U.S. Supreme Court Holds That “Reverse Payment” Patent Settlements Are Not Immune From Antitrust Attack
06/18/2013
V&E IP Insights E-communication, June 18, 2013
On June 17, 2013, the U.S. Supreme Court decided whether a “reverse payment” patent settlement, where a patentee makes a payment to an alleged infringer, can unreasonably diminish competition in violation of the antitrust laws.
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China Streamlines Government Approvals in the Energy and Mining Areas
06/14/2013
V&E China Practice Update E-communication, June 14, 2013
As part of its initiative to streamline government functions, on May 15, 2013, the Chinese government announced that it would eliminate or delegate to lower-level regulatory bodies a total of 117 administrative approval items.
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U.S. Supreme Court: Isolated DNA Is a Patent-Ineligible “Product of Nature”
06/14/2013
V&E IP Insights E-communication, June 14, 2013
On June 13, 2013, the U.S. Supreme Court unanimously held that naturally occurring DNA is a product of nature and not patent eligible merely because it has been isolated.
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Lessons from the Recent Delaware Supreme Court Opinions Concerning Master Limited Partnerships
06/07/2013
V&E's Securities Litigation and Enforcement and MLP Update E-communication, June 7, 2013
The Delaware Supreme Court recently issued two rulings addressing the enforceability of certain provisions in master limited partner agreements (MLP).
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Beyond Say on Pay: The Latest Round of Executive Compensation Litigation – And Some Considerations on Defending Against It
06/06/2013
First published by Corporate Board Member, May 20, 2013
Companies and directors have seen wave after wave of executive compensation litigation, from “say on pay” suits in the wake of Dodd-Frank, to threatened preliminary injunctions to enjoin shareholder votes.
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Fifth Circuit Expands Workplace Discrimination Protections for Women under Title VII and the Pregnancy Discrimination Act
06/06/2013
V&E Employment, Labor and OSHA Update E-communication, June 6, 2013
In EEOC v. Houston Funding II, Ltd., the Fifth Circuit ruled that discriminating against an employee “who is lactating or expressing breast milk” violates Title VII of the Civil Rights Act of 1964, as amended (Title VII), and the Pregnancy Discrimination Act of 1976 (PDA).
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V&E’s Dodd-Frank Act Resource Page
06/06/2013
Articles and events related to the Dodd-Frank Wall Street Reform and Consumer Protection Act.
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Progress on U.S. Export Control Reform Continues With Proposed Rules Relating to ITAR Category XV Spacecraft and Scope of “Defense Services”
06/05/2013
V&E Export Controls and Economic Sanctions E-Communication, June 5, 2013
There have been significant developments this year in the implementation of President Obama’s Export Control Reform (ECR) initiative.
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Supreme Court to Review Standing Requirements for False Advertising Claims Under Lanham Act
06/04/2013
V&E IP Insights E-communication, June 4, 2013
On June 3, 2013, the United States Supreme Court granted certiorari in Lexmark International, Inc. v. Static Control Components, Inc. (No. 12-873), to determine what test should be used to analyze whether a party has standing to maintain an action for false advertising under the Lanham Act (15 U.S.C. §§ 1051 et seq.).
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Texas Expands Protections of the Environmental, Health & Safety Audit Privilege Act to Purchasers
06/03/2013
V&E Environmental Law Update E-communication, June 03, 2013
Since 1995, the Texas Environmental, Health, and Safety Audit Privilege Act (“EHS Audit Privilege Act” or the “Act”) has provided to business owners a privilege from discovery of environmental audit documents, and immunity from penalty for violations identified by and disclosed following an environmental audit by the owner or operator.
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OSHA Launches Initiative to Protect Temporary Workers
05/23/2013
V&E Employment, Labor and OSHA Update E-communication, May 23, 2013
On April 29, 2013, the Occupational Health & Safety Administration (OSHA) issued a memorandum announcing a new initiative to increase workplace safety for temporary workers in light of recent fatalities.
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BLM Releases Revised Hydraulic Fracturing Draft Regulations
05/22/2013
V&E Shale Insights — Tracking Fracking E-communication, May 22, 2013
On May 16, 2013, the U.S. Interior Department’s Bureau of Land Management (BLM) issued a much-anticipated draft proposal for regulating hydraulic fracturing activities for the 700 million sub-surface acres of mineral estate of federal and Indian lands managed by BLM.
