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Insights

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

President-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 will offer a high-level overview of the legal landscape facing a new President seeking to deliver immediate regulatory change.

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.

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.

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.

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. 

Society for Corporate Governance: Houston Chapter One-day Conference 01-11-2017

Vinson & Elkins is sponsoring the Houston Chapter of the Society for Corporate Governance’s One-day Conference on January 11th, which will cover the varying challenges of corporate secretaries, corporate counsel, governance professionals, paralegals, and legal support staff.

The 2nd Annual PubKLaw Government Contracts Year-in-Review FY 16 17 12-15-2016

V&E partner, Dan Graham, will participating in the Competition and Bid Protests in Government Contracting panel discussion at the PubK Second Annual Year in Review. This is a one-day analysis, update and outlook for government contracting webinar that will take place from 9:00 a.m. - 5:00 p.m.

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

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

TowerXchange Meetup Asia 2016 12-13-2016

Vinson & Elkins is pleased to be sponsoring TowerXchange’s 2016 Asia Meetup. TowerXchange is the primary thought leadership body in the global telecom tower industry.

False Claims Act Update: How Escobar Has Rewritten the FCA Playbook Webinar 12-13-2016

V&E partner Tirzah Lollar and V&E associate, Kathleen Neace are presenting for an ABA webinar entitled, "False Claims Act Update: How Escobar Has Rewritten the FCA Playbook" on December 13. United States ex rel. Escobar, issued by the Supreme Court in June 2016, tore up the old False Claims Act playbook. But what are the new rules of the game?

Relators Get a "Shot" at Implied False Certification Claim Post-Escobar 12-09-2016

Lincoln's Law Blog

Adding to the number of post-Escobar opinions already issued, the U.S. District Court for the Eastern District of Virginia recently denied a motion for judgment on the pleadings on the issue of whether an implied false certification claim was sufficiently pled under Escobar in United States ex. rel. Beauchamp v. Academi Training Center Inc., No. 11-cv-371 (E.D.Va. Nov. 30, 2016). The Beauchamp relators alleged that the defendant, a private security company, falsely certified compliance with its contract with the U.S. State Department when it billed the government for warzone security guards who did not meet weapons certification requirements. Relying on Escobar, the court found the relators sufficiently pled that the defendant had made specific misrepresentations about the services it provided and these misrepresentations were material to the government’s decision to pay the defendant.

Follow the Money: An Alternative Strategic Approach to Managing and Utilizing IP Assets 12-09-2016

At the request of Makoto Ogino, former general manager of Hitachi Intellectual Property Group and the current head of IP at Tokyo University of Science Graduate School of Innovation Studies, V&E will present a program titled “Follow the Mone¥,” focusing on the practice of IP license agreements.

Correcting the New York Times on the Impact of Clean Power Plan 12-08-2016

Climate Change Blog

In a December 7, 2016, editorial regarding President-Elect Trump's plans to nominate Oklahoma Attorney General Scott Pruitt to lead the EPA, the New York Times editorial board wrote the following about the Clean Power Plan (“CPP”).

Whistling Up a Storm: OSHA Finalizes Whistleblower Protection Rules for Seamen 12-08-2016

Labor & Employment Blog

OSHA recently finalized its rules for whistleblower protection complaints under the Seaman’s Protection Act (“the Act”). The Act, which was amended in 2010 in response to court cases holding that OSHA regulations did not generally apply to seamen on vessels,1 expands OSHA’s anti-retaliation jurisdiction to nearly all ocean-going employees.

2016 False Claims Act Year-End Review & Look Forward for 2017 12-08-2016

Lincoln's Law Blog

Craig MargolisKathleen Neace, and Ralph Mayrell of V&E’s False Claims Act/Qui Tam Litigation practice and John Elwood of V&E’s Appellate practice provide detailed analysis and thoughts on FCA trends over FY2016, in light of the fiscal year close, and ahead of the DOJ’s annual press release.

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 will offer a high-level overview of the legal landscape facing a new President seeking to deliver immediate regulatory change.

Privcap Media’s 2016 Energy Game Change Conference 12-08-2016

V&E partner Mark Proctor will moderate the panel entitled “LP Second Thoughts?” as limited partners discuss co-investing and direct investing in energy deals. The conference will bring together senior executives from large and mid-cap private equity firms and their limited partners, as well as a range of experts from government and industry sectors.

