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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.

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

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

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

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.

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

First published by Law360, December 14, 2017

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

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.

TowerXchange Meet Up Asia 2017 12-12-2017

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

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

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

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

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

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

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

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

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

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

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.

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

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

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.

Unwinding the Finding 12-05-2017

First published by Texas Lawyer, December 5, 2017

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

What You Don’t Know About Competition Law Can Hurt You: An Update on Key Antitrust Issues 12-05-2017

On December 5, 2017, V&E’s antitrust practitioners hosted a seminar discussing primary competition law concerns and how companies and investors effectively face those concerns.

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

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

9th Anti-Corruption Compliance in China Summit 2017 06-08-2017

On Thursday, June 8, V&E counsel John Zadkovich will moderate a panel titled “How to Build a Compliance System and to Prevent Corruption in a Medium Company with Global Challenges.”


Annual SEC/DOJ Enforcement 2017 Update 06-06-2017

Matt Jacobs is a featured panelist at the “Annual SEC/DOJ Enforcement 2017 Update” breakfast briefing hosted by Sandpiper Partners LLC in San Francisco on Tuesday, June 6.

30th Annual Environmental, Health & Safety Seminar 06-05-2017

V&E’s Emergency Response & Crisis Management practice is proud to sponsor the 30th Annual Environmental, Health & Safety (EHS) Seminar coordinated by the Texas Chemical Council (TCC) and Association of Chemical Industry of Texas (ACIT) in collaboration with the Louisiana Chemical Association (LCA) and the Louisiana Chemical Industry Alliance (LCIA). 

UT Law's 2017 Conference on State and Federal Appeals 06-01-2017

V&E partner Michael Heidler will speak on "Interlocutory Appeals, Summary Judgments, and the Impact of Early Dismissals on Appellate Dockets" on Friday, June 2 at 9:30 a.m. 

The National Association of Corporate Directors’ Summit: The Strategic-Asset GC 06-01-2017

The National Association of Corporate Directors (NACD) is holding its annual GC summit, “The Strategic-Asset GC” on June 1st.

12th Annual Texas Bankruptcy Bench Bar Conference 06-01-2017

This two-day conference, which is sponsored by the Texas Bankruptcy Bench Bar of the State Bar of Texas, will focus on a broad range of current issues and topics in business and consumer bankruptcy. V&E counsel Brad Foxman will speak on the topic, “Business: Modern Trends and Creative Uses of DIP Financing” at 4:15 p.m. on June 1.

2017 MLP Annual Investor Conference 05-31-2017

V&E is a sponsor of the Master Limited Partnership Association’s (MLPA) 2017 Master Limited Partnership (MLP) Annual Investor Conference being held May 31st through June 2nd.

UT Law 30th Annual Technology Law Conference 05-25-2017

V&E is a sponsor of the UT Law 30th Annual Technology Law Conference. V&E partner Steve Borgman served on the Planning Committee for the event and will speak on "Innovative Approaches to Protecting IP in the Technology Sector" on Thursday, May 25 at 2:35 p.m.

18th Annual B. Riley & Co. Institutional Investor Conference 05-24-2017

V&E is a sponsor of B. Riley & Co.’s 18th Annual Investor Conference being held May 24th and 25th in Santa Monica, California.

2017 General Counsel & Regulatory Affairs Conference of KKR Portfolio Companies 05-23-2017

V&E partner, Bill Lawler, is a panel moderator in a session about whistleblowers at 2017 General Counsel & Regulatory Affairs Conference of KKR Portfolio Companies. The session will take you through the anatomy of a whistleblower interview, successful techniques, as well as common mistakes and pitfalls that can undermine an effective strategy.

Iraq Petroleum Conference 2017 05-22-2017

Vinson & Elkins is pleased to be sponsoring the 2017 Iraq Petroleum Conference. The event is Iraq’s most established oil & gas event and provides attendees with an opportunity to hear directly from the Iraq Ministry of Oil on their strategy for the country’s oil and gas industry, as well as network with the key decision makers from international oil companies operating in Iraq.

Mergers, Acquisitions & Divestitures Conference 05-18-2017

The Center for American and International Law will host its 4th Annual Mergers, Acquisitions, & Divestitures Conference on May 18 and May 19 in Houston, TX. The conference will cover lessons learned from energy bankruptcies, the current state of the oil & gas markets, and developments abroad, among other discussions.

