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Corporate Counsel Institute 05-11-2017

The 39th Annual Corporate Counsel Institute offers in-depth, practical discussions on legal issues for in-house counsel and outside counsel who represent companies of all sizes. The Institute is presented by the Corporate Counsel Section of the State Bar of Texas and The University of Texas School of Law.

13D Monitor's Annual Active-Passive Investor Summit 04-27-2017

13D Monitor's Annual Active-Passive Investor Summit will bring together more than 350 financial professionals for dynamic sessions and a full day of networking.

TowerXchange Meetup Europe 2017 04-04-2017

Vinson & Elkins is pleased to be sponsoring the 2nd annual TowerXchange Meetup Europe. TowerXchange is the primary thought leadership body in the global telecom tower industry.

2017 Harvard Roundtable on Corporate Governance 03-14-2017

The Harvard Roundtable on Corporate Governance will bring together top academics, practitioners and policy-makers for a discussion on current trends and topics in corporate governance. Head of V&E’s Shareholder Activism Response Team Kai Liekefett will take part in the roundtable discussion.

NACD – Top Hot Topics for Directors in 2017 03-03-2017

The National Association of Corporate Directors (NACD) Texas TriCities Chapter will cover potential challenges for U.S. public and private companies, including cybersecurity, shareholder activism, corporate corruption, auditing rules, and compensation issues.

V&E / Risk Assistance Network + Exchange (RANE) Energy Investment Roundtable 03-02-2017

Back to the Future: The Impact of Regulatory Changes on Energy Investment Opportunities

The energy sector’s recovery from a historic decline in oil prices in 2016 has driven renewed interest in the sector’s investment opportunities. Further fueling this interest is rising demand and advances in technology that are yielding significant cost reductions in the way oil and gas are developed and produced.

4th Annual Capital Link Master Limited Partnership Investing Forum 03-02-2017

V&E is a sponsor of Capital Link’s 4th Annual Master Limited Partnership (MLP) Investing Forum being held Thursday, March 2 in New York. This forum is the only industry event focused on the institutional investor and the financial advisor community. Partner Ryan Carney will be speaking on a tax panel regarding the recently finalized MLP Qualifying Income Regulations.

Everything Crazy Can Be Sane Again 02-23-2017

Labor & Employment 

We can hope that new appointments to the National Labor Relations Board (“NLRB”) and its General Counsel will eventually return some sanity to American labor law. Until such time, we can only hope that the federal courts of appeals will continue to scrutinize the NLRB’s decisions. 

"If You Have a Phone, You Have a Law[suit]": Class Actions Signal Huge Potential Plaintiff Pool in FTC v. Qualcomm Follow-on Litigation 02-23-2017

V&E Hi-Tech Update E-communication, February 23, 2017

The experience of Qualcomm over the last month has borne out an old litigation maxim: where the government enforcers go, private plaintiffs follow. Last month, as discussed in “FTC Says ‘No License, No Chips’ Policy is No Good: FTC v. Qualcomm Inc.,” the Federal Trade Commission (FTC) filed a complaint in federal district court against Qualcomm Inc. (Qualcomm), alleging the company unlawfully maintained a monopoly in baseband processors.

Energy Technology Roundtable 02-23-2017

This program will address technology’s growing impact on the oil and gas industry.

Supreme Court Reverses Federal Circuit and Holds that the Supply of a Single Component of a Multicomponent Product Does Not Infringe § 271(f)(1) 02-22-2017

V&E IP Insights E-Communication, February 22, 2017

On February 22, 2017, the Supreme Court held that the supply of a single component of a multicomponent product for manufacture abroad cannot as a matter of law infringe 35 U.S.C. § 271(f)(1).

"The Benefit of Hindsight": The D.C. Circuit Holds That the Government's Failure to Seek Repayments After Investigating a Relator’s Allegations Is "Very Strong Evidence" of Immateriality 02-22-2017

Lincoln's Law Blog

On Friday, the D.C. Circuit issued its first decision applying Universal Health Services, Inc. v. United States ex rel. Escobar. The D.C. Circuit’s decision, United States ex rel. McBride v. Halliburton Co., provides important guidance regarding the False Claims Act’s materiality standard and applies that standard to an implied certification theory.

Not in the Interest of Disclosure: Trump White House Strikes Down Mineral Resource Disclosure Rule 02-22-2017

V&E Environmental & FCPA/Anti-Corruption Update E-communication, February 22, 2017

On February 14, President Trump signed H.J. Res. 41, which, pursuant to the Congressional Review Act (CRA), repeals the mineral resource disclosure rule called for by the 2010 Dodd-Frank Law.

Alternative Capital: 144A Equity Offerings and Special Purpose Acquisition Companies (SPACs) 02-22-2017

Energy Series Logo - Mini Thumbnail - 50px WideThis program will cover alternatives to traditional forms of capital raising, including 144A Equity Offerings and Special Purposes Acquisition Companies (SPACs). The presentation will look at recent market trends and precedents in such financings.

Avoiding Non-Compliance with the ADA for Emergency Response Personnel 02-21-2017

Labor & Employment Blog

An employee is not protected under the Americans with Disabilities Act (“ADA”) if he is unable to perform the essential functions of the employment position he holds. But what makes a particular job function “essential,” and can a job function be “essential” even if it is rarely performed? Last month, the Eleventh Circuit joined the Sixth and Eighth Circuits in holding that a job function that is rarely performed may still be considered “essential.” In Bagwell v. Morgan County Commission,1 the Court found that, although certain maintenance tasks were rarely required, a park groundskeeper was not qualified to do the job in part because she could not safely perform such tasks.