Supreme Court Holds that Design-Patent Damages May Be Based on a Component of a Product, Rather than Entire Product 12-07-2016

V&E IP Insights E-Communication, December 7, 2016

On December 6, 2016, the Supreme Court unanimously reversed the Federal Circuit’s decision requiring Samsung to pay Apple its complete profits from sales of Samsung products that were found to infringe three of Apple’s design patents.

High Court Knocks Out Mandatory Dismissal but Leaves Circuit Split on Standard Intact 12-07-2016

Lincoln's Law Blog

We last wrote about State Farm & Casualty Company v. United States ex rel. Rigsby (No. 15-513) to report on oral arguments, where the parties (and the government) battled over the standard to be applied in determining whether a qui tam action should be dismissed based on a relator’s violation of the FCA seal requirement. We put our money on the Court declining to require automatic dismissal – and we were right.

American Investment Council’s Chief Compliance Officers Working Group Meeting 12-07-2016

V&E partner Mark Proctor will speak on a panel discussing potential regulatory changes in the Trump Administration at the American Investment Council’s Chief Compliance Officers Working Group Meeting.

85-Year Climate Forecasts Prompt Species Listing Under the Endangered Species Act 12-06-2016

Climate Change Blog

In late October, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service’s (NOAA Fisheries) decision to list the Beringia distinct population segment (DPS) of the Bearded Seal as threatened under the Endangered Species Act (ESA).1 This listing decision was controversial because the Beringia DPS is not facing any imminent or serious threat or reduction to its population. Indeed, NOAA Fisheries acknowledged that the Beringia DPS currently has a large, widely distributed, and genetically diverse population. Nevertheless, NOAA Fisheries concluded that the Beringia DPS was threatened, based primarily on climate change models that predict the loss of sea ice by the year 2095 in ways that would likely affect the seal’s significant life functions and endanger the seal. This is the first time NOAA Fisheries has looked so far into the future to form a basis to list a species as threatened that is currently faring well.

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.

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.

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.

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. 

Society for Corporate Governance: Houston Chapter One-day Conference 01-11-2017

Vinson & Elkins is sponsoring the Houston Chapter of the Society for Corporate Governance’s One-day Conference on January 11th, which will cover the varying challenges of corporate secretaries, corporate counsel, governance professionals, paralegals, and legal support staff.

The 2nd Annual PubKLaw Government Contracts Year-in-Review FY 16 17 12-15-2016

V&E partner, Dan Graham, will participating in the Competition and Bid Protests in Government Contracting panel discussion at the PubK Second Annual Year in Review. This is a one-day analysis, update and outlook for government contracting webinar that will take place from 9:00 a.m. - 5:00 p.m.

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

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

TowerXchange Meetup Asia 2016 12-13-2016

Vinson & Elkins is pleased to be sponsoring TowerXchange’s 2016 Asia Meetup. TowerXchange is the primary thought leadership body in the global telecom tower industry.

False Claims Act Update: How Escobar Has Rewritten the FCA Playbook Webinar 12-13-2016

V&E partner Tirzah Lollar and V&E associate, Kathleen Neace are presenting for an ABA webinar entitled, "False Claims Act Update: How Escobar Has Rewritten the FCA Playbook" on December 13. United States ex rel. Escobar, issued by the Supreme Court in June 2016, tore up the old False Claims Act playbook. But what are the new rules of the game?

Follow the Money: An Alternative Strategic Approach to Managing and Utilizing IP Assets 12-09-2016

At the request of Makoto Ogino, former general manager of Hitachi Intellectual Property Group and the current head of IP at Tokyo University of Science Graduate School of Innovation Studies, V&E will present a program titled “Follow the Mone¥,” focusing on the practice of IP license agreements.

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 will offer a high-level overview of the legal landscape facing a new President seeking to deliver immediate regulatory change.

Privcap Media’s 2016 Energy Game Change Conference 12-08-2016

V&E partner Mark Proctor will moderate the panel entitled “LP Second Thoughts?” as limited partners discuss co-investing and direct investing in energy deals. The conference will bring together senior executives from large and mid-cap private equity firms and their limited partners, as well as a range of experts from government and industry sectors.

