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Florida Waiver Ruling Reinforces Substance Over Form 01-29-2018

First published by Law360, January 29, 2018

In December 2017, a federal magistrate judge in Florida determined[1] that law firm Morgan Lewis & Bockius LLP had waived work-product protection over witness interview notes and memoranda compiled during an internal investigation of its publicly traded client, General Cable Corp., by “orally download[ing]” such materials to the U.S. Securities and Exchange Commission. 

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.

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.

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.

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.

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.

Federal Trade Commission Civil Penalties Receive Inflation Adjusted Increases 01-25-2018

V&E Antitrust Update E-communication, January 25, 2018

On January 22, 2018, the Federal Trade Commission published the revised maximum monetary penalties for civil violations within its jurisdiction.  

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?

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.

"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.

BlackRock’s 2018 CEO Letter: A New “Sense of Purpose” For Corporate America? 01-24-2018

V&E Corporate Governance Update E-communication, January 24, 2018

From the lips of the world’s largest investor, these words have created a shockwave across corporate America. In his 2018 letter to CEOs, entitled “A Sense of Purpose,” BlackRock CEO Larry Fink also observes that “[s]ociety is demanding that companies…serve a social purpose,” and argues that without such purpose, “no company…can achieve its full potential.”

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. 

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).

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).

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).

The 2017 Turnaround Management Association (TMA) Annual: Disruption and Its Ripple Effect 10-24-2017

V&E is proud to be a sponsor of Turnaround Management Association’s 29th Annual Conference. V&E partner Bill Wallander is serving as a Session Director, and partner Steve Abramowitz is a panel speaker on the topic, "Energy Industry: Lessons Learned? What's Next?"

Silicon Valley Association of General Counsel (SVAGC) All Hands Meeting 10-17-2017

The SVAGC is comprised of chief legal officers from leading technology and life science companies in the Bay Area. The annual All Hands Meeting will focus on legal, regulatory, and ethical issues this community encounters. 

The University of Texas School of Law’s 13th Annual Mergers & Acquisitions Institute 10-12-2017

This conference brings together deal lawyers, corporate development officers, investment bankers, private equity investors and other legal and financial practitioners to network and discuss M&A deal trends, structures, and opportunities. 

Women, Influence & Power in Law Conference (WIPL) 10-10-2017

V&E is once again sponsoring this year’s WIPL conference, presented by Inside Counsel & Corporate Counsel. Partner Devika Kornbacher and partner Amy Riella will both moderate panels on Wednesday, October 11th at 1:30 p.m.

Mock Proxy Fight – So You Think You’re Ready for a Fight? Webinar 10-05-2017

This complimentary 1-hour webinar will provide critical information about shareholder activism trends and tactics, and include audience participation in a “mock proxy contest” to help you prepare to win both the battle and the war.

Texas General Counsel Forum: 4th Quarterly Event 10-04-2017

V&E partners Lande Spottswood and Craig Zieminski will speak at the Texas General Counsel Forum on Wednesday, October 4.

Kayo Women’s Private Equity 5th Annual Conference 10-03-2017

On Tuesday, October 3, V&E partner Chris Vaughn will speak on "Tax Reform & Its Impact on Private Equity" and V&E partner Katy Gottsponer will speak on "Investment and M&A Trends in Transportation & Shipping."

35th Annual Advanced Oil Gas & Energy Resources Law Course 09-29-2017

On Friday, September 29, V&E Energy Litigation partner Mark Rodriguez will present at the Texas Bar CLE’s 35th Annual Advanced Oil Gas & Energy Resources Law Course.

5th Oil & Gas Compliance Exchange 09-26-2017

V&E partner Tirzah Lollar will participate in a panel discussion entitled, "Risk-Based Approaches to Third Party Screening & Relationship Management: From Due Diligence and Determination of Ultimate Beneficial Ownership to Ensuring Ongoing Compliance" at the 5th Oil & Gas Compliance Exchange.

10th West Coast Conference on FCPA Enforcement and Compliance 09-26-2017

V&E partners, Matt Jacobs and Jessica Mussallem are participating in panel discussions at the 10th West Coast FCPA Enforcement & Compliance Conference in San Francisco.

The BMO Capital Markets 12th Annual Real Estate Conference 09-22-2017

V&E counsel, Lawrence Elbaum, will be speaking at The BMO Capital Markets 12th Annual Real Estate Conference in Chicago. He will be among other panelists in a session entitled, “Rising Activism in the REIT World”.