Double Dipping: Liability for FCA Violations Doesn't Necessarily End with the DOJ 02-21-2017

Lincoln's Law Blog

Last month a federal judge in Tennessee approved a $60 million settlement in a shareholder derivative action brought on behalf of Community Health Systems, Inc., officially resolving five years of litigation. A qui tam FCA action based on the same underlying conduct settled for $98 million in 2014, not including the attorneys’ fees and expenses also owed. Both actions arose from allegations that the company shirked the traditional evidence-based and objective admissions criteria used by most hospitals in favor of more lenient criteria designed to steer patients toward medically unnecessary inpatient admissions.

USPTO Decision Favors MIT and Harvard in Epic CRISPR Gene-Editing Dispute, but Berkeley Maintains Broader Patent Coverage 02-20-2017

Hi-Tech Update E-communication, February 20, 2017

On February 15, 2017, the United States Patent and Trademark Office (“USPTO”) ruled that work by the Broad Institute of Harvard and MIT (“Broad”) covering the breakthrough gene-editing CRISPR technology does not directly compete with earlier work done by the University of California at Berkeley and owned by The Regents of the University of California (“UC”). 

Beyond Regulations: What Additional Changes to Climate Change Policy Could Happen Under the Trump Administration? 02-17-2017

Climate Change Blog

The few public statements from then-candidate Trump regarding climate policy indicated that he will seek to reverse much of his predecessor’s course on laws and policies pursued in the name of preventing climate change, including the Paris Agreement and the Clean Power Plan. The President has also stated that he wants to cut regulations by 75%, and released an Executive Order limiting the creation of new regulations. But even outside of the realm of formal regulations, there are a number of climate-related policies of the previous administration that could be impacted by President Trump’s policy preferences.

NACD – Top Hot Topics for Directors in 2017 02-17-2017

The National Association of Corporate Directors (NACD) Texas TriCities Chapter will cover potential challenges for U.S. public and private companies, including shareholder activism, value crises, and auditing rule changes and disclosures.

A Touch of Irony: Flagrant Seal Violation Doesn’t Mandate Dismissal but Selling a Sealed Complaint May Earn a Stay Behind Bars 02-16-2017

Lincoln's Law Blog

Just last December, the Supreme Court settled the argument over whether a violation of the FCA’s seal requirement unequivocally mandates dismissal in State Farm & Casualty Company v. United States ex rel. Rigsby (No. 15-513).

Corporate Counsel Institute 05-11-2017

The 39th Annual Corporate Counsel Institute offers in-depth, practical discussions on legal issues for in-house counsel and outside counsel who represent companies of all sizes. The Institute is presented by the Corporate Counsel Section of the State Bar of Texas and The University of Texas School of Law.

13D Monitor's Annual Active-Passive Investor Summit 04-27-2017

13D Monitor's Annual Active-Passive Investor Summit will bring together more than 350 financial professionals for dynamic sessions and a full day of networking.

TowerXchange Meetup Europe 2017 04-04-2017

Vinson & Elkins is pleased to be sponsoring the 2nd annual TowerXchange Meetup Europe. TowerXchange is the primary thought leadership body in the global telecom tower industry.

2017 Harvard Roundtable on Corporate Governance 03-14-2017

The Harvard Roundtable on Corporate Governance will bring together top academics, practitioners and policy-makers for a discussion on current trends and topics in corporate governance. Head of V&E’s Shareholder Activism Response Team Kai Liekefett will take part in the roundtable discussion.

NACD – Top Hot Topics for Directors in 2017 03-03-2017

The National Association of Corporate Directors (NACD) Texas TriCities Chapter will cover potential challenges for U.S. public and private companies, including cybersecurity, shareholder activism, corporate corruption, auditing rules, and compensation issues.

V&E / Risk Assistance Network + Exchange (RANE) Energy Investment Roundtable 03-02-2017

Back to the Future: The Impact of Regulatory Changes on Energy Investment Opportunities

The energy sector’s recovery from a historic decline in oil prices in 2016 has driven renewed interest in the sector’s investment opportunities. Further fueling this interest is rising demand and advances in technology that are yielding significant cost reductions in the way oil and gas are developed and produced.

4th Annual Capital Link Master Limited Partnership Investing Forum 03-02-2017

V&E is a sponsor of Capital Link’s 4th Annual Master Limited Partnership (MLP) Investing Forum being held Thursday, March 2 in New York. This forum is the only industry event focused on the institutional investor and the financial advisor community. Partner Ryan Carney will be speaking on a tax panel regarding the recently finalized MLP Qualifying Income Regulations.

Energy Technology Roundtable 02-23-2017

This program will address technology’s growing impact on the oil and gas industry.

Alternative Capital: 144A Equity Offerings and Special Purpose Acquisition Companies (SPACs) 02-22-2017

Energy Series Logo - Mini Thumbnail - 50px WideThis program will cover alternatives to traditional forms of capital raising, including 144A Equity Offerings and Special Purposes Acquisition Companies (SPACs). The presentation will look at recent market trends and precedents in such financings.

NACD – Top Hot Topics for Directors in 2017 02-17-2017

The National Association of Corporate Directors (NACD) Texas TriCities Chapter will cover potential challenges for U.S. public and private companies, including shareholder activism, value crises, and auditing rule changes and disclosures.

The Center for American and International Law’s 68th Annual Oil & Gas Law Conference 02-16-2017

V&E partners Bryan LoockeMark RodriguezJames Lloyd Loftis, and Harry Perrin will each speak at the 68th Annual Oil & Gas Law Conference on Thursday, February 16 and Friday, February 17 in Houston, Texas.

