Insights

On July 21, 2023, the Department of Health Care Access and Information of the California Health and Human Services Agency released a Notice of Proposed Rulemaking (the “Proposed Rule”) with regulations that would implement new financial and ownership transparency requirements for skilled nursing facilities (“SNFs”) in California.

On March 2, 2022, the Supreme Court of the State of New York for New York County dismissed the petition by the New York Attorney General (“NYAG”) for dissolution of the National Rifle Association of America (“NRA”), finding that the NYAG’s allegations of NRA leadership corruption, if proven, would not constitute public harm justifying the “corporate death penalty”. In August 2020, the NYAG filed a complaint against the NRA and four NRA officers, alleging that the officers had diverted millions of dollars for their personal benefit, among other misconduct. In addition to the noteworthy effort to dissolve the NRA itself, the NYAG’s complaint sought restitution and other monetary relief from the officers, as well as their removal from NRA employment and permanent injunctions against their serving other not-for-profit or charitable organizations in New York. The decision allows the case to move forward with respect to fourteen remaining claims against the NRA and its leaders.

NFTs (non-fungible tokens) hit the scene in 2017 with CryptoKitties, a game on the Ethereum blockchain for buying, selling, and breeding digital cats. Clearly, CryptoKitties represents a humble start for NFTs, the technology that has since captured astonishing public and media attention. More recent NFTs—like the NFT-based digital artwork by Beeple that sold at Christie’s for $69 million last month—demonstrate the rising importance of these novel digital assets.

The Trademark Modernization Act of 2020, signed into law on December 27, 2020, makes important changes to the Lanham Act including (1) making it easier for a trademark owner who proves infringement to obtain injunctive relief in litigation, and (2) establishing new procedures for challenging applications and registrations that may not meet United States Patent and Trademark Office (“USPTO”) requirements relating to use in commerce.

On June 30, 2020, in U.S. Patent and Trademark Office v. Booking.com, the Supreme Court of the United States held 8-1 that “Booking.com” can function as a trademark eligible for federal registration because consumers perceive the term to identify the hotel-reservation services available at that domain name. The Court affirmed the Fourth Circuit holding that the term is not, as the United States Patent and Trademark Office (USPTO) had previously found, “a generic name for online hotel-reservation services.”

On June 15, 2020, the U.S. Patent and Trademark Office (USPTO) announced the creation of a prioritized examination process for applications for trademarks and service marks “used to identify qualifying COVID-19 medical products and services.” The process allows applicants to petition for accelerated review after filing their trademark or service mark application. In addition, the USPTO announced that it will waive the fee for these petitions. Andrei Iancu, Director of the USPTO, stated that he believes this accelerated examination process “will help to bring important and possibly life-saving treatments to market more quickly.”

On May 21, 2020 the U.S. Copyright Office published its highly anticipated report about Section 512 of Title 17 of the United States Code. The aim of the report was to determine, in light of the monumental changes the Internet has undergone since the days of dial-up and floppy disks, whether Section 512 continues to work “effectively in achieving its aim of balancing the needs of online service providers (OSPs) with those of creators.” The Copyright Office’s report marks the first time the government has studied the effectiveness of the controversial Section 512 since it was enacted more than 20 years ago. As noted by the Copyright Office, “[t]he proper balance of intermediary safe harbors and liability online is a topic on which few stakeholders have no opinion, and passions (as well as rhetoric) run high on all sides.”

On December 30, 2019, New York State Governor Cuomo signed S4278, amending the state’s Business Corporation Law in order to conduct a study of the number of women who serve on boards of directors of business corporations. The New York Department of State, in collaboration with the Department of Taxation and Finance, will now require all domestic and foreign business corporations authorized to do business in the state to report the number of women who serve on their board of directors on their Biennial Statement filed with the Department of State. By February 1, 2022, the Department of State will publish a report on the findings of this study on its website, and continue doing so every four years thereafter. The study will include the number of women directors and the total number of directors that constitute the board of each corporation, an analysis of the change in number of women directors from previous years, and the aggregate percentage of women directors on all such boards of directors.

Effective August 3, 2019, the U.S. Patent and Trademark Office (USPTO) will require all foreign-domiciled trademark applicants, registrants, and parties to a trademark proceeding to be represented by an attorney who is licensed to practice law in the United States. This requirement will apply to any entity with a principal place of business outside of the United States and its territories and any individual with a permanent legal residence outside of the United States and its territories.

These boots were made for walkin’– no not your ugg boots, my UGG® boots.

On December 7, 2018, Governor Cuomo signed into law, effective January 1, 2018, an amendment to New York Tax Law that negated, for New York State tax purposes, the effect of a 2017 change to the Internal Revenue Code relating to unrelated business income tax (UBIT) that disadvantaged many 501(c)(3) organizations. As part of the federal legislation commonly known as the Tax Cuts and Jobs Act of 2017 (TCJA), certain expenditures related to transportation benefits for employees, including transit and parking, were made nondeductible for federal income tax purposes. Most notably, certain kinds of free parking for employees were made nondeductible. Because section 501(c)(3) organizations do not ordinarily pay income tax, in order to apply the tax cost consistently to tax-exempt organizations as well as taxable businesses, the TCJA made these amounts subject to the UBIT for tax-exempts. See Internal Revenue Code section 512(a)(7). This change in the law came as a surprise to the nonprofit community, which has been advocating repeal of this tax increase. Section 501(c)(3) organizations objected both to the tax cost of this change to the law as well as the complexity of computing these amounts and complying with the new law. From the point of view of the nonprofit sector, this expansion of UBIT has diverted funding and put nonprofits at risk.