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Federal Circuit Vacates $18 Million Contempt Finding Based on PTO Re-examination Invalidity Determination
07/29/2014
V&E IP Insights E-communication, July 29, 2014
On July 25, the Federal Circuit held that an injunction stemming from a district court proceeding cannot continue if the underlying patent claims have been held invalid in a later proceeding.

OSHA’s New Enforcement Program Brings Additional Investigators to North Dakota to Inspect the Upstream and Midstream Oil and Gas Companies
07/28/2014
V&E Employment, Labor and OSHA Update E-communication, July 28, 2014
OSHA launched an enforcement emphasis program this month that will bring additional compliance officers to North Dakota to investigate the increasing number of work-related injuries and deaths in the state.

Hostile Activists: Collaborations between Shareholder Activists and Hostile Bidders
07/16/2014
First published in The M&A Journal, June 30, 2014
In the last decade, hostile takeovers have become increasingly rare.

Federal Circuit Holds That Patent With Error Is Unenforceable Until Corrected
07/15/2014
V&E IP Insights E-communication, July 15, 2014
On July 11, 2014, the Federal Circuit held that an issued patent claim that omits a material limitation not evident on the face of the patent is unenforceable until it has been corrected.

Eastern District of Virginia Reaffirms that Contractual Non-Compliance Does Not Equal Fraud
07/14/2014
V&E False Claims Act Update E-communication, July 14, 2014
In a recent opinion issued by an influential federal district court on the False Claims Act (FCA) and government contracting matters, Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia rebuffed yet another Relator’s attempt to shoehorn breach of contract allegations into an FCA action by dismissing Relator John McLain’s amended complaint against Kellogg Brown & Root Services, Inc. (KBR) with prejudice.

Bitcoin and Bankruptcy: Understanding the Newest Potential Commodity 
07/11/2014
First published by American Bankrutpcy Institute Journal, July 2014
Bitcoin has saturated the financial news, including — as may be inevitable with fast-rising market newcomers — becoming the subject of bankruptcy cases.

Structural Defenses to Shareholder Activism
07/10/2014
First published in The Review of Securities & Commodities Regulation, June 18, 2014
Institutional investors and the influential shareholder advisory services have become persistently and famously critical of structural defenses that companies may implement to defend against hostile takeover bids and shareholder activism.

Railroad Commission of Texas Announces Proposed Changes to Pipeline Permitting Processes
07/09/2014
V&E Energy Updates E-communication, July 9, 2014
On July 8, 2014, the Railroad Commission of Texas approved for publication proposed amendments to its regulations intended to clarify the permitting process for pipelines operating in Texas.

Fifth Circuit Holds E-Rate Funds Not Federal Money Under False Claims Act
07/08/2014
V&E False Claims Act Update E-communication, July 8, 2014
In a stunning reversal to the Department of Justice (DOJ) and the Relator’s Bar, the Fifth Circuit held in United States ex rel. Shupe v. Cisco Systems, Inc., No. 13-40807, No. 13-40807 (5th Cir. July 7, 2014), that funds from the Education Rate or “E-Rate” program are not “provided by” the federal government for purposes of the False Claims Act (FCA).

International Labor and Employment Law Update: Summer 2014
07/08/2014
V&E Employment, Labor and OSHA Update E-communication, July 8, 2014
In this edition of our international employment update, we focus on post-termination non-competition provisions in employment agreements.

Texas’ High Court Issues First Impression Ruling Regarding How a Mineral Lessee Properly Calculates Oil, Gas Royalties in Enhanced Recovery Operations
07/02/2014
V&E Appellate Update E-communication, July 2, 2014
The Texas Supreme Court issued an important ruling last week in a case of first impression on behalf of Vinson & Elkins’ client Occidental Petroleum Corp. that went to how a mineral lessee properly calculates oil and gas royalties in the context of enhanced recovery operations.

Upjohn Privilege Prevails in Landmark Ruling from D.C. Circuit
06/27/2014
V&E False Claims Act Update E-communication, June 27, 2014
Today, the U.S. Court of Appeals for the District of Columbia Circuit issued a writ of mandamus in In re Kellogg Brown & Root, Inc., No. 14-5055 (D.C. Cir. June 27, 2014) vindicating Kellogg Brown & Root’s (KBR) claim of attorney-client privilege over materials created during an internal investigation conducted by investigators working under the direction and supervision of its law department. 

4 Tips for Using Consumer Surveys in Patent Cases
06/26/2014
First published in Law360, June 23, 2014
The “25 percent rule of thumb” is history. Other traditional damages models, such as extrapolating licensing rates from industry licenses, are under attack.

