Publications Feed https://jenner.com/library Publications Description https://jenner.com/library Contributing Author <i>Lefkowitz on Public Sector Labor and Employment Law, 4th Edition (2019 Revision)</i>, New York State Bar Association 23 Jul 2019 https://jenner.com/library/publications/19155 https://jenner.com/library “Airport Property Due Diligence Should Cover PFAS Pollution,” <i>Law360</i> <p> In this article, Jenner &amp; Block Partner <a href="https://jenner.com/people/StevenSiros">Steven M. Siros</a> explains that a contaminant that has flown under the radar for years now presents environmental risks at many airports.&nbsp; Aqueous film-forming foam, or AFFF, has been used for decades as a firefighting agent at airports around the world.&nbsp; Unfortunately, AFFF formulations often include a class of chemicals called per- and polyfluoroalkyl substances, or PFAS. Many PFAS compounds have properties that can pose environmental risks at airport sites.&nbsp; Mr. Siros provides an overview of PFAS, sources of PFAS at airport properties, regulatory status in the United States, litigation, remediation options and management strategies.&nbsp; He observes that “careful consideration should be paid to whether to investigate for the presence of PFAS in soil and groundwater at airport properties.”</p> 22 Jul 2019 https://jenner.com/library/publications/19156 https://jenner.com/library The Consumer Finance Observer <p> Jenner &amp; Block has recently launched <em>The</em> <em>Consumer Finance Observer</em> or “<em>CFO</em>,” a newsletter providing analysis of key consumer finance issues and updates on important developments to watch. &nbsp;In this issue, consumer finance lawyers <a href="https://jenner.com/people/DavidBitkower">David Bitkower</a>, <a href="https://jenner.com/people/KaliBracey">Kali Bracey</a>, <a href="https://jenner.com/people/JeremyCreelan">Jeremy M. Creelan</a>, <a href="https://jenner.com/people/NogaJoseph">Joseph L. Noga</a>, <a href="https://jenner.com/people/MichaelRoss">Michael W. Ross</a> and <a href="https://jenner.com/people/DamonSmith">Damon Y. Smith</a> and Associate <a href="https://jenner.com/people/WilliamGoldstein">William S.C. Goldstein</a> discuss how enforcement authorities are zeroing in on alternative data; the NY District Court’s block of a fintech charter; the CFPB’s proposed debt collection rules; the Saga of <em>Madden v. Midland Funding; </em>news from the CFPB’s UDAAP Symposium; updates on cryptocurrency; the FDIC’s consumer compliance supervisory highlights; and Texas’s enactment of new consumer finance laws.&nbsp;</p> <p> To read the full newsletter, click&nbsp;<a href="https://jenner.com/system/assets/assets/10998/original/The%20Consumer%20Finance%20Observer%20-%20July%202019.pdf" target="_blank">here</a></p> 25 Jul 2019 https://jenner.com/library/publications/19163 https://jenner.com/library “Data-Misuse Enforcement is Focusing on 3 Key Areas,” <i>Law360</i> <p> In this article, Jenner &amp; Block Partners <a href="https://jenner.com/people/DavidBitkower">David Bitkower</a>, <a href="https://jenner.com/people/KaliBracey">Kali Bracey</a>, <a href="https://jenner.com/people/JeremyCreelan">Jeremy M. Creelan</a>, <a href="https://jenner.com/people/NogaJoseph">Joseph L. Noga</a> and <a href="https://jenner.com/people/MichaelRoss">Michael Ross</a> discuss the wave of enforcement activity that has begun to focus on how companies are using the sensitive data they collect in making business decisions.&nbsp; The article describes how and why businesses should stay informed about the enforcement actions being taken by regulators concerning the use of data, particularly addressing three key areas of regulator interest: discrimination and unfairness; accuracy; and transparency and security. As the authors explain, companies ought to remain vigilant of their own data collection practices as government enforcement activity continues to focus on these areas.&nbsp;</p> 23 Jul 2019 https://jenner.com/library/publications/19174 https://jenner.com/library “Be Aware of Risk when Providing Notice to Multiple Insurers,” <i>Insurance Law Update</i> <p> In their <em>Insurance Law Update</em>, Jenner &amp; Block Partner <a href="https://jenner.com/people/DavidKroeger">David M. Kroeger</a> and Associate <a href="https://jenner.com/people/CatherineDoyle">Catherine L. Doyle</a> highlight the case of <em>Emmis Communications Corp. v. Illinois National Insurance Co</em>.