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A Gig Economy Independent Contractor Checklist — For Now 03-13-2018

Labor & Employment Blog

A federal judge in California recently found that a restaurant delivery driver working for Grubhub was an independent contractor rather than an employee (and thus was not entitled to minimum wage, overtime, and expense reimbursement under California law). As a first-of-its-kind decision on the merits of the independent contractor analysis in the so-called “gig” or “sharing” economy, the decision presents a fairly comprehensive analysis of the traditional independent contractor analysis in this developing context. It’s important to recognize that there may be limits to the Grubhub case’s applicability to other new-economy companies because many of the judge’s determinations were based on the plaintiff’s lack of credibility. The decision is also likely to be appealed to the Ninth Circuit, which is typically not friendly to the gig economy. 

Legal Considerations for Corporate Climate Scenario Analysis 03-12-2018

Hosted by Center for Climate and Energy Solutions (C2ES)

V&E partner Maggie Peloso is participating in a panel discussion at the C2ES Legal Considerations for Corporate Climate Scenario Analysis webinar.

FCA Cert. Monitor: Petitions Concerning Materiality After Escobar and the Original Source Exception Before the Court 03-09-2018

Lincoln's Law Blog

After some dereliction of our FCA cert. monitoring duties, FCA Cert. Monitor is back. There currently are 10 FCA cases on the Supreme Court’s docket, raising materiality after Escobar, the first-to-file and public disclosure bars, and the Rule 9(b) pleading standard, among other issues.

Local Opportunity for Education on International Matters 03-09-2018

Labor & Employment Blog

For those of you located in Texas, you have no doubt noticed how important international legal matters can be for Texas employers. With the significant international trade that occurs in Texas, both along its border with Mexico and from all of its ports and airports, it is important to have an understanding of different legal issues related to international business. With this goal in mind, the International Law Section of the State Bar of Texas is sponsoring its Annual Institute on April 5 and 6 in Houston. You can see details here. This is one of those rare opportunities to “travel around the world” right here in Houston.

A First in the Lone Star State — Austin Mandates Paid Sick Leave 03-08-2018

Labor & Employment Blog

Austin recently became the first Texas city to join San Francisco, Los Angeles, New York City, Chicago, and Washington D.C., among over two dozen other cities and several states (including, most recently, Maryland), in requiring employers to provide paid sick leave.

The Times They Are a-Changin’: Marks Cannot Be Refused Registration as Scandalous or Immoral 03-08-2018

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

On December 15, 2017, the Federal Circuit held that the Lanham Act’s prohibition of immoral or scandalous matter under 15 U.S.C. §1052(a) (“Section 2(a)”) is unconstitutional under the First Amendment. 

Conflicting Standards for "Puttin' on the Top Hat": Making Sure That Your Executives' Top Hat Plan Meets the Test 03-06-2018

Labor & Employment Blog

A top hat plan is a plan that provides benefits to a select group of management or highly compensated employees. Because Congress determined that a plan covering a sophisticated group of employees did not warrant the same protections as one covering the general employee population, it provided special carveouts for top hat plans under ERISA. Specifically, a top hat plan does not need to comply with ERISA’s minimum participation, vesting, funding, fiduciary responsibility or trust requirements.

Corporate Officer Individual Liability for Environmental Violations Upheld by the Texas Supreme Court 03-06-2018

Environmental Blog

The Texas Supreme Court recently reinstated an assessment of civil penalties against a corporate official for violations of the Texas Water Code. In State of Texas v. Morello, No. 16-0457 (February 23, 2018), the Court overturned the decision by the Austin Court of Appeals, which had held that a corporate official could not be personally liable for environmental violations unless the individual had engaged in “tortious” or “fraudulent” acts. The Supreme Court, in looking at the plain meaning of the Water Code, held that “under an environmental regulation applicable to a ‘person,’ an individual cannot use the corporate form as a shield when he or she has personally participated in conduct that violates the statute.” Slip op. at 12 (emphasis added).