Qatar & Middle East: 3rd Annual International Arbitration Summit 05-17-2017

Vinson & Elkins is pleased to be sponsoring the Qatar & Middle East: 3rd Annual International Arbitration Summit. The event is expected to be attended by practitioners and delegates from across the Middle East and will be an opportunity to network and attend informative presentations on Arbitration, ADR and Mediation from experts in the field.

Where’s the Danger? Assessing New Risk Exposure Through Explosive Growth 05-11-2017

The Austin CFO Leadership Council is hosting a panel titled “Where’s the Danger? Assessing New Risk Exposure Through Explosive Growth” on Thursday, May 11 beginning at 7:30 a.m.

Corporate Counsel Institute 05-11-2017

The 39th Annual Corporate Counsel Institute offers in-depth, practical discussions on legal issues for in-house counsel and outside counsel who represent companies of all sizes. The Institute is presented by the Corporate Counsel Section of the State Bar of Texas and The University of Texas School of Law.

An Evening with the SEC Director Shamoil Shipchandler 05-08-2017

The Texas Lawbook, is hosting an evening with SEC Director Shamoil Shipchandler. Speakers will include his predecessor, David Woodcock of Jones Day and Vinson & Elkins partner, John Wander.

ABA 2017 Midyear Meeting of the International Labor & Employment Law Committee 05-07-2017

On May 11 in Dublin, Tom Wilson is moderating a panel on the energy and infrastructure industries’ complex domestic and cross-border labor and employment issues at the ABA Midyear Meeting of the International Labor & Employment Law Committee.

22nd Annual Government Contracting Update: Shaping Today's Challenges Into Tomorrow's Success 05-04-2017

DHG's Government Contracting Practice has been helping government contractors interpret, implement and comply with regulatory concerns since the 1980's. The Annual Government Contracting Update focuses on ways to improve profit margins, enhance indirect cost strategies, ensure compliance with rules and regulations, increase cost recovery and minimize tax consequences.

American Bar Association’s Litigation Section Annual Conference 05-03-2017

The Firm is a Gold Sponsor of the American Bar Association’s Litigation Section Annual Conference in San Francisco. On May 2, V&E partner David Tsai will moderate a panel titled, “Advice To My Younger Self: Overcoming Historical Bias Against Out Litigators,” at the Inaugural LGBT Forum in conjunction with the Conference.

OTC 2017 Executive Leadership Event 05-02-2017

Vinson & Elkins is an Industry Sponsor for the YPE OTC 2017 Executive Leadership Keynote Speaker Event. The Executive Reception provides the perfect opportunity for YPE members to discuss key issues affecting the energy industry, while gaining knowledge and learning from the experiences of our senior industry leaders.

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.

Another “Operation Car Wash” FCPA Settlement: Federal Court Orders Odebrecht to Pay $2.6 Billion, but Amount Could Have Been Higher 04-21-2017

V&E FCPA & Global Anti-Corruption Update E-communication, April 21, 2017

On Monday, the U.S. District Court for the Eastern District of New York ordered Odebrecht SA, a Brazilian engineering and construction conglomerate, to pay a $93 million criminal penalty to the United States for violations of the Foreign Corrupt Practices Act (“FCPA”).

Qualcomm Strikes Back: Claims Apple “Induced” South Korean Investigation and Fine 04-21-2017

V&E High-Tech Law & Litigation E-communication, April 21, 2017

Qualcomm Inc. recently filed a 139-page answer and counterclaims in Apple Inc. v. Qualcomm Inc., 17-cv-108 (S.D. Cal.), a high-profile case in which Apple alleges that Qualcomm failed to offer fair, reasonable, and non-discriminatory (“FRAND”) licensing terms for essential patents.

NPE Licensee Now, Reluctant ITC Discovery Participant Later: Satisfying Domestic Industry Activity Through Licensees 04-19-2017

V&E High-Tech Law & Litigation E-communication, April 19, 2017

In a decision issued on February 8, 2017, an administrative law judge (“ALJ”) of the International Trade Commission (“ITC”) confirmed that a patent owner can rely on its licensee’s activities to satisfy the “domestic industry” requirement of a Section 337 Investigation (the “Investigation”). 

Buyer Beware: How Violation of a Consent Order Resulted in a $6.2 Million Penalty 04-06-2017

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

On April 4, 2017, the U.S. International Trade Commission (“ITC”) upheld its civil penalty of $6.2 million against DeLorme Publishing Company, Inc. and DeLorme InReach LLC (collectively, “DeLorme”), now known as DBN Holding, Inc. and BDN LLC (collectively, “DBN”), for DeLorme’s violation of a consent order. 