&nbsp; In that case, the policyholder gave notice under a current directors and officers policy as well as a prior year D&amp;O policy.&nbsp; The Seventh Circuit concluded that the policyholder’s provision of notice under the prior policy barred coverage under the current policy.&nbsp; “In <em>Emmis</em>,” the authors observe, “the policyholder’s cautionary, ‘better safe than sorry’ claims reporting strategy resulted in the unanticipated exclusion of coverage as a result of ‘complex’ and ‘Byzantine’ policy language.”</p> 31 Jul 2019 https://jenner.com/library/publications/19176 https://jenner.com/library Client Alert: Employers Take Note: State AGs Urge FTC to Step Up Scrutiny of Employee Restrictions <div> Eighteen state attorneys general are increasing their activism, looking for additional tools to challenge employers’ restrictions on employees.&nbsp; In addition to potential state law tools, they now are urging the Federal Trade Commission to increase antitrust enforcement to try to invalidate or severely limit the use of non-compete agreements, no-poach agreements and merger activity.&nbsp; Employers should take note that government enforcers may be increasingly focused not just on antitrust issues affecting consumers, but also as they relate to the marketplace for workers.</div> <div> &nbsp;</div> <div> <a href="https://jenner.com/system/assets/publications/19184/original/Employers%20Take%20Note%20-%20State%20AGs%20Urge%20FTC%20to%20Step%20Up%20Scrutiny%20of%20Employee%20Restrictions%20-%20ATTORNEY%20ADVERTISING.pdf?1564684380" target="_blank">Read more</a></div> <div> &nbsp;</div> 1 Aug 2019 https://jenner.com/library/publications/19184 https://jenner.com/library “5 Best Practices To Avoid TCPA Wrong-Number Claims,” <i>Law360</i> <p> In this article, Jenner &amp; Block Partner <a href="https://jenner.com/people/AmyGallegos">Amy M. Gallegos</a> provides five best practices to help businesses minimize Telephone Consumer Protection Act (TCPA) wrong-number claims in the wake of Wells Fargo’s recent $17.85 million TCPA settlement.&nbsp; Penalties against companies that make wrong-number calls can be substantial, and the article highlights the importance of a strong and thorough TCPA compliance program.&nbsp;</p> 30 Jul 2019 https://jenner.com/library/publications/19187 https://jenner.com/library <i>The Guide to Monitorships</i> <p> Jenner &amp; Block Partners <a href="https://jenner.com/people/AnthonyBarkow">Anthony S. Barkow</a>, <a href="https://jenner.com/people/NeilBarofsky">Neil M. Barofsky</a>, and <a href="https://jenner.com/people/ThomasPerrelli">Thomas J. Perrelli</a> are editors of <em>Global Investigations Review</em>’s first edition of <a href="https://globalinvestigationsreview.com/edition/1001321/the-guide-to-monitorships-first-edition"><em>The Guide to Monitorships</em></a>.&nbsp; They along with Partners <a href="https://jenner.com/people/MatthewCipolla">Matthew D. Cipolla</a>, <a href="https://jenner.com/people/MichaelRoss">Michael W. Ross</a> and <a href="https://jenner.com/people/ErinSchrantz">Erin R. Schrantz</a> are co-authors of several sections of the book.&nbsp; The five-part guide examines monitorships through in-depth analysis of corporate cultures, expert perspectives and common issues that arise in connection with monitorships.</p> <p> In the “<a href="https://globalinvestigationsreview.com/benchmarking/the-guide-to-monitorships-first-edition/1190476/introduction">Introduction</a>,” Mr. Barkow and Mr. Ross review the historical and doctrinal underpinnings of the modern-day monitorship.</p> <p> In their chapter titled “<a href="https://globalinvestigationsreview.com/benchmarking/the-guide-to-monitorships-first-edition/1190477/changing-corporate-cultures">Changing Corporate Cultures</a>,” Mr. Barofsky—former Assistant US Attorney and Special Inspector General for the Troubled Asset Relief Program, who has served as an independent monitor—and co-authors Mr. Cipolla and Ms. Schrantz explain how a monitor can approach and remedy a broken corporate culture.&nbsp; “A monitor occupies a unique middle-ground space—not an insider, but also not the government—that allows it to press on different levers and apply external pressure to an organization that might not otherwise undergo necessary cultural change,” the authors write.