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Insights


The OFCCP Is Coming, The OFCCP Is Coming! Federal Contractors Put on Notice of Coming Audits 02-13-2018

Labor & Employment Blog

If your company is one of the 1,000 federal contractor establishments (including prime contractors and subcontractors) that received a corporate scheduling announcement letter (a “CSAL”) from the Office of Federal Contract Compliance Programs (the “OFCCP”), you probably already know that, as a federal contractor, your company has many employment obligations beyond those applicable to employers in general. You should also be aware that the OFCCP, in sending these CSALs — which it is not required to do — is actually giving companies some extra time to make sure their practices are up to snuff. While not every company who has received CSALs will end up being audited, these letters provide companies a golden opportunity to review and, if necessary, correct their practices before the OFCCP comes knocking.

Update: District Court Sets Aside $300,000 Apple Sanction 02-12-2018

High-Tech Law & Litigation Blog

Last week, we wrote that Apple found itself in hot water when a federal magistrate imposed a $300,000 sanction against the company for failing to meet a Rule 45 (third-party subpoena) document production deadline in the Federal Trade Commission’s (“FTC”) case against Qualcomm Inc. In the sanction order, the magistrate cited a similar sanction against Samsung for untimely document production to Apple in an unrelated suit, Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846 (N.D. Cal. Apr. 23, 2012) [ECF No. 880].

The National Association of Corporate Directors: The Strategic-Asset GC 02-12-2018

On Monday, February 12, V&E partner Gillian Hobson will moderate the “2018 Governance Outlook” session at The Strategic-Asset GC being held in Washington D.C.

Apple Hit with $300,000 Sanction for Missing Document Production Deadline 02-09-2018

High-Tech Law & Litigation Blog

The Federal Trade Commission’s (“FTC”) case against Qualcomm Inc. — alleging Qualcomm unlawfully maintained a monopoly in baseband processors — is in the midst of a contentious discovery period that has each side scrambling to subpoena documents from various third parties. Apple Inc. is one such third party and is now in hot water for missing a document production deadline, presumably by 12 days. In response, the Northern District of California magistrate judge sent a message to other third parties by sanctioning Apple to the tune of $300,000 ($25,000 per day). Tech companies may view the sanctions as a blessing or a curse, depending on what end of a subpoena they find themselves on.

Maersk Oil: 'just and reasonable' apportionment 02-08-2018

First published in Tax Journal, February 8, 2018

For a concept that is so commonly found in our tax legislation, it is perhaps surprising that there has not been more guidance on what the parameters of a ‘just and reasonable’ apportionment are.

Federal Circuit Rejects “Good Faith and Fair Dealing” Argument for Scrapping an Exclusive Patent License 02-08-2018

V&E IP Insights E-communication, February 8, 2018

On February 7, 2018, the Federal Circuit unsealed its decision to uphold a preliminary injunction barring Infineon Technologies from terminating an exclusive patent license to MACOM Technology Solutions for certain semiconductor technology. 

The Family Medical Leave Act Turns 25 Years Old 02-08-2018

Labor & Employment Blog

The Family Medical Leave Act (the “FMLA”) turned 25 this week, on February 5, 2018. Enacted in 1993, the FMLA is actually one of the youngest federal employment laws on the books. As with most other individual protections enshrined in federal law, the FMLA — which generally allows 12 weeks of unpaid, job-protected leave to care for newborns and ill family members or to deal with a worker’s own serious illness — sets a floor, not a ceiling, for workplace leave. Over the past several years, some states and many cities have taken this principle seriously and enacted more stringent requirements for employee leave. Many employers also provide paid, as opposed to unpaid, leave in some form or another to their employees, often viewing that benefit as good for business and attractive to potential recruits.

FIDIC Red Book 2017: Top 7 Changes 02-08-2018

V&E Construction Disputes Update E-communication, February 8, 2018

On 5 December 2017, the International Federation of Consulting Engineers (FIDIC) published new editions of its suite of contracts, reflecting long-awaited responses to the changing needs of the construction industry. 

Advanced Intellectual Property Law Course 02-07-2018

On Wednesday, February 7, V&E partner Devika Kornbacher presented the topic, "Data Security & Agreements - Negotiating Agreements of Provisions" at a cybersecurity-focused workshop offered by the State Bar of Texas in conjunction with their annual Advanced Intellectual Property Law course.