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Recent Reminders that Employers with Non-Unionized Workforces Face Union Issues
05/20/2013
V&E Employment, Labor and OSHA Update E-communication, May 20, 2013
Non-union employers are increasingly aware of the National Labor Relations Board’s interest in ensuring that social media policies do not infringe employees’ rights to engage in concerted activity.
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Deeply Divided En Banc Federal Circuit Holds Escrow Claims Patent-Ineligible as Too Abstract
05/15/2013
V&E IP Insights E-communication, May 15, 2013
On May 10, 2013, a deeply divided Federal Circuit, sitting en banc in CLS Bank International v. Alice Corp., No. 2011-1301 (Fed. Cir. May 10, 2013), affirmed a district court decision that method, computer-readable media, and system claims directed to an escrow arrangement were not patent eligible under 35 U.S.C. § 101.
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Court Forecloses Government’s Attempt to Use False Claims Act to Combat Mortgage Fraud
05/14/2013
V&E False Claims Act Update E-communication, May 14, 2013
In a terse two-page order, issued on May 8, 2013, U.S. District Judge Jed Rakoff of the Southern District of New York shut down the government’s attempt to use the False Claims Act (FCA) to combat mortgage fraud allegedly perpetrated by Bank of America and Countrywide.
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Supreme Court Unanimously Holds that Patent Exhaustion Does Not Protect Replication of Patented Seeds; Declines to Reach Broader Questions
05/14/2013
V&E IP Insights E-communication, May 14, 2013
On May 13, 2013, the U.S. Supreme Court issued its unanimous decision in Bowman v. Monsanto Co., No. 11-796, slip op. (May 13, 2013), holding that the doctrine of patent exhaustion does not allow a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.
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Bringing Back Reasonable Inferences: A Short, Simple Suggestion for Addressing Some Problems at the Intersection of Employment Discrimination
05/07/2013
First published in New York Law School Law Review, 2012/13
Almost fifty years ago, Congress passed the Civil Rights Act of 1964. An integral part of that monumental piece of legislation was Title VII, which prohibits discrimination in employment on the basis of race, color, national origin, religion, and sex.
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Four Financing Refinery and Petrochemical Projects: Opportunities and Challenges
05/07/2013
First published in The International Comparative Legal Guide to: Project Finance 2013 Edition
The last decade has brought about many changes in the refining and petrochemical industries. While there has been a decline in the refining industry in Western Europe and the USA, the industry has been growing significantly in non-OECD countries.
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Departments of State and Commerce Begin Implementing Key Element of Export Control Reform by Transferring Certain Aircraft and Gas Turbine Engine Equipment from the ITAR to the EAR
05/02/2013
V&E Export Controls and Economic Sanctions E-Communication, May 2, 2013
It has been universally acknowledged that a major problem with the existing U.S. export control regime is that it can be difficult to determine which products, data, and services are covered by the ITAR because the regulations often do not use objective or “positive” criteria.
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Antitrust News & Notes
04/26/2013
April 2013
Antitrust News & Notes is a bi-monthly report concerning recent developments, issues, and matters of interest in antitrust law and competition policy.
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Pennsylvania Supreme Court Clarifies that Dunham Rule Applies to Shale Gas
04/26/2013
V&E Shale Insights — Tracking Fracking E-communication, April 26, 2013
The Pennsylvania Supreme Court reaffirmed the validity of the state’s Dunham rule and its applicability to shale gas in Butler v. Charles Powers Estate, No. 27 MAP 2012, decided on April 24, 2013.
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Recent Developments in Media, Privacy and Defamation Law
04/26/2013
First published in ABA's Tort Trial & Insurance Practice Law Journal, Fall 2012
Privacy issues dominate the survey this year; courts grappled with the right to anonymity, protection of confidential sources, social media’s complex role in controlling user privacy, and fax blasting.
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New Worries for Section 404 Permit Recipients: D.C. Circuit Rules that EPA May Retroactively “Veto” Permits Already Granted by the Army Corps
04/25/2013
V&E Environmental Law Update E-communication, April 25, 2013
On April 23, 2013, the D.C. Circuit ruled that the Environmental Protection Agency (EPA) has the power under the Clean Water Act (CWA) to retroactively veto a section 404 dredge and fill permit “whenever” it makes a determination about certain adverse effects, even years after the Army Corps of Engineers (Corps) has granted the permit to an applicant.