</p> <p> In his chapter titled “<a href="https://globalinvestigationsreview.com/benchmarking/the-guide-to-monitorships-first-edition/1190478/the-life-cycle-of-a-monitorship">The Life Cycle of a Monitorship</a>,” Mr. Perrelli—former Associate Attorney General and independent monitor for Citigroup Inc. and the Education Management Corporation—goes through the life cycle of a monitorship, the process of formulating a monitorship agreement and engagement letter, building a monitorship team and publishing final reports.&nbsp; According to the author, “A final report provides an opportunity to look both backwards and forwards—how far the company has come over the course of the monitorship, the challenges that remain, long-term issues the company will need to address and additional steps the company should take on the road to sustained compliance.”</p> <p> Mr. Barkow, Mr. Barofsky and Mr. Perrelli acknowledge Partner <a href="https://jenner.com/people/JessicaAmunson">Jessica Ring Amunson </a>and Associates <a href="https://jenner.com/people/JessicaMartinez">Jessica A. Martinez</a>, <a href="https://jenner.com/people/RaviRamanathan">Ravi Ramanathan</a> and <a href="https://jenner.com/people/TessaRoberts">Tessa J.G. Roberts</a> for their important assistance and support of the publication.</p> 6 Aug 2019 https://jenner.com/library/publications/19193 https://jenner.com/library "Introduction," <i>The Guide to Monitorships</i> <p> In their &quot;Introduction&quot; to The Guide to Monitorships, Jenner &amp; Block Partners <a href="https://jenner.com/people/AnthonyBarkow">Anthony S. Barkow</a> and <a href="https://jenner.com/people/MichaelRoss">Michael W. Ros</a>s review the historical and doctrinal underpinnings of the modern-day monitorship</p> 6 Aug 2019 https://jenner.com/library/publications/19194 https://jenner.com/library "Changing Corporate Cultures,”<i>The Guide to Monitorships</i> <p> In their chapter titled “Changing Corporate Cultures,” Jenner &amp; Block Partner <a href="https://jenner.com/people/NeilBarofsky">Neil M. Barofsk</a>y—former Assistant US Attorney and Special Inspector General for the Troubled Asset Relief Program, who has served as an independent monitor—and co-authors Partner <a href="https://jenner.com/people/MatthewCipolla">Matthew D. Cipolla</a> and Partner <a href="https://jenner.com/people/ErinSchrantz">Erin R. Schrantz </a>explain how a monitor can approach and remedy a broken corporate culture.&nbsp; “A monitor occupies a unique middle-ground space—not an insider, but also not the government—that allows it to press on different levers and apply external pressure to an organization that might not otherwise undergo necessary cultural change,” the authors write.</p> 6 Aug 2019 https://jenner.com/library/publications/19195 https://jenner.com/library "The Life Cycle of a Monitorship," <i>The Guide to Monitorships</i> <p> In his chapter titled “The Life Cycle of a Monitorship,” Jenner &amp; Block Partner <a href="https://jenner.com/people/ThomasPerrelli">Thomas J. Perrelli</a>—former Associate Attorney General and independent monitor for Citigroup Inc. and the Education Management Corporation—goes through the life cycle of a monitorship, the process of formulating a monitorship agreement and engagement letter, building a monitorship team and publishing final reports.&nbsp; According to the author, “A final report provides an opportunity to look both backwards and forwards—how far the company has come over the course of the monitorship, the challenges that remain, long-term issues the company will need to address and additional steps the company should take on the road to sustained compliance.”</p> 6 Aug 2019 https://jenner.com/library/publications/19196 https://jenner.com/library "Second Circuit Creates Split on Investment Company Act Private Right of Action," <i>Jenner & Block's Consumer Law Round-Up</i> <p style="color: rgb(51, 51, 51); font-family: Arial, Helvetica-Narrow, sans-serif; font-size: 13px;"> By:&nbsp;<em><a href="https://jenner.com/people/GabrielGillett" rel="noopener" style="color: rgb(102, 153, 51);" target="_blank">Gabriel K. Gillett</a></em>&nbsp;and&nbsp;<em><a href="https://jenner.com/people/HowardSuskin" rel="noopener" style="color: rgb(102, 153, 51);" target="_blank">Howard S. Suskin</a></em></p> <p style="color: rgb(51, 51, 51); font-family: Arial, Helvetica-Narrow, sans-serif; font-size: 13px;"> <a class="asset-img-link" href="https://environblog.jenner.com/.a/6a01310fa9d1ee970c0240a4730f5a200c-pi" style="color: rgb(102, 153, 51); float: right;"><img alt="New-Development-Icon" class="asset asset-image at-xid-6a01310fa9d1ee970c0240a4730f5a200c img-responsive" src="https://environblog.jenner.com/.a/6a01310fa9d1ee970c0240a49c3ff2200d-pi" style="border: 0px !important; margin: 3px; width: 250px; height: 131px; float: right;" title="New-Development-Icon" /></a>In a decision issued on August 5, 2019, the US Court of Appeals for the Second Circuit created a split with other courts, including the Third Circuit, on the issue of whether there is a private right of action for rescission under the Investment Company Act (ICA).