Shareholder Activism: Managing & Mitigating Risks in 2018 03-06-2018

V&E partner Lawrence Elbaum (CCL/NY) will join Shaun Bisman, Principal, Compensation Advisory Partners and Gillian Emmett Moldowan, Counsel, Compensation, Governance & ERISA, Shearman & Sterling LLP for The Knowledge Group’s live webcast.

Client Communications with Patent Agent are Privileged, Per the Texas Supreme Court 03-02-2018

V&E IP Insights E-communication, March 2, 2018

In re: Andrew Silver: the Texas Supreme Court recently held that communications between an inventor and his non-attorney patent agent are privileged. 

Managing Tough Issues in the Boardroom 03-02-2018

First published by WomenCorporateDirectors Boardroom Strategy Briefing 

Tough issues – from sticky conflict-of-interest situations to crisis events – are things every corporate board faces at comes point, and are only becoming more common. In dealing with these challenges, boards are often torn between the need to deliberate confidentially and frankly about a very sensitive situation and a true desire to operate with transparency. 

Security Outlook for Small-Business-Targeted Web Hosts 03-01-2018

High-Tech Law & Litigation Blog

In order to aid small businesses, the Federal Trade Commission (“FTC”) has released a Staff Perspective and a series of articles targeted to consumers and businesses about the availability of secure web-hosting and email providers. The Staff Perspective reviewed the services offered by eleven web-hosting companies and found that while most of these providers offer minimum security verification, most do not offer the more advanced services. Instead, small businesses are expected to implement these services themselves, although most likely do not have the institutional knowledge in order to do so. Without the services outlined in the FTC’s report, small businesses are open to phishing attacks, placing themselves and their customers at risk of financial harm.

Risky Business: Reverse FCA Allegations Against Medicare Advantage Insurer Survive 03-01-2018

Lincoln's Law Blog

In an early mixed valentine for both the government and a defendant Medicare Advantage Plan insurer, a district court in California on February 12 denied a motion to dismiss reverse FCA claims alleging the failure to correct known invalid diagnosis codes submitted for risk adjustment payments to Medicare. The court did dismiss, however, the government’s claims that the insurer’s false statements as to the validity of the diagnosis codes also violated the FCA. Poehling v. Unitedhealth Group, Inc., No. 2:16-cv-08697 (C.D. Cal. Feb. 12, 2018).

SCOTUS Merit Case: The Clawback Carwash Is Closed… 03-01-2018

V&E Restructuring & Reorganization Update E-communication, March 1, 2018

This update presents a high-level summary of several key takeaways from the Supreme Court’s opinion in Merit Management Group, LP v. FTI Consulting, Inc., 583 U.S. __ (2018) issued on February 27, 2018.

Blowing the Whistle on Inadequate Reporting Policies and Procedures 03-01-2018

Labor & Employment Blog

As you may have heard, the Supreme Court decided last week that Dodd-Frank’s whistleblower protections (along with its 6-year statute of limitations and direct-to-court enforcement procedure) only extend to employees who have provided information about securities law violations to the SEC. This result may give a false sense of security to some employers who may wrongly conclude they can worry less about retaliation claims. In reality, however, the decision may encourage employees to go to the SEC first in order to gain the protections of Dodd-Frank and undermine the company’s ability to deal with potential compliance issues internally. Therefore, now more than ever, companies need to make sure that they have established procedures and policies that allow employees to make such complaints internally and a culture that encourages such internal reporting.

Criminal Antitrust Investigations Likely Underway in the Area of Employee Compensation and Hiring 02-27-2018

Labor & Employment Blog

In November 2016, we reported that the nation’s antitrust enforcement agencies, the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission, had jointly issued Antitrust Guidance for Human Resources Professionals alerting companies and HR professionals to beware of the antitrust risk involved in hiring and compensation decisions. The Agencies warned against agreements between two or more employers to limit or fix the terms of employment; to set wages and other compensation; or to refrain from soliciting or recruiting one another’s employees (referred to as “no-poaching” agreements). The 2016 Guidance put companies and individuals on notice that, going forward, such conduct would be subject to criminal prosecution.

