November 2013 archive

Most SEC Whistleblowers are Waiting, Probably for Good Reason

In a report required by Dodd-Frank, the Securities Exchange Commission issued its 2013 (fiscal year ended September 30) annual report. This is second full year report, thus allowing easy comparisons. A post on last year’s report appears here. The SEC continues to receive large numbers of complaints from a wide range of geographies and involving …

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Dodd-Frank Whistleblowers must file their complaint with the SEC

In a disappointing ruling, the Fifth Circuit concluded in Asadi v. G.E. Energy (No. 12-20522) that a whistleblower who does not file a complaint with the Securities Exchange Commission (SEC) is not a “whistleblower” under Dodd-Frank, and thus does not have standing to obtain the protections under this law. As directly acknowledged in the Opinion, …

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Artificial Intelligence Solves the Perennial Whodunit of Unsigned Judicial Opinions

An academic article published this year by the Stanford Technology Law Review demonstrates how machine learning and natural language processing techniques can provide new insights within the study of law. Machine learning, a technique developed in the field of artificial intelligence, typically uses computer algorithms to identify (i.e. “learn”) patterns in large datasets. In many …

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Award of expert fees to prevailing party upheld without common limitations

In Equal Employment Opportunity Commission vs. Peoplemark, Inc., Case. No. 11-2582 (6th Cir. October 7, 2013), the Sixth Circuit reviewed the award of legal and expert fees. The matter is particularly interesting regarding the expert fees awarded, and the explanation for doing so. The Sixth Circuit’s Opinion included the following case facts: “Defendant-appellee Peoplemark is …

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Get the Court’s Daubert Rationale on the Record

A recent ruling encourages any litigator sponsoring expert testimony to ensure that the Court memorializes its critique of the Court’s gatekeeping function of expert testimony. The ruling also reversed two inherently speculative damage claims claims that  are not that uncommon. In Smith v. Jenkins, F.3d (1st Cir. Oct. 15, 2013) (Nos. 11–2349, 11–2378, 11–2389), the Appellate Court …

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Most S-Corporations should pay greater attention to shareholder/employee compensation

The IRS continues to pursue S-Corporations that do not pay employment/payroll taxes on what the IRS considers to be reasonable compensation. Following other cases on this subject, in Sean Mcalary Ltd, Inc., vs. Commissioner Of Internal Revenue, T.C. Summary Opinion 2013-62 (August 12, 2013), the Tax Court generally ruled in favor of the IRS. The …

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What Buyers Don’t Want

When you own your home, most people have a never ending to-do list of home renovations they would like to accomplish.  Home improvements can be expensive.  For most upgrades, you do not get a dollar-for-dollar increase in the value of your home.  However, most people still choose to carry out the renovation for personal enjoyment. …

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Nash bargaining solution in patent damages is not always a 50%/50% split

The Federal Circuit ruled in Uniloc USA, Inc. v. Microsoft Corp. that the widely used (but fatally flawed) 25 percent rule can no longer be part of reasonable royalty damages calculations. This article provides the details of this reasonable royalty damages decision. Since that time, plaintiffs have advanced the Nash Bargaining Solution, a theoretical mathematical …

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Google Prevails in Copyright Infringement Lawsuit Against Google Books

After an eight year class action copyright infringement battle in and out of court, Google won the right to continue its Google Books project to digitize books. According to Judge Denny Chin’s November 14, 2013 Ruling, to date, Google digitized, indexed, and made available for search more than 20 million books. Even though many of …

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Statistical Sophistication Would Have Provided a Different Liability Answer

Economists and other financial experts are often hired to assess damages, assuming liability.  However liability can sometimes be established or disproven based on statistics. For example, in a recently affirmed case involving employment discrimination, the application of a simple method failed to provide the Court with information that would likely have changed their decision.  The …

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