American Investment Council’s Chief Compliance Officers Working Group Meeting 12-07-2016

V&E partner Mark Proctor will speak on a panel discussing potential regulatory changes in the Trump Administration at the American Investment Council’s Chief Compliance Officers Working Group Meeting.

ACI’s 7th New York Forum on Economic Sanctions 12-06-2016

V&E Counsel, Dan Gerkin is speaking at ACI’s New York Forum on Economic Sanctions. Dan will speaking at an interactive session entitled, “Applying the Appropriate Level of Due Diligence Across Sanctions Regimes: Practical Scenarios in Screening, Sourcing, Financing, and Payments”. 

2016 World Oil and Gas Week 12-05-2016

Vinson & Elkins’ partner Nabil Khodadad will be moderating a panel titled ‘The Future of Global Exploration: Re-Imagined Exploration Strategies, Frontier Hotspots, Overcoming Pricing Constraints & Access To Capital’ at this year’s World Oil and Gas Week.

Defense Innovation Technology Acceleration Challenges 12-01-2016


ACI's 33rd International Conference on the Foreign Corrupt Practices Act 11-30-2016

V&E partner, Bill Lawler, is a panel moderator in a two part session entitled “The Finer Points of Investigating and Responding to Whistleblower Complaints” at ACI's 33rd International Conference on the Foreign Corrupt Practices Act.

V&E's Review of FY2016 False Claims Act Recoveries and Predictions About DOJ's Upcoming Annual Press Release 11-29-2016

With the launch of our Lincoln’s Law Blog, we have been tracking and analyzing – in real time – FCA recoveries as they unfold. With the close of the fiscal year, we would like to invite you to share in our analysis and thoughts on FCA trends over the past year (and perhaps even a few predictions about what the future may hold).

Hot Topics in U.S. Pharmaceutical Patent Litigation 11-25-2016

The Taiwan Research-based Biopharmaceutical Manufacturers Association (TRPMA) invited V&E to present a program focused on “Hot Topics in U.S. Pharmaceutical Patent Litigation” on November 25th.

Cost & Pricing Issues November 17: Defective Pricing – Hazards & Defenses 11-17-2016

V&E partner, Dan Graham, will be a co-presenter in a webinar entitled Cost & Pricing Issues: Defective Pricing – Hazards & Defenses hosted by the Public Contracting Institute.

National Association of Regulatory Utility Commissioners 128th Annual Meeting 11-14-2016

V&E partner Barry Smitherman presented to the Gas Committee at the National Association of Regulatory Utility Commissioners (NARUC) 128th Annual Meeting on November 14, 2016.

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.

Oil & Gas Distress: Bankruptcy Issues Deep Dive 04-13-2016

Energy Series Logo - Mini Thumbnail - 50px WideThis presentation covers a variety of trending and hot topics in the restructuring and bankruptcy process.

MLP Simplifications, Roll-Ups, and Recapitalizations 03-09-2016

Energy Series Logo - Mini Thumbnail - 50px WideIn this presentation, V&E attorneys cover sponsor acquisitions of MLPs, MLP acquisitions of GPs and IDRs, and subordinated unit restructurings.

Current Issues in Energy Storage 03-03-2016

Energy Series Logo - Mini Thumbnail - 50px WideIn this program, V&E partner Mike Tomsu and attorney Becky Diffen, who have worked on some of the first and largest storage projects in the country, will discuss current issues affecting the industry.

Key Considerations in Distressed Upstream M&A 02-17-2016

Energy Series Logo - Mini Thumbnail - 50px WideIn this program, attorneys from V&E’s Corporate and Bankruptcy practices provide strategic and practical issues to consider when acquiring oil and gas properties from distressed, insolvent and bankrupt sellers.

26th Annual Texas Wetlands Conference 01-29-2016

V&E Environmental & Natural Resources attorneys Taylor Pullins and Brandon Tuck presented at the 26th Annual Texas Wetlands Conference on January 29, 2016. View their presentations here.

Supreme Court Holds that Design-Patent Damages May Be Based on a Component of a Product, Rather than Entire Product 12-07-2016

V&E IP Insights E-Communication, December 7, 2016

On December 6, 2016, the Supreme Court unanimously reversed the Federal Circuit’s decision requiring Samsung to pay Apple its complete profits from sales of Samsung products that were found to infringe three of Apple’s design patents.