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Reintroduction of Master Limited Partnerships Parity Act on April 24, 2013
04/25/2013
V&E MLP Tax Update E-communication, April 25, 2013
Senator Christopher Coons (D-DE) has reintroduced the Master Limited Partnerships Parity Act, which would provide MLP tax treatment for renewable energy projects.
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Don’t Cry for Ralph Lauren: Company Escapes FCPA Charges for Argentine Payments with Enhanced Compliance Program and Cooperation with Authorities
04/23/2013
V&E Foreign Corrupt Practices Act Update E-communication, April 23, 2013
On April 22, 2013, Ralph Lauren Corporation entered into non-prosecution agreements (NPAs) with both the U.S. Securities and Exchange Commission (SEC) and the U.S. Department of Justice (DOJ) covering Foreign Corrupt Practices Act (FCPA) misconduct in Argentina, marking the first-ever such NPA by the SEC and sending a positive message about the merits of efficient responses, robust compliance programs, and risk assessment in the face of FCPA violations.
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Federal Court Sends Academi Back to School: Finds Agreement Requiring Arbitration of False Claims Act Retaliation Claims Unconscionable
04/23/2013
V&E False Claims Act Update E-communication, April 23, 2013
In a ruling last month, a federal district court sent a warning signal to companies that mandatory arbitration provisions in their agreements with employees and independent contractors may not stand up when an employee or contractor cries foul under the anti-retaliation provision of the False Claims Act (FCA).
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Anchor Mortgage Sinks DOJ’s Damages Theory
04/18/2013
V&E False Claims Act Update E-communication, April 18, 2013
In the most recent check on the Department of Justice’s (DOJ) pursuit of record False Claims Act (FCA) damages, the Seventh Circuit squarely rejected the DOJ’s “gross trebling” theory of damages, instead endorsing a “net trebling” approach, resulting in a dramatic 40 percent reduction of the government’s recovery.
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The Seventh Circuit Issues a Reminder that Asset Purchasers Can Inherit Pre-Closing Employment Liabilities
04/12/2013
V&E Employment, Labor and OSHA Update E-communication, April 12, 2013
In a noteworthy opinion, the Seventh Circuit Court of Appeals has held that an asset purchaser can be responsible for the employment-related liabilities of a company whose assets it has purchased, even if it did not purchase the stock of that company and even if it expressly disclaimed the assumption of those liabilities.
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Securities Litigation Insights
04/11/2013
Issue 10, Spring 2013
Securities Litigation Insights is a periodic report concerning recent developments, issues, and matters of interest in securities litigation and regulation.
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BSEE Issues Revised Regulations for Safety and Environmental Management Systems (SEMS II)
04/09/2013
V&E Employment, Labor and OSHA Update E-communication, April 9, 2013
The Bureau of Safety and Environmental Enforcement (BSEE) last week issued revised regulations for Safety and Environmental Management Systems (SEMS II) governing exploration, development, and production operations on the Outer Continental Shelf.
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International Construction Newsletter
04/08/2013
Spring 2013
Articles in this issue, include: Appetite for Risk in Emerging Market EPCs; Saudi Arabia’s New Arbitration Law (2012); The Concluded Bargain: Near Enough Good Enough?; Challenging a Procurement Process; Arbitration in China — Progress and Challenges; and more.
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Spring Brings More Qualifying Income PLRs: Six Year-to-Date, Including Guidance on Processing Gas to Liquids and Compression
04/08/2013
V&E MLP Tax Update E-communication, April 8, 2013
The Internal Revenue Service (IRS) has released six private letter rulings (PLRs) regarding qualifying income for publicly traded partnerships (MLPs) since the beginning of 2013.
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Have Financial Institutions Beaten the FCPA Rap? Don’t Bank on It.
04/01/2013
First published in the State Bar of Texas Corporate Counsel Section Newsletter, Spring 2013
This article is the second in a series concerning anti-corruption enforcement trends impacting companies subject to the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), as amended.
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Reminder of Upcoming Dodd-Frank Compliance Dates for End-Users
04/01/2013
V&E Dodd-Frank Regulatory Update E-communication, April 1, 2013
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) imposes a new regulatory framework upon swap dealers, major swap participants and other counterparties to swaps, including end-users.
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Supreme Court Rules that Rigorous Analysis of Plaintiffs’ Damages Claims is Required for Class Certification
04/01/2013
V&E Antitrust Updates E-communication, April 1, 2013
The Supreme Court just issued an important decision reinforcing the need for rigorous analysis of class action plaintiffs’ claims that damages can be determined on a class-wide basis.
