Category Archives: Treatise Update

Treatise Update – Fragomen on Immigration Fundamentals: A Guide to Law and Practice (Fifth Edition)

Fragomen on Immigration Fundamentals reveals the nuances of U.S. immigration law and practice along with the agency, legislative, and executive policies shaping the current environment for immigrants and asylum seekers. Packed with practical tips for employment-based and family-based immigration, avenues to permanent residence, naturalization obstacles, statutory admission denials, and the administrative and judicial review of unfavorable decisions, the book also features templatized immigration forms for key case milestones in the immigration process.

Some of the important recent developments discussed in this release include:

PERM applications: Coverage of the DOL’s transition of online PERM application filings from its legacy PERM Online portal to the FLAG system and the resulting restructuring of the application form (see section 2:2.5). For additional recent developments in the PERM context, check out this recent PLI Chronicle article, Wage Transparency Laws Add Extra Layer of Complexity to Labor Certification Recruitment.
Employer’s ability to pay: Discussion of the significantly expanded guidance from the USCIS regarding an employer’s ability to pay the proffered wage for immigrant petitions (see section 2:6.1[B]).
Age-out protection: Clarification of the requirements that children of permanent residents and derivative family members of principal family-based immigrants must meet to receive age-out protection (see section 3:3.4[A]).
Failure to apply in safe third country: Updates regarding the status of the Biden Administration’s rule creating a rebuttable presumption that migrants who attempt to cross the southern border without seeking asylum in a third country through which they traveled or procuring an asylum appointment through the CBP One mobile app are ineligible for asylum (see section 6:2.6[C][7]).
Screening of job applicants: New DOJ guidance provides helpful tips on avoiding citizenship status discrimination when complying with export control laws, reaffirming that employers cannot rely on them to limit jobs to U.S. citizens or workers with other citizenship or immigration statuses (see section 10:3.3[B]).

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Treatise Update – Directors’ and Officers’ Liability: Current Law, Recent Developments, Emerging Issues (Third Edition)

Directors’ and Officers’ Liability expounds the legal responsibilities of board directors and corporate officers of publicly-traded companies, the penalties that they face if they fail to meet their obligations, and the protections that are offered them under the law or by agreement. The book also delves into director and officer duties, exculpation, indemnity, insurance, cybersecurity, and contested mergers and acquisitions. It highlights unique case studies relevant to pharmaceutical, biotechnology, hospitality, retail, and other sectors.

Highlights of this release include updated discussion of the following topics:

Board Diversity Legislation and Litigation: Litigation continues in challenges to California’s S.B. 826 and A.B. 979, which require public companies to diversify their boards. Both laws have been ruled unconstitutional, but appeals are pending before the Ninth Circuit in Meland v. Weber and Alliance for Fair Board Recruitment v. Weber. See § 2:3.3[C] for discussion of the latest developments.
Amendments to Rule 10b5-1: In December 2022, the SEC adopted amendments to Rule 10b5-1 to introduce new requirements for Rule 10b5-1 trading plans and elicit more comprehensive disclosure related to insider trading policies and the timing of certain option grants to officers and directors of public companies. See § 4:4.1[B] for explanation of the rule changes.
Anti-D&I Shareholder Derivative Litigation: As companies push to adopt D&I initiatives some have been confronted with an anti-D&I backlash in the form of shareholder derivative suits. One such significant case brought against Starbucks was recently dismissed by the District Court for the Eastern District of Washington. See § 8:6.2[B] for discussion of the court’s holding.

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Treatise Update – Doing Business Under the Foreign Corrupt Practices Act (Second Edition)

Doing Business Under the Foreign Corrupt Practices Act (Second Edition) helps corporate lawyers, in-house sales teams, and other U.S.-based and overseas stakeholders understand the issues and rules they should consider when negotiating transactions or accepting compensation in compliance with the FCPA. Readers will learn the necessary, proactive steps for identifying and avoiding common FCPA transactional illegalities.