Senate Bill Introduced to Reinstate FHLB Captive Membership 02-07-2018

V&E REIT Update E-communication, February 7, 2018

On January 30, 2018, Senator Tammy Duckworth (D-IL) introduced the Housing Opportunity Mortgage Expansion (HOME) Act (“S. 2361”), a bill that would amend the Federal Home Loan Bank Act to permit captive insurance companies that were previously Federal Home Loan Bank (“FHLB”) members prior to January 19, 2016, to continue, or restore, their FHLB membership and, consequently, allow them to access funding through the FHLB system.

Private Funds Year in Review and 2018 Outlook 02-07-2018

V&E Securities Litigation and Enforcement / Private Funds Update E-communication, February 7, 2018

Despite being an overall quieter year with respect to high profile enforcement actions against private funds, in 2017, the U.S. Securities and Exchange Commission (SEC) made clear its intent to maintain its regulatory focus on the industry. 

What Do You Mean Someone I've Never Met Is My Employee? 02-06-2018

Labor & Employment Blog

While the current National Labor Relations Board appears to be heading in the right direction when it comes to the joint employer and independent contractor issues, it is important to remember that federal courts may still find employers to be “joint employers.” This point was recently brought home in a decision by the United States District Court for the Southern District of West Virginia, decided on January 3, in the case of Young v. Act Fast Delivery of West Virginia, et al.

Russia 02-06-2018

First Published in Oil and Gas Law Review on Russia, 2017

With Proven oil reserves of more than 109 billion barrels and natural gas of over 32 million cubic meters (according to BP's Statistical Review of World Energy 2018), Russia is a major global producer, supplier and consumer of oil and gas.

Are Texas Litigants Getting SLAPP-happy? 02-01-2018

Labor & Employment Blog

When considering whether to sue a former employee in Texas, you need to think about the the Texas Citizen’s Participation Act (“TCPA”), the state’s anti-SLAPP statute. Litigants are utilizing the 2011 law with increasing frequency to challenge many common employment-related claims.

Texas Journal of Oil & Gas and Energy Law (TJOGEL) Symposium 02-01-2018

V&E partners Matt Stammel and Mike Heidler will present, "Who Is Responsible for Cleaning up the Mess?: Indemnities in the Oil Patch" at the Texas Journal of Oil & Gas and Energy Law (TJOGEL) Symposium on Thursday, February 1.

What Technology Clients Need to Know About the New Tax Act 02-01-2018

IP Series Logo - Mini Thumbnail - 50px WidePresident Trump signed into law the bill commonly known as the Tax Cuts and Jobs Act of 2017 on December 22. What will this mean for your company?

13th Annual Columbia University Energy Symposium 02-01-2018

V&E partner Robert Seber will speak on the "Peak Oil Demand: Transitioning to a Low Carbon World" panel at the 13th Annual Columbia University Energy Symposium on Thursday, February 1.

Trap! Zap! Zing! — And Poof! A Florida Court Applies Escobar and Makes a $347 Million FCA Jury Verdict Disappear 01-31-2018

Lincoln's Law Blog

On January 11, 2018, a Florida district court vacated a $350 million FCA jury verdict against defendants in U.S. ex rel. Angela Ruckh v. Salus Rehabilitation, LLC, No. 8:11-cv-1303 (M.D. Fla. Jan. 11, 2018). At trial in February 2017, relator claimed that the defendants, owners and operators of 53 specialized nursing facilities fraudulently inflated the amount of resources needed by their patients by upcoding Resource Utilization Group (“RUG”) levels to increase the amount they were able to bill Medicare and Medicaid. The jury agreed and found the defendants liable for $109.8 million in damages, which the judge then trebled to $347 million. The government had declined to intervene, but stood to reap the benefits of relator’s perseverance, but the court had other ideas.

The Federal Trade Commission Issues 2018 Annual Updates to the United States Pre-Merger Notification (HSR) and Interlocking Directorates Thresholds 01-30-2018

V&E Antitrust Transactional Update E-communication, January 30, 2018

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. 

Pay Ratio Implementation: Recent Guidance and Practical Steps 01-30-2018

Labor & Employment Blog

The 2018 proxy season will be the first time many companies are required to comply with the SEC’s pay ratio disclosure rule, which was adopted by the Commission in 2015 pursuant to the Dodd-Frank Act. The pay ratio disclosure rule requires companies to disclose the annual total compensation of the median employee, the CEO, and the ratio of those two amounts, as well as certain estimates and assumptions used in determining the median employee and calculating annual total compensation.