Tax Executive Institute – Houston Chapter Tax School 02-27-2018

On February 27, V&E Tax lawyers Megan James and Julia Pashin will speak on a panel titled, “Upstream Oil and Gas Like-Kind Exchange Transactions after Tax Reform,” at the upcoming Tax Executive Institute (TEI) Tax School.

Iraq Petroleum 2018 02-27-2018

V&E is pleased to sponsor the 2018 Iraq Petroleum Conference, taking place in Berlin, Germany on February 27-28.

Key Steps For Addressing the SEC's New Cybersecurity Disclosure Guidance 02-26-2018

V&E SEC Update E-communication, February 26, 2018

On February 21, the Securities and Exchange Commission (the “SEC” or the “Commission”) issued the “Commission Statement and Guidance on Public Company Cybersecurity Disclosures” (the “2018 Guidance”).

Supreme Court Narrows Dodd-Frank Protection for Whistleblowers 02-22-2018

V&E Whistleblower Counseling & Defense Update E-communication, February 22, 2018

On February 21, the U.S. Supreme Court ruled in favor of a narrow definition of the term “whistleblower,” thereby limiting the scope of anti-retaliation measures available to corporate insiders under the Dodd-Frank Act. 

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.

5th Advanced Forum on False Claims & Qui Tam Enforcement 01-29-2018

Vinson & Elkins is a proud sponsor of 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.

2018 AIPLA Mid-Winter Institute 01-26-2018

On Friday, January 26, partner Devika Kornbacher will speak on “Law Firm Privacy – Have You Been Hacked?” as part of a larger panel titled, “Keeping Private Data Private – Law Firm Cybersecurity and the EU General Data Protection Regulation (GDPR)” at the American Intellectual Property Law Association (AIPLA) Mid-Winter Institute.

Oil and Gas Disputes 2018 01-25-2018

On Thursday, January 25, 2018, V&E energy litigation partner, Mark Rodriguez will speak on the Royalty Litigation panel at the Texas Bar Oil & Gas Disputes course cosponsored by the Oil, Gas and Energy Law Section of the State Bar of Texas and Texas Tech University School of Law.

YPE Houston Breakfast Series 01-23-2018

YPE Houston is hosting its first event of 2018 with a Breakfast Series featuring guest speakers from Vinson & Elkins, Jason L. McIntosh (Partner, Tax) and Neil Clausen (Associate, Tax) who will be discussing "Tax Reform Update and Implications".

Negotiation Ethics: Winning Without Selling Your Soul 01-23-2018

Lawyers negotiate every day and negotiating ethically and maintaining their reputations as ethical and professional is critical to the successful practice of law. 

ACI's FCPA Conference 01-23-2018

On January 24, 2018 V&E partner, Jeff Johnston, will present on the "Repeat Offenders: How to Mitigate the Risk of Recidivism with FCPA Compliance" panel at the American Conference Institute’s (ACI) 12th Houston Forum on the Foreign Corrupt Practices Act (FCPA).

5th ITA-IEL-ICC Joint Conference on International Energy Arbitration 01-18-2018

V&E is a proud sponsor of the 5th Annual ITA-IEL-ICC Joint Conference on International Energy Arbitration. This program focuses on a review of the year past and the year ahead in the arbitration of international disputes in the energy industry.

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. 

Energy Technology Roundtable 02-23-2017

This program addressed technology’s growing impact on the oil and gas industry. The panel discussed cutting edge technologies that are currently impacting the oil and gas industry, the origins and the future of oil and gas technology as well as certain legal and commercial issues to consider when investing in, working with, and/or acquiring energy technology companies.

