Category: Litigation

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.

Rosetta Stone v. Google: No Easy Exit for Google from AdWords Trademark Suits

An article about Rosetta Stone v. Google written by J. Roger Williams, Jr. of Andrews Kurth LLP recently appeared in The National Law Review:

Rosetta Stone, Inc., which provides technology-based language learning products and services, sued Google in the U.S. District Court for the Eastern District of Virginia for direct and indirect trademark infringement and trademark dilution arising out of Google’s sale of Rosetta Stone’s trademarks as keywords in Google’s AdWords program. Google triumphed in the trial court, with the District Court granting summary judgment in favor of Google on all claims. Earlier this month, however, in Rosetta Stone, Inc. v. Google, Inc.,[1] the U.S. Court of Appeals for the Fourth Circuit reversed the ruling and remanded the case for further proceedings on all trademark claims. For Google, the ruling means that it has no easy way to exit any trademark case arising out of its AdWords program. For brand owners, the ruling provides a road map for how to hold e-commerce web sites (Google, eBay) responsible for counterfeiters who advertise on the web site.

The primary issue in Rosetta Stone’s claim of direct trademark infringement was whether the Sponsored Links generated by Google’s AdWords Program create a likelihood of confusion. The District Court held that the only meaningful “digits of confusion” were Google’s intent in auctioning the keywords, the evidence of actual confusion, and the sophistication of the consuming public; and on each of these elements Rosetta Stone had failed to provide sufficient evidence to defeat summary judgment. The Fourth Circuit, after intense scrutiny of the evidence, disagreed with the trial court and held that there was sufficient evidence on each of these factors to force a trial.

The court’s analysis on the “intent” issue is remarkable. The record contained evidence of internal business studies done by Google that suggested that there would be “significant source confusion among Internet searchers when trademarks were included in the title or body of the advertisements.”  Although the Rosetta Stone marks were not involved in these studies, the Fourth Circuit nevertheless held that these studies provided sufficient evidence “that Google intended to cause confusion in that it acted with the knowledge that confusion was very likely to result from its use of the marks.” Because Google’s studies were not specific to the Rosetta Stone marks, the reasoning of this holding appears applicable to every brand owner that asserts a trademark infringement claim against Google over its use of AdWords. In other words, the opinion indicates that any trademark plaintiff may be able to defeat summary judgment for Google on the “likelihood of confusion” issue by showing that Google was provided with evidence that confusion was “very likely.”

Google also gave up its win on the “functionality” doctrine, which holds that a functional product feature cannot be trademarked or the subject of a trademark infringement suit. Finding that the trademarks used as keyword triggers are functional because they are essential to the functioning of Google’s search service, the District Court had granted summary judgment for Google on this defense. The Fourth Circuit reversed, reasoning that the functionality doctrine affords no protection to Google because Rosetta Stone, the mark owner, did not use the marks as a functional product feature.

Also reversed was Google’s summary judgment on Rosetta Stone’s claim of contributory infringement, i.e., Rosetta Stone’s claim that Google is liable for trademark infringement by the advertisers who directly infringe Rosetta Stone’s marks in the Sponsored Links. The central issue was the evidence that Rosetta Stone had notified Google of approximately 200 instances of specific Sponsored Links advertising counterfeit Rosetta Stone products and that Google nevertheless continued to allow the very same advertisers to purchase Rosetta Stone marks to trigger Sponsored Links for other web sites owned by the advertisers. The trial court was “unpersuaded” that this evidence met the legal standard for contributory infringement set by the Second Circuit in its Tiffany v. eBay decision.[2]  In theTiffany case, the Second Circuit held that eBay was not contributorily liable for trademark infringement despite its general knowledge that sellers were selling counterfeit Tiffany products on eBay. The major difference between the facts in the two cases is that Tiffany’s demand letters, in Tiffany v. eBay, did not identify particular sellers who Tiffany thought were then offering or would offer counterfeit goods, whereas Rosetta Stone’s notification to Google, in Rosetta Stone v. Google, apparently did identify particular sellers who were offering or were likely to offer counterfeit products. This evidence, according to the court of appeals, sufficed to force a trial on the issue of whether Google contributed to trademark infringement by continuing to supply its services to known infringers.