Fifth Circuit Opinion Provides Guidance to Oilfield Services Employers On Application of Motor Carrier Act Defense to FLSA Overtime Claims
06/26/2014
V&E Employment, Labor and OSHA Update E-communication, June 26, 2014
An opinion from the United States Court of Appeals for the Fifth Circuit has provided guidance about how the Motor Carrier Act (MCA) exemption to the Fair Labor Standards Act (FLSA) can be applied by oilfield services (and other) employers considering whether their employees are entitled to overtime pay.

U.S. Supreme Court Issues Long-Awaited Decision on EPA GHG Permitting Authority
06/26/2014
V&E Environmental Law Update E-communication, June 26, 2014
Since 2010, EPA rules have applied the Clean Air Act’s pre-construction and operating permit programs to emissions of greenhouse gases (GHG).

The U.S. Supreme Court’s Decision in Halliburton II Does Not Overrule the Fraud-on-the-Market Presumption But Does Give Defendants an Additional Argument to Defeat Class Certification
06/24/2014
V&E Securities Litigation and Enforcement Update E-communication, June 24, 2014
The long-awaited Supreme Court decision in Halliburton Co. v. Erica P. John Fund (Halliburton II) settles on a middle-ground approach that creates a new, but limited, avenue to challenge class certification in securities-fraud cases.

Innospec-tion: When You Commit Crimes In Multiple Jurisdictions – Expect Multiple Convictions
06/23/2014
V&E Foreign Corrupt Practices Act Update E-communication, June 23, 2014
On 18 June 2014, a jury at Southwark Crown Court, England unanimously found two former management level employees of Innospec Limited guilty of conspiracy to commit corruption for payments made to Indonesian public officials from 2002 to 2008.

Weighing the Proposed Federal Trade Secrets Law
06/23/2014
First published in Law360, June 16, 2014
Half of employees who leave their jobs keep confidential corporate data, and 40 percent plan to use it in their new jobs.

Buyer Beware: ASTM International’s New E1527-13 Standard Is the Only Option for Future Phase I Environmental Site Assessments
06/20/2014
V&E Environmental Law Update E-communication, June 20, 2014
On June 17, 2014, the U.S. Environmental Protection Agency (EPA) issued a proposed rule that will repeal ASTM International’s E1527-05 standard practice from the All Appropriate Inquiries (AAI) Rule in favor of the 2013 standard (ASTM E1527-13) that EPA adopted in a final rule last December.

Deepwater Opportunities Beckon Offshore Mexico
06/19/2014
First published in Offshore, June 12, 2014
Mexico is the ninth largest producer of oil in the world and its proved reserves of 11.4 Bbbl are the 18th largest in the world.

Supreme Court Holds Computer-Implemented Abstract Ideas Patent Ineligible
06/19/2014
V&E IP Insights E-communication, June 19, 2014
On June 19, 2014, the Supreme Court issued its decision in Alice Corporation Pty. Ltd. v. CLS Bank International, No. 13-298, (U.S. June 19, 2014), unanimously holding that “merely requiring generic computer implementation fails to transform [an] abstract idea into a patent-eligible invention.” Slip Op. at 1.

Expert Q&A: Executive Actions Affecting Federal Contractors
06/16/2014
First published in Practical Law, May 20, 2014
An expert Q&A with Martin Luff and Thomas H. Wilson of Vinson & Elkins LLP on the implications of two recent executive actions affecting federal contractors.

Operators Eyeing New Opportunities in Somalia Must Also Weigh Risks
06/16/2014
First published in Offshore, February 9, 2014
Following huge East Africa discoveries offshore Mozambique and Tanzania, attention is creeping further north to Somalia, which may have geology similar to Yemen, a country with proved reserves of 2.7 Bbbl of oil.

Regulations, Local Content Requirements on the Rise in West Africa
06/16/2014
First published in Offshore, February 5, 2014
With offshore regulatory activity at a high in West Africa, now is a good time for a brief overview of the legal and regulatory developments coming up in the region's key oil and gas jurisdictions.

Dudley Does Right: Royal Canadian Mounted Police Charge Three Individuals with Violations of the Corruption of Foreign Public Officials Act
06/10/2014
V&E Foreign Corrupt Practices Act Update E-communication, June 10, 2014
On June 4, 2014, the Royal Canadian Mounted Police (RCMP) announced that it had charged two U.S. nationals and a UK national with violating the Canadian Corruption of Foreign Public Officials Act (CFPOA).