Wind Energy: The Art of Coping with Uncertainty 01-17-2018

Please join the Guarini Center for a discussion on “Wind Energy: The Art of Coping with Uncertainty.”

TowerXchange Meet Up Asia 2017 12-12-2017

Vinson & Elkins is pleased to be sponsoring the TowerXchange Meetup Asia 2017. TowerXchange is the primary thought leadership body in the global telecom tower industry.

Indonesia and SE Asia: 5th Annual International Arbitration, Compliance & Competition Law Summit 12-07-2017

Practitioners and delegates from all over Asia will gather to network and present on arbitration, compliance and competition law. Counsel John Zadkovich will present on two topics:  "Energy and Gas Disputes in Southeast Asia" and "Conducting Internal Investigations."

Privcap Media’s 2017 Energy Game Change Conference 12-05-2017

V&E partner Matt Strock will moderate "The Efficiency Revolution" panel at the 2017 Energy Game Change Conference in Houston with panel participants from NGP, TPG, and Apollo Global Management.

Oil & Gas Environmental Conference 11-28-2017

V&E Environmental & Natural Resources attorney Carrick Brooke-Davidson will present “EPA’s Mitigation Policy in Civil Enforcement: A Sleeping Giant?” at the Oil & Gas Environmental Conference on Tuesday, November 28.

34th International Conference on the Foreign Corrupt Practices Act 11-28-2017

The 34th International Conference on the Foreign Corrupt Practices Act is ‘widely regarded as the flagship conference for professionals across the globe’, bringing together key stakeholders from the anti-corruption community-government, highly respected industry executives, and private practitioners involved in the most high-profile enforcement matters to date.

14th Biennial Parker C. Fielder Oil and Gas Tax Conference 11-16-2017

The 14th Biennial Parker C. Fielder Oil and Gas Tax Conference is a collaboration between The University of Texas School of Law and the Chief Counsel’s Office of the IRS, and provides an exchange of views and perspectives between private sector and the Service.

Global Arbitration Review’s 4th Annual GAR Live Dubai 11-16-2017

Vinson & Elkins is pleased to be sponsoring the 4th annual edition of Global Arbitration Review’s GAR Live Dubai. The conference focuses on a detailed discussion of the key themes emerging from the year in global arbitration.

Daily Journal Corporate Governance Forum 2017 11-15-2017

Service as an officer or director carries significant risk of liability and exposure. There are issues and techniques for limiting that exposure, including establishing a robust compliance program, use of outside experts and advisors, appropriate documentation of Board and officer decisions, D&O and other insurance coverage, indemnification rights, fiduciary duty and corporate opportunity waivers, and tips for managing disputes.

China: 3rd Annual International Arbitration, Compliance & Competition Law Summit 11-15-2017

Practitioners and delegates from all over Asia will attend the summit to network, present and understand everything you need to on arbitration, ADR, and mediation from the experts in this field and the leading Kluwer authors. 

ICC Canada International Arbitration Conference 2017: Arbitration in a Dangerous Time 11-09-2017

ICC Canada’s annual International Arbitration Conference gathers Canadians and others practicing international arbitration around the world, in-house counsel, leading international arbitrators and representatives from the ICC International Court of Arbitration to share practical insight on key issues in international arbitration. 

AIC General Counsels Day 11-08-2017

V&E partner Devika Kornbacher will speak on the “Technology Burdens for the General Counsel” panel at the American Investment Council’s annual General Counsels Day.

PLI Trade Secrets 2017 – San Francisco 11-08-2017

On November 8, PLI will present Trade Secrets 2017: What Every Lawyer Should Know in San Francisco, CA. V&E senior associate Janice Ta will moderate a panel entitled “A View from the Bench: Special Issues Posed by Trade Secrets Cases and How Lawyers and Courts Can Adapt.”

Tax Reform Webcast 11-06-2017

Join V&E tax lawyers as they discuss implications of the Tax Cuts and Jobs Act introduced on November 2, 2017, by House Ways and Means Committee Chairman, Kevin Brady (R-TX). 

University of Texas School of Law Annual Advanced Patent Law Institute 11-02-2017

V&E partner Steve Borgman served on the conference Planning Committee and on Thursday, November 2, will provide an update on the continuing changes to the patent litigation landscape since the Supreme Court's landmark Alice decision.

MSW Energy Breakfast: Hydraulic Fracturing and Environmental Risk Management 11-02-2017

V&E partner Casey Hopkins and McGriff, Seibels & Williams Senior Vice President and environmental practice leader Cliff Yeckes will provide an analysis of significant environmental and regulatory developments, market trends, and litigation risks affecting unconventional oil and gas development.