In any event, the Fourth Circuit’s reasoning has clear practical implications for brand owners who are fighting counterfeiters: Diligently provide notice to the e-commerce site of the identity and web site of each counterfeiter who is or might be selling counterfeit products.

Not all the news was bad for Google. The holding that Google was not vicariously liable for infringement by counterfeiters was affirmed; and although Rosetta Stone is going to get its day in court, nothing in the Court of Appeals’ holding suggests that Rosetta Stone will be able to prevail at trial. Even so, this ruling was a significant setback for Google. Google, understandably, has been searching for a “safe harbor” to avoid entanglement in trademark disputes between online advertisers and brand owners over the advertiser’s use of the brand owner’s mark in Sponsored Links.  One potential safe harbor for Google has already been eliminated by the Second Circuit in its 2010 holding in Rescuecom v. Google that Google’s sale of keywords constituted a trademark “use in commerce.”[3]  It appeared that the District Court’s ruling in Rosetta Stone had given Google several additional “safe harbors” under the theories that Google’s mere sale of keywords did not create a likelihood of confusion, that Google did not contribute to infringement by supplying its services to known infringers, that Google’s keywords were merely functional, and that Google’s sale of keywords fell within the “fair use” exception to dilution; but now the Fourth Circuit has rejected the notion that any of these defenses shields Google as a matter of law from trademark liability for its AdWords program. For the foreseeable future, Google has no easy exit from any trademark suit based on its AdWords program.

1. Rosetta Stone, Inc. v. Google, Inc., __ F.3d. __, 2012 WL 1155143 (4th Cir. April 9 2012).

2. Tiffany Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010).

3. Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009).

© 2012 Andrews Kurth LLP

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.

Michigan Court of Appeals Issues Opinion Affecting Mortgages Foreclosed by Advertisement

The National Law Review published an article by Randall J. Groendyk of Varnum LLP regarding Mortgage Foreclosures:

Varnum LLP

The Michigan Court of Appeals has issued important opinion affecting foreclosure of mortgages by advertisement.

Michigan law prohibits starting a foreclosure by advertisement if a lawsuit has already been filed to recover payment of “the debt” secured by the mortgage.  Many have understood this law to mean that while a mortgagee may not file a lawsuit to recover a debt secured by a mortgage and at the same time foreclose the mortgage by advertisement, the mortgagee could simultaneously file a lawsuit against a guarantor based on a guaranty of the debt while at the same time foreclosing the mortgage by advertisement.  However, the recent Court of Appeals decision held that a bank could not foreclose by advertisement on a mortgage when at the same time it had filed suit against a guarantor.

The Court based its decision on the fact that the underlying loan documents contained language which defined “the debt” to include any guarantees, and held the bank violated Michigan law by foreclosing the mortgage by advertisement at the same time it was suing the guarantors.  The Court looked at the entire loan package, and not just the mortgage to reach its decision.  As a result, the Court held that the bank could not proceed with the foreclosure by advertisement.  Under the Court’s ruling, mortgagees may not foreclose a mortgage by advertisement while at the same time filing suit against guarantors.

© 2012 Varnum LLP

Attendance May be an Essential Function of the Job

This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really isessential.

So begins the United States Court of Appeals for the Ninth Circuit in Samper v. Providence St. Vincent Medical Center.

The Samper plaintiff, a neonatal nurse in the defendant-hospital’s Neonatal Intensive Care Unit (NICU), suffered from fibromyalgia which, she claimed, limited her sleep and caused her chronic pain.  The nurse asked the hospital to accommodate this disability by allowing her to miss work whenever she was having a “bad day.”  After years of unacceptable absenteeism what the Court described as the hospital’s “Herculean efforts” to accommodate the plaintiff, she was terminated.  She sued the hospital, claiming that it failed to provide her with a reasonable accommodation for her disability.

The hospital did not dispute that the plaintiff was disabled, that she had the requisite technical skills for the job, or that she suffered an adverse employment action.  The hospital argued, however, that although the plaintiff possessed the technical qualifications of the job, she was unable to perform the essential function of showing up for work.

