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Programs in Regulatory and Administrative Law



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Transformative Works as Fair Use: Latest Developments in Copyright Law, from the Celesq®-West LegalEdcenter IP Master Series

Program Number: 2563IP Presenter: Anthony F. Lo Cicero, Esq.

The Second Circuit's controversial decision in Cariou v. Prince did not settle the seminal issue of when a copyrighted work is so transformed that the new work is subject to fair use protection. Anthony LoCicero of Amster Rothstein Ebenstein discusses cases both before and after Cariou and attempts to synthesize their use guidelines for future transformations.

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Illegal Tipping and Insider Trading after Newman: The Latest Developments for Corporate, Securities and White Collar Attorneys

Program Number: 2562 Presenter: Thomas O. Gorman, Esq.

The Second Circuit's decision in U. S. v. Newman is, according to many, a dramatic change in the law of insider trading and illegal tipping. Under the decision, the government must plead not just that the tippee knew the information was being passed in violation of a duty, but also that there was a personal benefit in the nature of a quid pro quo. Others claim the decision is nothing more than the restoration of the Supreme Court's holding in Dirks. Nevertheless, the DOJ and the SEC have decried this standard as undermining effective insider trading enforcement. One district court decision in Manhattan in an SEC enforcement action appears to undercut the spirit if not the letter of the law, and a recent decision by the Ninth Circuit also seems to push back on Newman—all as the Manhattan U.S. Attorney and the Solicitor General consider a Supreme Court

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When State and Federal Health Care Laws Collide: Application of the Stark Law to Medicaid Claims and Advice on Protecting a State Law-based Peer Review Privilege During a Federal Health Care Fraud Investigation

Program Number: 2561 Presenter: Meridyth M. Andresen, Esq., Raymond Joseph Burby IV, Esq., Laura S. Perlov, Esq.

While many scholars are focused on recent trends into Medicare fraud schemes, this program discusses the recent trend of government investigations into Medicaid healthcare fraud and recent studies/investigations into Medicaid fraud across the country. Also discussed: • the application of federal Stark Laws to Medicaid programs, recent cases in this area, and how the state Medicaid programs and Federal Stark Laws intersect • advice on how Medicaid Plans and Providers servicing Medicaid beneficiaries can protect themselves from liability under Stark • state peer review privileges, including the scope and breadth of such privileges, and the way in which federal government agencies have been successful in piercing those privileges during their healthcare fraud investigations • advice on how Health Plans and Providers can protect their state-based peer review privilege in advance of such investigations.

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A Review of EEOC's Fiscal Year ending September 2015 and a Look at What to Expect Next Year

Program Number: 2558 Presenter: Eric S. Dreiband, Esq.

Former U.S. Equal Employment Opportunity Commission (EEOC) General Counsel Eric Dreiband, currently a partner at Jones Day, reviews the EEOC's fiscal year ending September 30, 2015, including significant regulatory and policy documents issued by EEOC; its significant wins and losses in the courts, and Supreme Court decisions that considered its position; Congressional oversight of the EEOC; and other significant developments. Mr. Dreiband also discusses: • EEOC’s potential actions, plans and strategies for the coming year. • EEOC's lawsuit that alleges that a hair policy amounted to race discrimination. • The Supreme Court's rejection of EEOC's guidance about pregnancy and sex discrimination. • The Supreme Court's rejection of EEOC's argument that courts cannot review its pre-suit conduct. • The Supreme Court's upcoming term. • Significant pending cases • The status of EEOC's enforcement efforts concerning the use by employers of criminal and credit history of applicants and employees.

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Emerging Trends after Alice Corp. v. CLS Bank, from the Celesq®-West LegalEdcenter IP Master Series

Program Number: 2542IP Presenter: Brett E. Bachtell, Esq., Amol Parikh, Esq.

In Alice Corp. v. CLS Bank, the Supreme Court reiterated a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. The Court’s decision has had a significant impact on software-related patents. In the wake of the Supreme Court’s decision, there has been a significant increase in the number of motions attempting to invalidate patents based on the Alice decision. The Federal Circuit and numerous district court have had to grapple with these issues and the trend has generally been against owners of software patents. Amol Parikh and Brett E. Bachtell, McDermott Will & Emery, discuss how the Federal Circuit, district courts, and the U.S. Patent Office have applied the Supreme Court’s framework and the impact of these decisions on filings of new lawsuits.

