The FTC recently updated its best practices for merger investigations to increase the efficiency of merger reviews and underscore the importance of early preparation, after determining that its 2006 reforms did little to reduce the length of merger investigations.
The FTC's updated best practices advise parties to merger investigations to, among other things:
For more information on strategies for avoiding or narrowing a Second Request, see Practice Note, Avoiding, Negotiating and Responding to Second Requests.
Companies should consider their data breach litigation strategy given a Seventh Circuit decision departing from the prevailing view that plaintiffs lack standing when they allege no financial injury and rely instead on allegations of increased risk of future harm.
In Remijas v. Neiman Marcus Group, LLC, he district court dismissed plaintiffs' claims that Neiman's data breach exposed their credit and debit card information for lack of standing in line with most decisions since the US Supreme Court's Clapper v. Amnesty International decision. The Seventh Circuit reversed, holding that the plaintiffs had alleged sufficient injury based on:
The Seventh Circuit distinguished Clapper, noting that:
The Seventh Circuit also held that Neiman's admission of the breach and notice to customers were admissions sufficient to prove causation.
This decision is the first appellate court decision on data breach standing since Clapper and will pose a significant hurdle to standing motions. Counsel should be aware that cases are more likely to be resolved on Federal Rule of Civil Procedure (FRCP) 12(b)(6) motions or at the summary judgment or class certification stages, all of which weigh in favor of early settlement.
For more information on this decision, see Legal Update, Seventh Circuit Holds Neiman Marcus Data Breach Plaintiffs Have Standing.
Companies should review their independent contractor relationships in light of the Department of Labor's (DOL's) recent guidance on the economic realities test for identifying misclassified workers.
Administrator's Interpretation No. 2015-1 (guidance) clarifies the factors for determining if a worker is economically dependent on the company or in business for himself under the Fair Labor Standards Act (FLSA). The guidance takes the aggressive position that most workers are employees under the FLSA and states that a true independent contractor typically:
The guidance rejects the argument commonly made by companies that control over the worker is necessary due to the nature of the business or regulatory requirements.
Written independent contractor agreements are a good practice, although they are not determinative. These agreements should:
For more information on independent contractor classification, including the benefits of the classification and the penalties for misclassification, see Practice Note, Independent Contractor Classification.
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