Status Report Shows OSHA/EPA Making Progress on PSM and RMP Revisions
06/10/2014
V&E Employment, Labor and OSHA Update E-communication, June 10, 2014
On June 6, 2014, the Chemical Facility Safety and Security Working Group (Working Group) created under President Obama’s Executive Order (EO) 13,650 released a status report showing progress by federal agencies including the Occupational Safety and Health Organization (OSHA) and the Environmental Protection Agency (EPA) on efforts to modernize safety standards and regulations for the production and storage of hazardous chemicals. 

Federal Circuit Holds That a Patent Co-Owner Cannot Be Involuntarily Joined as a Plaintiff in an Infringement Suit
06/09/2014
V&E IP Insights E-communication, June 9, 2014
On June 6, the Federal Circuit held that a court cannot use Federal Rule of Civil Procedure 19 to involuntarily join a co-owner as a plaintiff in an infringement suit. STC.UNM v. Intel Corp., No. 2013-1241 (Fed. Cir. Jun. 6, 2014). 

Federal Circuit Rules That a Party Must Have Article III Standing to Appeal an Inter Partes Reexamination Decision
06/06/2014
V&E IP Insights E-communication, June 6, 2014
On June 4, the Federal Circuit issued its opinion in Consumer Watchdog v. Wisconsin Alumni Research Foundation, No. 2013-1377 (Fed. Cir. Jun. 4, 2014), holding that a party must have Article III standing to appeal an inter partes reexamination decision, even if the party originally made the reexamination request.

D.C. Circuit Invalidates EPA's Efforts to Apply Divergent "Source Aggregation" Policies
06/05/2014
V&E Environmental Law Update E-communication, June 5, 2014
The D.C. Circuit Court of Appeals decided last week that the Environmental Protection Agency (EPA) cannot by policy memorandum direct the use of differing Clean Air Act interpretations in different regions of the country. 

Report Proposes Changes to UKCS Regulation
06/04/2014
First published in Offshore, January 22, 2014
Late last year, Sir Ian Wood released "UKCO Maximizing Recovery Review: Interim Report" – a review commissioned by the UK Secretary of State for Energy and Climate Change to examine how the future economic recovery of oil and gas from the UK continental shelf (UKCS) can be improved. 

Update: Houston City Council Approves New Anti-Discrimination Ordinance
06/04/2014
V&E Employment, Labor and OSHA Update E-communication, June 4, 2014
As expected, the Houston City Council voted on May 28, 2014, to pass a new anti-discrimination ordinance, which will go into effect on June 27, 2014.

Mexico's President Proposes Legislation to Implement Historic Energy Reform 
05/23/2014
V&E Energy Update E-communication, May 23, 2014
On April 30, 2014, Mexican President Enrique Peña Nieto presented secondary legislation to the Mexican Congress that is designed to implement the Constitutional energy reforms proposed in August 2013 and approved in December 2013.

EPA Finalizes Long-Awaited Cooling Water Intake Structure Rules Applicable to Existing Facilities
05/22/2014
V&E Environmental Law Update E-communication, May 22, 2014
On May 19, 2014, EPA released a pre-publication version of final Clean Water Act 316(b) cooling water intake structure regulations that it estimates will affect 1,065 facilities, including 544 electric generators and 509 manufacturers.

Holding the Line on the Instrumentality Debate: The Eleventh Circuit Adopts Broad Definition of Instrumentality and Agrees that Employees of State-Owned Telephone Company are Foreign Officials for Purposes of the FCPA
05/22/2014
V&E Foreign Corrupt Practices Act Update E-communication, May 22, 2014
On May 16, 2014, the U.S. Court of Appeals for the Eleventh Circuit became the first federal appellate court to confirm that employees of state-owned or state-controlled entities may qualify as foreign officials for purposes of the Foreign Corrupt Practices Act (FCPA). 

Real Estate Lawyers in Non-Real Estate Transactions
05/22/2014
First published in The Practical Real Estate Lawyer, May 2014
There are a lot of good reasons to bring real estate lawyers in on non-real estate transactions — not the least of which are added value and peace of mind.

A Close Look At Pledge Funds
05/21/2014
First published by Law360, May 20, 2014
Given the number of funds seeking capital in today’s private equity market, emerging managers often run into difficulty finding investors willing to fully commit their capital for 10 to 12 years in a traditional blind-pool private equity fund structure.

In The Family: Insider Trading And Broken Relationships
05/15/2014
First published by Law360, May 13, 2014
From lawyers to bankers to consultants to employees of publicly traded companies, many of us come into contact with confidential information every day through our employment. 

