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

Labor & Employment Blog

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

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

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

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

Advanced Intellectual Property Law Course 02-07-2018

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

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

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

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

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

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

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

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

Labor & Employment Blog

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

Russia 02-06-2018

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

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

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

Labor & Employment Blog

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

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

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

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

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

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

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

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

Lincoln's Law Blog

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

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

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

The Federal Trade Commission (FTC) has revised the thresholds that govern pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act), as well as the thresholds for interlocking directorates under Section 8 of the Clayton Act. 

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

Labor & Employment Blog

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

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.

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.

Universal Health Services, Inc. v. US ex rel. Escobar: Assessing its Impact on False Claims Act Suits, One Year Later 07-20-2017

The U.S. Supreme Court’s 2016 Escobar decision substantially altered the prosecution and defense of “implied certification” lawsuits filed under the False Claims Act (FCA). Lower court opinions applying the ruling’s principles have been a mixed bag, largely turning on judges’ interpretation of such key concepts as “falsity” and “materiality.”

NAPABA Western Regional Conference 07-20-2017

V&E is sponsoring the National Asian Pacific American Bar Association (NAPABA) Western Regional Conference, being held at the Silicon Valley U.S. Patent and Trademark Office on July 20-22.

Legal Training for the Energy Sector: Arbitration 07-20-2017

V&E counsel John Zadkovich is presenting on the topic “Legal Training for the Energy Sector: Best Practices in International Arbitration.”

V&E and ERM Roundtable: How Best to Deliver Business Outcomes in a Safe and Sustainable Manner 07-20-2017

Technology innovations are driving new production and cost savings in all industries. The impacts on staffing, required training, and complexity of operations are creating new safety issues and putting a premium on risk analysis. 

2017 Oil & Gas Institute presented by the Texas Society of Certified Public Accountants (TSPCA) 07-17-2017

The Texas Society of Certified Public Accountants (TSPCA) will bring together prominent speakers to discuss the impact of oil & gas industries on the Texas and world economy at their 2017 Oil & Gas Institute. Updates on regulatory, legislative and industry trends will be provided.

Responding Effectively to Environmental Shareholder Activism 07-11-2017

Energy Series Logo - Mini Thumbnail - 50px WideJoin us for a discussion of environmental shareholder activism and strategies you should be implementing now for effective engagement in 2018.

Changing Tides of Patent Litigation and Managing Intellectual Property in the United States 06-27-2017

V&E is partnering with the Chinese National Federation of Industries (CNFI) to host a seminar series on Tuesday, June 27 and Friday, June 30 centered on “Changing Tides of Patent Litigation and Managing Intellectual Property in the United States.”

U.S. Real Estate Opportunity & Private Funds Investing Forum 06-25-2017

IMN is hosting the 18th Annual U.S. Real Estate Opportunity and Private Fund Investing Forum in Newport, RI, June 25-27, 2017. V&E is a Bronze level sponsor to the conference, with attendees from the largest real estate private equity funds, LPs, and an assortment of service providers.

Conducting Internal Investigations and Avoiding Retaliation Claims 06-22-2017

Energy Series Logo - Mini Thumbnail - 50px WideV&E lawyers will discuss investigation planning, fact gathering, ways to reduce costs, interim and final reporting, protecting privilege, and remediation after the investigation.

2017 Bench & Bar Conference 06-21-2017

V&E is pleased to be sponsoring the Bench & Bar Conference. The Federal Circuit Bar Association will be hosting its annual Bench & Bar Conference in Coeur d'Alene, Idaho this year.

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.

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.

A Greek Company Mines for Magnesite and Strikes Gold for Inbound Investors 07-17-2017

V&E Tax Update E-communication, July 17, 2017

On July 13, 2017, the Tax Court issued an opinion in Grecian Magnesite Mining, Industrial & Shipping Co., SA v. Comm’r, 149 TC No. 3 (2017) that could drastically change the U.S. tax treatment of partnership interest sales in the cross-border context by invalidating longstanding IRS Revenue Ruling 91-32.

Supreme Court Frees Patented Articles from Post-Sale Restrictions 07-14-2017

First published by Corporate Counsel, July 14, 2017

Should a patentee be able to control the future use or resale of a patented article that has entered the stream of commerce following a sale by the patentee? The Supreme Court answered that question in the negative on May 30, in Impression Products v. Lexmark International.

Seven Tactics for Minimizing Director Litigation Headaches 07-10-2017

First published by National Association of Corporate Directors, July 10, 2017

Law firms that specialize in suing directors will scrutinize nearly every major transaction, public offering, stock drop, restatement, and press release filed by public companies. For instance, according to Cornerstone Research, stockholders file lawsuits challenging the majority of public company transactions valued at more than $100 million, with an average of three lawsuits per transaction. 

2 New Cautionary Tales About Protecting Privilege 07-06-2017

First published by Law360, July 6, 2017

In twin rulings in May, district courts in Washington, D.C., and the Western District of Arkansas ordered the production of memoranda and reports created during corporate internal investigations over the investigating parties’ privilege objections. 

International Human Rights and Ethical Obligations for Texas Lawyers 07-01-2017

First published by Texas Bar Journal, July 2017

The concept of “international human rights” is based on the International Bill of Human Rights, which is derived from the Universal Declaration of Human Rights—adopted by the U.N. General Assembly in 1948—and two international treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. 

