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Lessons from Delaware Court of Chancery’s Recent El Paso Decision
05/06/2015
V&E MLP Litigation Update E-communication, May 6, 2015
There is much ongoing discussion about the Delaware Court of Chancery’s recent decision in In re El Paso Pipeline Partners, L.P. Derivative Litigation, C.A. No. 7141-VCL (Del. Ch. Apr. 20, 2015), which awarded $171 million in damages against an MLP’s general partner in connection with a dropdown that was approved by a conflicts committee with the help of legal and financial advisors and after the receipt of a fairness opinion.

Treasury Department Proposes New Qualifying Income Standards for Natural Resource Activities in Publicly Traded Partnerships
05/05/2015
V&E MLP Tax Update E-communication, May 5, 2015
Proposed regulations made public May 5, 2015 by the Treasury Department provide new guidance on whether income from certain activities with respect to minerals and natural resources is “qualifying income.”

V&E Reminder: BEA Surveys of U.S. Investment Abroad Due on May 29, 2015
05/05/2015
V&E's Antitrust Update E-communication, May 5, 2015
U.S. entities holding 10 percent or more of a foreign entity likely need to submit a survey to the Bureau of Economic Analysis at the U.S. Department of Commerce (“BEA”) by May 29, 2015. 

2015 Regulatory Issues for Private Fund Managers
04/30/2015
V&E Securities Litigation and Enforcement  / Private Funds Update E-communication, April 30, 2015 
As we progress through 2015, it is clear that private investment funds will continue to receive significant attention from the U.S. Securities and Exchange Commission (SEC).

BLM Seeks Public Comments on Whether to Revise Royalty Rates, Rental Payments, Bonding Requirements, and Penalties for Onshore Oil and Gas Drilling on Federal Lands
04/30/2015
V&E Shale Insights — Tracking Fracking E-communication, April 30, 2015
On April 21, 2015, the Bureau of Land Management (BLM) published an advance notice of proposed rulemaking (ANPR) seeking guidance on whether to amend a number fiscal policies related to oil and gas leasing on federal lands, many of which have not been updated for decades.

6th Circ. UTC Ruling Provides Support For FCA Defendants
04/15/2015
First published in Law360, April 15, 2015
The Sixth Circuit recently threw out a $657 million False Claims Act windfall to the government, once again reminding the government and lower courts that “[t]he government has the burden of proving damages,” and “[w]hen the government gets what it paid for despite a contractor’s misstatements, it has suffered no ‘actual damages.’”

BLM Fracture Rule: Regulation Adds Layer Of Complexity
04/15/2015
First Published in The American Oil & Gas Reporter, April 2015
The U.S. Department of Interior’s new rule regulating hydraulic fracturing establishes many new requirements that increase the regulatory burden for wells drilled on federal and Indian lands, and may ultimately make drilling on those lands less attractive than similar projects on nearby lands that are subject only to state regulation.

Subsurface Trespass and Actual Harm 
04/15/2015
First published in Texas Lawyer, April 15, 2015
In the wake of the Texas Supreme Court's recent decision in Environmental Processing Systems v. FPL Farming, the oil and gas industry in Texas is still left to wonder how traditional trespass claims apply to subsurface activities.

BSEE Proposes More Stringent Well Control Requirements for Offshore Well Drilling Operations
04/14/2015
V&E Environmental Law Update E-communication, April 14, 2015
On April 13, 2015, the Bureau of Safety and Environmental Enforcement (BSEE) released a proposed rule containing more stringent standards relating to well control equipment used in connection with offshore well drilling operations.

Federal Circuit: District Court Must Explain Failure to Award Fees in “Exceptional” Patent Case
04/13/2015
V&E IP Insights E-communication, April 13, 2015
On April 10, 2015, the Federal Circuit vacated a district court’s refusal to award attorneys’ fees in a patent infringement case that the district court had found “exceptional” under 35 U.S.C. § 285. 

Practical D&O Insurance Considerations for PE Firms 
04/13/2015
First published in Law360, April 13, 2015
Private equity firms are best known for generating strong returns for their investors and providing an important source of capital. Behind the scenes lies a complex operation, balancing regulatory compliance, accounting and legal considerations — all amidst an environment of increasing public scrutiny. 

Recent Developments in Media, Privacy, and Defamation Law
04/10/2015
First published by Tort Trial & Insurance Practice Law Journal (Vol. 50-2), Winter 2015
The year in defamation law saw parties of all kinds, including a pilot, an ex-wrestler and governor, a rock star, and a funeral home owner.