EPA Issues Notice of Intent to Propose Hydraulic Fracturing Chemical Disclosure Rule
05/13/2014
V&E Shale Insights — Tracking Fracking E-communication, May 13, 2014 
Following through in its 2011 Thanksgiving-eve grant of a petition under the Toxic Substances Control Act (TSCA), the U.S. Environmental Protection Agency (EPA) has posted on its website a prepublication version of an Advanced Notice of Proposed Rulemaking (ANPRM) to regulate chemicals used in hydraulic fracturing under Sections 8(a) and 8(d) of TSCA. 

SEC Stays Portion of Conflict Mineral Rule Invalidated by Court 
05/12/2014
V&E Capital Markets E-communication, May 12, 2014
On April 14, 2014, the U.S. Court of Appeals for the District of Columbia issued its opinion in National Ass’n of Manufacturers v. Securities Exchange Commission (No. 13-5252), which involved a challenge to the Securities and Exchange Commission’s conflict minerals rules.

The Federal Circuit Holds Java Software Is Eligible for Copyright Protection
05/12/2014
V&E IP Insights E-communication, May 12, 2014
On May 9, 2014, the Federal Circuit issued an opinion in Oracle America, Inc. v. Google Inc. (No. 13-1021, -1022), addressing the copyright eligibility of a specific type of software referred to as “application programming interfaces.”

Government Acts to Address Safety of Rail Shipments of Bakken Crude
05/08/2014
V&E Environmental Law Update E-communication, May 8, 2014
The U.S. Department of Transportation (DOT) issued an Emergency Order on Wednesday, May 7, 2014, requiring all rail carriers transporting large amounts of Bakken crude oil to notify state emergency management officials about the movement of the oil through their states.

How to Avoid Waiver of Otherwise Privileged Communications
05/06/2014
First published in the State Bar of Texas Corporate Counsel Section Newsletter, Summer 2013
This article is the fourth in a series of four articles discussing various issues relating to the attorney-client privilege.

Courts Split On Applying Therasense To Summary Judgment
05/01/2014
First published by Law360, April 22, 2014
The inequitable-conduct defense to patent infringement is not what it used to be.

The Expanding Authority and Reach of CFIUS
05/01/2014
First published in MLex AB Extra, April 11, 2014
The Committee on Foreign Investment in the United States (CFIUS) recently issued the public version of its annual report covering activities in calendar year 2012.

Federal Contractors Impacted By Recent Executive Order and Presidential Memorandum on Equal Pay
04/30/2014
V&E Employment, Labor and OSHA Update E-communication, April 30, 2014
There has been considerable media coverage of President Obama’s recent efforts regarding equal pay in the last few weeks, including the Executive Order No. 13665 and Presidential Memorandum that he signed on April 8, 2014.

BSEE Voluntary Confidential Near-Miss Reporting System
04/29/2014
V&E Environmental Law Update E-communication, April 29, 2014
The U.S. Department of the Interior’s Bureau of Safety and Environmental Enforcement (BSEE) and the U.S. Department of Transportation’s Bureau of Transportation Statistics (BTS) have started holding public meetings to obtain input for the design of BSEE’s Voluntary Confidential Near-Miss Reporting System and encourage use of the system among stakeholders in the offshore oil and gas industry on the Outer Continental Shelf (OCS). 

U.S. Supreme Court Rejects Federal Circuit’s Test for Exceptional Case Determinations Under Section 285 in Favor of Greater Discretion for District Courts
04/29/2014
V&E IP Insights E-communication, April 29, 2014
On April 29, 2014, the U.S. Supreme Court issued two opinions addressing the standard that governs the shifting of fees under the Patent Act, which authorizes district courts to award attorney’s fees to prevailing parties in “exceptional cases.” 

D.C. Circuit Strikes Down Affirmative Defense While Upholding Portland Cement MACT Rules
04/24/2014
V&E Environmental Law Update E-communication, April 24, 2014
In an April 18, 2014, opinion authored by Judge Kavanaugh, the D.C. Circuit upheld Environmental Protection Agency (EPA) emission standards for Portland cement plants but struck down the rule’s codified affirmative defense for violations that result from malfunctions, at least as applied to civil penalties assessed in citizen suits.

Houston Anti-Discrimination Ordinance
04/24/2014
V&E Employment, Labor and OSHA Update E-communication, April 24, 2014
The Mayor of Houston has released a draft anti-discrimination ordinance, and a committee hearing on the subject has been scheduled for April 30, 2014.