San Francisco Chapter of the Association of Certified Fraud Examiners Tech Fraud Summit 2017 09-15-2017

The San Francisco Chapter of the Association of Certified Fraud Examiners Tech Fraud Summit 2017, is a day-long training, which will focus on the technology sector regulatory landscape, fraud risks, and emerging prevention and detection technologies and techniques.

RR Donnelley SEC Hot Topics Institute 09-14-2017

At the annual SEC Hot Topics Institute, sponsored by Donnelley Financial Solutions, renowned experts will examine the latest developments and trends, provide insight into what lies ahead and impart practical, actionable guidance on the crucial issues facing today's corporate and securities law practitioners and finance professionals. 

False Claims Act Update: Are You Tired of Hearing About Escobar Yet? 09-13-2017

A little over a year ago, the Supreme Court in Escobar held that the implied false certification theory can be a basis for liability under the False Claims Act, and also reinvigorated the FCA's materiality standard.

Energy Finance – Loan Market Trends and Recent Developments in an Uncertain Commodity Price Environment 09-13-2017

Energy Series Logo - Mini Thumbnail - 50px WideV&E lawyers will explore the current state of the energy loan market and the types of financings clearing the market in the “new normal” commodity price environment.

Protecting Privilege: Best Practices for In-House Counsel 09-12-2017

Risk Assistance Network + Exchange (RANE)

The attorney-client privilege offers important protections for keeping legal communications confidential, but preserving privilege in certain situations can be challenging.

Japan: 4th Annual International Arbitration, Compliance and Competition Law Forum 09-07-2017

Practitioners and delegates from all over Asia will attend the summit to network and present topics on Arbitration, ADR and Mediation. V&E counsel John Zadkovich is presenting on the topic “International Energy Disputes: LNG and More.”

American Bar Association Annual Meeting 08-11-2017

V&E partner Hilary Preston will serve as a co-panelist on the topic, “What’s the Price Tag for Failing to Diversify?” on Friday, August 11 from 8:30 – 9:30 a.m. at ABA’s Annual Meeting.

August Breakfast Connection 08-10-2017

Hosted by Greater Heights Area Chamber of Commerce

V&E Labor & Employment Counsel Christopher Bacon will speak about current trends in labor and payroll law at the Greater Heights Area Chamber of Commerce’s August Breakfast Connection.

National Contract Management Association’s 2017 World Congress 07-23-2017

V&E partner, Dan Graham, will be co-presenting at the National Contract Management Association’s 2017 World Congress in Chicago, IL on Tuesday July 25, 2017. Participants will hear an overview of different ways the government can change its contracts.

Oil & Gas Distress: Bankruptcy Issues Deep Dive 04-13-2016

Energy Series Logo - Mini Thumbnail - 50px WideThis presentation covers a variety of trending and hot topics in the restructuring and bankruptcy process.

MLP Simplifications, Roll-Ups, and Recapitalizations 03-09-2016

Energy Series Logo - Mini Thumbnail - 50px WideIn this presentation, V&E attorneys cover sponsor acquisitions of MLPs, MLP acquisitions of GPs and IDRs, and subordinated unit restructurings.

Current Issues in Energy Storage 03-03-2016

Energy Series Logo - Mini Thumbnail - 50px WideIn this program, V&E partner Mike Tomsu and attorney Becky Diffen, who have worked on some of the first and largest storage projects in the country, will discuss current issues affecting the industry.

Key Considerations in Distressed Upstream M&A 02-17-2016

Energy Series Logo - Mini Thumbnail - 50px WideIn this program, attorneys from V&E’s Corporate and Bankruptcy practices provide strategic and practical issues to consider when acquiring oil and gas properties from distressed, insolvent and bankrupt sellers.

26th Annual Texas Wetlands Conference 01-29-2016

V&E Environmental & Natural Resources attorney Brandon Tuck presented at the 26th Annual Texas Wetlands Conference on January 29, 2016. View the presentation here.

What to Expect in 2016: Federal Environmental Outlook For the Oil and Gas Sector 01-21-2016

Energy Series Logo - Mini Thumbnail - 50px WideThe Obama Administration is closing out its second term with a sweeping and aggressive environmental agenda, including a host of regulations and other initiatives affecting the oil and gas sector.