DOJ Damages Model Stalls on Flawed Expert Calculation: Sixth Circuit Vacates $657 Million False Claims Act Judgment
04/09/2015
V&E False Claims Act Update E-communication, April 9, 2015
The Sixth Circuit threw out a $657 million False Claims Act (FCA) windfall to the government this week, once again reminding the government and lower courts that “[t]he government has the burden of proving damages,” and “[w]hen the government gets what it paid for despite a contractor’s misstatements, it has suffered no ‘actual damages.’”

Federal Circuit: Reasonable Royalty May Be Adjusted Based on Cost of Design-Around
04/08/2015
V&E IP Insights E-communication, April 8, 2015
On April 7, 2015, the Federal Circuit affirmed in part a district court’s damages award in a patent infringement action involving AstraZeneca AB and Apotex Corp. 

EPA Issues Proposed Rule Prohibiting Disposal of Shale Wastewater at Public Treatment Facilities
04/07/2015
V&E Shale Insights — Tracking Fracking E-communication, April 7, 2015
The U.S. Environmental Protection Agency (EPA) published a proposed rule on April 7, 2015, that will prohibit the disposal of unconventional oil and natural gas extraction wastewater (shale wastewater) at publicly owned treatment works (POTWs).

Employers Should Review Accommodations Policies to Ensure They Do Not Significantly Burden Pregnant Employees Without Strong Justification
04/06/2015
V&E Employment, Labor and OSHA Update E-communication, April 6, 2015
According to a recent Supreme Court case, in determining whether an employer who has refused to accommodate a pregnant woman has violated the Pregnancy Discrimination Act (PDA), courts must ultimately decide “whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination.”

Three Issues Employers Should Review Before the NLRB Changes to Union Election Procedures Become Effective on April 14, 2015
03/30/2015
V&E Employment, Labor and OSHA Update E-communication, March 30, 2015
The National Labor Relations Board (NLRB) has issued a final rule that will speed up the union election process, impose new posting and disclosure requirements on employers, and narrow the scope of the pre-election hearing. 

Northern District of California Holds that BPCIA’s “Patent Dance” Is Voluntary
03/27/2015
V&E IP Insights E-communication, March 27, 2015
On March 19, 2015, in a case of first impression on the interpretation of the Biologics Price Competition and Innovation Act (BPCIA), the United States District Court for the Northern District of California held that the information exchange procedures under 42 U.S.C. § 262(l) (commonly known as the “patent dance”) are optional and that FDA market approval is not required before giving the 180-day notice of intent to enter the market to the sponsor of a previously-approved biologic under § 262(l)(8). 

BLM Releases Final Hydraulic Fracturing Regulations
03/25/2015
V&E Shale Insights — Tracking Fracking E-communication, March 25, 2015
On March 20, 2015, the U.S. Interior Department’s Bureau of Land Management (BLM) released a much-anticipated final rule regulating hydraulic fracturing activities on Federal and Indian lands. 

Combating Climate Change Continues With Executive Orders
03/25/2015
First published in Law360, March 25, 2015
On March 19, 2015, President Obama issued an executive order designed to cut the federal government’s greenhouse gas emissions 40 percent over the next decade from 2008 levels and increase the share of electricity it consumes from renewable sources to 30 percent.

Biomet’s DPA Proves An Inescapable Device
03/24/2015
Republished in Law360, March 24, 2015
On March 17, 2015, U.S.-based orthopedic medical device manufacturer Biomet Inc. announced that the U.S. Department of Justice will extend by one year the deferred prosecution agreement executed with the company in 2012, along with the term of Biomet’s accompanying compliance monitor.

Recent Shareholder Activism Insights
03/24/2015
March 2015
“Recent Shareholder Activism Insights” contains a compilation of articles written and interviews given by key members of V&E’s Shareholder Activism Response Team. 

Supreme Court Holds that TTAB Decisions Have Preclusive Effect
03/24/2015
V&E IP Insights E-communication, March 24, 2015
On March 24, 2015, the Supreme Court held that trademark registration proceedings before the Trademark Trial and Appeal Board may, in certain circumstances, have issue-preclusive effect in trademark infringement suits before a district court. B&B Hardware, Inc. v. Hargis Indus., Inc., No. 13-352.

Russia’s Strategic Fields – Open for Business?
03/23/2015
V&E Russia Update E-communication, March 23, 2015
Recent comments from the Russian government that Russia is prepared to consider allowing Chinese investors to acquire a controlling interest in its strategic oil and gas projects will not have gone unnoticed in Beijing.