IAM's IPBC Asia 2017 - Maximising Corporate IP Value 10-31-2017

V&E is pleased to sponsor IPBC Asia, an event focusing on how IP owners can strategically use intellectual property to secure greater operational flexibility, drive revenues, enhance bottom-line returns, increase shareholder value and provide leverage in the financial markets.

Yale Law School Access and Accountability Conference 10-27-2017

V&E partner Tom Leatherbury will participate in a panel titled, “Newsgathering Rights” at Yale Law School’s upcoming Access and Accountability Conference. The event is hosted by the law schools’ Media Freedom & Information Access Clinic (MFIA) and Information Society Project (ISP).

PLI Trade Secrets 2017 – New York 10-27-2017

On October 27, PLI will present Trade Secrets 2017: What Every Lawyer Should Know in New York, NY. V&E senior associate Janice Ta will moderate a panel entitled “A View from the Bench: Special Issues Posed by Trade Secrets Cases and How Lawyers and Courts Can Adapt.”

Corporate Governance Ohio Chapter Meeting 10-26-2017

V&E counsel Lawrence Elbaum and senior associate Patrick Gadson will speak at the Society for Corporate Governance Ohio Chapter meeting on the topic of activism trends at a Condensed Activism Bootcamp.

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

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

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

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

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

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

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

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

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

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

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

V&E partner Mark Proctor moderated the panel entitled “LP Second Thoughts?” as limited partners discussed co-investing and direct investing in energy deals.

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

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

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

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

China Intellectual Property & Innovation Summit 10-27-2016

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

Defining the Contours of Alice 10-25-2016

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

Sixth Annual Hydraulic Fracturing Symposium 10-05-2016

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

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.

Diversity Poised to Take Center Stage in 2018 Proxy Season 12-14-2017

First published by Law360, December 14, 2017

From Hollywood movie sets and Silicon Valley tech campuses to Wall Street banks and the U.S. Congress, calls for increased diversity have amplified in recent years. 

FERC Order on Marketing Affiliates Under the ICA 12-11-2017

V&E Energy Regulation Insights E-communication, December 11, 2017

On November 22, 2017, the Federal Energy Regulatory Commission (“Commission”) issued an Order on Petition for Declaratory Order denying a petition filed by Magellan Midstream Partners, L.P. (“Magellan”) and finding that certain arrangements for marketing companies to ship crude oil on an affiliated company’s pipeline would violate the Interstate Commerce Act (“ICA”).

The Federal Circuit Held Alleged Infringers Bear the Burden of Production When Challenging Compliance with 35 U.S.C. § 287 — the Marking Statute 12-11-2017

V&E IP Insights E-communication, December 11, 2017

On December 7, the Federal Circuit settled a split among the district courts over 35 U.S.C. § 287 — the marking statute — concerning which party bears the burden of production in identifying the universe of “patented articles” that required marking.

Liquidated Damages for Delay in the Middle East: Not Etched in Stone 12-07-2017

First published by BCDR International Arbitration Review 4, no. 1, 2017

Liquidated damages in construction contracts represent a fixed-rate mechanism to compensate employers for delays by contractors. Traditionally, common law courts do not interfere with the amount of liquidated damages due. 

Unwinding the Finding 12-05-2017

First published by Texas Lawyer, December 5, 2017

Combatants on both sides of the battle over regulating greenhouse gases see the 2009 Endangerment Finding as an on-off switch: With the Finding “on,” all Clean Air Act circuits stay activated, forcing regulation/frustrating deregulation. 

Pilot Program No Longer: DOJ Makes FCPA Pilot Program Permanent Policy 11-30-2017

V&E FCPA & Global Anti-Corruption Update E-communication, November 30, 2017

On Wednesday before a crowd of legal and compliance professionals attending the American Conference Institute’s 34th International Conference on the Foreign Corrupt Practices Act in Washington, D.C., Deputy Attorney General Rod Rosenstein announced that the Department of Justice (DOJ) is officially incorporating the Department’s FCPA Pilot Program into its permanent policy guidelines.  

AI is Here, Is Your Company Ready? (Hint: No) 11-29-2017

First published by The National Law Journal, December 2017

The scale and scope of artificial intelligence is well-described.