ABA Forum on Communications Law 22nd Annual Conference 02-09-2017

V&E counsel, Marc Fuller, will be a panelist at the ABA Forum on Communication Law at a session entitled, “Hot Issues in Libel and Privacy.”

Houston Chapter: 2016 Proxy Review, 2017 Predictions & ISS Voting Policy Updates 02-08-2017

V&E partner Stephen M. Gill is speaking on a lunch panel titled “2016 Proxy Review, 2017 Predictions & ISS Voting Policy Updates” hosted by the Houston Chapter of the Society for Corporate Governance from 11:30 a.m. to 1:00 p.m.

4th Annual Texas Healthcare and Bioscience Summit and Luminary Dinner 02-07-2017

V&E partner Paul Tobias will be moderating a panel on the “New Technologies and the Value of Research” panel at the Texas Healthcare & Bioscience Institute’s (THBI) 4th Annual Texas Healthcare and Bioscience Summit and Luminary Dinner.

Shareholder Engagement & Communication London: Constructive Strategies for Issuers 02-07-2017

Vinson & Elkins is pleased to be sponsoring Skytop Strategies’ summit on shareholder activism and engagement. The summit will focus on how best to manage institutional investor campaigns for constructive outcomes – with a focus on how US-based activist campaigns affect the nature of engagements in the UK and Europe.

12th Annual Columbia University Energy Symposium 02-02-2017

V&E partner Robert Seber will be speaking on the “Shifting Geopolitics of Petroleum” panel at the 12th Annual CU Energy Symposium, a collaborative student-run event organized across the Business School, Engineering School, Law School, and School of International and Public Affairs.

ACI’s 4th Advanced Forum on False Claims and Qui Tam Enforcement 01-30-2017

ACI’s 4th Advanced Forum on False Claims and Qui Tam Enforcement will take place January 30 & 31. V&E partner, Craig Margolis, will be the panel moderator for the session entitled “Government Prosecutors Panel - How Government Decides to Litigate and Its Approach to Dealing with an Active Realtor Bar."

Shareholder Activism 2: Unlocking Shareholder Value 01-26-2017

The program will bring together industry leaders to provide a broad discussion around the topic of shareholder activism.

Legal Training for the Energy Sector 01-24-2017

V&E partner Christopher Walker and V&E counsel John Zadkovich will present at the Legal Training for the Energy Sector seminar.

Negotiation Ethics: Winning Ethically and Effectively 01-24-2017

Lawyers negotiate every day and negotiating ethically and maintaining their reputations as ethical and professional is critical to the successful practice of law. In this program, Marty Latz will lead a discussion about a series of ethically challenging legal negotiation scenarios and will link our discussion to critical negotiation strategies.

Environmental Citizens' Suit Defense: Preparing for "Private Attorneys General" in the Trump Administration 02-07-2017

Energy Series Logo - Mini Thumbnail - 50px WideAs the Trump Administration advances its agenda, several environmental NGOs will look to make good on their pledge to rely on citizen suit statutes to accomplish their public policy priorities. These groups hope to achieve judicial rulings on environmental theories that may not be endorsed by either the legislative or executive branches, while also being reimbursed for their efforts.

An MLP Update: The Final Regulations on Qualifying Income and Recent Delaware Supreme Court Opinions 01-25-2017

Energy Series Logo - Mini Thumbnail - 50px WideOn January 19, 2017, the Treasury Department and the IRS released final regulations providing guidance on the treatment of income from natural resource activities of publicly traded partnerships as qualifying income for purposes of section 7704(d)(1)(E) of the Internal Revenue Code.

Patent in the High Court 2016-2017 01-24-2017

IP Series Logo - Mini Thumbnail - 50px WideIn this presentation, we previewed TC Heartland LLC v. Kraft Foods Group Brands LLC and Impression Products, Inc. v. Lexmark International and discussed the issues and potential outcomes. We also took one additional step and discussed what these cases may mean to the business of law.

The Times They Are A-Changin’: Energy Policy in the Trump Administration 01-24-2017

U.S. oil and gas policy may undergo substantial change in the next administration. Federal rules governing methane emissions, the leasing of government lands, exports, and much more could be revised in the coming years. 

The Return of Shareholder Activism to the Energy Industry 12-14-2016

Energy Series Logo - Mini Thumbnail - 50px WideIn this program, Kai Liekefett, head of V&E’s Shareholder Activism Response Team, financial public relations experts from Sloane, and financial experts from Morgan Stanley discussed the return of shareholder activism to the energy sector and gave an overview of advance preparation measures.

Power Shift? Regulatory Change in the First 100 Days of the Trump Administration 12-08-2016

Energy Series Logo - Mini Thumbnail - 50px WidePresident-Elect Donald Trump has promised to revoke or repeal many of the Obama Administration’s signature regulatory and executive actions — from immigration, labor, and employment, to financial services, energy, and the environment. This program offered a high-level overview of the legal landscape facing a new President seeking to deliver immediate regulatory change.

Preparing for an IPO: Market Update, Process and Timeline 11-09-2016

Energy Series Logo - Mini Thumbnail - 50px WideIn this program, V&E attorneys discuss recent IPO activity in the energy space, the IPO timeline and process overview, issues that arise during the IPO process, financial statement and structuring considerations, and governance matters.

China Intellectual Property & Innovation Summit 10-27-2016

V&E partner Chris Kao was invited to deliver an update on the Alice Corp. v. CLS Bank International case at the China Intellectual Property & Innovation Summit in Shenzhen, China, on October 28th. Chris' presentation reviewed the impact of the Alice decision in regards to Section 101 issues and patent litigation strategies following revisions to the America Invents Act (AIA).