Energy Restructuring and Reorganization
03/20/2015
First published by The Texas Journal of Oil, Gas, and Energy Law, Volume 10 No. 1, 2014 - 2015
Energy production in the United States continues to outpace expectations with an estimated oil production surge of 46% from 2011 to 2014 to the highest levels since 1972. 

Falling Short of Perfect FCPA Compliance, Biomet’s Deferred Prosecution Agreement Proves an Inescapable Device
03/19/2015
V&E Foreign Corrupt Practices Act Update E-communication, March 19, 2015
On March 17, 2015, U.S.-based orthopedic medical device manufacturer Biomet, Inc. (Biomet or the Company) announced that the U.S. Department of Justice (DOJ) will extend by one year the deferred prosecution agreement (DPA) executed with the Company in 2012, along with the term of Biomet’s accompanying compliance monitor.

Corporate Officers Can Blow The Whistle, Too
03/18/2015
Republished in Law360, March 18, 2015
On March 2, 2015, the U.S. Securities and Exchange Commission announced its first ever whistleblower award under the Dodd-Frank Wall Street Reform and Consumer Protection Act to a former company officer who learned of a violation of the U.S. securities laws as a result of another employee reporting misconduct through corporate and compliance channels.

UK Budget Briefing
03/18/2015
V&E Tax Update E-communication, March 18, 2015
This update summarises tax announcements made in the UK Budget on Wednesday, 18 March 2015 that are likely to be most relevant to our clients. 

Trends in Domestic Regulation of Shale Development
03/16/2015
First Published in World Oil, March 2015
As America’s recently reinvigorated oil and gas industry wrestles with the current drop in world oil prices, U.S. regulators remain hard at work, at both the federal and state levels. 

Enforcing the Clean Water Act: Authority, Trends, and Targets
03/13/2015
Presented at the 25th Annual Texas Wetlands Conference, Austin, Texas, January 29 - 30, 2015
Federal water pollution policy relies on federally mandated permits issued under the National Pollutant Discharge Elimination System (“NPDES”) program, codified in Section 402 of the Clean Water Act (“CWA” or “Act”), to control discharges of pollutants into the waters of the United States. 

ISS Releases FAQs Related to 2015 U.S. Proxy Voting Policies and Procedures
03/12/2015
V&E Corporate Governance Update E-communication, March 12, 2015
On February 19, 2015, Institutional Shareholder Services (ISS) published a list of frequently asked questions (FAQs) relating to 2015 changes in its U.S. proxy voting policies and procedures. 

A Potential New Weapon Against Cybersquatters
03/10/2015
First published in Law360, March 06, 2015
What’s a trademark owner to do? With the ever-expanding number of domain suffixes, a trademark owner now needs to worry about potentially hundreds and thousands of domains that can be used for cybersquatting on a given mark. 

Circuit Split Deepens on Securities Fraud Loss Causation Pleading Standard
03/06/2015
First published in New York Law Journal, March 6, 2015
In recently affirming dismissal of a class action lawsuit alleging claims pursuant to Section 10(b) of the Securities Exchange Act and Securities Exchange Commission (SEC) Rule 10b-5, the U.S. Court of Appeals for the Ninth Circuit held that the proper pleading standard for the loss causation element of a 10(b) claim is the heightened pleading standard of FRCP 9(b).

IRS “Presses Play”: Pause Ends – Regulations Promised
03/06/2015
V&E MLP Tax Update E-communication, March 6, 2015
An IRS official announced today that the “pause” on issuing private letter rulings (PLRs) with respect to MLP qualifying income under Section 7704 of the Internal Revenue Code is being lifted.

White House Releases Control Strategy
03/05/2015
First published in The American Oil & Gas Reporter, February 2015
The Obama administration has taken additional steps to regulate methane emissions from oil and gas operations.

SEC to Corporate Officers, You Too Can Whistle(blow) While You Work
03/04/2015
V&E Securities Litigation and Enforcement Update E-communication, March 4, 2015
On March 2, 2015, the U.S. Securities and Exchange Commission (the “SEC” or “Commission”) announced its first ever whistleblower award under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or “Dodd-Frank”) to a former company officer who learned of a violation of the U.S. securities laws as a result of another employee reporting misconduct through corporate and compliance channels.

Federal Circuit Holds Service Must be Performed Before Applying for Service Mark
03/03/2015
V&E IP Insights E-communication, March 3, 2015
On March 2, 2015, the United States Court of Appeals for the Federal Circuit held that a service mark cannot be properly registered with the U.S. Patent and Trademark Office unless the applicant has actually rendered the relevant service as of the filing date of a use-based application.