&nbsp; The Second Circuit held that, based on the text of the statute and its legislative history, “ICA § 47(b)(2) creates an implied private right of action for a party to a contract that violates the ICA to seek rescission of that violative contract.”&nbsp;&nbsp;<em>Oxford&nbsp;</em><em>University Bank</em><em>&nbsp;v. Lansuppe Feeder Inc.</em>, No. 16-4061 (2d Cir. Aug. 5, 2019), Slip op. 23.&nbsp; In so holding, the court acknowledged that it was creating a circuit split:</p> <p style="color: rgb(51, 51, 51); font-family: Arial, Helvetica-Narrow, sans-serif; font-size: 13px; padding-left: 80px;"> We note that the Third Circuit and several lower courts have reached the opposite result.&nbsp; In&nbsp;<em>Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins. Co.</em>, 677 F.3d 178 (3d Cir. 2012), the Third Circuit found plaintiffs lacked a private right of action to seek rescission under § 47(b).&nbsp; Plaintiffs in&nbsp;<em>Santomenno</em>&nbsp;alleged violations of ICA § 26(f), which makes it unlawful to pay ‘fees and charges’ on certain insurance contracts that exceed what is ‘reasonable,’ id. at 187, and sought rescission (in addition to monetary damages).&nbsp; The court in&nbsp;<em>Santomenno</em>&nbsp;found that plaintiffs did not have a cause of action.&nbsp; We do not find the reasoning in&nbsp;<em>Santomenno</em>&nbsp;persuasive.&nbsp;</p> <p style="color: rgb(51, 51, 51); font-family: Arial, Helvetica-Narrow, sans-serif; font-size: 13px;"> Slip op. 21-22.</p> <p style="color: rgb(51, 51, 51); font-family: Arial, Helvetica-Narrow, sans-serif; font-size: 13px;"> Litigators should watch to see how other courts weigh in, and whether the Supreme Court ultimately takes up the issue to resolve the split.</p> <p style="color: rgb(51, 51, 51); font-family: Arial, Helvetica-Narrow, sans-serif; font-size: 13px;"> Gabriel Gillett is an Associate in Jenner &amp; Block’s Appellate &amp; Supreme Court Practice in Chicago.&nbsp;&nbsp; Howard Suskin is a Partner and Co-Chair of the Securities Litigation Practice Group at the firm.</p> 6 Aug 2019 https://jenner.com/library/publications/19199 https://jenner.com/library “Prevention of Asset Stripping: Worldwide Freezing Orders,” <i>The Guide to Challenging and Enforcing Arbitration Awards</i> <p> In this chapter, Jenner &amp; Block Partners <a href="https://jenner.com/people/CharlieLightfoot">Charlie Lightfoot</a> and <a href="https://jenner.com/people/JamesWoolrich">James S. Woolrich</a> and Associate <a href="https://jenner.com/people/MichaelaCroft">Michaela M. Croft</a> examine worldwide freezing orders.&nbsp; Such orders can be a tool to restrain respondents from stripping themselves of assets in an effort to make any potential arbitration award unenforceable.&nbsp; The chapter focuses on the well-established jurisdiction of the English courts to grant such relief, which has been cited as one reason why parties might choose London as the legal seat for their arbitrations.&nbsp; Published by <em>Global Arbitration Review</em>, the guide offers practical advice on challenging and enforcing awards.</p> 7 Aug 2019 https://jenner.com/library/publications/19201 https://jenner.com/library “Keeping Railroads Secure from Drones,” <i>Law360</i> <p> In this article, Jenner &amp; Block Partner <a href="https://jenner.com/people/MarcWarren">Marc L. Warren</a> and Associate <a href="https://jenner.com/people/JeffreyImmel">Jeffrey J. Immel</a> explain that railroad companies have started realizing the potential benefits of unmanned aircraft systems (UAS), commonly known as drones.&nbsp; Drones have, for instance, been used to monitor worker safety compliance and to inspect railroad infrastructure.