Supreme Court Grants Certiorari to Review Patent Exhaustion Doctrine in Impression Products, Inc. v. Lexmark International, Inc. 12-06-2016

V&E IP Insights E-Communication, December 6, 2016

On December 2, 2016, the United States Supreme Court granted certiorari in Impression Products, Inc. v. Lexmark International, Inc., to review a February 2016 Federal Circuit en banc decision holding that post-sale restrictions can be used to avoid patent exhaustion and that foreign sales do not exhaust U.S. patent rights.

President Obama Blocks Chinese Acquisition of German Semiconductor Firm 12-06-2016

V&E CFIUS Update E-communication, December 6, 2016

On Friday, December 2, 2016, President Obama exercised his authority under Section 721 of the Defense Procurement Act of 1950, as amended, and issued an Executive Order prohibiting Fujian Grand Chip Investment Fund, LP from acquiring the U.S. business operations of Aixtron SE, a German company involved in semiconductor manufacturing.

Anatomy of a Non-Performing Loan Portfolio Sale 11-30-2016

First published in Investing in Distressed Debt in Europe: The TMA Handbook for Practitioners

The European market for loan portfolio transactions continues to be very active, with 2015 seeing over €100 billion in completed loan disposals across Europe. 

Election Impact on REIT Industry 11-30-2016

V&E REIT Update E-communication, November 30, 2016

Following the news of Donald Trump’s election, the capital markets, including participants in the real estate investment trust (REIT) industry, scrambled to assess the likely impact of a Trump Presidency and a Republican-controlled Congress.

Déjà Vu All Over Again: Escobar Reversed on Remand 11-28-2016

V&E False Claims Act Update E-communication, November 28, 2016

Perhaps inducing pre-turkey indigestion for some (and particularly the FCA bar), the First Circuit published just before the holiday break its much-anticipated decision on remand in United States ex rel. Escobar v. Universal Health, No. 14-1423, 2016 WL 6872650 (1st Cir. Nov. 22, 2016).

DoD’s Planned Future Involvement in U.S. Export-Controls Compliance Raises Serious Questions for Contractors 11-28-2016

V&E Government Contracts, Export Controls & Economic Sanctions Update E-communication, November 28, 2016

The U.S. Department of Defense (DoD) recently signaled its intention to increase its involvement in U.S. export-controls compliance by issuing the “Withholding of Unclassified Technical Data and Technology from Public Disclosure” proposed rule.

UK Autumn Statement 2016 11-23-2016

V&E Tax Update E-communication, November 23, 2016

This update summarises tax announcements made in the UK Autumn Statement on Wednesday 23 November 2016 that are likely to be most relevant to our clients.

Recent EPA Actions Open Windows of Project Permitting Opportunity in Houston and Dallas Areas 11-22-2016

V&E Environmental Law Update E-communication, November 22, 2016

EPA recently finalized two determinations for greater Houston and Dallas that may meaningfully reduce the requirements to obtain air quality permits in those two areas. 

Energy Future: Third Circuit Issues Reversal Make-Whole Ruling 11-21-2016

V&E Restructuring & Reorganization Update E-communication, November 21, 2016

Noteholders received a favorable ruling last week as the Third Circuit ruled in the Energy Future Intermediate Holdings (“EFIH”) bankruptcy case that a “make-whole” payment was required upon the voluntary post-petition redemption of a Debtor’s Notes.

SEC Issues Guidance on Tacking of Rule 144 Holding Period in Up-C Structure 11-15-2016

V&E SEC Update E-communication, November 15, 2016

The staff of the Division of Corporation Finance of the Securities and Exchange Commission recently issued an interpretive letter that clarified that the holding period under Rule 144(d) under the Securities Act of 1933 (the “Securities Act”) for shares of common stock in an “Up-C” received in exchange for privately placed units (“OP Units”) of the Up-C’s operating partnership (“OP”) commences upon acquisition of the OP Units. 

A Dose of 'Vitamin C' Boosts International Comity 11-14-2016

First published in The National Law Journal, November, 14, 2016

Businesses operating entirely outside of the U.S. might assume—at their peril—that they are beyond the reach of private antitrust claims brought in U.S. courts.

Encryption Regulations Undergo First Significant Revisions Since 2010 11-14-2016

V&E Export Controls and Economic Sanctions E-Communication, November 14, 2016

Whether you are aware of it or not, encryption functionality in hardware and software is ubiquitous. 

