Last Fall, EPA published revisions to its 2009 guidance on EPA’s model agreements for settlements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), entitled Revisions to 2009 ARC Memo and Issuance of Revised CERCLA Past Cost, Peripheral, De Minimis, De Micromis, and Municipal Solid Waste Settlement Models (the Guidance). Although the Guidance covers a number of topics, this Alert focuses on changes affecting potential contribution rights and the scope of potential contribution protection under CERCLA § 113(f). While the revisions are largely helpful in nature, companies and other entities affected by CERCLA should be aware of the recent changes, as the changes may affect their ability to recover costs or receive contribution protection.
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Hacked! What To Do if Your Company is Cyber Attacked
You are on the 13th tee of your Saturday morning golf game. This game and the rest of your foursome are just the distractions you need from your job as CFO of a rapidly growing electronic parts distribution company. When you glance at your silenced smartphone, however, you notice a string of missed calls from your chief technology officer. You step back from the tee to listen to several messages, including a nearly hysterical one from your CEO, ranting about the company website, servers, unscrupulous hackers, and other indecipherable topics. The gist is that the company website and servers have been hacked and several types of sensitive information may have been accessed, including customer information and possibly even company trade secrets.
So what do you do next?
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Avoiding Liability in Public Securities Offerings: The Lesson of Omnicare
On March 24, 2015, the U.S. Supreme Court decided Omnicare v. Laborers District Council Construction Industry Pension Fund, a case with which public companies should be familiar before their next issuance of securities.
Omnicare addresses the circumstances in which companies are liable under Section 11 of the Securities Act of 1933 for statements in registration statements that later prove to be incorrect. The Court held that liability may exist if any of the following are true: (i) a statement of fact is incorrect, (ii) a statement of opinion is not sincerely held, or (iii) a statement of opinion omits accompanying disclosure of material facts supporting the opinion that a reasonable investor would consider important or disclosure that the opinion is tentative.
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Online Retailers’ Supreme Court Win on State Taxation Fight May Be Short-Lived
A March 2015 United States Supreme Court case delivers a short-term victory to online retailers who do not collect sales taxes in Colorado, while at the same time sending a clear warning about the future viability of the practice.
Out-of-state retailers without a physical presence in a state have not been required to collect sales taxes under a nearly 50-year-old Supreme Court case involving a catalog retailer, Quill Corp. v. North Dakota. In an effort to remove the sales tax advantage enjoyed by many online retailers, Colorado enacted a statute in 2010 requiring non-tax-collecting online retailers whose gross sales in Colorado exceed $100,000 to collect and report information to the Colorado Department of Revenue on their Colorado customers. The object of the law was to help the Department of Revenue collect use taxes–the state’s substitute for sales taxes for purchases made from out-of-state retailers, which are generally required to be paid directly to the state by the customers.
In Direct Marketing Association v. Brohl, a trade group representing online and catalog retailers convinced a federal district court that Colorado’s information collection and reporting requirements were unconstitutional. The Court of Appeals later held that the district court did not have jurisdiction over the case, but the recent Supreme Court opinion allows the challenge to Colorado’s law to continue by deciding that the case could be heard in federal court.
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The Federal Government Joins the Fray: The BLM’s Final Hydraulic Fracturing Rules
On March 20, 2015, the Bureau of Land Management (BLM) issued its final rules for hydraulic fracturing on federal and tribal lands (Final Rules). The Final Rules govern approximately 700 million subsurface acres overseen by the BLM, and they culminate a rulemaking process that began in November 2010. Among other things, they are intended to ensure the integrity of hydraulically fractured wells, protect water quality, and provide the public with information on fracturing fluid constituents. During the rulemaking process, the BLM received more than 1.5 million public comments, with some commenters arguing that new federal rules will duplicate current state regulations and impose unnecessary regulatory burdens, while others argued that the proposed rules did not go far enough. Assistant Secretary for Land and Minerals Management Janice Schneider said the Final Rules “will protect public health and the environment during and after hydraulic fracturing operations at a modest cost while both respecting the work previously done by the industry, the states and the tribes and promoting the adoption of more protective standards across the country.” However, the Final Rules are likely to continue to draw criticism from all sides as they are implemented, and have already been challenged in federal district court.
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What Net Neutrality Will Mean for Cyber-Street
The Federal Communications Commission’s publication of new rules on March 12, 2015 treating internet service providers as common carriers (akin to utility companies) is seen by many to be a meaningful step toward ensuring “net neutrality” or an “open internet.” Others fear the move could significantly hamper internet innovation due to unnecessary and uncertain government regulation. However, it is difficult to predict at this time what effect the FCC’s new rules – or the bill introduced in the House of Representatives on March 4, 2015, intended to roll back the FCC’s decision before the final rules had even been published – will have on everyday life in cyberspace for consumers and business-to-business users.
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Recent Cases Create Hurdles to Corporate Debt Restructuring
SEC Eases Debt Tender Offer Procedures
Two recent cases from the Southern District of New York may undermine the ability of companies with debt subject to the Trust Indenture Act (TIA) to engage in bondholder-approved restructuring of that debt, and create uncertainty as to the issuance of new TIA-qualified debt.
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Three Initiatives Promise to Accelerate Health IT in 2015
Three major legislative and regulatory proposals concerning technology in health care are in the works for 2015, each of them aiming to accelerate the growth of the already burgeoning health IT vertical by facilitating – and protecting – the electronic collection and sharing of health data.
21st Century Cures Initiative
On January 27, 2015, members of the House Energy and Commerce Committee, led by Chairman Fred Upton (R-MI) and Colorado’s own Diana DeGette (D-CO), released a discussion draft of potential bill language aimed at accelerating the discovery, development, and delivery of new medical drugs and devices. Elizabeth Farrar, health counsel for Rep. DeGette, said the bill’s sponsors have set an “aggressive timeline” for consideration of the bill, with a vote on the bill planned for May 2015.