The burden was on the hospital to establish which functions were “essential” to the job.  Arguing that the hospital did not meet its burden to show that attendance was an essential function of the job, the plaintiff cited numerous cases for the proposition that regular attendance was not required.  For example, she cited to cases where “workers were basically fungible with one another, so that it did not matter who was doing the job on any particular day,” (dockworkers) as well as cases where the work could be performed remotely (medical transcriptionists).

The Court easily distinguished those cases, however, from cases like this one, where irregular attendance compromises essential functions.  Indeed, the Court stated:

To imagine a NICU facility, responsible for the emergency care of infants, operating effectively in such a manner, stretches the notion of accommodation beyond any reasonable limit. An accommodation that would allow [the plaintiff] to “simply . . . miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law . . . [is] not reasonable” on its face. Internal citations omitted.

Although the Court found in favor of the defendant-hospital, and held that regular attendance was an essential function of Ms. Samper’s job, it left open the possibility that regular attendance may not be an essential function for other jobs or jobs in other industries.  Nevertheless, the Court was crystal clear that an accommodation is not reasonable if it seeks an exemption from an essential function.

The case is noteworthy for several reasons.  First, while underscoring that the burden remains on the defendant to prove which functions of the job are “essential” functions, the case shows that in certain types of jobs an employer can make a compelling case that attendance is an essential function. Second, the case is a good illustration of how an employer’s initial efforts in “going the extra mile” to accommodate an employee’s disability can redound to the employer’s advantage when it ultimately decides that the disability can no longer be accommodated.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.

The Growing Corporate Threat of Taxpayer Identity Theft Fraud

The National Law Review recently published an article by Latour “LT” Laffferty of Fowler White Boggs P.A. regarding Identity Theft:

Identity theft continues to be a growing problem nationwide, but particularly in Florida which continues to lead the nation per capita in reported incidents of identity theft according to the Federal Trade Commission (FTC), a national clearinghouse for consumer fraud complaints. Taxpayer identity theft fraud, a subset of identity theft in general, is the most prevalent form of identity theft according to the FTC which reported that tax-related identity theft incidents increased from 51,702 in 2008 to 248,357 in 2010. This is a dramatic increase from the 35,000 instances of employment-related identity theft cases reported in 2007.

Taxpayer identity theft fraud involves not only the theft of someone’s identity but also the filing of a fraudulent tax return using the victim’s social security number to receive a tax refund often totaling more than $9,000.00. The IRS identified and prevented the issuance of more than $14 billion in fraudulent refunds in 2011. A 2008 report issued by the Treasury Inspector General for Tax Administration (TIGTA), an IRS watchdog, stated that the prevention of taxpayer identity theft fraud is an employer’s issue involving the security of their systems and data. According to TIGTA, 938,664 of the 2.1 million fraudulent tax returns filed in 2011 involved identity theft and totaled $6.5 billion. The stolen information includes the person’s name, date of birth and social security number or Medicare beneficiary number.

The latest twist, however, is that your own employees are in on the crime as law enforcement agencies are reporting that employees at many businesses that compile personal information are misappropriating and selling the information to thieves who are filing fraudulent tax returns. The Centers for Medicare and Medicaid Services (CMS) issued a Fraud Alert in February 2012 warning healthcare providers that perpetrators are misappropriating the identities of Medicare beneficiaries from “employers, schools, hospitals, and prisons” but any businesses that store personal information are at risk from current or prospective employees. Recent law enforcement arrests report finding suspects with massive quantities of tax refunds and lists of prospective employers to apply for jobs with the specific intent to steal taxpayer identities from their databases.

The reality of this emerging threat is that perpetrators are actually targeting organizations for employment so that they can specifically breach their data security and commit identity theft and aid those committing tax refund fraud. These organizations have both a fiduciary and legal duty to safeguard that personal information, but also a legal duty to notify those consumers who they can reasonably identify that their personal information has been stolen.

©2002-2012 Fowler White Boggs P.A.