Defining the Contours of Alice 10-25-2016

IP Series Logo - Mini Thumbnail - 50px WideRecent decisions on Section 101 patent-eligible subject matter have begun to connect the dots, giving additional shape to the Alice analysis.

Hydraulic Fracturing Symposium 10-05-2016

Our Sixth Annual Hydraulic Fracturing Symposium focused on timely topics surrounding unconventional oil and gas development.

Proxy Season 2016 – A Look Back & A Look Ahead 09-29-2016

Kai Liekefett, Head of V&E's Shareholder Activism Response Team, co-hosted the webinar "Proxy Season 2016: A Look Back & A Look Ahead" with RANE Network.

V&E and TPH Host Energy Infrastructure Summit 09-20-2016

Energy infrastructure continues to play a critical role in operational and investment decision-making for participants throughout the energy value chain. The outlook for the space has improved notably since the beginning of 2016 but is still not without its challenges.

MLP Qualifying Income and Market Update 09-14-2016

Energy Series Logo - Mini Thumbnail - 50px WideThis program will cover the status of the proposed qualifying income regulations and 2016 MLP capital markets transactions, with a focus on institutional preferred equity.

Energy REITs and Real Estate MLPs 07-13-2016

Energy Series Logo - Mini Thumbnail - 50px WideThis presentation introduced V&E’s new nationally recognized team of Real Estate Investment Trust (REIT) lawyers to the firm’s clients, and explored the corporate and tax similarities between master limited partnerships (MLPs) and REITs.

First Impressions Post-Ruling in Universal Health v. United States ex rel. Escobar 06-21-2016

V&E appellate partners John Elwood and Jeremy Marwell, and False Claims Act/Qui Tam Litigation partners Craig Margolis and Tirzah Lollar provided first impressions of the U.S. Supreme Court’s ruling in Universal Health v. United States ex rel. Escobar endorsing the implied false certification theory of liability in certain circumstances.

2016 U.S. Pharmaceutical Patent Litigation Seminar 06-14-2016

Vinson & Elkins was invited by the Chinese Pharmaceutical Manufacture and Development Association to speak in Taipei, Taiwan on May 25th, 2016. 

2016 Intellectual Property Symposium in Taiwan 06-10-2016

The Taiwan Intellectual Property Office (TIPO) invited Vinson & Elkins attorneys to speak at its 2016 International Intellectual Property Symposium held in Taipei, Taiwan on May 26th, 2016.

Crisis Planning: Part 2 – The Environmental, Health and Safety Crisis Scenario 06-08-2016

Energy Series Logo - Mini Thumbnail - 50px WideIt’s a dreaded situation – receiving a phone call that there has been an explosion, leak, or major accident at your facility. In the second part of our crisis planning presentations, we focus on the aftermath of a safety or environmental crisis and response tactics that can prove vital in any resulting litigation or government investigation.

Post McClendon Indictment: What Does This Mean For The Oil & Gas Industry? 05-19-2016

Energy Series Logo - Mini Thumbnail - 50px WideThis program focused on examining the Antitrust Division of the U.S. Department of Justice’s renewed shift in focus in domestic cartel investigations, specifically in light of the indictment of former Chesapeake Energy CEO Aubrey McClendon, and directly with respect to the energy industry.

Crisis Planning: Part 1 – The Financial or Business Crisis Scenario 05-11-2016

Energy Series Logo - Mini Thumbnail - 50px WideA sudden financial loss. The loss of a key executive. A business partner turns bad. In the first part of our crisis planning presentations, we concentrate on internal business and financial crisis such as these.

"If You Have a Phone, You Have a Law[suit]": Class Actions Signal Huge Potential Plaintiff Pool in FTC v. Qualcomm Follow-on Litigation 02-23-2017

V&E Hi-Tech Update E-communication, February 23, 2017

The experience of Qualcomm over the last month has borne out an old litigation maxim: where the government enforcers go, private plaintiffs follow. Last month, as discussed in “FTC Says ‘No License, No Chips’ Policy is No Good: FTC v. Qualcomm Inc.,” the Federal Trade Commission (FTC) filed a complaint in federal district court against Qualcomm Inc. (Qualcomm), alleging the company unlawfully maintained a monopoly in baseband processors.

Supreme Court Reverses Federal Circuit and Holds that the Supply of a Single Component of a Multicomponent Product Does Not Infringe § 271(f)(1) 02-22-2017

V&E IP Insights E-Communication, February 22, 2017

On February 22, 2017, the Supreme Court held that the supply of a single component of a multicomponent product for manufacture abroad cannot as a matter of law infringe 35 U.S.C. § 271(f)(1).

Not in the Interest of Disclosure: Trump White House Strikes Down Mineral Resource Disclosure Rule 02-22-2017

V&E Environmental & FCPA/Anti-Corruption Update E-communication, February 22, 2017

On February 14, President Trump signed H.J. Res. 41, which, pursuant to the Congressional Review Act (CRA), repeals the mineral resource disclosure rule called for by the 2010 Dodd-Frank Law.

USPTO Decision Favors MIT and Harvard in Epic CRISPR Gene-Editing Dispute, but Berkeley Maintains Broader Patent Coverage 02-20-2017

Hi-Tech Update E-communication, February 20, 2017

On February 15, 2017, the United States Patent and Trademark Office (“USPTO”) ruled that work by the Broad Institute of Harvard and MIT (“Broad”) covering the breakthrough gene-editing CRISPR technology does not directly compete with earlier work done by the University of California at Berkeley and owned by The Regents of the University of California (“UC”). 