The SEC Announces Results of Enforcement Actions in Fiscal 2017 11-29-2017

V&E SEC Enforcement Update E-communication, November 29, 2017

On November 15, the Securities and Exchange Commission’s Enforcement Division issued its annual report highlighting its priorities for the upcoming year and reviewing the enforcement actions for its fiscal year 2017.  

David Tsai Talks Taiwan Practice and Pro Bono Passions 11-28-2017

First posted on Hsu Untied, November 2017

Partner David Tsai was recently interviewed on the podcast series “Hsu Untied.”

UK Autumn Budget 2017 Briefing 11-22-2017

V&E Tax Update E-communication, November 22, 2017

This update summarises tax announcements made in the UK Autumn Budget on Wednesday 22 November 2017 that are likely to be most relevant to our clients.  

How Blockchain Could Change The Energy Industry 11-21-2017

First published by Law360, November 21, 2017

Blockchain technology, a technology traditionally associated with digital currencies like bitcoin, has expanded far beyond cryptocurrencies and into the energy sphere, ushering in a demand for updated energy technologies and a new legal landscape.

Developments in Governance and Disclosure: Ten Hot Topics and One Reminder, Fall 2017 11-17-2017

Developments in governance and disclosure

Developments in Governance and Disclosure: Six Hot Topics for MLPs, Fall 2017 11-17-2017

Developments in governance and disclosure for MLPs

TC Heartland Was a Change in the Law 11-15-2017

V&E IP Insights E-communication, November 15, 2017

On November 15, 2017, the Federal Circuit granted Micron Technology Inc.’s petition for writ of mandamus and held that the Supreme Court’s decision in TC Heartland was a change in the law.

Proposed Bipartisan Legislation Expands CFIUS Jurisdiction and Creates a Focus on Dual-Use and Emerging Technologies 11-10-2017

V&E CFIUS Update E-communication, November 10, 2017

Section 721 of the Defense Production Act of 1950 (50 U.S.C. § 4565) (the “DPA”) sets forth the authority and power of the President of the United States and the Committee on Foreign Investment in the United States (the “Committee” or “CFIUS”) to take such action to protect the national security with regard to any transaction in which a foreign person could obtain control of a U.S. business (a “Covered Transaction”).

Momentive Ruling - Make Whole Litigation Controversy Continues 11-08-2017

V&E Restructuring & Reorganization Update E-communication, November 8, 2017

The Second Circuit issued its long-awaited decision in the MPM Silicones LLC (“Momentive”) bankruptcy case, concluding, among other things, that (1) where an efficient market exists, the interest rate in a chapter 11 case should be determined using a market-based approach, and (2) the Debtors were not obligated to pay the “make-whole” premium required under the bond indenture based on the express language of the indenture.

Tenth SEC Division of Corporation Finance Staff Legal Bulletin on Rule 14a-8 Creates New Paths to Omit Shareholder Proposals 11-06-2017

V&E SEC Update E-communication, November 6, 2017

On November 1, 2017, the Staff of the Securities and Exchange Commission’s Division of Corporation Finance published new Staff Legal Bulletin No. 14I (CF) (available here) (“SLB 14I”), which is the Division’s tenth legal bulletin that seeks to provide guidance regarding shareholder proposals submitted under Rule 14a-8 of the Securities Exchange Act of 1934.

Attorney-Client Privilege Considerations for Private Equity Firm Counsel 10-30-2017

First published by The Lexis Practice Advisor Journal, October 2017

In the latest issue of the Lexis Practice Advisor Journal V&E partner Ari Berman and associate Laurel Fensterstock provide a high-level overview of the attorney-client privilege, identify issues that in-house counsel at private equity firms are likely to face, and provide practice tips for enhancing your chances of preserving the privilege.

New Unclaimed Property Regulations Now in Effect – What Does This Mean for Property Holders? 10-18-2017

V&E Commercial & Business Litigation Update E-communication, October 18, 2017

On October 11, 2017, Delaware’s new regulations regarding reporting of unclaimed property took effect. 

District Court Invalidates Section 7874 Inversion Regulation and Opens Door for Challenges of Certain Temporary Regulations 10-09-2017

V&E Tax Update E-communication, October 9, 2017

On September 29, 2017, the United States District Court for the Western District of Texas struck down Temporary Treasury Regulations § 1.7874-8T (the “Multiple Domestic Entity Acquisition Rule” or “Rule”) on the basis that those regulations were unlawfully issued without adherence to the notice-and-comment requirements of the Administrative Procedures Act (the “APA”). 

