the property. Now that developers are using DRRAs, and as issues inevitably arise regarding the interpretation and enforcement of a DRRA, those agreements are being put to judicial scrutiny. Under Maryland case law, the rights of a land developer do not “vest”

Well, if you are a company doing business in Europe and have registered your trademarks, it will. As you know, the United Kingdom (UK) has decided to leave the European Union. This has implications as regards the protection under your European Union trade mark(s), namely: When the UK exits the European Union, EU trade mark registrations (EUTMs) will no longer apply in the United Kingdom.     Arrangements MAY be put in place effectively to validate existing EUTMs in the UK, but it

Every year law students flock to summer positions at law firms to gain the experience they need to sort through their interests in different areas of law and to get a taste of the lives of practicing attorneys. The following are my first impressions after a month spent with a busy family law practice. A.    The essentials of a busy family law practice include: Kindness— being kind is the only approach to take in this area of law. Lawyers who practice family

On June 12, 2017, the Supreme Court of the United States (the “Court”) issued a decision clarifying who qualifies as a “debt collector” under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. In the case of Henson v. Santander Consumer USA, Inc., No. 16-349 October Term, 2016, 582 U.S. __ (2017), the Court examined “how to classify individuals and entities who regularly purchase debts originated by someone else and then seek to collect those debts for their own account.” Slip

On May 30, 2017, in Impression Products 1, the U.S. Supreme Court ruled that a patent owner’s sale of an item, either within or outside the United States, exhausts all of the patent owner’s patent rights in that item, regardless of any restrictions the patentee purports to impose upon the sale. This Court’s decision solved long-term unsettled issues with respect to patent owners’ post-sale restrictions on the use or resale of patented items. Over the years, disputes have arisen with respect to the

Under Maryland law, the rights of a land developer to develop property for commercial or residential uses generally do not “vest” until there is some visible, lawful, construction on the property. Of course, development of a property takes time, and intervening market conditions can have a significant impact on the timing, financial viability, and ultimate development of a property. As a way to provide protections from uncertainties, both to the developer and to the local government, Maryland adopted laws to

Many of us take our civil rights for granted. It is only when they are threatened, do we take notice and then action (well, maybe). While all rights are not created equal, when we have the ability to control certain aspects of our life, it behooves us to do so. So here is your call to arms to take advantage of your right to control the disposition of your estate when you die or face the ramifications of failing to

Following the global financial crisis of 2007-2009, the Board of Governors of the Federal Reserve System (the “Board”), the Federal Deposit Insurance Corporation (the “FDIC”) and the Office of the Comptroller of the Currency (the “OCC”) issued in 2013 the Interagency Guidance on Leveraged Lending (the “Initial Guidance”), providing guidance to regulated entities (i.e. banks) on the appropriate origination of leveraged lending. The Initial Guidance acknowledged the important role of leveraged lending in the U.S. financial industry, while also recognizing the risk

The U.S. Consumer Product Safety Commission (“CPSC”) is an independent federal agency that administers the Consumer Product Safety Act (“CPSA”), 15 U.S.C. §§ 2051-2089, and has authority to seek civil penalties for alleged violations of the CPSA. Under the terms of the CPSA, five Commissioners make up the CPSC. The current group of Commissioners includes three Democrats and two Republicans; however, the term of one of the Democrats, Commissioner Marietta Robinson, expires in October 2017. A new Commissioner will thereafter

As cautioned in my recently co-authored article, “The Future Isn’t Promising for Retailers”, that appeared in the Baltimore Business Journal on March 10, 2017, the retail sector may be primed to see numerous more going out of business sales as the shakeup in traditional “bricks and mortar” retailing continues unabated.  With brands such as Gymboree, Ann Taylor, Payless Shoes, and other household names making headlines for their bankruptcy filings, store closings, and restructurings, it is critical that landlords and trade creditors doing business

Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO) for more than two years, submitted a letter of resignation on the afternoon of Tuesday, June 6, 2017. Lee was nominated by President Barack Obama and confirmed to the role in March 2015. A former Google executive who advocated strongly for women and minorities, Lee took the helm of the patent office at a pivotal time for the technology industry. U.S. Secretary

In a decision handed down on April 27, 2017 in the case of Heneberry v. Pharoan, the Maryland Court of Special Appeals rejected a breach of contract claim against a doctor who failed to completely perform a surgical procedure. 1 Valerie Heneberry (“Heneberry”) filed her Complaint in the Circuit Court for Baltimore County, alleging that Bashar Pharoan (“Dr. Pharoan”), in performing an appendectomy for acute appendicitis, failed to completely remove her appendix in contravention of his agreement to perform an appendectomy. Heneberry claimed

There are three ways to get divorced—two of them should be avoided if possible—accepting, of course, that there are some spouses who insist on litigation and a trial. Any experienced family lawyer will ask you at the outset if you would agree to resolve your divorce by way of an agreement. You can agree on everything in such an agreement: custody, child support, alimony, division of marital property. Then, when the requisite time of separation has passed, you proceed to a

If you’ve had better things to do, you might only be vaguely aware that the new fiduciary rule becomes effective on June 9, 2017. We’ve written about this before (here and here), but a quick refresher might be helpful as the deadline looms. For employers, the June 9 deadline should be a nonevent, other than an opportunity to review HR procedures and relationships with vendors. New Fiduciaries An employer, as sponsor of a retirement plan, has always been a fiduciary subject to duties imposed by ERISA. This

Inevitably, all businesses must deal with employee turnover and the departure of key employees. Such departures have become more frequent of late, as the economy is again on the rise, more jobs are available, the unemployment rate is at an almost decade low 4.4% and wages have increased. Indeed, the average wage growth for full-time workers aged 25-34 who changed jobs in the first quarter of this year was 10.2%, versus a 6.8% increase for job holders. As a result,

In the past few years, there has been a significant focus by lawmakers on closing the “gender gap” in the pay earned by men and women. Although state and federal law have prohibited gender-based discrimination in pay for many years, the new focus has been upon salary history. Advocates claim that basing an applicant’s salary upon his or her prior earnings perpetuates pay discrimination and leads to women being systematically paid less than men. In order to address this disparity, state

When Scott Pruitt took over the post as Administrator of the United States Environmental Protection Agency (EPA), he made it clear that one of his top priorities was to expedite cleanups at contaminated sites across the country. Facing reductions in the agency’s FY2018 operating budget, including cuts to the Superfund program, it has become clear that in order to achieve this goal, Administrator Pruitt will not be able to simply increase spending, but instead must look to overhaul and restructure

Last week the Trump Administration issued its FY2018 federal budget, which begins October 1. The plan would reduce HUD funding by $6.2 billion, changing the agency’s total funding from $46.9 billion in 2017 to $40.7 billion. This reduction in funding represents a fraction of the cuts needed to offset a proposed $54 billion increase in defense spending, increased spending for immigration enforcement and border security, and $200 billion in infrastructure spending over the next decade. A copy of the budget