FTC Settles Vizio “Smart TV” Spying Claims, But Does the Settlement Really Offer a Glimpse Into Future FTC Action? 02-14-2017

Hi-Tech Update E-communication, February 14, 2017

On February 6, 2017, the Federal Trade Commission (FTC) and Attorney General of New Jersey (NJ AG) announced that they had settled claims against “smart TV” manufacturer, Vizio, Inc., stemming from allegations that the company secretly collected and shared detailed information reflecting its consumers’ viewing habits. 

Private Funds Year in Review and 2017 Outlook – Regulatory Issues 02-14-2017

V&E Shareholder Litigation & Enforcement  / Private Funds Update E-communication, February 14, 2017

In 2016, the U.S. Securities and Exchange Commission (SEC) continued its regulatory focus on private funds. 

U.S. Court Orders Google to Produce Customer Data Stored on Overseas Servers 02-13-2017

Hi-Tech Update E-communication, February 13, 2017

On February 3, 2017, a federal magistrate judge in the Eastern District of Pennsylvania broke with Second Circuit precedent and ordered Google to produce electronic data stored on its servers located overseas.  

Trump Administration Acts to Reduce Regulations and Control Regulatory Costs 02-09-2017

V&E Environmental Law Update E-communication, February 9, 2017

During the week of January 30, the Trump administration took steps to make potentially dramatic changes to the landscape for promulgating federal regulations. 

Lebanon Announces First Offshore Licensing Round 02-07-2017

V&E Middle East Energy Update E-communication, February 7, 2017

On 26 January 2017, the Lebanese Petroleum Administration (“LPA”) announced the commencement of Lebanon’s first offshore licensing round, during which five blocks will be offered to interested companies. The announcement follows a stalled licensing round in 2013, during which several IOCs including Chevron, Eni and Statoil pre-qualified before the round was cancelled due to political unrest.

FTC Says “No License, No Chips” Policy Is No Good: FTC v. Qualcomm Inc. 02-06-2017

V&E Antitrust Update E-communication, February 6, 2017

On January 17, 2017, the Federal Trade Commission filed a complaint in federal district court against Qualcomm Inc., charging the company with maintaining a monopoly over baseband processors essential to communications in premium smart phones.

Congress Uses Congressional Review Act to Strike Down Obama Administration Rules 02-03-2017

V&E Environmental Law Update E-communication, February 3, 2017

After passing in both the House and Senate, bills to disapprove of the Department of the Interior’s Stream Protection Rule and the Securities and Exchange Commission’s (“SEC”) mineral resource extraction disclosure rule are now headed to the White House for President Trump’s signature. 

The Federal Trade Commission Issues 2017 Annual Updates to the United States Pre-merger Notification (HSR) and Interlocking Directorates Thresholds 01-31-2017

V&E Antitrust Update E-communication, January 31, 2017

The Federal Trade Commission (FTC) has revised the thresholds that govern pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act), as well as the thresholds for interlocking directorates under Section 8 of the Clayton Act. 

How PE Firms Can Minimize Attorney-Client Privilege Risks 01-30-2017

First published by Law360, January 30, 2017

The attorney-client privilege is the oldest among the common-law evidentiary privileges and protects confidential communications between a client and its attorney made for the purpose of obtaining or providing legal advice.

Trump Administration Acts to Advance Infrastructure Projects and Pipeline Development 01-26-2017

V&E Environmental Law Update E-communication, January 26, 2017

On Tuesday, January 24, 2017, the Trump administration acted to address two highly controversial infrastructure-related decisions by the Obama Administration: the rejection of the Keystone XL Pipeline and the deferral of the Dakota Access Pipeline for further environmental review.  

MLP Qualifying Income Regulations Are Finalized – Not Withdrawn by Trump Administration 01-24-2017

V&E MLP Tax Update E-communication, January 24, 2017

On January 24, 2017, in a surprise to many, the final 7704 regulations were published in the Federal Register. Previously, on January 20, 2017, President Donald J. Trump imposed a government-wide regulatory freeze in a White House memorandum issued by the President’s Chief of Staff. 

Obama Administration Conditionally Lifts Sudan Embargo 01-23-2017

V&E Export Controls and Economic Sanctions E-Communication, January 23, 2017

On January 13, 2017, the Obama Administration, reportedly with the assent of the President-Elect, issued Executive Order 13761 entitled “Recognizing Positive Actions by the Government of Sudan and Providing for the Revocation of Certain Sudan-Related Sanctions” (the “Executive Order”).

Treasury Department Issues Final Regulations Establishing New Qualifying Income Rules for Publicly Traded Partnerships 01-19-2017

V&E MLP Tax Update E-communication, January 19, 2017

The Treasury Department (Treasury) and the Internal Revenue Service (IRS) released final regulations on January 19, 2017, providing guidance on the treatment of income from natural resource activities of publicly traded partnerships as qualifying income for purposes of section 7704(d)(1)(E) of the Internal Revenue Code.

EPA Expands Risk Management Requirements 01-19-2017

V&E Emergency Response and Crisis Management Update E-communication, January 19, 2017

The U.S. Environmental Protection Agency (EPA) has substantially revised its Risk Management Program (RMP) rule aimed at preventing chemical facility accidents, a move that will affect industrial facilities that handle threshold amounts of regulated chemicals. 

Antitrust Agencies Finalize Updates to IP Licensing Guidelines 01-18-2017

V&E Antitrust Update E-communication, January 18, 2017

The Federal Trade Commission and the Department of Justice Antitrust Division (the “Agencies”) recently released new finalized Antitrust Guidelines for the Licensing of Intellectual Property (the “Guidelines”), which replace a prior edition issued in 1995 and follow the initial update proposal in August 2016. 

