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"Document, Document, Document" Is Only Half the Battle 02-22-2018

Labor & Employment Blog

As someone who has tried dozens of employment trials — including a very recent one in which a jury found for my client — I can attest to the importance of having good documentation that corroborates the employer’s conversations with employees, especially when the employee subsequently disputes what was said. In my recent trial, for example, we were able to admit dozens of investigation reports that were made close to the time of the events and contradicted the plaintiff’s version of events. The jury was allowed to bring these documents back to the jury room with them and review them in deliberations — a very powerful tool for a jury that is otherwise relying on its collective memory in discussing evidence. Unfortunately, trial lawyers sometimes forget to tell their clients what they need to do in order to ensure that their valuable documentation will be admissible at trial.

BLM Proposes to Eliminate Emissions-Related Provisions of Currently-Postponed Waste Prevention Rule 02-21-2018

V&E Shale Insights E-communication, February 21, 2018

On February 12, 2018, the Bureau of Land Management (“BLM”) released a pre-publication version of a proposed rule (the “Proposed Rule”) to modify the 2016 Waste Prevention Rule (the “Waste Prevention Rule”).

2018 International Fiscal Association (IFA) Annual Conference 02-21-2018

V&E is pleased to sponsor the 2018 International Fiscal Association (IFA) Annual Conference. 

Employment Law Considerations in the United Arab Emirates (UAE) 02-20-2018

Labor & Employment Blog

It’s a big world out there and employment laws vary dramatically from one country to the next. Consider for example, the United Arab Emirates, where it is illegal to establish trade unions, collective associations and workers’ councils, and any action to do so would likely be considered a public disorder offense.

Tech Issues Dominate at Confirmation Hearing for Four FTC Nominees 02-20-2018

High-Tech Law & Litigation Blog

At a February 14, 2018, confirmation hearing on President Trump’s nominees to the Federal Trade Commission before the Senate Commerce, Science, and Transportation Committee, Senators asked the nominees how, if confirmed, they would regulate technology companies, address data security issues exposed by the Equifax breach, and address net neutrality. While making few firm commitments other than to study the issues, the nominees agreed that the FTC should use its authority and resources to protect consumers from abuses by large firms, especially in light of evolving concerns over data privacy and aggregation.

DOJ “No-Poach” Antitrust Prosecutions May Be Imminent 02-16-2018

V&E Antitrust Investigations Update E-communication, February 16, 2018

The DOJ Antitrust Division has been threatening at least since 2010 that it may treat “no-poach” or “mutual no-hire” agreements as criminal violations of the antitrust laws. 

TCJA Impacts on REITs and REIT Transaction Structures 02-15-2018

REITs_ThumbnailIn our inaugural quarterly REIT Series webinar, we discussed the impact of the recently adopted tax reform on REITs, REIT transaction structures, questions that have arisen since adoption and issues that will need attention from the Internal Revenue Service in the future.

What Every Corporate Director Should Know About the New Tax Law - Part 1 02-15-2018

First Published by National Association of Corporate Directors, February 15, 2018

The Tax Cuts and Jobs Act of 2017 (“Tax Act”) has sweeping ramifications. These range from mechanical compliance issues (e.g., revised withholding rates for employees) to strategic concerns that must ultimately be decided in the boardroom.

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.

Trends Transactions and Opportunities in Oil and Gas 02-15-2018

V&E Restructuring partner Bill Wallander will speak on a complimentary webcast regarding the latest in oil & gas transaction trends.

An Update on Tax Reform and Its Implications in 2018 02-13-2018

Energy Series Logo - Mini Thumbnail - 50px Wide

This program gave a high-level summary of the domestic provisions of the new tax bill and its implications for various companies, with a focus on the energy industry. 

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].

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. 

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.

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.

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.

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.

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”). 

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 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.

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.

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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