Supreme Court Broadens the Types of Federal Agency Actions That Can Be Challenged in Court

Recently an article by Jerry Stouck and David B. Weinstein of Greenberg Traurig, LLP regarding the  Types of Federal Agency Actions that can be Challenged in Court was published in The National Law Review:

GT Law

The Supreme Court recently held, in Sackett v. Environmental Protection Agency, that “compliance orders” unilaterally issued by the EPA, which the agency contended were informal directives not subject to judicial review, qualify as “final” agency actions that can be challenged in court under the Administrative Procedure Act (APA). The decision is not limited to EPA compliance orders, although many hundreds of those are issued each year, which now will be subject to judicial review. Sackett applies more broadly because it expands the types of federal agency actions that will be deemed final, and thus subject to judicial challenge, under the APA. Any agency action that has coercive legal effect, and no established avenue for agency-level review, is now potentially challengeable under Sackett.

The APA authorizes federal courts to enjoin or set aside agency action that is arbitrary, capricious, or contrary to law, and to compel agency action unlawfully withheld or unreasonably delayed. In any such case, however, it is a jurisdictional requirement that the agency action be “final.” The rationale is that courts should not interfere with ongoing agency decision-making. Such finality is relatively clear when a party challenges a regulation or an order resulting from formal agency adjudications (e.g., license or permit proceedings). But most actions of federal regulatory agencies fall into neither category, and instead constitute what practitioners call “informal” agency adjudication. EPA compliance orders are in that category; they do not result from any well-defined agency proceeding. So are many other types of agency directives and procedures.

Sackett involved a couple who, in the course of developing a residential lot they owned into a home site, filled in part of the lot with dirt and rock. Unbeknownst to the Sacketts, their lot contained wetlands that the EPA considered to be within federal regulatory jurisdiction under the Clean Water Act (CWA). If that were true, the Sacketts could not lawfully fill the wetlands without a federal permit. The EPA issued a compliance order containing “Findings and Conclusions” that the lot did in fact contain wetlands subject to EPA jurisdiction. The order also directed the Sacketts to restore the lot in accordance with an EPA work plan and to provide EPA with access to the lot and to records concerning conditions at the lot.

The Sacketts, who believed their lot did not contain wetlands subject to the CWA, requested a hearing before the EPA, which the agency refused to provide. The Sacketts then filed suit, but the lower courts dismissed it, finding that the compliance order did not qualify as final agency action under the APA. Thus, the Sacketts were unable to initiate a judicial proceeding to resolve the dispute over whether their wetlands were subject to the CWA. But if the EPA later went to court to enforce its compliance order, the government contended that statutory per-day penalties owing from the Sacketts would double, and that obtaining a necessary permit would be more onerous under applicable regulations. In essence, therefore, the EPA compliance order was coercive — if the Sacketts “voluntarily” complied with the order, they would avoid the double penalties and the additional permitting requirements.

That coercive effect was central to the Supreme Court’s reasoning in holding that the compliance order was a final agency action, subject to judicial review. The coercive effect of the EPA compliance order in Sackett is also what makes the decision potentially applicable to other, similarly-coercive agency directives and procedures. Under the test articulated by the Court in a 1997 decision, Bennett v. Spear, agency action is “final” for APA purposes if it both “determines rights and obligations” and marks the “consummation” of the agency’s decision-making process. The Court in Sackett found the former requirement satisfied because “legal consequences” flowed from the compliance order, i.e., the doubling of the statutory penalties and tightening of the wetlands permitting requirements. The government contended, however, that even though the EPA refused the Sacketts’ request for a hearing, the compliance order was not the end of the Agency’s decision-making process. The government pointed to a portion of the order that invited the Sacketts to “engage in informal discussion” with the EPA regarding the order’s terms and requirements and/or any allegations in the order that they believed to be inaccurate. The Court rejected this argument, and found the compliance order sufficiently final, because it conferred no “entitlement” to further Agency review. The Court concluded that the “mere possibility” that an agency might reconsider as a result of informal discussions “does not suffice to make an otherwise final agency action nonfinal.”