&nbsp; “But while UAS provide benefits, they can also pose security risks and unique challenges for railroads – such as industrial espionage,&nbsp; interference with trail operation and worker harassment,” the authors observe.</p> 7 Aug 2019 https://jenner.com/library/publications/19208 https://jenner.com/library “Employers Take Note: State AGs Urge FTC to Step Up Scrutiny of Employee Restrictions,” New York University’s <i>Compliance and Enforcement</i> blog <p> The NYU <em>Compliance and Enforcement</em> blog recently published the article titled “Employers Take Note: State AGs Urge FTC to Step Up Scrutiny of Employee Restrictions.”&nbsp; In the article, the authors explain that 18 state attorneys general recently submitted a detailed letter to the Federal Trade Commission arguing for increased emphasis on labor and workforce-related issues in antitrust enforcement.&nbsp;&nbsp; The article was written by Jenner &amp; Block Partners <a href="https://jenner.com/people/DebbieBerman">Debbie L. Berman</a> and <a href="https://jenner.com/people/AndrewVail">Andrew W. Vail</a> and Associates <a href="https://jenner.com/people/AaronHersh">Aaron J. Hersh</a> and <a href="https://jenner.com/people/AmitPatel">Amit B. Patel.</a></p> 9 Aug 2019 https://jenner.com/library/publications/19209 https://jenner.com/library “Follow the Scripts – Trends in ERISA Litigation against PBMs,” <i>Bloomberg Law</i> <p> In this <a href="https://biglawbusiness.com/insight-follow-the-scripts-trends-in-erisa-litigation-against-pbms">article</a>, Jenner &amp; Block Special Counsel <a href="https://jenner.com/people/MichaelGraham">Michael T. Graham</a> and Associate <a href="https://jenner.com/people/ChristopherSheehan">Christopher M. Sheehan</a> explain that there is a growing trend of ERISA-related cases against pharmacy benefit managers, or PBMs.&nbsp; Plaintiffs’ law firms believe that the way in which PBMs set co-pays and receive rebates from network pharmacies is at least partly to blame for the rising cost of drugs in the United States.&nbsp; The authors look at recent ERISA lawsuits against PBMs, the success of the claims, and issues those litigants encountered.</p> 7 Aug 2019 https://jenner.com/library/publications/19210 https://jenner.com/library “The Mueller Investigation and Waiving Presidential Communications Privilege,” <i>Bloomberg</i> <p> In this article, Partner <a href="https://jenner.com/people/EmilyLoeb">Emily M. Loeb</a> and Associate <a href="https://jenner.com/people/ZacharyBlau">Zachary Blau</a> focus on the ongoing dispute between the House of Representatives and Trump Administration over Executive Privilege in the wake of the release of Special Counsel Robert Mueller’s report.&nbsp; Now, a lawsuit filed against former White House Counsel Don McGahn seeks to compel him to testify before the House Judiciary Committee.&nbsp; The authors predict that, under DC Circuit precedent, courts would find his information not-protectable under Executive Privilege because it was not kept confidential.&nbsp;</p> 12 Aug 2019 https://jenner.com/library/publications/19211 https://jenner.com/library “Litigation Funding – The Highs and Lows,” <i>AltCredit Fund Intelligence</i> <p> In this article, Jenner &amp; Block Partner <a href="https://jenner.com/people/JasonYardley">Jason Yardley</a> explains that the litigation funding industry is “having something of a moment.&nbsp; Funders are now larger and more specialized, and are exploring new destinations for their capital.”&nbsp; Still, the growth of the industry has not been without problems.&nbsp; Mr. Yardley highlights common issues and pitfalls that a would-be litigation funder should be aware of.</p> 13 Aug 2019 https://jenner.com/library/publications/19212 https://jenner.com/library “Anti-Money Laundering For Registered Broker-Dealers,” <i>Fraud Magazine</i> <p> In this article, Jenner &amp; Block Partner <a href="https://jenner.com/people/CharlesRiely">Charles D. Riely</a> and Associate <a href="https://jenner.com/people/JingQuek">Jing Xun Quek</a> examine trends in the US Securities and Exchange Commission’s Anti-Money Laundering-related enforcement activities.&nbsp; One priority of SEC regulators, according to the authors, is ensuring compliance to federal regulations that require stock broker-dealers to file Suspicious Activity Reports when they suspect that fraud is occurring. The authors also explore how companies and legal counsel can adapt to these developments</p> 14 Aug 2019 https://jenner.com/library/publications/19214