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.

CFIUS Annual Report Confirms Recent Trends and Highlights Factors to be Considered when Notifying Transactions to CFIUS 01-23-2018

V&E CFIUS Update E-communication, January 23, 2018

The Committee on Foreign Investment in the United States (“CFIUS,” or the “Committee”) has issued the public version of its annual report to Congress for calendar year 2015 (the “Report”).

BSEE Signals Change in OCS Regulation and Leasing 01-23-2018

V&E Environmental Law Update E-communication, January 23, 2018

Since the end of December 2017, the Department of Interior (DOI) has proposed significant changes to its offshore drilling program, rolling back and delaying implementation of Obama-era rules in favor of the oil and gas industry, and dramatically increasing the number of Outer Continental Shelf (OCS) acres available for lease. 

Trump DOI Solicitor’s Opinion Favors Industry on Incidental Take of Migratory Birds 01-12-2018

V&E Environmental Law Update E-communication, January 12, 2018

On Friday, December 22, 2017, the Department of the Interior (DOI) issued a Solicitor’s Opinion concluding that an incidental take is not a violation of the Migratory Bird Treaty Act (MBTA) (the “Trump Solicitor’s Opinion”).

Federal Circuit En Banc Opinion Holds PTAB Time-Bar Decisions Are Appealable 01-10-2018

V&E IP Insights E-communication, January 10, 2018

The Federal Circuit has opened the door to appeals on the timeliness of inter partes review proceedings and possibly to discovery in PTAB proceedings related to this issue.

Developments in Governance and Disclosure: Winter 2017 12-21-2017

V&E Corporate Governance Update E-communication, December 21, 2017

The V&E quarterly governance update provides brief summaries on recent developments with respect to corporate governance, compliance and disclosure. 

New Proposed Regulations for BBA Partnership Audits Allow for Push Out Elections in Tiered Partnerships 12-19-2017

V&E Tax Update E-communication, December 19, 2017

This e-lert focuses on certain issues regarding “push out” elections under the BBA partnership audit regime. Those elections are discussed in more detail in the article accompanying the October 4, 2017 e-lert.

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.

Ninth Circuit: We Repeat, Climate Projections for the Year 2100 Okay to Support ESA Listing Decisions 02-15-2018

Climate Change Blog

On February 12, 2018, the Ninth Circuit upheld the National Marine Fisheries Service’s use of long-term climate projections to list the Arctic ringed seal (Phoca hispida hispida) as “threatened” under the Endangered Species Act, even though the seal population is currently healthy and abundant and there is no evidence of adverse impacts to the seals from climate change.

Tesla's Lawsuit Challenging Michigan Law Banning Direct Car Sales Raises Novel First Amendment Issues 02-15-2018

High-Tech Law & Litigation Blog

A lawsuit filed by innovative technology and automotive company Tesla Motors, which challenges Michigan’s ban on direct car sales to consumers, raises the conflict between the need for discovery into matters of intent and First Amendment rights of association related to lobbying activity. The U.S. Sixth Circuit Court of Appeals will soon have to resolve this conflict in Tesla Motors, Inc. v. Johnson, No. 18-1010. In that case, Tesla seeks information about the communications of a trade association that lobbied in favor of legislation that Tesla has challenged as unconstitutional. This new conflict follows a habitual cycle: Technology companies push boundaries, governments seek to regulate their activities, and the companies become more involved in lobbying regulators and legislatures. The question of whether communications related to those efforts may be discovered by other parties in civil litigation is therefore likely to recur, and the Sixth Circuit’s resolution of the issue will merit close attention.

Who Was Sergei Magnitsky and Why Should You Care? 02-15-2018

Labor & Employment Blog

Sergei Magnitsky was a Russian accountant who had the audacity to claim that large-scale  theft from the Russian government was carried out by Russian officials. Shortly after making these allegations, he was arrested and spent a year in prison in Russia without being charged for any crime. Ultimately, Magnitsky died in prison of various health ailments. An investigation authored by the Kremlin itself found that he had been given inadequate medical care and was assaulted shortly before his death.