Oil and Gas Beware, Regulations Are in the Air: EPA Takes the Next Step in Expanding Air Regulations by Issuing Final Control Techniques Guidelines (CTG) for Volatile Organic Compound (VOC) Emissions 11-10-2016

V&E Environmental Law Update E-communication, November 10, 2016

EPA recently issued Final Control Techniques Guidelines for the oil and gas industry.

Antitrust Law: Employee Hiring and Compensation 10-31-2016

V&E Antitrust Update E-communication, October 31, 2016

The Federal Trade Commission (the FTC) and the Antitrust Division of the Department of Justice (the DOJ) recently released new guidance related to employee hiring and compensation matters.

FCC Adopts Consumer Privacy Rules for Broadband Internet Service Providers 10-28-2016

V&E Cybersecurity and Data Privacy E-communication, October 28, 2016

On Thursday, October 27, 2016, in a highly anticipated decision, the Federal Communications Commission approved new privacy rules regulating the collection, use and sharing of consumer data by broadband Internet service providers (ISPs). 

Mandatory SDO Review of Federal Tax Delinquencies and Federal Felony Convictions 10-27-2016

V&E Government Contracts Update E-communication, October 27, 2016

With fewer dollars to spend and less long-term certainty in the budgets, competition for federal contracts continues to increase as does the Government’s monitoring of contractors receiving federal awards.

We’ve Got Standards, Yes We Do; We’ve Got Standards, How About You? 10-26-2016

V&E Foreign Corrupt Practices Act Update E-communication, October 26, 2016

Capping a four-year global effort, the International Organization for Standardization (ISO) released the first international standard for anti-bribery management systems — ISO 37001 — on October 14, 2016. 

Federal Court Blocks Fair Pay and Safe Workplaces Rule 10-26-2016

V&E Workplace Safety & Government Contracts Update, October 26, 2016

A U.S. District Court Judge in Beaumont, Texas, has issued a nationwide preliminary injunction that enjoins key parts of Executive Order 13673, as implemented by the FAR Rule published at 81 Fed. Reg. 58562 (Aug. 25, 2016) and the Department of Labor’s Guidance regarding the FAR Rule.

IRS Incorrectly Denies Deduction For Civil Disgorgement Payment 10-24-2016

First Published in Tax Notes, September 26, 2016

Section 162(f) disallows a tax deduction for any fine or similar penalty paid to a government for the violation of any law. Civil fines and penalties may or may not be subject to disallowance under section 162(f).

Relators Get a "Shot" at Implied False Certification Claim Post-Escobar 12-09-2016

Lincoln's Law Blog

Adding to the number of post-Escobar opinions already issued, the U.S. District Court for the Eastern District of Virginia recently denied a motion for judgment on the pleadings on the issue of whether an implied false certification claim was sufficiently pled under Escobar in United States ex. rel. Beauchamp v. Academi Training Center Inc., No. 11-cv-371 (E.D.Va. Nov. 30, 2016). The Beauchamp relators alleged that the defendant, a private security company, falsely certified compliance with its contract with the U.S. State Department when it billed the government for warzone security guards who did not meet weapons certification requirements. Relying on Escobar, the court found the relators sufficiently pled that the defendant had made specific misrepresentations about the services it provided and these misrepresentations were material to the government’s decision to pay the defendant.

Correcting the New York Times on the Impact of Clean Power Plan 12-08-2016

Climate Change Blog

In a December 7, 2016, editorial regarding President-Elect Trump's plans to nominate Oklahoma Attorney General Scott Pruitt to lead the EPA, the New York Times editorial board wrote the following about the Clean Power Plan (“CPP”).

Whistling Up a Storm: OSHA Finalizes Whistleblower Protection Rules for Seamen 12-08-2016

Labor & Employment Blog

OSHA recently finalized its rules for whistleblower protection complaints under the Seaman’s Protection Act (“the Act”). The Act, which was amended in 2010 in response to court cases holding that OSHA regulations did not generally apply to seamen on vessels,1 expands OSHA’s anti-retaliation jurisdiction to nearly all ocean-going employees.