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Ethics Developments in IP Practice-2015, from the Celesq®-West LegalEdcenter IP Master Series

Program Number: 2535IP Presenter: Anthony F. Lo Cicero, Esq.

Ethical issues remain a constant challenge in the IP space. The latest developments in the 2013 USPTO Rules of Professional Conduct, proposed new rules relating to privileged communications, and the prosecution conflict issues raised in Maling v. Finnegan Henderson et al, are only a few of the topics discussed by Anthony F. LoCicero of Amster, Rothstein & Ebenstein in a program tailored to IP professionals who must meet ethical challenges every day.

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How the FTC Identifies, Targets, and Tracks Companies Alleged to Engage in Improper Data Privacy, Data Security, Advertising, or Marketing Practices: A Guide for In-House Counsel

Program Number: 2534 Presenter: David A. Zetoony, Esq.

The Federal Trade Commission (FTC) files around 70 actions each year for alleged bad data privacy, data security, advertising, or marketing practices. In addition, the FTC conducts hundreds of other investigations that do not ultimately lead to an enforcement action. This program discusses the ways in which the FTC identifies its enforcement targets and focuses in particular on the FTC’s use of consumer complaint data to track companies and to identify enforcement targets.

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Successfully Navigating False Claims Act Enforcement in the Health Care Space

Program Number: 2533 Presenter: Darryl T. Landahl, Esq., Laura S. Perlov, Esq., Cliff Stricklin, Esq.

Darryl Landahl, Cliff Stricklin and Laura Perlov discuss successfully navigating False Claims Act (FCA) enforcement against health care companies, including hospitals, physicians groups and health insurers alike. Topics include: • Government pursuit of cases against health care entities and its success rate. • Recent enforcement trend in bringing FCA claims against health care companies based upon submission of allegedly false Medicare Risk Adjustment data, resulting in higher payments for Medicare Advantage members. • Overview of risk adjustment calculation and submission requirements. • FCA developments and recent cases regarding the Public Disclosure Bar and Original Source Requirement • Recent developments and decisions regarding Stark and Anti-Kickback Actions

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Managing Accommodations, the Interactive Process and Leaves of Absence: An Essential Guide for In-House Employment and Corporate Counsel

Program Number: 2528 Presenter: Ann Kotlarski, Esq., Bryan Cave LLP

It is remarkably easy for an employer to run afoul of the many, varied federal legal requirements concerning accommodations, the interactive process and leaves of absence. How do you address situations arising under the American with Disabilities Act, the Pregnancy Discrimination Act and/or the FMLA? So many issues need to be considered, including: when is an employer on notice that an employee may need an accommodation, when an employee needs an accommodation or a leave, what can be asked about their condition, can any restrictions or limitations be placed on intermittent leave, how much leave must an employer provide to an employee, and exactly what kinds of leave are employees entitled to, what about religious accommodations? Join Ann Kotlarski, who focuses on answers to these and many other questions as well as practical pointers to help in-house employment and corporate counsel manage your company’s risk.

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Conducting Effective Workplace Investigations: A Nuts and Bolts Guide for In-House Employment and Corporate Counsel

Program Number: 2527 Presenter: Ann Kotlarski, Esq., Bryan Cave LLP

Employers can be sued for numerous types of alleged employee misconduct—harassment, discrimination, retaliation, failure to accommodate, and more. For employers, the key issue is not so much the type of misconduct as what the company does to investigate the claim. Because flawed investigations can result in adverse consequences ranging from employee discontent to a jury verdict, conducting prompt and thorough investigations is crucial to any employment claim. For example, did you know that failure to conduct an “appropriate” investigation can be used to prove an employer’s discriminatory or retaliatory intent, and what exactly is an “appropriate” investigation? Join Ann Kotlarski, who provides a nuts and bolts discussion for conducting proper investigations that can convince your employees and a jury that you have done the right thing, including: determining what to investigate; formulating an investigation plan; conducting interviews; assessing witness credibility; documenting the process; making recommendations; remediating wrongdoing; minimizing

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