Energy Restructuring and Reorganization Part I – The Company
02/26/2015
V&E Energy Restructuring and Reorganization Updates E-communication, February 26, 2015
The recent decline in oil prices has created a challenging financial environment for a number of energy companies. Negatively impacted companies face numerous, immediate strategic issues.

Where the Rubber Meets the Road: How Companies Like Goodyear Can Avoid FCPA Liability
02/26/2015
V&E Foreign Corrupt Practices Act Update E-communication, February 26, 2014
On February 24, 2015, the Securities and Exchange Commission (SEC) issued an Order instituting cease-and-desist proceedings pursuant to the Securities Exchange Act of 1934 (the Exchange Act) against The Goodyear Tire & Rubber Company (Goodyear) for purported violations of the Foreign Corrupt Practices Act (FCPA).

Federal Circuit Upholds PTAB Decision in First IPR Appeal
02/05/2015
V&E IP Insights E-communication, February 5, 2015
On February 4, 2015, in In Re Cuozzo Speed Techs. LLC, No. 14-1301, the Court of Appeals for the Federal Circuit affirmed a decision of the Patent Trial and Appeal Board (PTAB) in its first opinion involving an appeal of an inter partes review (IPR) under the America Invents Act (AIA). 

The Most Important Current Research Questions in Urban Ecosystem Services
02/05/2015
First published by Duke Environmental Law & Policy Forum, Fall 2014
Nature is important to cities, not only for environmental protection, but also for economic productivity, fiscal soundness, community life, and governance. We tend to take nature’s ecological systems — or ecosystems — for granted, but they provide critically valuable services to society and to urban areas. 

Here Be Dragons: Legal Threats to EPA’s Proposed Existing Source Performance Standards for Electric Generating Units 
02/03/2015
First published in Environmental Law Reporter, February 2015
A 104-page “Legal Memorandum” accompanying the U.S. Environmental Protection Agency’s (EPA’s) proposal of §111(d) Existing Source Performance Standards (ESPS) for Electric Generating Units under the Clean Air Act (CAA) charts the legal waters the Agency will have to traverse if it adopts rules anything like those it proposed. 

The Federal Trade Commission Issues 2015 Annual Updates to the United States Premerger Notification and Interlocking Directorates Thresholds
01/22/2015
V&E's Antitrust Update E-communication, January 22, 2015
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. 

Supreme Court Holds Trademark Tacking Is a Jury Question
01/21/2015
V&E IP Insights E-communication, January 21, 2015
On January 21, 2015, the United States Supreme Court unanimously held that the availability of tacking as a defense to trademark infringement is an issue for the jury, not the judge. Hana Financial, Inc. v. Hana Bank, No. 13-1211 (U.S. Jan. 21, 2015).

Fracking Litigation to Watch in 2015
01/19/2015
First published in Texas Lawyer, January 19, 2015
For nearly a decade, hydraulic fracturing, or fracking, has played a critical role in the United States' energy revolution. 

Departments of Commerce and the Treasury Issue New Rules Easing Sanctions on Cuba
01/16/2015
V&E Export Controls and Economic Sanctions E-Communication, January 16, 2015
On January 16, 2015, the Department of the Treasury, Office of Foreign Assets Control (OFAC) and the Department of Commerce, Bureau of Industry and Security (BIS) published amendments to regulations related to dealings with and exports to Cuba, the first step in furtherance of the major shift in U.S. policy announced by President Obama on December 17, 2014.

Federal Circuit Addresses Rejections of Trademarks as “Primarily Geographically Descriptive”
01/16/2015
V&E IP Insights E-communication, January 16, 2015
On January 15, 2015, the Federal Circuit reversed a decision by the U.S. Patent and Trademark Office (PTO)’s Trademark Trial and Appeal Board (TTAB) affirming the rejection of a trademark application for NEWBRIDGE HOME as primarily geographically descriptive. 

House Report May Taper Hopes For Clean Power Plan
01/09/2015
First published by Law360, January 9, 2015
Climate change policy is a priority for the Obama administration. During the past few months, the administration has made several international pledges to cut U.S. emissions of greenhouse gases. 

Mass Customization — Brought To You By 3-D Printing
01/07/2015
First published by Law360, January 7, 2015 
Mass customization is somewhat of an oxymoron. How can a company achieve scalable production and distribution of its products on the one hand, yet achieve true personalization on the other?

 

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