In Case You Missed It (November 2023)
Bradley Arant Boult Cummings LLP
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Our attorneys regularly publish relevant legal and business articles, by way of our Bradley blog network, to help inform readers and keep you up to date on the latest business trends and issues. This newsletter serves as a space to revisit or discover blog posts you might have missed over the course of the last month.
Check Out Our Eye on Enforcement Blog!
Bradley’s Eye on Enforcement blog covers the latest trends in government investigations and enforcement activity. From compliance issues to civil and regulatory enforcement to white-collar criminal defense, EoE tracks the latest legal developments facing businesses and individuals who interact with the government.
No (Union) Shirt? No Problem: Fifth Circuit Strips Down NLRB’s Employee Uniform Rules
Can you enforce your uniform policy, even if that means an employee can’t wear a union t-shirt? Earlier this month, in Tesla, Inc. v. NLRB, the Fifth Circuit looked at that very question and ruled for Tesla. Read more.
Federal Government Continues Its Big Push for Cybersecurity with SEC Action Against SolarWinds and Its CISO
On October 30, 2023, the Securities and Exchange Commission (SEC) announced a civil suit against SolarWinds and their chief information security officer (CISO) for fraudulent cybersecurity information. The SEC claims that even though SolarWinds and the CISO knew about specific risks and vulnerabilities, SolarWinds’ cybersecurity risk disclosures did not disclose them in violation of federal securities laws. Read more.
Dude, Where’s My Liquidation?
Every election it seems like the country inches closer to cannabis being legal at the federal level. Until that day comes, however, the question of whether those in the cannabis industry can seek bankruptcy relief remains. Because cannabis remains illegal under the federal Controlled Substances Act (CSA), for the past decade bankruptcy courts have routinely held that cannabis businesses are ineligible to seek bankruptcy relief (see In re Burton, 610 B.R. 633 (B.A.P. 9th Cir. 2020); see also In re Malul, 614 B.R. 699 (Bankr. D. Colo. 2020)). Read more.
A Thank You to Our Readers—and the Top Five Posts of 2023
As we near the Thanksgiving holiday, we wanted to take a moment to thank you — our readers. Eye on Enforcement has been a fun project for the Bradley’s Government Enforcement and Investigations team. But the ultimate goal of any blog is to be read, and we’re grateful to have so many devoted readers. And if you’re a new reader or just recently found us, we’re happy you are here and hope you’ll stick around in the coming year. From developments in white-collar criminal cases to cybersecurity, from the False Claims Act to regulatory matters, and from regulated industries far and wide, Eye on Enforcement covers the land of enforcement in timely and succinct fashion. And there’s more to come: We are excited for our annual tradition, the False Claims Act Year in Review, to be published in the coming weeks and to continue our analysis of key enforcement trends in 2024. Read more.
Holidays and Happier at Work: Tips for Creating a Mentally Healthy Workplace
First and foremost, happy holidays. The Bradley team wishes you all a joyous and restful holiday season. Also, thank you to everyone who joined in for the Fourth Quarter Breakfast with Bradley. For those of you who missed it, we talked about ways to improve mental health in the workplace. You can find the recording here. As a follow up, we wanted to highlight a few tips and provide a few resources for you. Read more.
Driving Between the Lines: As a Private Company Majority Owner, What Are the Rules for Dealing with Minority Business Partners
The one who has the gold often makes all the rules, but the majority owner of a private company who has minority partners in the business does not have complete freedom, because majority owners owe duties that apply to their operation of the company. Majority owners also typically serve as officers, directors, managers or partners in the business, and when they hold these governing positions, they owe fiduciary duties to the company.[1] The company bylaws (for corporations), the company agreement (for LLCs) and the partnership agreement (for LPs) may permit the company to restrict the scope of these fiduciary duties, but Texas law does not permit companies to eliminate the duty of loyalty that is owed by governing persons. This post reviews some of the ways that these fiduciary duties impact the way that majority owners can manage and direct their companies and avoid liability for claims by minority partners.?Read more.
Big Brother Cancels Trip, Court Says Not So Fast My Friend
A few weeks ago, the Ninth Circuit Court of Appeals in Aggarwal v. U.S. DEA directed the U.S. Drug Enforcement Agency (DEA) to reconsider its decision not to transfer psilocybin from Schedule I to Schedule II.?Read more.