The book addresses key information regarding whistleblower considerations and harsh penalties for falsified books and records, mischaracterized payments, fictitious invoices, insufficient internal accounting controls, and more. This title also includes helpful sample acknowledgements, compliance plans, and agreement clauses that address FCPA considerations.

Key updates in the new release include:

The SEC’s Amended Whistleblower Rules: Coverage of the August 2022 changes to the SEC’s final rules implementing the whistleblower provisions (see section 1:1).
Case Law Developments: Discussion of the holdings in United States v. Hoskins and United States v. Rafoi-Bleuler regarding the scope of the term “agent” as applied to a foreign national (see section 4:1.3).
The DOJ’s Updated Evaluation Guidance: Information regarding the DOJ’s March 2023 guidance emphasizing the importance of implementing compliance-promotion criteria in a company’s compensation and bonus system (see section 10:1).
New Appendix B62: Department of Justice FCPA Opinion Release— Situation Involving Extortion or Duress.
New Appendix B63: Department of Justice FCPA Opinion Release— Payment of Travel Expenses for Post-Adoption Supervision.

In addition, the book offers information on the latest cases, enforcement actions, and settlements and provides several adaptable forms and templates (see the Related Items tab under “Forms”).

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Treatise Update – Patent Litigation (Third Edition)

Patent Litigation (Third Edition) enhances every patent litigator’s ability to prevail at trial while helping to cut the costs and complexity of litigation. Written by leading patent litigators, the treatise provides guidance on various infringement actions and their respective burdens of proof. It also offers pointers on conducting comprehensive pre-suit investigations; developing potent case themes; assembling strong litigation teams; developing smart budgets; maximizing the persuasive impact of documents, exhibits, and witnesses; and making savvy use of technology, jury consultants, and litigation support vendors.

Highlights of this release include updated discussion of the following topics:

Substantive Issues of a Patent Case: Defenses against patent validity, such as collateral estoppel and unadjudicated claims, applicant-admitted prior art, obviousness, and inadequately disclosed claims (see sections 1:3.3[B], 1:3.3[C], 1:3.3[F], and 1:3.3[H]) and, in the area of inequitable conduct before the PTO, the mitigation of nondisclosure of information through supplemental examination (see section 1:3.4[A][4]).
Discovery and Privilege: Use of testimony from patent law experts (see section 4:4.4[C]).
Nondiscovery Motions and Court-Initiated Procedures: Markman proceedings and claim construction (see section 7:2).
Witnesses Special to a Patent Case: Inventor testimony (see section 8:2.1[A]).
Damages and Attorney’s Fees: Consequences of the district court’s failure to address prejudgment interest (see section 9:10.1) and willfulness and enhanced damages (see section 9:11.1).
Trial: Rule 50(a) and Rule 50(b) motions (see sections 12:12.3 and 12:14); Rule 59 motions for a new trial and altering or amending the judgment (see new section 12:14.4); and Rule 60 proceedings for relief from judgment (see new section 12:14.5).

The Table of Authorities and Index have also been updated.

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For additional recent developments in patent litigation, check out this recent PLI Chronicle article, PTAB’s Longhorn Decision Could Signal More USPTO OED Disciplinary Proceedings.

Treatise Update – Variable Annuities and Other Insurance Investment Products (Third Edition)

Variable Annuities and Other Insurance Investment Products offers accessible guidance to the federal and state regulation of variable annuities and insurance investment products. Readers will learn the professional duties and compliance responsibilities expected of issuers of insurance investment products. The book includes instructive examples around product design, approvals, administration and distribution, marketing, and inspections. The book further features conversations addressing special investment products, state insurance licensing requirements and suitability rules, index-linked variable annuities, registered index-linked annuities (RILA), and life settlements.