2016 False Claims Act Year-End Review & Look Forward for 2017 12-08-2016

Lincoln's Law Blog

Craig MargolisKathleen Neace, and Ralph Mayrell of V&E’s False Claims Act/Qui Tam Litigation practice and John Elwood of V&E’s Appellate practice provide detailed analysis and thoughts on FCA trends over FY2016, in light of the fiscal year close, and ahead of the DOJ’s annual press release.

High Court Knocks Out Mandatory Dismissal but Leaves Circuit Split on Standard Intact 12-07-2016

Lincoln's Law Blog

We last wrote about State Farm & Casualty Company v. United States ex rel. Rigsby (No. 15-513) to report on oral arguments, where the parties (and the government) battled over the standard to be applied in determining whether a qui tam action should be dismissed based on a relator’s violation of the FCA seal requirement. We put our money on the Court declining to require automatic dismissal – and we were right.

85-Year Climate Forecasts Prompt Species Listing Under the Endangered Species Act 12-06-2016

Climate Change Blog

In late October, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service’s (NOAA Fisheries) decision to list the Beringia distinct population segment (DPS) of the Bearded Seal as threatened under the Endangered Species Act (ESA).1 This listing decision was controversial because the Beringia DPS is not facing any imminent or serious threat or reduction to its population. Indeed, NOAA Fisheries acknowledged that the Beringia DPS currently has a large, widely distributed, and genetically diverse population. Nevertheless, NOAA Fisheries concluded that the Beringia DPS was threatened, based primarily on climate change models that predict the loss of sea ice by the year 2095 in ways that would likely affect the seal’s significant life functions and endanger the seal. This is the first time NOAA Fisheries has looked so far into the future to form a basis to list a species as threatened that is currently faring well.

The First 100 Days: How Soon Will Workplace Regulations Change Under President Trump? 12-06-2016

Labor & Employment Blog

Under President Obama, a number of government agencies that regulate the workplace were particularly active. OSHA, the EEOC, the DOL, the NLRB and the OFCCP all reached out and touched a number of issues in the workplace. And in areas where the agency could not act, and Congress would not act, the President used executive orders to supplement formal regulation, particularly as to the workplaces of government contractors. The question we are asked, almost daily now, is what among all of those agency actions and executive orders will change in the Trump presidency and how quickly such change will occur.

I Knowingly Drank Coffee With Cream Today . . . 12-05-2016

Lincon's Law Blog

Because I knew both that I was drinking coffee and that it contained cream. The Sixth Circuit applied similar reasoning in its most recent False Claims Act decision, U.S. ex. rel. Harper v. Muskingum Watershed Conservancy District, No. 15-4406, 2016 WL 6832974 (6th Cir. Nov. 21, 2016), in which it decided—as a matter of first impression—construction of the FCA’s scienter requirements for a reverse false claim (31 U.S.C. § 3729(a)(1)(G)) and a conversion  (31 U.S.C. § 3729(a)(1)(D)), as amended in 2009 by the Fraud Enforcement and Recovery Act (“FERA”).

Making More Paper Might be the Only Way to Keep Supervisors on Your Side – For Now 12-01-2016

Labor & Employment Blog

In unionized and non-union workforces alike, whether a worker is considered a “supervisor” under the National Labor Relations Act (the “NLRA”) can affect how a company interacts with its workers and what information it provides them. The basic idea is that the company should be able to rely on the undivided loyalty of certain employees. Conversely, employees should be free to organize without supervisory interference. The National Labor Relations Board (the “Board”) has recently made it more difficult to know which employees qualify as supervisors. It seems likely that any Trump appointments to the Board will shift the balance and hopefully provide more clarity. In any event, companies would be well-advised to heed the message of these decisions — to be sure your supervisors stay on your side, it is important to have the paperwork to back it up.

Broad New DoD Cybersecurity Rule Could Put Defense Contractors at Risk for FCA Allegations 11-30-2016

Lincoln's Law Blog

In late October, the Department of Defense (DoD) published the Network Penetration Reporting and Contracting for Cloud Services Final Rule (the Rule). The Rule amended Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012, a clause that must be incorporated in all solicitations and contracts, except commercial-items contracts. See 81 FR 72986 (October 21, 2016).

Escobar Decision in First Circuit Reverses District Court (Again) 11-29-2016

Lincoln's Law Blog

A week ago today, the First Circuit issued its decision on remand in the Escobar case. To read about this decision and our take on what it means for the developing issues of materiality following the Supreme Court’s decision earlier this summer, click here.