Employers: Take Care in Crafting Confidentiality Clauses
04/23/2014
First published by Law360, April 17, 2014
Employers are often surprised to learn that policies that explicitly prohibit employees from discussing their salaries or bonuses are in violation of Section 7 of the National Labor Relations Act.

Licensee Estoppel: Practical Considerations
04/17/2014
First published by Law360, April 11, 2014
Are contractual agreements by patent licensees not to challenge the validity of a licensed patent enforceable?

Defences to Enforcement of an Arbitral Award in the USA Under the New York Convention
04/14/2014
First published in Lexis Nexis’ Lexis PSLArbitration , March 2014
Practice Note: Enforcing a New York Convention award in the USA, discussed enforcement of an arbitral award in the US including considering the requirements of the Federal Arbitration Act and the United Nations Conference on the International Commercial Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed 10 June 1958.

Enforcing a New York Convention Award in the USA
04/14/2014
First published in Lexis Nexis’ Lexis PSLArbitration , March 2014
In general, there is a clear policy preference for the enforcement of arbitral awards in the United States and this pro-enforcement preference extends to awards made under the United Nations Conference on the International Commercial Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Another Texas Case Affirms TCEQ’s Authority to Deny Hearing Requests
04/11/2014
V&E Environmental Law Update E-communication, April 11, 2014
Amplifying the effect of the Texas Supreme Court’s recent decisions in City of Waco and Bosque, the Third Court of Appeals’ April 4 opinion in Sierra Club v. Texas Commission on Environmental Quality and Waste Control Specialists may further enhance a TCEQ permit applicant’s prospects for avoiding the costs and delays associated with contested case hearings. 

Plans for the Purple Line are Rolling Forward: Federal Approval Moves Maryland’s Light Rail One Step Closer to Reality
04/11/2014
V&E Condemnation and Land Use Update E-Communication, April 11, 2014 
Maryland’s Purple Line light rail is one step closer to becoming reality after a recent approval from the Federal Transit Administration (FTA).

“Breaking up is Hard To Do”: DOJ Advisory Opinion 14-01 Highlights the Challenges of Effectively Mitigating Risks while Removing Foreign Officials from an Investment
04/01/2014
V&E Foreign Corrupt Practices Act Update E-communication, April 1, 2014
The Department of Justice’s first advisory opinion of 2014, released on March 17, makes clear that more than a simple buy-out may be required of companies attempting to ensure compliance with the U.S. Foreign Corrupt Practices Act of 1977, as amended (FCPA), on learning that a business partner or shareholder has been appointed to foreign office.

Fifth Circuit Finds Employer Confidentiality Rule Could Chill Employee’s Exercise of Their Section 7 Rights
04/01/2014
V&E Employment, Labor and OSHA Update E-communication, April 1, 2014
Our clients are often surprised when we tell them that policies that explicitly prohibit employees from discussing their salaries are in violation of the National Labor Relations Act.

Keep Calm and Carry On: IRS “Pauses” for Internal Study of MLP Qualifying Income
04/01/2014
V&E MLP Tax Update E-communication, April 1, 2014
Consistent with communications weeks ago to taxpayers with pending ruling requests, an IRS representative acknowledged publicly on Friday, March 28th, that the IRS is taking a “pause” from considering current and new requests for private letter rulings (PLRs) regarding MLP qualifying income while the IRS regroups to study the scope of qualifying income.

Proposed EPA, Corps Rule Would Expand Federal Jurisdiction Over Waters, Wetlands
03/31/2014
V&E Environmental Law Update E-communication, March 31, 2014
On March 25, 2014, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) released a proposed rule that, if implemented, would dramatically expand the scope of waters subject to regulation under the Clean Water Act (CWA).

Supreme Court Clarifies Test for Standing for False Advertising Claims
03/27/2014
V&E IP Insights E-communication, March 27, 2014
On Tuesday, March 25, the United States Supreme Court issued its opinion in Lexmark Int’l, Inc. v. Static Control Components, Inc., No. 12–873 (March 25, 2014), clarifying the standard for standing to sue for false advertising under Section 43(a) of the Lanham Act. 15 U.S.C. § 1125(a).

New Russia Sanctions May Have Significant Impact on U.S. Companies
03/21/2014
V&E Export Controls and Economic Sanctions E-Communication, March 21, 2014
This week, President Obama issued two follow-on Executive Orders to his original March 6, 2014 Executive Order (Exec. Order No. 13660) blocking property of individuals related to the situation in Ukraine.

Scope of TCEQ Actions Subject to Judicial Review Clarified by Third Court of Appeals
03/20/2014
V&E Environmental Law Update E-communication, March 20, 2014
Only persons affected by a “ruling, order, decision or other [TCEQ] act” can seek judicial review. But how broad is this grant of judicial review?