Alternative Sources of Capital Raising in a Distressed Market 01-13-2016

Energy Series Logo - Mini Thumbnail - 50px WideThis program covers alternative sources of capital raising in a distressed market, including private master limited partnerships (private MLPs), private investments in public equity (PIPEs), preferred offerings to private equity investors and the retail public (private and retail preferred offerings), and MLP consolidations (MLP roll-ups).

MLP 101 10-14-2015

Energy Series Logo - Thumbnail - 125x120This program covers the typical organizational and capital structure of MLPs, governance and accounting issues, and a primer on tax considerations and qualifying income.

Energy Restructuring and Reorganization 04-16-2015

Energy Series Logo - Mini Thumbnail - 50px WideRecent price declines in the oil and gas markets have created challenges in the energy sector.

The New Era of Partnerships As Taxpayers 10-04-2017

First published by the American Investment Council, September 28, 2017


Tax Reform Advances: White House and Congressional Republican Leaders Release Unified Framework 10-03-2017

V&E Tax Update E-communication, October 3, 2017

On September 27, 2017, the Trump Administration and Congressional Republican leaders released their Unified Framework for Fixing Our Broken Tax Code.

President Blocks Proposed Acquisition of U.S. Semiconductor Manufacturer by Chinese Equity Fund Backed by Chinese State-Owned Entities 09-29-2017

V&E CFIUS Update E-communication, September 29, 2017

Based on the recommendation of the inter-agency Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”), earlier this month the President prohibited the proposed $1.3 billion acquisition of Lattice Semiconductor Corporation (“Lattice”), a publicly-traded semiconductor manufacturer headquartered in Oregon, by Canyon Bridge Capital Partners (“Canyon Bridge”), a U.S. headquartered private equity fund whose sole investor reportedly is owned and controlled by the Chinese government. 

Federal Circuit Addresses Limits of Broadest Reasonable Interpretation Standard 09-28-2017

V&E IP Insights E-communication, September 28, 2017

On September 26, the Federal Circuit defined the limits of the broadest reasonable construction standard. 

Updated Guidance on Pay Ratio Disclosures 09-28-2017

V&E Executive Compensation Disclosure Update E-communication, September 28, 2017

On September 21, 2017, the Securities and Exchange Commission (“SEC”) issued additional interpretive guidance on the pay ratio disclosure requirement, which requires public companies to disclose the ratio of their CEO’s compensation to that of their “median employee.” 

European Investment Protection — Is There Life Left in Intra-EU BITs? 09-27-2017

V&E International Dispute Resolution Update E-communication, September 27, 2017

In a potentially significant development for European companies investing elsewhere in the EU, an opinion issued last week by Advocate General Wathelet in a case pending before the European Court of Justice (ECJ) has supported the continued existence of bilateral investment treaties (BITs) made between EU Member States. 

Federal Circuit Not “Cray”-z About Eastern Texas Venue Factors 09-22-2017

V&E IP Insights E-communication, September 22, 2017

Noting that the law was unclear and the error understandable, the Federal Circuit on Thursday, September 21, 2017, tossed the post-TC Heartland venue factors crafted by Eastern District of Texas Judge Rodney Gilstrap, holding that they were not sufficiently tethered to the statutory language of the patent venue statute, 28 U.S.C. § 1400(b).

Taking the Fifth in Civil Trade Secret Litigation: Win the Battle but Lose the War? 09-20-2017

First published by The Texas Lawbook, September 20, 2017

Oliver North and Mark McGwire are two of many notable examples of people who have asserted their Fifth Amendment right against self-incrimination by refusing to answer questions.

Uber Meets Roadblock to Arbitration 09-14-2017

V&E IP Insights, September 14, 2017

On September 13, 2017, the U.S. Court of Appeals for the Federal Circuit rejected Uber’s bid to send to arbitration the ongoing trade secrets misappropriation dispute brought by Waymo over the alleged theft of driverless vehicle technology. 

“Compelling” Evidence of Non-Obviousness May Not be Enough 09-08-2017

V&E IP Insights, September 8, 2017

On September 7, 2017, the Federal Circuit, in a split opinion, affirmed the district court’s summary judgment of obviousness in Intercontinental Great Brands (Kraft) v. Kellogg; despite what the district court called “substantial” and “compelling” evidence of objective indicia of non-obviousness.

BSEE Broadens its View: Pipeline ROW Grant Assignments May Now Include Multiple Grant Holders and Reference the Identification of a Single ROW Pipeline Operator 09-08-2017

V&E Environmental Law Update E-communication, September 8, 2017

In response to requests from the oil and natural gas industry, the federal Bureau of Safety and Environmental Enforcement (“BSEE”) recently issued a Notice to Lessees and Operators and Pipeline Right-of-Way (“ROW”) Holders (the “NTL”) clarifying the appropriate procedures for obtaining a pipeline ROW grant, assigning a grant, and identifying an operator to act on behalf of all pipeline grant ROW holders. 

