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Earlier this year, in the case of Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court rejected the “all circumstance” standard, and held that the “ABC” test is to be used to determine whether workers are employees or independent contractors.  Under the suffer or permit to work standard in California’s wage orders, an individual worker who has been hired by a company can properly be treated as an independent contractor only if the worker is the type of traditional independent contractor who would not reasonably be viewed as working in the hiring business. 

On September 30, 2018, California Governor Jerry Brown signed California Senate Bill 826, amending the California Corporations Code to generally require publicly held corporations, whose principal executive offices are located in California, to have at least one woman on their board of directors by close of the 2019 calendar year.   Specifically, the new law mandates, no later than the close of the 2019 calendar year, that “a publicly held domestic or foreign corporation whose principal executive offices, according to the corporation’s SEC 10-K form, are located in California shall have a minimum of one female director on its board.” 

In Estate of Caldwell Jones, Jr. v. Live Well Financial, Inc., the Eleventh Circuit Court of Appeals opined on whether 12 U.S.C. § 1715z-20 could be construed to prevent foreclosure under a reverse mortgage contract that, by its terms, permits the lender to demand repayment immediately following a borrower’s death, even if his or her non-borrowing spouse continues to live in the mortgaged property.  The Court ultimately determined that the statute could not be so broadly construed, because the statute addresses the types of mortgages that HUD may insure, but does not alter or affect the rights that a lender possesses under a reverse mortgage contract.

On October 1, 2018, Massachusetts’ new noncompete law for employers and employees goes into effect.  This law significantly limits the use of noncompete agreements within the Commonwealth, and incorporates additional unique wholesale changes.  Below are highlights of certain provisions of the new law, along with recommendations on how employers can address their existing and future noncompete agreements to comport with the new law. 

On August 28, 2018, in Young Man Kim et al. v. M&T Bank, Civil Action No. 17-11810 (ES) (MAH), the United States District Court for the District of New Jersey (Hon. Esther Salas, U.S.D.J.) issued a Memorandum and Order granting PIB Law’s motion to dismiss a putative class action filed by multiple plaintiffs against M&T Bank.

Recently, several New York Courts have rendered decisions addressing whether Statute of Limitations concerns affect whether a party can maintain an action, or whether a dismissal was merited.

On July 2, 2018, a federal judge in California denied a defendant’s motion to dismiss a federal government’s wire fraud indictment on the basis that it was time-barred. See United States v. Bogucki, 18-cr-00021. The defendant, Bogucki, a trader at Barclays Bank, was alleged to have deceived Hewlett Packard in a 2011 options trade.  In January 2018, the government filed an initial indictment charging Bogucki with one count of conspiracy to commit wire fraud and six counts of substantive wire fraud.  In filing the original indictment, the government relied upon a tolling order it had obtained from the Court pursuant to 18 U.S.C. 3292 based upon the government’s assertion that evidence the government needed was in a foreign country. Thereafter, the Department of Justice closed its investigation of Barclays in return for certain conditions in a Declination Letter.  In consideration for the government’s agreement not to prosecute, Barclays agreed to pay over $12 million in combined restitution and disgorgement.  The government subsequently filed a superseding wire fraud indictment against Bogucki. In filing the superseding indictment, the government dropped its reliance on the tolling order and instead stated that it was solely relying on the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), 18 U.S.C. 3293(2), which provides for a 10-year statute of limitations for wire fraud charges “if the [charged] offense affects a financial institution.” 

On June 28, 2018, the Securities and Exchange Commission (the “SEC”) voted to propose amendments to the rules governing its whistleblower program.  The whistleblower program was established in 2010 as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  It added Section 21F to the Securities Exchange Act of 1934 (the “Exchange Act”), establishing the Commission’s whistleblower program.  The public comment period is for 60 days following publication of the proposing release in the Federal Register.

The statewide Practice Rules of the Appellate Division will come into effect on September 17, 2018, enacting numerous changes including reducing the time to perfect an appeal from nine months to “within six months of the date of the notice of appeal or order granting leave to appeal,”  except where the court has directed that an appeal be perfected by a particular time.  22 NYCRR 1250.9(a).   

On June 21, 2018, the Honorable Loretta A. Preska, U.S. District Judge for the Southern District of New York, found that the structure of the Consumer Financial Protection Bureau (“CFPB”) is unconstitutional.  Judge Preska dismissed the CFPB as a plaintiff from the subject litigation, after holding that the CFPB lacked the authority to bring claims against the defendants under the Consumer Finance Protection Act (“CFPA”).  This decision directly contradicts the District of Columbia Circuit’s January 31, 2018 ruling in PHH Corp., et al v. Consumer Financial Protection Bureau, which upheld the structure of the CFPB and found that the Dodd-Frank Wall Street Reform and Consumer Protection Act – which shields the Director of the CFPB from removal without cause – is consistent with Article II of the Constitution. 

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