UK Budget Briefing
03/20/2014
V&E Tax Update E-communication, March 20, 2014
This update summarises tax announcements made in the UK Budget on Wednesday, 19 March 2014, which are likely to be most relevant to our clients.

Due Diligence after Sun Capital
03/19/2014
V&E Employment, Labor and OSHA Update E-communication, March 19, 2014
On March 3, 2014, the U.S. Supreme Court denied the petition for a writ of certiorari in Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund, the First Circuit decision holding that under certain circumstances a private equity fund could be found to engage in a “trade or business” under Section 4001(b)(1) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C § 1301(b)(1), which is one element in determining whether the equity fund could be responsible for withdrawal liability assessed against one of its portfolio companies.

How PE Firms Can Mitigate Secondary Liability Risks
03/18/2014
First published by Law360, March 5, 2014
Investment firms continue to face an expanding series of legal risks associated with their portfolio company investments — including through theories of secondary liability. 

Upstream IPOs: Market Update and Recent Developments
03/17/2014
V&E Energy Finance Update E-communication, March 17, 2014
On February 25, 2014, Vinson & Elkins partners Doug McWilliams, Matt Pacey, John Lynch, and Sarah Morgan presented a CLE program on market updates and recent developments in upstream initial public offerings.

Federal Circuit Rejects a “Bright Line” Approach to Declaratory Judgment Jurisdiction, Applying a Flexible Test to Find Jurisdiction
03/12/2014
V&E IP Insights E-communication, March 12, 2014
On March 11, the Federal Circuit issued its opinion in Danisco US Inc. v. Novozymes A/S (No. 2013-1214), clarifying the relevant standard for declaratory judgment jurisdiction.

Identifying Appropriate Due Diligence Scope For M&A Bids
03/12/2014
First published by Law360, March 10, 2014
Private equity buyers are hungry for deals and are under pressure to put their equity capital to work, but they are facing a competitive market where many interesting deals are being auctioned at high multiples potentially beyond their comfort levels. 

FERC Order Requires Development of Physical Security Standards in Ninety Days
03/11/2014
V&E Energy Updates E-communication, March 11, 2014
On March 7, 2014, the Federal Energy Regulatory Commission (FERC) issued an order directing the North American Electric Reliability Corporation (NERC) to submit for approval one or more proposed Reliability Standards within 90 days that would require owners and operators of the Bulk-Power System (BPS) to take steps, or demonstrate they have taken steps, to address physical security risks and vulnerabilities related to the reliable operation of the BPS.

International Labor and Employment Law Update: Spring 2014
03/11/2014
V&E Employment, Labor and OSHA Update E-communication, March 11, 2014
In this edition of our international employment update, we focus on choice of law and forum selection provisions in employment agreements.

Legal vs. Business Advice: Knowing When Your Advice Is Privileged
03/07/2014
First published by Corporate Counsel Section of the State Bar of Texas Newsletter, Winter 2014
In Texas, a client’s communications with its in-house counsel are shielded from discovery by the same attorney-client and work-product privileges that apply to communications between a client and its outside counsel.

What General Counsel and Other Corporate Lawyers Need to Know About OSHA and MSHA Compliance in 2014
03/07/2014
First published by Corporate Counsel Section of the State Bar of Texas Newsletter, Winter 2014
In many companies, health and safety matters have been traditionally treated as the exclusive province of health, safety, security and environment (HSSE) managers.

BOEM Raises Oil Pollution Act Damages Liability Cap for Offshore Facilities
03/06/2014
V&E Environmental Law Update E-communication, March 6, 2014
On February 24, 2014, the Bureau of Ocean Energy Management (BOEM) published a proposed rule in the Federal Register, which, if adopted, will raise the limited circumstances damage liability cap set forth in the Oil Pollution Act of 1990, as amended (OPA).

Supreme Court Says Don’t Cry to Me, Argentina
03/06/2014
V&E Litigation Update E-communication, March 6, 2014
The U.S. Supreme Court held this week that the requirement for an investor to go to Argentine courts before international arbitration in a bilateral investment treaty (between Argentina and the United Kingdom) was a procedural precondition to arbitration, not an issue of consent to arbitrate.

The Latest on Fee-Shifting in Patent Cases
02/28/2014
First published by Law360, February 19, 2014
As Congress and the judiciary consider strategies for curbing perceived abuses of the patent system, the practice of fee-shifting — requiring the losing party to pay the prevailing party’s attorneys’ fees — in patent litigation has recently received renewed attention.