Highlights of the new release include:

ERISA Issues: New discussion of Prohibited Transaction Exemption 2020-02 (“PTE 2020-02”) which allows investment advice fiduciaries to receive compensation that would otherwise be prohibited in connection with providing investment advice and engaging in certain principal transactions (see section 6:9).
Insurer Exchange Programs: Covers the SEC’s announcement of settled charges against an insurance-affiliated broker-dealer/principal underwriter for improper exchange offers related to the affiliated insurer’s variable annuities (see section 13:5).
Advertising: Reviews FINRA Rule 5123 (“Private Placements of Securities”), a separate FINRA Rule that sets forth filing requirements for private placements (see section 19:4.2[B][13]), and the performance inception date for variable annuity performance advertising (see section 19:5.1[A][1]).
Senior Investors: Discusses actions by federal and state securities and insurance regulators to enhance the supervisory obligations of financial institutions dealing with senior investors (see section 27:2.1).

In addition, the Table of Authorities and Index have been updated to incorporate the latest developments and regulatory changes.

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Treatise Update – Taxation of Intellectual Property: Law and Practice

Taxation of Intellectual Property covers the tax consequences of creating, buying, exploiting, and selling various intellectual property assets (including patents, trade secrets, copyrights, trademarks, and computer software), as well as the tax considerations affecting intellectual property litigation. It identifies the IP taxation fundamentals relevant to individuals, corporations, partnerships, and non-profits and includes in-depth coverage of the various deductions applicable to patent royalties, salaries of researchers, and infringement-related legal fees.

Some of the recent developments discussed in this new release include:

Alternative Minimum Tax (AMT) for Corporations: Coverage of the repeal of the AMT for corporations by the Tax Cuts and Jobs Act of 2017 (TCJA) and the subsequent updates to this by the Inflation Reduction Act of 2022 (see section 3:2.3).
Research or Experimental Expenditure Deductions: Discussion of the new 5-year capitalization and amortization rule imposed on research or experimental expenditures by the TCJA (see section 4:3).
Research Credit for Small Business and Start-Ups: Provides the increased amount of the credit that small businesses and start-ups can apply against their payroll tax liability pursuant to the Inflation Reduction Act of 2022 (see section 4:6).
Tax Treatment of NFTs: Answers the question of whether an NFT used in trade or business would qualify as a Section 1231 asset eligible for capital gains treatment (see section 6:3.5[A][1]).
Litigation Expenses: Extensive coverage of the Actavis Lab v. United States case which dealt with the issue of whether a generic drug manufacturer’s patent infringement litigation expenses were tax deductible (see section 7:1.1[C]).
Charitable Contributions of Cryptocurrency: Explanation of the circumstances in which a qualified appraisal is required for charitable contributions of cryptocurrency (see section 9:4.4[A]).

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Treatise Update – Hillman on Documenting Secured Transactions: Effective Drafting and Litigation (Third Edition)

Hillman on Documenting Secured Transactions offers grounded guidance on best practices for documenting and litigating secured transactions prepared pursuant to Revised Article 9 of the Uniform Commercial Code (U.C.C.). It offers a working grasp of the legal, technical, and business aspects of Article 9 transactions and examines the effects of the 2022 Amendments on nearly every article of the U.C.C. To gain free access to Chapter 18, which addresses the 2022 Amendments in more detail, click here.

Among the many topics updated in this new release are the following:

Perfection: A table of the new perfection methods under the 2022 Amendments (see section 2:6.2).
Signed Security Agreements: A listing of the increased number of situations in which a signed security agreement is not necessary under the 2022 Amendments (see section 4:1.2).
After-Acquired Collateral: A summary of the ways in which the 2022 Amendments narrow the scope of the prohibitions against security interests in after-acquired consumer goods or commercial tort claims (see section 7:2).
Control Under the 2022 Amendments: A discussion of how the 2022 Amendments offer new ways to perfect security interests in digital assets (see section 18:4).
Unperfected Security Interests: An explanation of the changes the 2022 Amendments make to U.C.C. § 9-317(b) regarding buyers who receive delivery (see section 19:2.1).

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Treatise Update – Technology Transactions: A Practical Guide to Drafting and Negotiating Commercial Agreements

Technology Transactions enables practitioners to draft, review, and negotiate technology transaction agreements. Readers will encounter a trove of sample forms and best practices for negotiating some of the most common and sophisticated types of technology transactions. The book specifically covers issues relevant to software license, technology escrow, non-disclosure, domain name transaction, and cloud computing agreements. It also discusses the relevant privacy and intellectual property regulations lawyers should consider when drafting transactional documents.