Escobar Matters for Discovery, Too: District Court Emphasizes Right to Broad Materiality Discovery 02-13-2018

Lincoln's Law Blog

While most post-Escobar decisions have involved the merits, Escobar also has significant implications for the scope of materiality discovery under the FCA. Last week, in United States ex rel. California v. Paramedics Plus LLC, the U.S. District Court for the Eastern District of Texas became one of the first courts to directly tackle that issue in a written opinion, holding that Escobar affords FCA defendants the ability to broadly discover how the government has actually handled the disputed issue, both in that case and in other analogous situations.

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].

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.

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.

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.

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.

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.

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.

Holding a Mere Temporal Link Between Kickbacks and Medicare Claims Is Too Weak — the Third Circuit Says Goodbye to Relator's Case 01-29-2018

Lincoln's Law Blog

Consistent with other recent decisions we have blogged about, the Third Circuit recently held in United States ex rel. Greenfield v. Medco Health Solutions, Inc., that to survive summary judgment, a relator must link alleged kickbacks to specific claims for payment submitted to the government; it is not enough to merely allege that the “taint” of a kickback scheme renders false every claim submitted while that scheme is ongoing. Finding no such link between the defendants’ Medicare claims and an alleged kickback scheme, the Third Circuit affirmed summary judgment for the defendants.

Expected DOJ Penalty Bump Lands, Increasing FCA Penalties to a $22,363 Maximum 01-26-2018

Lincoln's Law Blog

As expected, DOJ has issued its annual inflation adjustment to FCA penalties.  Following the Department of Commerce’s lead from two weeks ago, DOJ has increased FCA penalties by about 2% from between $10,957 and $21,916 to between $11,181 and $22,363.

WhatsApp Fined in Italy (Again) For Terms of Use Violations 01-26-2018

High-Tech Law & Litigation Blog

Facebook-owned messaging service WhatsApp has again been fined by the Italian antitrust and consumer protection authority (AGCM) for failing to comply with an earlier AGCM order finding WhatsApp’s terms of service in violation of the Italian Consumer Code.

"The Granston Memorandum": Will DOJ Really Bite the Hands That Feed the FCA — Color LLB Skeptical 01-26-2018

Lincoln's Law Blog

Last November, we reported that Michael Granston, Director of the DOJ Commercial Litigation Branch, Fraud Section, announced at a health care conference that in the future DOJ would move to dismiss meritless qui tam cases. We doubted that much would change, especially given that the speech was not accompanied by any type of policy memorandum. We also understood that DOJ had denied any formal change in policy, and yet, last week the other shoe dropped. The New York Law Journal obtained a copy of a memorandum issued by Granston and dated January 10 to all attorneys in the Fraud Section and all Assistant U.S. Attorneys handling FCA cases. The memorandum purports to encourage DOJ to “seek[] dismissal” of non-intervened qui tam cases that “lack substantial merit” and discusses at some length the factors that should guide the exercise of dismissal discretion. Perhaps the memorandum is some reason for optimism, but we at LLB will wait, as we do, for the statistics to see if this marks any real shift in government thinking on FCA enforcement or is mere window dressing.

Two Courts Confirm Penalties Not Yet Issued Do Not Support Reverse False Claims 01-25-2018

Lincoln's Law Blog

The D.C. Circuit and the Tenth Circuit recently joined several other circuits, including the Fifth, Sixth, and Eighth, in holding that liability for reverse false claims cannot be based on contingent obligations to pay the government (meaning obligations to pay that may arise after future discretionary actions), reaffirming that when Congress amended the FCA in 2009 to define the term “obligation,” it intended that liability would result for reverse false claims only where there are failures to pay specific, definite obligations owed to the government.

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).

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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