SEC Announces Initiative Directed at Never-Before Examined Registered Investment Advisers
02/26/2014
V&E Private Equity Update E-communication, February 26, 2014
The Office of Compliance Inspections and Examinations (OCIE) within the Securities and Exchange Commission (SEC) announced on Thursday, February 20, 2014, that it is launching an initiative to engage with registered investment advisers that have never been examined, focusing on those advisers that have been SEC-registered for three or more years.

New UK Oil and Gas Regulator to be Created
02/25/2014
V&E Energy and North Sea Updates E-communication, February 25, 2014
On 24 February 2014, Sir Ian Wood published the final report of the Wood Review entitled “UKCS Maximising Recovery Review” (the Report), the key recommendation from which is that a new regulator with responsibility for operational regulation of the UK Continental Shelf (UKCS) should be established. 

En Banc Federal Circuit Confirms That Claim Construction Rulings are Reviewed Without Deference
02/24/2014
V&E IP Insights E-communication, February 24, 2014
On February 21, 2014, the Federal Circuit sitting en banc issued a decision upholding de novo review of district court claim construction rulings in Lighting Ballast Control LLC v. Philips Electronics North America Corporation, et al., No. 2012-1014.

The SEC’s 2014 Agenda and Investment Adviser Examination Priorities
02/20/2014
V&E Securities Litigation and Enforcement Update E-communication, February 20, 2014 
The Securities and Exchange Commission (SEC) began 2014 by laying out an ambitious agenda and providing important guidance to market participants, including private investment funds. 

EPA Releases Final Guidance for the Use of Diesel Fuel in Hydraulic Fracturing
02/19/2014
V&E Shale Insights — Tracking Fracking E-communication, February 19, 2014
On February 11, 2014, the Environmental Protection Agency (EPA) published its final Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels: Underground Injection Control Program Guidance #84 (Guidance). EPA also released an interpretive memorandum on February 5, 2014, to clarify the existing legal requirements of the Underground Injection Control (UIC) Class II permit program.

SEC Issues No-Action Relief for “M&A Brokers” Facilitating the Purchase or Sale of a Privately-Held Company Without Registering as a Broker-Dealer
02/19/2014
V&E Private Equity Update E-communication, February 19, 2014
The Securities and Exchange Commission (the SEC) issued a no-action letter on January 31, 2014, stating that the Division of Trading and Markets, under certain specified conditions, would not recommend an enforcement action to the SEC under Section 15(a) of the Securities Exchange Act of 1934 (the Exchange Act) if an “M&A Broker” (defined below) facilitated “securities transactions in connection with the transfer of ownership of a privately-held company…without registering as a broker-dealer pursuant to Section 15(b) of the Exchange Act.” 

The Federal Trade Commission Issues 2014 Annual Updates to the United States Premerger Notification and Interlocking Directorates Thresholds
02/19/2014
V&E's Antitrust Update E-communication, February 19, 2014
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.

Don’t Waive Your Restrictive Covenants Goodbye: A Texas Appeals Court Reminds Employers That Non-Compete and Non-Solicit Agreements Should Be Enforced Consistently
02/05/2014
V&E Employment, Labor and OSHA Update E-communication, February 5, 2014
In Ally Financial, Inc. v. Sandra Gutierrez and Homeward Residential, No. 02-13-00108-CV, 2014 WL 261038 (Tex. App. — Fort Worth Jan. 23, 2014, no pet. h.) (mem. op.), the Court of Appeals was faced with an instance in which an ex-employer barked, but did not bite, after its former employee violated the terms of a non-solicit agreement. 

Mexico Moves Toward Historic Energy Reforms
02/04/2014
First published by The Texas Lawbook, January 23, 2014
On December 12, 2013, the Mexican Congress approved an energy reform bill (Energy Reform Bill) that would end the State’s 75-year monopoly on the oil and gas industry and open Mexico’s energy sector to private investment and participation.

Employers Must Post OSHA Form 300A by February 1 or Risk Penalties
01/30/2014
V&E Employment, Labor and OSHA Update E-communication, January 30, 2014
OSHA requires employers with more than 10 employees to post Form 300A, “Summary of Work-Related Injuries and Illnesses,” in every branch location from February 1 to April 30 every year. 

Court Rejects Challenges to Corps of Engineers’ Use of Nationwide Permits in Southern Leg of the Keystone Pipeline
01/27/2014
V&E Environmental Law Update E-communication, January 27, 2014
The U.S. Army Corps of Engineers relies heavily on its nationwide permitting program and defends its integrity at every opportunity.