Highlights of the new release include:

Chapter 4: A new section discusses the increasing adoption of sovereign cloud solutions and industry-specific clouds (see section 4:2.2[G]).
Chapter 5: Updated content discusses ICANN’s proposal of the new WHOIS Disclosure System which would facilitate access to nonpublic registration data associated with generic top-level domains (gTLDs) (see section 5:2.1[A]).
Chapter 11: New content discusses the increased use of efforts provisions in commercial agreements, the variants of the clauses that have been introduced, and issues litigated (see section 11:4), including the enforceability of such clauses (see section 11:4.1), efforts hierarchies in determining whether the standard was met (see section 11:4.2), and defining efforts standards (see section 11:4.3).
Chapter 19: Updated discussion describes the nine new elements that an information security program must include (see section 19:4.2).
Chapter 20: New content previews California’s Age-Appropriate Design Code Act which will take effect in 2024 (see section 20:7).

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Treatise Update – Kane on Trademark Law: A Practitioner’s Guide (Seventh Edition)

Kane on Trademark Law is a comprehensive resource on trademark law that provides court-tested practical suggestions on how to quickly spot potential conflicts and save time on searches, overcome common descriptiveness rejections, update or amend registrations, and prepare witnesses for depositions. It includes detailed lists of cases, full-color illustrations of previously litigated marks, sample forms, and step-by-step checklists. The treatise is updated regularly to provide in-depth analysis of the most recent developments in the field.

The new release provides expert analysis and practical insights regarding a wide range of trademark issues. Topics of interest include:

Trade dress: A color illustration from the Tenth Circuit’s Bimbo Bakeries case has been added to Appendix B. The case is also cited in section 3:2.2[F].
Clearance: Revisions discuss the importance of ensuring that the appropriate rights have been secured to use the planned typeface for the brand (see section 4:3.4).
Priority: Revisions cover requirements to establish “use analogous to trademark use” (see section 5:1.1).
Internet: Revisions cover the Metabirken NFT jury verdict and issues surrounding artificial intelligence tools, such as ChatGPT and Dall-E (see section 11:1.3).
Defenses: Revisions include updates to the General Cigar case (see section 12:2.2[D][1]) and Bluetooth case (see section 12:1.4).

The Table of Authorities has also been updated.

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Treatise Update – Advertising and Commercial Speech: A First Amendment Guide (Second Edition)

Advertising and Commercial Speech: A First Amendment Guide offers a practical examination of how the U.S. Supreme Court’s commercial speech doctrine impacts advertising across nearly 50 industries and professions. The book explores legal standards for defamation, false commercial speech, and disparagement along with developments around advertising for alcohol, financial institutions, professional services, medication, real estate, tobacco, and more.

Among the many topics discussed in this new release are the following:

Compelled editorial transparency: New section 12:13 discusses laws passed in Florida and Texas targeting social media platforms’ efforts to combat user-generated disinformation posted on their websites.
On-site and off-site signs and billboards: Section 13:2.1[A][7] covers the Seventh Circuit’s ruling regarding whether to apply strict scrutiny or intermediate scrutiny to an ordinance limiting digital displays and off-premises signs.
Drugs & drug paraphernalia: Section 14:14 explores a case from the Washington Court of Appeals rejecting a challenge to the state’s advertising restrictions on marketing cannabis products.
Regulation of advertising content: Revisions to chapter 14 include:

The ruling of a Florida judge regarding whether part of the state’s Stop W.O.K.E. Act, which forbids companies from undertaking mandatory employee DEI training programs designed to limit or avoid discrimination practices, is unconstitutional (see section 14:16 on fair employment); and
The Eastern District of Arkansas’ final ruling in the Tofurky case involving marketing of plant-based foods (see section 14:20 on food).

In addition, this release includes an updated Table of Cases, Defendant-Plaintiff Table, and Index.

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