Brexit, January 2018 Edition — Anything New to Report? 01-25-2018

Labor & Employment Blog

It has been some time since this blog contemplated the employment law ramifications of Brexit, so the new year seems like a good opportunity to give our readers an update. Is there anything new to report?

"Taint" Theory of Damages Dead in the Seventh Circuit? One District Court Has Not Received the Message 01-24-2018

Lincoln's Law Blog

Adopting a view that has been roundly rejected by federal circuit courts (including the Seventh Circuit), the U.S. District Court for the Northern District of Illinois in United States & City of Chicago ex rel. Chicago Regional Council of Carpenters v. Sound Solutions Windows & Doors, Inc. endorsed the “taint” theory of FCA damages, awarding the full value of contracts as damages based on the defendants’ non-compliance with a contractual term, notwithstanding their complete performance of the tangible work under the contracts.

Posthaste: An NLRB Update in the New Year 01-23-2018

Labor & Employment Blog

As we’ve previously discussed, the National Labor Relations Board (the “Board”) is moving at breakneck speed on a number of issues. Here is an update on six employer-friendly headlines from December and January (outside of the four major decisions we’ve already seen and written about here and here).

The Gift That Keeps On Giving: Pre-ACA Public Disclosure Bar's Stringent Original Source Requirements Defeat Relator's Claim in the Fifth Circuit 01-19-2018

Lincoln's Law Blog

As we have written about previously, although almost eight years have passed since the 2010 ACA amendments, because qui tam actions often stay under seal for many years, there are numerous cases before the courts to this day that involve conduct that occurred prior to the amendments. Most recently, the Fifth Circuit in United States ex rel Solomon v. Lockheed Martin Corp. upheld a grant of summary judgment in favor of defendants Lockheed Martin and Northrop Grumman where the relator failed to show that his knowledge of the allegedly false claim was not derived from earlier public disclosures under the pre-2010 amendments to the original source exception. 878 F.3d 139 (5th Cir. 2017).

One Size Does Not Fit All: Non-Competes in the Asia Pacific 01-19-2018

Labor & Employment Blog

Much like in the U.S., Asia-Pacific countries generally disfavor restraints on trade as a matter of public policy and enforce them, if at all, only to the extent the restrictions (1) are reasonable in light of the facts, (2) are supported by adequate consideration, and (3) protect a legitimate business interest. Highlighted below are certain guidelines concerning post-employment non-compete agreements in seven nations that are popular choices for regional headquarters of U.S.-based multinational companies.

Important News for Publicly Traded Tech Companies: The Supreme Court Will Decide the Constitutionality of the SEC’s ALJ Appointment Process 01-18-2018

High-Tech Law & Litigation Blog

The U.S. Securities and Exchange Commission (“SEC”) is considered by many to be the nation’s top watchdog on Wall Street — sniffing out insider trading, market manipulation, and financial fraud. But the reality is that any publicly traded company is subject to SEC regulation and enforcement. The tech industry, with its ever-changing landscape, may become a hot bed of SEC enforcement activity, especially as companies continue to navigate uncharted waters such as crypto currencies and innovative “initial coin offering” funding methods.

DOL Changes Course on When an Intern Should Be Paid 01-16-2018

Labor & Employment Blog

In the last few years, we have discouraged our clients — including many of the non-profit organizations that we represent on a pro bono basis — from engaging unpaid interns. 

Fuzzy Math: DOJ Tweaks Five Years of FCA Statistics 01-16-2018

Lincoln's Law Blog

As reported on Law360 last Thursday, DOJ has quietly revised its FCA statistics for fiscal year 2017, which we wrote about when they came out last December. We have posted a redline comparing the two versions. DOJ offered no explanation for these alterations, but we think the redline shows DOJ making two different types of changes.

FTC Reaches First COPPA Settlement With Connected Toy Manufacturer 01-12-2018

High-Tech Law & Litigation Blog

Earlier this week, the Federal Trade Commission announced that it had reached a settlement with VTech Electronics Limited, a Chinese manufacturer of electronic learning toys, and its North American subsidiary over charges that VTech violated the Children’s Online Privacy Protection Rule (“COPPA”), a rule designed to “strengthen kids’ privacy protections and give parents greater control over the personal information that websites and online services may collect from children under 13.” The FTC’s complaint centered on three web-based platforms VTech created and maintained to support its numerous connected toys. The platforms are the Learning Lodge Navigator, a platform akin to Apple’s App Store that allows users to download games and content to their VTech devices; Kid Connect, a children’s messaging app for smart phones; and Planet VTech, an online platform that allows online game play and messaging between users. Each of these products allowed for children to share personal information or required registration from parents, including information such as a child’s name and age. In some instances, VTech stated that the collected information would be encrypted, which it was not.