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What Companies Don't Know Can Hurt Them: Antitrust Law Developments in Vertical Constraints
04/01/2013
First published in the State Bar of Texas Corporate Counsel Section Newsletter, Spring 2013
Antitrust compliance properly focuses on agreements and communications between competitors because of the heightened risk associated with such conduct. Yet overreaching restrictions on distributors or customers can pose antitrust risk as well.
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What Companies Don't Know Can Hurt Them: Basics of Premerger Notification Filings
04/01/2013
First published in the State Bar of Texas Corporate Counsel Section Newsletter, Spring 2013
The Hart-Scott-Rodino Act requires the notification of certain mergers and acquisitions to the Federal Trade Commission and the Antitrust Division of the United States Department of Justice prior to closing a transaction.
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What Companies Don't Know Can Hurt Them: Monopolization Offenses
04/01/2013
First published in the State Bar of Texas Corporate Counsel Section Newsletter, Spring 2013
In contrast to Section 1 of the Sherman Act, which applies only to concerted action, Section 2 reaches the unilateral activity of companies. The statute provides: “Every person who shall monopolize, or attempt to monopolize, or conspire or combine with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . . .”
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The SEC’s Continued Focus on Private Fund Managers
03/22/2013
V&E Securities Litigation and Enforcement / Private Funds Update
E-communication, March 22, 2013
In recent weeks, the SEC has continued to provide private fund managers with important guidance regarding the SEC’s enforcement and examination priorities.
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U.S. Supreme Court Decision Leaves the Road Wide Open for Clean Water Act Citizen Suits and Challenges to Agency Interpretations
03/22/2013
V&E Environmental Law Update E-communication, March 22, 2013
The U.S. Supreme Court has determined that EPA had validly interpreted its regulations to hold that stormwater runoff from ditches along logging roads is exempt from National Pollutant Discharge Elimination System (NPDES) permitting under the Clean Water Act (CWA).
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UK Budget Briefing
03/21/2013
V&E Tax Update E-communication, March 21, 2013
This update summarises tax announcements made in the UK Budget on Wednesday, 20 March 2013, which are likely to be most relevant to our practice.
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The Supreme Court Holds That U.S. Copyright Law’s First Sale Doctrine Applies to Works Made Overseas
03/20/2013
V&E IP Insights E-communication, March 20, 2013
On March 19, 2013, in Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court held that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad.
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Whooping Crane Habitat Prevails over Texas Water Rights in Aransas Project v. Shaw
03/14/2013
V&E Environmental Law Update E-communication, March 14, 2013
Endangered Species Act (ESA) protections allowed the world’s only self-sustaining, wild Whooping Crane population, known as the “AWB” flock, to increase from 15 birds in the 1940s to around 250 today.
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Employers Now Subject to Expanded FMLA Military Leave Provisions
03/11/2013
V&E Employment, Labor and OSHA Update E-communication, March 11, 2013
Effective March 8, 2013, all employers covered by the Family Medical Leave Act (FMLA) are subject to the United States Department of Labor’s recently issued Final Rule that expands the FMLA’s military caregiver and qualifying exigency leave provisions.
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Recent and Future Developments in the Energy Work Place
03/06/2013
V&E Employment, Labor and OSHA Update E-communication, March 6, 2013
Two recent developments concerning the Fair Labor Standards Act (FLSA) are important for the energy industry.
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U.S. Supreme Court Rules That Securities Class Action Plaintiffs Need Not Prove Materiality to Invoke the “Fraud-On-The-Market” Presumption For Class Certification
02/27/2013
V&E Securities Litigation and Enforcement Update E-communication, February 27, 2013
The Supreme Court of the United States decided a long-anticipated and important securities-law case today, holding that plaintiffs in a federal securities-fraud class action need not prove materiality of a misrepresentation to obtain class certification.
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New Executive Order Limits Ability of Federal Contractors and Subcontractors to Use Their Own Employees When Taking Over Service Contracts
02/26/2013
V&E Employment, Labor and OSHA Update E-communication, February 26, 2013
The U.S. government spends billions of dollars annually on contracts covered by the McNamara-O’Hara Service Contract Act (the SCA).