O-H-High-O: Ohio Adopts Adult-Use Marijuana Program
On November 7, 2023, Ohio voters decisively passed Issue 2, putting the “high” in Ohio and becoming the 24th state to legalize adult-use marijuana. Issue 2, which goes into effect on December 7, 2023, allows adults to purchase and possess marijuana for adult use, subject to state regulation and taxation. Lawmakers and state officials have 30 days to make any amendments and to ensure licensing processes, taxation systems, and public education measures are in place before the law takes effect, but Ohio is not starting from scratch. In fact, medical marijuana has been legal in Ohio since 2016, although the first dispensary did not open until 2019. Read more.
Addressing Workplace Harassment: Insights into EEOC’s Proposed Enforcement Guidance
The Equal Employment Opportunity Commission recently introduced proposed enforcement guidance aimed at further clarifying and strengthening measures against harassment in the workplace. The 144-page guidance outlines strategies and policies the EEOC believes are necessary to prevent and address workplace harassment based on any protected status (i.e., race, gender, national origin, disability, religion, age, and genetic information). Read more.
Get Up, Stand Up: Mississippi Medical Cannabis Dispensary Sues State Challenging Advertising and Marketing Restrictions on First Amendment Grounds
This morning, an Olive Branch medical cannabis dispensary, TruSource Medical Cannabis, and its owner, Clarence Cocroft, filed a lawsuit in the United States District Court for the Northern District of Mississippi against, in their official capacities, the Mississippi Department of Revenue’s Commissioner Chris Graham, Mississippi ABC’s Chief of Enforcement Pat Daily, and the State Health Officer for the Mississippi Department of Health (MDOH) Dr. Daniel Edney challenging the state’s laws and regulations, which restrict medical cannabis businesses from marketing and advertising. The lawsuit comes as no surprise to us, as we wrote on the topic on, of all dates, April 20, 2023. Read more.
Overruled: Court Denies Relator’s Objection to False Claims Act Settlement
Significant work goes into settling a False Claims Act action. Defendants may spend months negotiating with the government to reach an agreeable settlement — often even longer if the defendant pursues the arduous ability-to-pay financial analysis process. But what happens when you reach the end of this process and the relator objects to the agreed-upon settlement amount? The United States District Court for the Central District of California recently faced this question, ultimately denying the relator’s objection and allowing the settlement to proceed. Read more.
A Different Type of Transfer Portal??Supreme Court Looking at Employment Transfer Discrimination Case
If you transfer employees with no loss of pay or status, can they sue you under Title VII? Right now, it depends on where you live and what your local federal circuit has ruled. That could change. Read more.
This Will Be Our Year, Took a Long Time to Come: Will 2024 Be the Year for Marijuana Legalization in North Carolina?
Once hailed by observers as the southern state most likely to legalize marijuana first, North Carolina has not kept pace with its northern neighbors in adopting laws to promote the growth of a vibrant medicinal and personal-use marijuana industry. While 2023 saw a number of bills introduced in the House and Senate that touched on the legalization and regulation of hemp, medicinal and adult personal usage, last month the North Carolina General Assembly adjourned for the year with no bills having passed, leaving open a number of questions regarding the future of cannabis in the Tar Heel State. Let’s use this as a moment to reflect on where things stand in North Carolina and what’s on the horizon for 2024. Read more.
Rocky Top Update – A Summary of the Tennessee Medical Cannabis Commission’s October Meeting
As we’ve noted before, Tennessee is likely to be the last Deep South state to legalize medical cannabis. But given the pace at which states have legalized (38 states plus the District of Columbia), last doesn’t necessarily mean far away. Read more.
What’s in a Name? Too Much to Trademark According to the USPTO
With the U.S. Supreme Court beginning a new session, many are wondering what new issues the Court will address this term. One case the Court is scheduled to hear involves the relationship between the Lanham Act and First Amendment. Specifically, the Court will determine whether Section 1052(c) of the Lanham Act, which prohibits individuals from registering for a trademark that includes the name of a living person without their consent, violates the free speech clause of the First Amendment. Read more.
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