Taking Offense: Supreme Court Strikes Lanham Act’s Prohibition of “Disparaging” Trademarks 06-28-2017

V&E IP Insights, June 28, 2017

On June 19, 2017, the Supreme Court struck down the prohibition on the registration of offensive trademarks.  Matal v. Tam, No. 15-1293, 582 U.S. ___ (2017).  The Court unanimously held that the Lanham Act’s provision preventing the registration of disparaging marks violated the Free Speech Clause of the First Amendment.

How Will Brexit Impact the Energy Policy? 06-26-2017

First published on Lexis®PSL Environment, June 26, 2017

Environment analysis: Alex Msimang, partner, Jessica Biddle, senior associate, and Margaret Peloso, counsel, at Vinson & Elkins, say the UK can be seen to have taken the lead in shaping EU energy policy in many respects and so the ramifications of the UK’s exit from the EU on the energy sector are expected to be widely felt--such as in relation to the EU Emissions Trading Scheme (EU ETS).

Supreme Court Curbs SEC’s Disgorgement Power: Holds That the SEC Can’t Escape the SOL 06-14-2017

V&E FCPA & Global Anti-Corruption Update E-communication, June 14, 2017

On June 5, 2017, in Kokesh v. SEC, the Supreme Court held that disgorgement by the Securities and Exchange Commission (“SEC”) is subject to the five-year limitations period of 18 U.S.C. § 2462, severely restricting the Commission’s ability to force companies to disgorge profits prior to five years before an action is brought.

Responding to the Inevitable: Common Mistakes in Cyberattack Planning and Responses 06-14-2017

V&E Cybersecurity and Data Privacy Insights E-communication, June 14, 2017

It is not a question of whether your company will experience a cyberattack; rather it is a question of when and how effectively your company responds.

To Dance or Not to Dance: Supreme Court Held Patent Dance Under BPCIA Not Enforceable By Injunction Under Federal Law 06-13-2017

V&E IP Insights E-communication, June 13, 2017

On June 12, 2017, the Supreme Court held that a biosimilar applicant cannot be enjoined under federal law to provide its application and manufacturing information to the reference product sponsor (“RPS”) under the Biologics Price Competition and Innovation Act (“BPCIA”).

Two District Court Rulings Are Cautionary Tales About Protecting Attorney-Client Privilege and Work Product Immunity 06-13-2017

V&E Internal Investigations Update E-communication, June 13, 2017

In twin rulings last month, district courts in Washington D.C. and the Western District of Arkansas ordered the production of memoranda and reports created during corporate internal investigations over the investigating parties’ privilege objections. 

In Rare Reversal, Federal Circuit Says District Court Abused Its Discretion in Failing to Award Attorneys’ Fees 06-06-2017

V&E IP Insights E-communication, June 6, 2017

In a rare reversal, the U.S. Court of Appeals for the Federal Circuit held that a district court abused its discretion in denying attorneys’ fees and failing to find a patent owner’s conduct to be “exceptional” under 35 U.S.C. § 285. 

New Cases Test The Patent Venue Waters After TC Heartland 06-02-2017

First published by Law360, June 2, 2017

The first post-TC Heartland patent cases were filed in the Eastern District of Texas on May 26, 2017, providing the first look at the types of cases that are likely to be filed there following the U.S. Supreme Court’s May 22 decision on venue in patent cases. 

New IRS Campaign Targets Non-U.S. Companies That Have Not Filed U.S. Tax Returns 06-01-2017

V&E Tax Update E-communication, June 1, 2017

The IRS has identified non-U.S. companies doing business in the United States and not filing U.S. tax returns as targets for one of its new, issue-driven “campaigns.”

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

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.

Holiday Hiring — Don’t Get a Lump of Coal from the DOL 11-16-2017

Labor & Employment Blog

As retailers begin to light up big Christmas trees, play merry carols, and otherwise prepare themselves for a busy and festive gift-giving season, they and other employers may onboard seasonal workers to help with the holiday rush. If you’re one of those employers, here are a few key reminders to stay on the U.S. Department of Labor’s “nice” list this season.

The Challenges of "Scanning" In and Out 11-14-2017

Labor & Employment Blog

As technology advances, so do the means by which employers manage their employees, including such non-glamorous tasks as tracking employee time. Some users have begun using biometric scanning technology (i.e., devices that utilize fingerprints, handprints, retinal data, or face-recognition technology) to track employee hours. But this technology is giving some employers headaches and leading to new types of lawsuits.

Too Good To Be True? DOJ Teases Policy Shift to Dismiss Meritless Qui Tams 11-14-2017

Lincoln's Law Blog

With good excuse, we at LLB are a bit late to the party on this bit of news. It appears that Michael Granston, the director of the DOJ Commercial Litigation Branch, Fraud Section — the office charged with guardianship of the FCA for all of DOJ — chose a health care compliance conference to announce what could be a major shift in enforcement policy. In an October 30 speech, which appears to have been covered only by RAC Monitor in the first instance, Granston announced that going forward, DOJ will move to dismiss cases it finds to be meritless, rather than permitting relators to litigate on their own.

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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