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A Maritime Doughnut Hole in the Caribbean Sea: The International Court of Justice Establishes Maritime Boundary between Nicaragua and Colombia
02/22/2013
Published by The University of Texas Energy Center, February 19, 2013
On November 19, 2012, the International Court of Justice (ICJ) unanimously resolved a multi-year maritime boundary dispute between Nicaragua and Colombia, establishing a single maritime boundary between the two States and elaborating on the jurisprudence relating to maritime boundary disputes.
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V&E Advises on New Mine Safety Rules
02/11/2013
V&E Employment, Labor and OSHA Update E-communication, February 11, 2013
The Mine Safety and Health Administration (MSHA) released a new final rule for the Pattern of Violations (POV) status designation which will go into effect March 25, 2013.
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What Companies Don't Know Can Hurt Them: An Introduction to the Basics of U.S. Antitrust and Competition Laws
02/08/2013
First published in the State Bar of Texas Corporate Counsel Section Newsletter, Winter 2013
A fundamental precept to American economic philosophy is free-market competition. With that in mind, the United States antitrust laws prohibit anti-competitive behavior and unfair business practices.
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What Companies Don't Know Can Hurt Them: Dealing with Competitors
02/08/2013
First published in the State Bar of Texas Corporate Counsel Section Newsletter, Winter 2013
For the past 20 years, the Department of Justice (DOJ) has ramped up its enforcement of cartels.
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Privilege Issues That Arise When Dealing with Outside Consultants
02/05/2013
First published in the State Bar of Texas Corporate Counsel Section Newsletter, Winter 2013
It is well recognized that the attorney-client privilege only applies to confidential communications between a client and its lawyers.
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Middle East Legal Insights
01/30/2013
January 2013
Middle East Legal Insights is a periodic update concerning recent developments, issues, and matters of interest in the MENA region.
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IRS Delivers Significant Year-End MLP Qualifying Income PLRs
01/22/2013
V&E MLP Tax Update E-communication, January 22, 2013
The Internal Revenue Service (IRS) has released four qualifying income private letter rulings (PLRs) for publicly traded partnerships (MLPs) regarding end-user sales, wholesale marketing, olefins activities, and real property rents since our third-quarter update.
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Navigating The 546(e) Safe Harbor Provision
01/18/2013
First published in Law360, December 19, 2012
Navigating section 546(e), one of the Bankruptcy Code’s safe harbor provisions, requires a delicate balance of academics and practical reality.
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China Issues New Natural Gas Utilization Policy
01/17/2013
V&E China Practice Update E-communication, January 17, 2013
On October 31, 2012, China’s National Development and Reform Commission (NDRC) announced the new Natural Gas Utilization Policy (2012 Gas Policy), which came into effect on December 1, 2012.
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Scrutiny over Stormwater Management: Recent Supreme Court and District Court Cases
01/16/2013
V&E Environmental Law Update E-communication, January 16, 2013
Urban and suburban development result in two important trends for stormwater: first, an increase in stormwater quantity as the original topography and vegetative cover are altered and impervious surfaces and channelized drainages are constructed; and second, a decrease in the quality of stormwater as flows traverse parking lots, roadways, and fertilized areas.
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U.S. Supreme Court: Broad Covenant Not to Sue Moots Trademark Validity Challenge
01/11/2013
V&E IP Insights E-communication, January 11, 2013
On January 10, 2013, the Supreme Court held that a trademark plaintiff’s voluntary dismissal of its infringement suit, together with a broad covenant not to sue, removed the district court’s Article III jurisdiction and therefore barred consideration of the defendant’s counterclaim of trademark invalidity.
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The SEC Previews 2013 Enforcement Priorities in the Alternative Space
01/10/2013
V&E's Securities Litigation and Enforcement Update E-communication, January 10, 2013
Private fund managers should take note of a recent speech by Bruce Karpati, Chief of the SEC Enforcement Division’s Asset Management Unit (AMU), in which Karpati described the SEC’s enforcement priorities for 2013 and provided guidance for managers of private equity funds and hedge funds.
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Renewables Update: The American Taxpayer Relief Act
01/07/2013
V&E's Clean Energy Update E-communication, January 7, 2012
On January 2, 2013, President Obama signed the American Taxpayer Relief Act of 2012 (the “Act”).
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An Overview of the Attoreny-Client Privilege and Common Privilege Issues
01/02/2013
First published in the State Bar of Texas Corporate Counsel Section Newsletter, Fall 2012
Clients depend on their lawyers to provide advice confidentially and to protect that advice from disclosure to the fullest extent permitted by law.
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