How NDAA For 2017 Changes DOD Contracting 01-11-2017

First published by Law360, January 11, 2017

On Dec. 23, 2016, President Obama signed the National Defense Authorization Act for Fiscal Year 2017, S. 2943. The new law includes several provisions of interest to federal contractors, including jurisdictional changes for protests of task and delivery orders, new restrictions on the use of the "lowest price technically acceptable" (LPTA) source selection process, preferences for the fixed-price contract type and the use of commercial standards and services, and new rules for using undefinitized contractual actions (UCAs). 

Everything Crazy Can Be Sane Again 02-23-2017

Labor & Employment 

We can hope that new appointments to the National Labor Relations Board (“NLRB”) and its General Counsel will eventually return some sanity to American labor law. Until such time, we can only hope that the federal courts of appeals will continue to scrutinize the NLRB’s decisions. 

"The Benefit of Hindsight": The D.C. Circuit Holds That the Government's Failure to Seek Repayments After Investigating a Relator’s Allegations Is "Very Strong Evidence" of Immateriality 02-22-2017

Lincoln's Law Blog

On Friday, the D.C. Circuit issued its first decision applying Universal Health Services, Inc. v. United States ex rel. Escobar. The D.C. Circuit’s decision, United States ex rel. McBride v. Halliburton Co., provides important guidance regarding the False Claims Act’s materiality standard and applies that standard to an implied certification theory.

Avoiding Non-Compliance with the ADA for Emergency Response Personnel 02-21-2017

Labor & Employment Blog

An employee is not protected under the Americans with Disabilities Act (“ADA”) if he is unable to perform the essential functions of the employment position he holds. But what makes a particular job function “essential,” and can a job function be “essential” even if it is rarely performed? Last month, the Eleventh Circuit joined the Sixth and Eighth Circuits in holding that a job function that is rarely performed may still be considered “essential.” In Bagwell v. Morgan County Commission,1 the Court found that, although certain maintenance tasks were rarely required, a park groundskeeper was not qualified to do the job in part because she could not safely perform such tasks.

Double Dipping: Liability for FCA Violations Doesn't Necessarily End with the DOJ 02-21-2017

Lincoln's Law Blog

Last month a federal judge in Tennessee approved a $60 million settlement in a shareholder derivative action brought on behalf of Community Health Systems, Inc., officially resolving five years of litigation. A qui tam FCA action based on the same underlying conduct settled for $98 million in 2014, not including the attorneys’ fees and expenses also owed. Both actions arose from allegations that the company shirked the traditional evidence-based and objective admissions criteria used by most hospitals in favor of more lenient criteria designed to steer patients toward medically unnecessary inpatient admissions.

Beyond Regulations: What Additional Changes to Climate Change Policy Could Happen Under the Trump Administration? 02-17-2017

Climate Change Blog

The few public statements from then-candidate Trump regarding climate policy indicated that he will seek to reverse much of his predecessor’s course on laws and policies pursued in the name of preventing climate change, including the Paris Agreement and the Clean Power Plan. The President has also stated that he wants to cut regulations by 75%, and released an Executive Order limiting the creation of new regulations. But even outside of the realm of formal regulations, there are a number of climate-related policies of the previous administration that could be impacted by President Trump’s policy preferences.

A Touch of Irony: Flagrant Seal Violation Doesn’t Mandate Dismissal but Selling a Sealed Complaint May Earn a Stay Behind Bars 02-16-2017

Lincoln's Law Blog

Just last December, the Supreme Court settled the argument over whether a violation of the FCA’s seal requirement unequivocally mandates dismissal in State Farm & Casualty Company v. United States ex rel. Rigsby (No. 15-513).

Supreme Court Nominee Judge Gorsuch on the False Claims Act 02-14-2017

Lincoln's Law Blog

President Trump recently announced that he was nominating Judge Neil M. Gorsuch to fill the Supreme Court seat vacated one year ago by the death of Justice Antonin Scalia. We at LLB went to work researching what a Justice Gorsuch might mean for future case law construing our favorite statute, the False Claims Act. Here is what we found.

Doing the Homework May Avoid Complications in International Business 02-14-2017

Labor & Employment Blog

Just how complicated it is to conduct international business was made clear to me during a recent trip to Japan. Japan is suffering from a shortage of employees and is looking more to immigrants to supply the needed workforce. Foreign workers are likely to find the workplace culture in Japan to be quite different from their own; also, there is unease among many Japanese businesses and the Japanese government about trade restrictions with the United States and relations generally with China. All these open issues make operating a business in Japan a complicated matter.

Baby, It’s Cold Outside – Federal Hiring Freeze and the Government Contractor 02-09-2017

Lincoln's Law Blog

We may be experiencing an unusually warm spring, but for government contractors the outlook is becoming icier and more treacherous as the impact of President Trump’s federal hiring freeze takes shape. The hiring freeze, enacted through an executive order issued on the first full working day of the new administration, applies to all federal civilian employees in the executive branch, with certain enumerated exemptions. Those exceptions include military personnel, personnel deemed “necessary to meet national security or public safety responsibilities,” or specific personnel deemed necessary by the Director of the Office of Personnel Management.

Work Hours — How Much is Enough? 02-08-2017

Labor & Employment Blog

I just returned from Japan, where one of the major labor issues is “karoshi,” which means “death by overwork.” The Japanese Labor Department has made findings against companies whose workers either died from health issues or from suicide due to overwork. Apparently, some companies in Japan require employees to work as much as 100 hours of overtime in a month in addition to the normal 40-hour work weeks.