Underlying the Sackett decision is a concern, expressly noted by the Court, that agencies should not be allowed to “strong-arm . . . regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.” When regulated parties face such strong-arming at the hands of federal agencies they should now consider whether, pursuant to Sackett, judicial redress is available under the APA.

©2012 Greenberg Traurig, LLP

UK Court Decision on Objective Justification for Age Discrimination Claims

Long awaited judgment from the Court of Appeal focuses on the merits of the ‘cost-alone’ argument.

The UK Court of Appeal released the much anticipated decision in Woodcock v. Cumbria Primary Care Trust. The decision centred on objective justification. Unlike other forms of discrimination in the UK, direct age discrimination can be objectively justified.

The objective justification test has two key elements: (i) does the employer have a legitimate aim and (ii) are the means chosen a proportionate way of achieving that aim, bearing in mind the discrimination to which it gives rise?

Whilst various factors can be used to justify age discrimination, the status quo position is that ‘cost alone’ cannot be used to justify otherwise discriminatory conduct and that more is required. This has become known as the ‘cost-plus’approach. ‘Cost’ is anything that has a purely financial consideration, i.e. the motivation is purely to save costs.

The Court of Appeal in Woodcock looked at the possibility of an employer justifying discrimination on a ‘cost-alone’ basis.

Background

Mr Woodcock’s employer (the Trust) was going through a reorganisation which would result in the reduction of chief executives required in the Trust. He was made aware that his role was ‘at risk of redundancy’ in early 2006 and he therefore applied for one of the remaining chief executive roles left in the new structure. Following a selection process, Mr Woodcock was informed in July 2006 that he was not successful in his application. He then entered into informal discussions about finding alternative employment in the Trust, although no formal consultation began.

In 2007, the Trust realised that Mr Woodcock would receive a significant pension windfall if he were still employed by the Trust on his 50th birthday. The windfall amounted to approximately £500,000. Given this potential windfall, the Trust elected to give Mr Woodcock notice of termination on the grounds of redundancy before entering into a consultation process during Mr Woodcock’s 12-month notice period. No suitable alternative roles were found and Mr Woodcock’s employment terminated in May 2007. He received his contractual redundancy pay of £220,000 (well above the cap for unfair dismissal of approximately £70,000).

Mr Woodcock was clearly discriminated against on the grounds of age. He received his dismissal notice prior to consultation because of the pension windfall he would have received at his attainment of age 50. If he had been a year younger, a consultation process would have been followed first. In order to follow a fair process in the UK, an employer should consult with an employee before deciding whether he or she is redundant.

Age Discrimination Justified?

At first glance, it is hard to see how this case turns on anything other than the Trust’s financial considerations.

The lower courts, however, found that the discriminatory treatment was objectively justified using the ‘cost-plus’ approach—the ‘plus’ being the genuine redundancy situation and avoiding the potential windfall.

Although possible to pigeonhole these facts into the ‘cost-plus’ test, the lower courts agreed that it was slightly artificial. One of the questions the Court of Appeal considered was whether age discrimination could be objectively justified on a ‘cost-alone’ basis.

Court of Appeal Decision

Although the Court of Appeal agreed that the current ‘cost-plus’ approach results in a degree of artificiality, it accepted that the current guidance from the European Court of Justice is clear, i.e. an employer cannot justify discriminatory treatment ‘solely’ because of cost.

The Court of Appeal, however, agreed with the lower courts and held that the age discrimination in this case was objectively justified on a ‘cost-plus’ analysis because (i) the dismissal notice was served with the aim of giving effect to the Trust’s genuine decision to terminate Mr Woodcock’s employment on the grounds of his redundancy and (ii) it was a legitimate part of that aim for the Trust to ensure that, in giving effect to it, the dismissal also saved the Trust the potential pension fund windfall.

Conclusion

It appears as though the ‘cost-plus’ approach is here to stay. The good news is that the courts appear able to find their way around the problem of having to follow the ‘cost-plus’ approach in most cases.

Despite the courts’ current flexibility, employers should remain hesitant to commit to a ‘cost-alone’ approach and should continue to look for the ‘further factor’.

Copyright © 2012 by Morgan, Lewis & Bockius LLP