"Hire American" Strikes Again: Work Authorization for H-1B Spouses May Be Eliminated 01-12-2018

Labor & Employment Blog

The Obama-era H-4 visa work authorization program, which has been in place since May 2015, allows qualifying spouses of H-1B visa holders to apply for jobs in the United States after obtaining an EAD (Employment Authorization Document). The ability for spouses of H-1B recipients to work in the U.S. through this program is a major incentive for skilled workers to apply for H-1B visas, and to remain in the United States once obtaining one. The rule was put in place, in part, to decrease employee turnover faced by U.S. employers. But as the current administration fights to stop immigration on many fronts, this rule may soon fall by the wayside. (V&E’s coverage of other immigration issues can be found here.)

Penalty Preview: Department of Commerce Increase FCA Penalties 2% to a $22,363 Max Penalty, DOJ Likely Soon to Follow 01-11-2018

Lincoln's Law Blog

As we wrote this time last year, each year, agencies are required by the Federal Civil Penalties Inflation Adjustment Act of 2015 (“the Act”) to adjust their civil penalties to account for inflation, including the FCA’s penalties. The agencies’ deadline to issue adjustments is January 15, though last year DOJ missed the deadline by two weeks. Previously, three agencies have issued adjustments for the FCA penalty range—DOJ, the Department of Commerce (“DOC”), and the Railroad Retirement Board (“RRB”)—each making the same dollar adjustment to the FCA’s penalties. Just as in 2017, DOC is first out of the gate with its adjustments, increasing the FCA penalties by about 2% from between $10,957 and $21,916 to between $11,181 and $22,363. We expect DOJ and RRB will follow suit with identical increases sometime in the next month, and we will let you know when they do.

Is a Modern Slavery Statement on Your Post-Holiday To-Do List? 01-09-2018

Labor & Employment Blog

We have written previously about the UK’s Modern Slavery Act (the “MSA”) and, in particular, how it applies to multinational businesses. But many companies, including those headquartered in the U.S. with operations in the UK, are still unaware of their obligations. The new year may be the right time to consider whether your company has met those obligations. For those that have already published their first statement, it may be time to update that statement. For those who have not yet published a statement, it is probably the right time to consider whether you are required to do so.

Impact of First Circuit's 2015 Gadbois' Decision on First-to-File Bar Limited by District Court on Remand 01-08-2018

Lincoln's Law Blog

In a post right before the holidays, we noted that the district court in United States ex rel. Estate of Gadbois v. PharMerica Corp. interpreted the FCA’s government action bar as a perpetual bar to all claims brought by a relator in a qui tam action in which the government has intervened and settled, even when the government did not intervene in or settle all of the claims. No. 10-cv-471, 2017 WL 5466659 (D.R.I. Nov. 13, 2017). But there is more to the district court’s decision than the government action bar. In its government action bar analysis, the district court made a fairly technical civil procedure ruling that, if followed by other courts, should limit the ability of relators to use the First Circuit’s previous Gadbois decision to evade the FCA’s first-to-file bar and statute of limitations.

Personae Non Gratae: Extending H-1B and L-1B Visas Is Getting Tougher 01-04-2018

Labor & Employment Blog

It used to be pretty easy to get an extension on an H-1B or L-1B visa provided the employee had not used up his allotted time for holding such a visa. In fact, the USCIS instructed its adjudicators that prior determinations should be given deference if it involved the same parties and the same facts. If an H-1B or L-1B petition had been approved the first time, an extension was likely to be approved as well. Under the old policy, once an initial determination was made, so long as there was no material change to the employee’s position or circumstances, the employee was all but guaranteed an extension.

D.C. Circuit Affirms Summary Judgment to Defendant Where Relator "Utterly Failed to Tie" Alleged Kickbacks to a "Specific False Claim" 01-04-2018

Lincoln's Law Blog

We have previously blogged about the long-running Barko qui tam litigation, in which V&E is defending KBR against FCA claims brought by Relator Harry Barko. As our prior post explains, Barko’s complaint centers primarily around an allegation that a KBR procurement employee took kickbacks from a subcontractor in return for purported favorable treatment, including awarding subcontracts with insufficient competition, allowing double-billing for goods and services (without back-charging the subcontractor), concealing poor performance, and other alleged wrongdoing. In March 2017, the district court granted summary judgment to KBR.