Supreme Court: Burden of Persuasion Remains on Patentee in Declaratory Judgment Cases
01/24/2014
V&E IP Insights E-communication, January 24, 2014
On January 22, 2014, the Supreme Court reversed the Federal Circuit in a unanimous decision, holding that in a declaratory judgment suit brought by a licensee (Medtronic) to establish a lack of infringement, the burden of proving infringement remains with the patentee (Mirowski Family Ventures or MFV).

Congress May Beef Up Customer Suit Doctrine
01/17/2014
First published by Law360, January 16, 2014
Whenever a company is sued for patent infringement based on a product that it uses or sells, but did not manufacture, the so-called “customer suit” doctrine should be considered as a possible way to keep down the cost of litigation. 

EPA Finalizes RCRA Subtitle C Exclusion for Carbon Capture and Storage
01/16/2014
V&E Environmental Law Update E-communication, January 16, 2014 
On January 3, 2014, the Environmental Protection Agency (EPA) published a final rule establishing a conditional exclusion from the definition of hazardous waste under Subtitle C of Resource Conservation and Recovery Act (RCRA) for carbon dioxide (CO2) streams that are injected in geologic sequestration activities.

Supreme Court to Review Indefiniteness Doctrine
01/14/2014
V&E IP Insights E-communication, January 14, 2014
On January 10, 2014, the Supreme Court granted certiorari in Case No. 13-369 to review the Federal Circuit’s decision in Biosig Instruments, Inc. v. Nautilus, Inc., 715 F.3d 891 (Fed. Cir. 2013). 

V&E Climate Change Report - Special Issue: EPA’s Proposed Greenhouse Gas NSPS
01/14/2014
January 2014 - Issue 21
On September 20, 2013, EPA Administrator Gina McCarthy signed a proposal to establish new source performance standards (NSPS) for greenhouse gas (GHG) emissions from power plants.

Spotlight on Shareholder Activism in the Energy Industry
01/13/2014
First published by Law360, January 10, 2014
The North American energy sector experienced a dramatic surge in shareholder activism during 2012 and 2013 as energy companies became a primary target for dissident activity.

Supreme Court to Review Scope of Induced Infringement
01/13/2014
V&E IP Insights E-communication, January 13, 2014
On January 10, 2014, the Supreme Court granted certiorari in Case No. 12-786 to review the Federal Circuit’s en banc decision in Akamai Techs., Inc. v. Limelight Networks, Inc., 692 F.3d 1301 (Fed. Cir. 2012) (en banc).

Pennsylvania’s Supreme Court Strikes Important Provisions in Act 13
01/09/2014
V&E Shale Insights — Tracking Fracking E-communication, January 9, 2014
A divided Pennsylvania Supreme Court issued a sweeping opinion invalidating important portions of Pennsylvania’s Act 13 (the Act), which was enacted to establish a state-wide approach to regulating increased oil and gas drilling and hydraulic fracturing activity.

GAO Bid Protest Activity of Federal Procurements Remains Constant
01/07/2014
V&E Government Contracts Update E-communication, January 7, 2014
The U.S. Government Accountability Office (GAO) issued its annual report covering statistics on bid protest activity for fiscal year 2013 to Congress on January 2, 2014.

Supreme Court Upholds Contractual Limitations Period as Part of ERISA Employee Benefits Plan 
01/07/2014
V&E Executive Compensation and Employee Benefits and Employment, Labor and OSHA Update E-communication, January 7, 2014
In a unanimous decision issued in December, the Supreme Court held that an ERISA plan’s contractual limitations period, governing claims for the denial of benefits, that commences before the cause of action accrues is enforceable as long as the limitations period is reasonable and there is no controlling statute to the contrary.

Summary of CIP Version 5 Standards
01/03/2014
In Version 5 of the Critical Infrastructure Protection (CIP) Reliability Standards (CIP Version 5 Standards), the existing versions of CIP-002 through CIP-009 have been significantly revised, and two new standards, CIP-010 and CIP-011, have been added.

Summary of FERC Order No. 791 
01/02/2014
On November 22, 2013, the Federal Energy Regulatory Commission (FERC) issued Order No. 791 adopting a rule that approved Version 5 of the Critical Infrastructure Protection (CIP) Reliability Standards (CIP Version 5 Standards) as proposed by the North American Electric Reliability Corporation (NERC) and directing NERC to develop modifications to those Standards to address FERC’s concerns. 

Water Security: A Question of Reliability
01/02/2014
First published by Oil & Gas Financial Journal, December 2013
Water supplies across the globe are being stressed by growing populations and extreme drought conditions.

 

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