The Ratchet Clicks: DOJ Increases FCA Penalties, Applies Worrisome Retroactivity Rule 02-07-2017

Lincoln's Law Blog

Last week, we noted that DOJ missed the January 15 deadline for issuing its annual inflation adjustments to the FCA’s penalties. Perhaps DOJ read our post. Two days later, DOJ released for public inspection its FCA penalty adjustment, which was published in the Federal Register and took effect on February 3, 2017. As expected, DOJ has fallen in line with the Department of Commerce’s (“DOC’s”) earlier FCA penalty adjustment, increasing FCA penalties from between $10,781 and $21,563 to between $10,957 and $21,916.

With the Clean Power Plan Under Attack Could a Climate NAAQS be Next? 02-02-2017

Climate Change Blog

While on the campaign trail, President Trump made several statements suggesting that he will seek to reverse many of the regulations and guidance documents that constitute President Obama’s Climate Action Plan, including the Clean Power Plan. Recent actions and statements by the Trump Administration have further signaled the potential for a significant reversal of U.S. climate policy. Given that the new Administration is unlikely to pursue further policies aimed at cutting greenhouse gas (GHG) emissions, and may even attempt to roll back some existing regulations, many environmental organizations and think tanks are considering alternative measures to achieve emission reductions.

Mind the Gap! UK Gender Pay Gap Reporting 02-02-2017

Labor & Employment Blog

UK employers with 250 or more employees will be required to report on gender pay gaps in their organizations under a new UK regulation, due to come into effect on April 6, 2017. 

False Alarm? Early Tremors of January FCA Penalty Adjustments Followed by Silence from DOJ in Run Up to Change of Administration 01-31-2017

Lincoln's Law Blog

UPDATE: DOJ released its annual penalty adjustment on February 2, two days after we put up this post. Click here to see our post about DOJ’s increased FCA penalties and their retroactive reach.

Earlier this month, we reported on the Department of Commerce’s inflation adjustments to the FCA’s penalties from between $10,781 and $21,563 per false claim to between $10,957 and $21,916. At the time, we expected that DOJ and the Railroad Retirement Board (“RRB”) would follow suit by January 15, the adjustment deadline in the statute. 28 U.S.C. 2461 note. While the Federal Register overflowed with penalty adjustments from other agencies for other penalties leading up to and shortly after January 15, to date DOJ and RRB have remained conspicuously silent about adjustments to FCA penalties.


How Should Employers Respond to Trump’s Immigration Executive Order? 01-30-2017

Labor & Employment Blog

Any seasoned human resources manager who works for a company that employs some foreign workers already knows that American immigration law is complex and unpredictable. An employer can file two seemingly identical L-1 applications with the same USCIS service center and only get one approved, suggesting that an application’s success can depend on the adjudicator to whom a file was assigned. And we all know how unpredictable the H-1B application process can be: it truly is a lottery. Further, even when an employer application has been approved and the employee has successfully obtained a visa at a U.S. consulate in his home country, the Customs Border Patrol (CBP) agent may still exercise his “discretion” to refuse admission to the employee when she arrives at a U.S. airport.

Jeff Sessions: Attorney General Nominee a One-Time Qui Tam Lawyer 01-27-2017

Lincoln's Law Blog

In our FCA Year-End Review Webinar last November, we predicted that President Trump’s nominee for Attorney General, Sen. Jeff Sessions, would continue to support DOJ’s aggressive efforts at FCA enforcement. Long-time FCA champion and Senate Judiciary Committee Chairman Chuck Grassley confirmed our suspicions at Sen. Sessions’ confirmation hearings earlier this month. Under questioning from Sen. Grassley, not only did our likely future Attorney General express his support for qui tam cases as an “effective method of rooting out fraud” because they “cause[] companies to be more cautious” out of fear of whistleblowers, but he also revealed that in fact he “even filed [a qui tam] [him]self one time as a private lawyer.”

Supreme Court Agrees to Consider Class Action Waivers in Arbitration Agreements 01-25-2017

Labor & Employment Blog

Mandatory arbitration programs are, by now, prevalent in the workplace, in large part because employers assume that those programs can be used to combat class action litigation by requiring employees to arbitrate multiple, individual disputes instead of bringing a single class or collective action. Now, the Supreme Court has indicated that it will weigh in on whether that assumption is correct.

Second Circuit Defers to EPA on Water Transfers Rule 01-25-2017

Water Blog

On January 18, 2017, the U.S. Court of Appeals for the 2nd Circuit applied the Chevron doctrine of judicial deference to agency interpretations to find that EPA’s Water Transfers Rule exempting the transfer of water from one basin to another from discharge permits is a reasonable interpretation of the law and should be upheld. This decision reversed a March 2014 district court decision which would have required thousands of water transfer projects to obtain NPDES permits—a result that was particularly unpopular with many western states who believed the delays associated with the permitting process would hinder efforts to meet their water needs during droughts.

Just What the Doctor Ordered: First Circuit Curtails Fraudulent-Inducement Theory Where Government Took No Action After Learning of FCA Allegations 01-24-2017

Lincoln's Law Blog

In a pro-Defense bar, post-Escobar decision handed down shortly before the holidays, the First Circuit held that a relator could not proceed with an FCA claim based on alleged fraud in the inducement on the Food and Drug Administration because the FDA had not withdrawn or suspended its approval of the defendants’ medical device in response to relator’s allegations. D’Agostino v. ev3, Inc., No. 16-1126, 2016 WL 7422943 (1st Cir. Dec. 23, 2016). The opinion also doubles down on the First Circuit’s Cyberonics decision that we wrote about here, again rejecting as insufficiently particular under Rule 9(b), allegations that identify a fraudulent scheme but fail to show that false claims actually were submitted to the government as a result.