PSM and Petroleum Refineries: Lessons Learned (Part 3) 01-02-2018

Labor & Employment Blog

In this third installment of our series on “Lessons Learned” in the last ten years of the Petroleum Refinery Process Safety Management National Emphasis Program (NEP), I would like to talk about the Management of Change (MOC) requirement of the PSM standard.

Ring in the New Year at ACI's FCA Conference 01-02-2018

Lincoln's Law Blog

Happy New Year to our readers and thanks to you all for helping to make LLB such a success. We expect that 2018 will be at least as interesting as 2017 if not more so, and we at LLB intend to get off to a very strong start. Indeed, we are preparing for the 5th Advanced Forum on False Claims & Qui Tam Enforcement, an annual American Conference Institute event focused on identifying and discussing strategies and trends in FCA enforcement. We have participated in this conference since its inception and find it to include a thorough, deep dive into the issues with speakers from the defense and relators’ bars, industry, and the government.

New Year's Resolutions for Modern Workplace Readers 12-28-2017

Labor & Employment Blog

If you’re a frequent reader of the Modern Workplace blog, there’s a good chance you’re involved in human resources and employee relations in some capacity, perhaps as in-house counsel, HR manager, or outside attorney or consultant. In keeping with a tradition for our blog, the Modern Workplace editorial staff has put together a set of New Year’s resolutions for our readers who can impact workplace policies and procedures for 2018.

LLB Hits DOJ's Recovery Stats On the Nose 12-22-2017

Lincoln's Law Blog

Yesterday, on December 21, a little later and a bit more quietly than in past years, DOJ released its FCA recovery statistics for FY 2017. We are excited to share with our readers that this year LLB’s stats closely tracked DOJ’s! DOJ reports $3.70 billion in recoveries, compared to LLB’s estimate of a little under $3.58 billion. LLB also did well tracking industry recoveries. DOJ reports $2.47 billion versus LLB’s estimate of $2.60 billion in health care, $220 million versus LLB’s $149 million in defense, and $1.0 billion versus LLB’s $832 million in other industries.

Merry Christmas from the National Labor Relations Board 12-21-2017

Labor & Employment Blog

Many companies and labor attorneys thought the General Counsel’s Memorandum issued on December 1, 2017 was the perfect “Merry Christmas” to companies hoping to see changes from national labor policy. The Memorandum was a nice stocking stuffer for many in and of itself, because, among other things, it rescinded various Obama-Era prosecutorial priorities intended to extend labor-friendly policies. Little did we know at the time, but the Board had already wrapped four Elmo-sized Christmas presents (decisions overturning several key Obama-Era precedents) and placed them under the Christmas tree.

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.

Lifting of “Secondary” Iranian Sanctions 04-05-2016

Dan Gerkin, a counsel in V&E’s Export Controls & Economic Sanctions practice, discusses the January 16, 2016 implementation of the Joint Comprehensive Plan of Action, which saw the United States lift its nuclear-related “secondary” sanctions targeting Iran, and addresses continuing compliance risks for U.S. and non-U.S. companies alike.

Energy Outlook: Investing in Argentina 03-31-2016

Boyd Carano, chair of V&E’s Latin America practice, describes Argentina’s strong natural resource potential and the political climate that makes it particularly attractive to investors. 

Political Volatility in the Middle East 03-01-2016

V&E partner James Loftis, head of the International Dispute Resolution & Arbitration practice, talks with Raad Alkadiri of IHS about political volatility in the Middle East and what the future may hold for Iraq.

Changes to the Partnership Audit Tax Rules – What Partnerships Need to Consider Now 02-04-2016

Major changes to the rules for auditing the tax items of partnerships were made by the Bipartisan Budget Act of 2015 and will come into effect in 2018.

Developments in State Regulation of Hydraulic Fracturing 09-03-2015

Larry Nettles, Chair of the V&E Shale & Hydraulic Fracturing Task Force, discusses recent developments in the state regulation of horizontal drilling and, particularly, how states are addressing the growing concern surrounding seismicity.

Results of EPA Study of Hydraulic Fracturing 09-03-2015

V&E Environmental partner, Larry Nettles, describes the results of the recently published U.S. Environmental Protection Agency (EPA) study on hydraulic fracturing and its impact on drinking water resources.

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