Hurricane Harvey Disaster Recovery Resources 09-05-2017


Enforcing Foreign Judgments in the UAE: The Uncertain Future of the DIFC Courts as a Conduit Jurisdiction 09-01-2017

First published in Dispute Resolution International, Vol 11 No 2, September 2017, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association

The uncertainty of enforcement of foreign court judgments in the United Arab Emirates (the UAE) directly before its ‘onshore’ courts has driven some judgment creditors to seek alternative recourse. 

Construction Disputes in the Energy Sector 09-01-2017

First Published by Global Arbitration Review, September 2017 

V&E International Dispute Resolution Partner, Mark Beeley, is a proud contributor to the first edition of Global Arbitration Review's Guide to Construction Arbitration, authoring the chapter titled “Construction Disputes in the Energy Sector”.

The Rule of Labour Law and Conflict with International Human Rights Guidelines 09-01-2017

In the September 2017 issue of the International Bar Association’s (IBA) Human Rights Law Committee Newsletter, V&E partner and IBA Committee Officer, Thomas Wilson, addresses “The Rule of Labour Law and Conflict with International Human Rights Guidelines”.

Hurricane Harvey – Tax-Free Financial Assistance for Employees Hit By Harvey and Other Benefit Plan Considerations 09-01-2017

V&E Executive Compensation & Benefits Update E-communication, September 1, 2017

As the Hurricane Harvey recovery begins, some employers may be considering providing financial assistance payments to their employees who have been adversely affected by the storm.

Relief for Taxpayers Affected by Hurricane Harvey 08-31-2017

V&E Tax Update E-communication, August 31, 2017

The IRS and the Texas Comptroller have announced measures to provide relief to certain taxpayers affected by Hurricane Harvey. 

September 1 Changes to Texas Insurance Law for Property Claims Following Hurricane Harvey 08-30-2017

V&E Property Insurance Law Update E-communication, August 30, 2017

In the wake of Hurricane Harvey, there has been some confusion about the effect of Texas House Bill 1774 (“H.B. 1774”), which goes into effect on Friday, September 1 and amends certain provisions of the Texas Insurance Code for first-party claims under property policies caused by a “force of nature” (including floods, hurricanes, and rainstorms). 

IRS Issues Guidance on Elective Cash/Stock Dividends by REITs 08-16-2017

V&E REIT Update E-communication, August 16, 2017

A Revenue Procedure effective August 11, 2017 (Rev. Proc. 2017-45) establishes guidelines for a real estate investment trust (“REIT”) to issue elective cash/stock distributions as part of a dividend qualifying for the dividends paid deduction.

Managing OCIs in the Medicare Program 07-19-2017

First published by PSC FedHealth Conference, July 19, 2017

Strategic growth requires a proactive and agile process for managing organizational conflicts of interest (“OCIs”), avoiding them where possible and mitigating them where necessary. Nowhere is this more true than contracting with the Centers for Medicare & Medicaid Services (“CMS”) to support the Medicare Program.

One Paragraph of Self-Promotion: LLB'er Named Law360 Government Contracts MVP 12-21-2017

Lincoln's Law Blog

We at LLB try not to toot our own horn too often, but today we’re proud to share with our readers than our fearless leader, Craig Margolis, has been named a Government Contracts MVP by Law360 for his work on False Claims Act cases.

Escobar Makes No Dent in Criminal Materiality Rules in Fourth Circuit 12-19-2017

Lincoln's Law Blog

Last year, we wrote about a then-pending criminal wire fraud case, United States v. Raza, and the potential impact that Escobar’s materiality holding might have on its outcome. The Fourth Circuit recently issued its opinion, deciding that Escobar, if it had any application whatsoever in the criminal law context, did not upset long-held understandings of the objective materiality standard.