One "Flu" Over the Cuckoo’s Nest: Fighting the Flu without Fighting Lawsuits 11-29-2016

Labor & Employment Blog

Flu season is upon us and many employers may wonder how they can prevent the spread of the flu in their workforces. Mandating flu shots can be tricky, as employees may refuse on religious or medical grounds. In fact, the EEOC has sued several employers under Title VII this year for terminating employees who refused flu shots on religious grounds.

Time to Stick a Fork in the New Overtime Regulations? 11-23-2016

Labor & Employment Blog

The much-anticipated ruling on a challenge to the new overtime rules has arrived just in time for Thanksgiving, and has given employers nationwide something to be thankful for. Judge Amos Mazzant granted the request for a preliminary injunction brought by 21 states and various business organizations, meaning the rules will not go into effect on December 1 as previously planned. 

All Change? What the Election Result Could Mean for Federal Contractors 11-22-2016

Labor & Employment Blog

As the dust settles following the presidential election, one of the questions that federal government contractors and subcontractors will be asking themselves is which, if any, of President Obama’s executive orders affecting labor and employment matters will survive in the new Trump Administration.

LLB Taking Thanksgiving Week Off Before Presenting Two Updates on the FCA on Nov. 29 and Dec. 13 11-21-2016

Lincoln's Law Blog

From all of us at LLB, we wish you and your family a Happy Thanksgiving.

A Cause for Corporate Thanksgiving: 4th Circuit Announces False Claims Act Successor Liability Not Subject to Lenient "Substantial Continuity" Rule 11-17-2016

Lincoln's Law Blog

Just in time for next week’s Thanksgiving holiday, asset-purchasers who are – or should be – concerned with a seller’s potential FCA culpability have something for which to be thankful. In an opinion published Tuesday, United States ex rel. Bunk v. Government Logistics N.V., No. 15-1088, 2016 WL 6695787 (4th Cir. Nov. 15, 2016), the Fourth Circuit announced that the government or relator, seeking recovery from the wrongdoer’s corporate successor-in-interest, cannot rely upon the relaxed “substantial continuity” theory. Instead, the FCA plaintiff must articulate a theory of liability on the more-difficult-to-meet traditional common law. This decision appears to be one of first impression among circuit-level courts.

New York City Sets an Example with New Local Labor Laws 11-17-2016

Labor & Employment Blog

Until recently, human resources managers and labor lawyers worried primarily about federal employment laws. State employment laws—with the notable exception of California’s—were mostly duplicative of federal laws. As for local labor laws, few of them had much effect on employers that were not actually doing business with the city government. That is quickly changing.

False Claims Act Stats: In with the New but Not Out with the Old 11-16-2016

Lincoln's Law Blog

When DOJ Fiscal Year 2016 came to an end, LLB wanted to reset the “clock” to display recoveries and new data post-close but without losing all of the hard work and data analysis from the prior year (and prior year[s], going forward, since we expect both LLB and FCA enforcement to continue into the foreseeable future).

False Claims Act Cert. Monitor: Relators Seek GVR from High Court in Light of Escobar 11-16-2016

Lincoln's Law Blog

At the end of October, relators petitioned the Supreme Court for a “GVR” of the Second Circuit’s decision in Bishop v. Wells Fargo & Co., 823 F.3d 35 (2d Cir. 2016). That is, relators asked not that the Court hear their case on the merits, but rather that it grant the petition for certiorarivacate the decision below, and remand the case for further proceedings in light of the Court’s intervening decision in Escobar.

OSHA "Clarifies" its Position on Post-Accident Drug Testing 11-15-2016

Employment & Labor Blog

I previously talked about OSHA’s comment on anti-retaliation and that employers that require drug tests for employees involved in accidents could violate the requirement to establish a “reasonable” procedure for employee injury reports. In those comments, OSHA suggested drug testing procedures might not be “reasonable” where such a procedure could deter employees from reporting accidents. 

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.

V&E Safety Minute: Internal Audits 04-07-2016

Conducting an internal safety audit to determine areas of potential risk is a common practice for businesses in various industries. Christopher Bacon, member of the Employment, Labor & OSHA practice and Emergency Response and Crisis Management Team, addresses internal safety audits and what should be done with the findings.

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