Litigation Update: Ninth Circuit to Weigh In on Key Post-Escobar Issues 01-20-2017

Lincoln's Law Blog

We have reported previously on an implied false certification case in the Northern District of California, United States ex rel. Rose v. Stephens Institute, in which the court considered whether a university violated the FCA when it obtained funding from the U.S. Department of Education by allegedly falsely certifying compliance with Title IV of the Higher Education Act. The university moved to certify the district court’s order ruling against it on falsity and materiality for immediate appeal to the Ninth Circuit, and as we reported here, the district court in October certified three of the university’s four proposed questions for interlocutory appeal and stayed the case pending resolution of the university’s appeal.

Interview with Bloomberg Markets on Shareholder Activism 01-30-2017

Bloomberg interviews V&E partner Kai Liekefett on "Why the Fireworks Go Off During Proxy Season."

V&E Launches Redesigned Shale & Fracking Tracker 10-18-2016

We welcome you to visit the V&E Shale & Fracking Tracker, a one-stop resource for the latest news, events, and materials related to legal, government, and industry developments in shale and hydraulic fracturing operations.

EPA’s National Enforcement Initiatives for Fiscal Years 2017–2019 10-01-2016

On October 1, the U.S. Environmental Protection Agency’s (“EPA”) National Enforcement Initiatives (“NEIs”) for fiscal years 2017-2019 took effect.

Controlling Costs in International Arbitration 09-21-2016

Arbitration is always said to have been cheaper, quicker and more confidential than the equivalent court proceedings.  More often than not, however, many arbitration users have discovered this is not always the case. In this video, V&E partner Mark Beeley, will share how you can reverse this trend with careful planning up front.

Why Private Equity’s Wait for Distressed Energy Deals Might be Over 09-20-2016

As prices for oil and gas have fluctuated in the past two years, so have private equity’s expectations to buy distressed energy assets. V&E partner Mark Proctor speaks to Privcap about why private equity might finally be able to seize on these opportunities.

Implementing a Dispute Resolution Framework in Construction Projects 09-12-2016

Scott Stiegler, a senior associate in V&E’s International Construction Disputes practice, outlines some important considerations when implementing an efficient and effective dispute resolution framework in your construction contract.

The Shareholder Activist Playbook 09-09-2016

Kai Liekefett, head of V&E’s Shareholder Activism Response Team, describes the typical shareholder activist’s playbook.

A Profile of V&E’s Energy Appellate Practice 08-31-2016

Marie Yeates, co-chair of V&E's Appellate practice, is a veteran appellate practitioner with deep experience handling energy appeals, particularly in Texas and Louisiana. She explains what legal issues we have handled in this industry, many of which have resulted in landmark decisions, and what makes this niche practice invaluable to clients.

Kayo Conference: Perspectives on the Impact of the Recent Drop in Commodity Prices 08-01-2016

V&E senior associate Brittany Sakowitz shares perspectives on the impact of the drop in commodity prices on companies and investors involved in the energy industry.

TV Interview with The Street on Shareholder Activism 07-19-2016

V&E partner Kai Liekefett spoke to The Street on the topic “Over-Eager Activist Investors Are Partly to Blame for Mega-Deal Failures.” 

An Illustration of Nationality Planning 07-08-2016

When making a significant investment in a new jurisdiction, companies should consider nationality planning, or investment treaty protection, as a tool to help protect against political risk.

A Closer Look at EPA's New Methane Rules for the Oil and Gas Industry 06-22-2016

On May 12, 2016, EPA issued a slate of final rules and an information request under the Clean Air Act directed at the oil and gas industry. This is the first time EPA is directly regulating methane as a greenhouse gas. These rules will have widespread application to the oil and gas industry, including production, processing, transmission, and storage. 

Safety Minute: Environmental Considerations when Acquiring Distressed Assets 06-14-2016

What should companies look for when looking to acquire distressed assets in a down market environment? Brandon Tuck, member of V&E’s Environmental & Natural Resources practice, highlights components of due diligence reviews prior to engaging in a transaction that can help protect against unwanted environmental risk.

Safety Minute: Managing Environmental Programs in a Down Market 06-14-2016

There are certain environmental issues companies should consider before downsizing environmental and safety programs.

Brandon Tuck, member of V&E’s Environmental & Natural Resources Practice, talks through several items companies should consider when trying to manage costs in a down market. 


Safety Minute: Safety Considerations When Downsizing 06-14-2016

Tom Wilson, head of V&E’s OSHA practice, highlights the importance of cross referencing emergency response plan documents when considering downsizing operations and conducting layoffs.

Understanding the Impact of Public International Law 06-06-2016

Public international law, while abstract, does have meaning for international businesses. George Burn, a partner in V&E’s International Dispute Resolution & Arbitration practice, explains public international law and some key areas of commercial application – specifically regarding borders (both maritime and territorial) and the authority of international organizations, such as INTERPOL.

Enforcing International Law – A Powerful Tool for Investors 06-06-2016

George Burn, a partner in V&E’s International Dispute Resolution & Arbitration practice, explains the development of international law’s enforcement mechanism – investor-state arbitration.

Employment Consideration in International Asset Transactions 06-03-2016

Martin Luff, counsel in V&E’s International Employment practice, highlights some of the differences between U.S. and international transactions with regards to the transfer of employment and employee benefits. Buyers and sellers must consider all potential issues that may arise in the different jurisdictions where business deals occur.

Global Reductions in Force 06-03-2016

Martin Luff, counsel in V&E’s International Employment practice, highlights the issues employers must consider when implementing global layoffs or reductions in force.

Workers’ Compensation Insurance: Do You Have the Coverage You Think You Do? 06-03-2016

There are several benefits to workers’ compensation insurance. For example, it provides benefits to an employee in the event of a workplace injury and provides an exclusive remedy protecting the employer from most types of negligence claims.

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