Behind Bars: Partial Intervention and Settlement Bars Future Qui Tams Based on Government Action Bar in Two Recent Cases 12-19-2017

Lincoln's Law Blog

The little-used government action bar has recently surfaced in two cases where relators had attempted to revive declined and unsettled allegations from earlier qui tam actions in which the government had intervened in part to settle other allegations. United States ex rel. Bennett v. Biotronik, Inc., No. 16-15919, 2017 WL 5907900 (9th Cir. Dec. 1, 2017), and United States ex rel. Estate of Gadbois v. PharMerica Corp., No. 10-cv-471, 2017 WL 5466659 (D.R.I. Nov. 13, 2017). These decisions show that a partial intervention and settlement by the government of some, but not all, claims in one relator’s complaint can protect defendants from future claims by later relators based on even unresolved allegations from the earlier complaint.

When Is an Employee's Home Office an Employer's Home Office 12-19-2017

Labor & Employment Blog

The modern workforce is everywhere, even in your employees’ homes. Sometimes those homes are in different states from your headquarters. But what happens when an employer’s only operations in a state is an employee who is working out of his den? Can an employer be sued in a state where it has no office other than an employee’s in-home office?

Two Birds With One Stone — The NLRB Reverses Two Major Obama-Era Decisions 12-15-2017

Labor & Employment Blog

We’ve been talking for months now about when the National Labor Relations Board would finally begin rolling back the Obama-Era Board’s expansive policies, and last week, the Board’s new General Counsel levelled his sights on many of those policies, albeit in a non-binding memorandum. Well, this Thursday, the Board overturned not one, but two of those policies.

December 15, 2017 OSHA Reporting Deadline Still in Place … at Least For Now 12-14-2017

Labor & Employment Blog

Given the new administration’s propensity to extend deadlines for compliance with Obama-era regulations, it’s not surprising that many employers are unsure whether they must electronically report injury and illness data through the OSHA’s Injury Tracking Application, which was launched on August 1, 2017. Well, at least for now, the previously extended deadline of December 15, 2017, is still in effect.

AI is Here, Is Your Company Ready? (Hint: No)
First published by The National Law Journal
12-12-2017

High-Tech Law & Litigation Blog

In this article, Danny Tobey discusses the importance of companies and their legal counsel preparing for the impact of AI. From questioning “What Happens to Tort Law” to discussing how AI could challenge professional judgment and create new privacy issues, the message is clear: Companies and their legal teams should be thinking about the changes AI will bring and how to manage associated risks as AI continues to evolve.

Will EEOC's Public Portal Lead to an Increase in EEOC Charges? 12-12-2017

Labor & Employment Blog

A client recently asked me whether I thought that the EEOC’s new online public portal would lead to an avalanche of new charges. Having visited the portal, I think those fears are unfounded.

Lessons From an Agreement With 21st Century Fox 12-07-2017

Labor & Employment Blog

Shortly before Thanksgiving, 21st Century Fox settled a derivative shareholder case related to a number of sexual harassment scandals at Fox. As part of that settlement, Fox entered into an agreement for non-monetary relief. Companies that wish to avoid being in the same situation as Fox might want to consider voluntarily implementing some of the terms of Fox’s non-monetary relief agreement.

A Sea Change – A Modern Workplace Series Digesting the NLRB General Counsel's Sweeping Reforms 12-06-2017

Labor & Employment Blog

It’s no secret that the NLRB has been subject to some swings in policy over the years, largely based on which party is in power. But many agree that the pace of these changes accelerated significantly under President Obama’s general counsel and Board. The new General Counsel of the NLRB—Peter Robb—made clear in a Memorandum he issued Friday, December 1 that he’s among those who wants to roll back many of those policy changes. Because of the breadth of the Memorandum, which takes aim at a broad swath of issues that have characterized the area of labor law over the last eight years, over the next several weeks, the Modern Workplace blog will individually examine some of the potential policy implications of this Memorandum.

Data Correction 12-01-2017

Lincoln's Law Blog

Thanks to the careful reading of one of LLB’s followers, we have learned of two errors in our statistical reporting for FY 2017.  We strive to record data accurately and in real time, but appreciate input from readers to help us correct the inevitable (and hopefully only occasional) mistakes.

The Task Force on Climate-related Financial Disclosures (TCFD) Seeks to Revamp Climate Change Disclosures Worldwide 11-30-2017

Climate Change Blog

Investors and lenders are beginning to publicly urge companies from a wide variety of industries to implement the June 2017 Final Recommendations of the G20 Financial Stability Board’s (FSB) Task Force on Climate-related Financial Disclosures (TCFD) and account for climate-related risks and opportunities in their public financial filings. The TCFD’s recommendations are a voluntary disclosure framework, but shareholders, non-governmental organizations (“NGOs”), and others are pushing for their widespread adoption.

There Are Limits — CSB Cannot Ask for Everything 11-30-2017

Labor & Employment Blog

The Chemical Safety Board has been a magnet for controversy. Over the years, it has used its broad mandate from Congress to pursue lengthy and sweeping investigations. With an authorization from Congress to investigate the probable cause of any accidental release resulting in a fatality, serious injury or substantial property damages and to issue periodic reports recommending majors to reduce the consequences of accidental releases, it is difficult to see what limits on CSB’s investigative powers exist.

IP Implementers Beware: Assistant Attorney General Delrahim Stakes Out New Balance in Intersection of Innovation and Antitrust Policy 11-30-2017

High-Tech Law & Litigation Blog

In the few short weeks since his Senate confirmation in late September, new DOJ Antitrust Division boss Makan Delrahim has wasted no time staking out the Division’s position regarding certain key areas of antitrust enforcement and regulation. One of those areas is innovation policy and, specifically, the intersection of antitrust law and intellectual property in the context of standard-setting organizations (“SSOs”) and policies regarding the licensing of standard-essential patents (“SEPs”). Assistant Attorney General Delrahim’s comments on this subject are especially interesting given that he is the first registered patent lawyer to helm the DOJ Antitrust Division. In a speech at the University of Southern California’s Gould School of Law earlier this month, Assistant Attorney General Delrahim made clear his belief that the application of competition policy and enforcement has been too heavy-handed in the SSO and SEP arena and that the scale has been tipped for too long in favor of implementers.

Australia Follows Suit with Modern Slavery Reporting Requirements 11-28-2017

Labor & Employment Blog

Australia is set to be the next country to enact legislation to address modern slavery, after the recent publication of a Consultation Paper by the Australian Government (available to read in full here).

Pro Bono Hero Spotlight: Ross Woessner 11-27-2017

Pro Bono Blog

Together with Kids in Need of Defense (KIND), ENR Associate Ross Woessner represents two Honduran children in a Special Immigrant Juvenile Status (SIJS) case.  The children escaped horrible physical and mental abuse from extended family members to live a safe, happy life in Houston with their mom.

DOJ Heads for the Hills after Judge Rips FCA Case as a "House of Cards" 11-22-2017

Lincoln's Law Blog

On October 27, 2017, Magistrate Judge Theresa Carroll Buchanan in the Eastern District of Virginia gave the government a brutal reality check on the viability of its case in United States of America ex rel. Ribik v. HCR ManorCare Inc., et al. when she plainly informed them at a hearing on defendants’ motion for sanctions: “I don’t think this case should have ever been brought.” DOJ has responded to this reproof by filing a motion to voluntarily dismiss the entire case with prejudice.

Suggestion and Innuendo Held Insufficient To Create Federal Jurisdiction in Qualcomm Patent Licensing Litigation 11-21-2017

High-Tech Law & Litigation Blog

Qualcomm scored a victory in one of the many battles in its war with Apple and others surrounding licensing practices for baseband processors. In July, Apple — which is suing Qualcomm for allegedly overcharging for licenses to use its chip patents and withholding over a billion dollars in royalties — amended a pending complaint to add claims relating to an additional nine patents-in-suit. In August, Qualcomm moved to dismiss the additional claims relating to those nine patents on the grounds that the court lacked declaratory judgment jurisdiction to hear the claims. This month, the Southern District of California dismissed the additional claims, agreeing with Qualcomm that jurisdiction did not exist.

Giving Your Employees a Reason to be Thankful by Keeping Them Safe 11-21-2017

Labor & Employment Blog

Recent court decisions and those of the Occupational Safety and Health Review Commission support the point that OSHA may not cite an employer for a violation when that employer has not exposed an employee to the alleged violative circumstances. This is an important point when an employer is considering staffing and job assignments, workplace layout, and safety policies. In facilities where there are moving vehicles, conveyer belts, or harmful chemicals being used, employers can reduce exposure to any potential hazards by placing controls in locations where employees perform their tasks, where they move around the facility, and where non-essential employees are located while performing potentially dangerous tasks.

Businesses Increasingly Subjected to Class Action Lawsuits Alleging Violations of Illinois Biometric Information Privacy Act 11-16-2017

High-Tech Law & Litigation Blog

Biometrics — measurements of a person’s physical being, such as fingerprints, retinal or iris scans, or facial recognition — are being increasingly used in commercial settings. For example, many employers are using biometric timekeeping systems, allowing employees to clock in and out with a fingerprint.

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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