Permanent Court of Arbitration Steps in to Appoint an Arbitrator on Behalf of Libya 04-04-2017

V&E International Dispute Resolution Update E-communication, April 4, 2017

Until last week, investors in the 27 States that ratified the Agreement on Promotion, Protection and Guarantee of Investments of the Organisation of Islamic Cooperation (the “OIC Agreement”) have only had theoretical access to the guarantees of investment protection set out in that agreement.

D.C. Circuit Throws Out an FCC Junk Fax Prevention Act Rule 04-04-2017

V&E High-Tech Law & Litigation E-communication, April 4, 2017

On March 31, 2017, the U.S. Court of Appeals for the D.C. Circuit invalidated a Federal Communications Commission (“FCC”) rule requiring advertisers to place opt-out notices on solicited faxes, subject to penalties for noncompliance.

Boehringer Ruling Limits Treatment Method Patent Eligibility 03-30-2017

First published by Law 360, March 30, 2017

A recent decision from the District of New Jersey illustrates a potential challenge facing many life sciences patentees under the current patent-eligibility framework.

Why Time Warner's Attack Against The TCPA Is On The Ropes 03-30-2017

First published by Law 360, March 30, 2017

Attempting to win a constitutional battle that many before it have lost, Time Warner Cable has sought to invalidate the federal Telephone Consumer Protection Act of 1991 on grounds that its new exemption for government-sponsored debt collection calls creates an impermissible “content-based” distinction between categories of regulated speech.

FCC Broadband Consumer Privacy Rules Repealed 03-30-2017

V&E High-Tech Law & Litigation E-communication, March 30, 2017

On Tuesday, March 28, 2017, Congress voted to rollback a regulation that imposed stricter data privacy rules on the collection, use, and sharing of consumer data by broadband Internet service providers (ISPs). 

SEC Adopts T+2 Settlement 03-29-2017

V&E SEC Update E-communication, March 29, 2017

On March 22, 2017, the Securities and Exchange Commission (the “SEC”) amended Exchange Act Rule 15c6-1(a), which shortens the standard settlement cycle for most broker-dealer transactions to T+2 (two days after the trade date) from the previous T+3 standard.

Top 10 Questions from the Supreme Court at Yesterday’s TC Heartland Oral Argument 03-28-2017

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

Following one of the year’s most publicized IP cases, patent litigators and litigants anxiously await the Supreme Court’s ruling on patent litigation venue issues in TC Heartland v. Kraft

Jevic: Structured Dismissal SCOTUS Ruling 03-27-2017

V&E Restructuring and Reorganization Updates E-communication, March 27, 2017

The Supreme Court limited the use of “structured dismissals” in chapter 11 cases on March 22, 2017, overturning a ruling of the Third Circuit. The Court stressed that any distribution scheme in connection with a proposed chapter 11 structured dismissal must follow the basic priority rules of the Bankruptcy Code absent consent of the affected parties. Importantly, however, the Supreme Court avoided determining that interim modifications of the priority scheme cannot be permitted at any time during a case. 

Even After Section 230 Defense Doesn’t Work Out for Match.com, Federal Court Finds No Relationship Status with Plaintiff 03-24-2017

V&E High-Tech Law & Litigation E-communication, March 24, 2017

On March 10, 2017, the District of Nevada dismissed Mary Kay Beckman’s claims against Match.com stemming from a brutal attack by Wade Ridley, a man she met through the website. The case was before the district court after the Ninth Circuit’s decision holding that Section 230 of the Communications Decency Act, 47 U.S.C. § 230, did not apply to Beckman’s failure to warn claim.

Yay Team! Supreme Court Declares Cheerleading Uniforms Can Be Copyrighted 03-23-2017

V&E IP Insights E-communication, March 23, 2017

On March 22, 2017, the U.S. Supreme Court held that a “decorative element” on a “useful article,” such as a cheerleader uniform, can be copyrightable.  

Supreme Court Flushes Laches: No Longer a Viable Patent Infringement Defense in Many Cases 03-22-2017

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

On March 21, 2017, the U.S. Supreme Court held in a 7-1 decision that laches cannot be invoked as an equitable defense against a claim for damages arising from an infringing act that occurred within the six-year damages limitations period prescribed by 35 U.S.C. § 286. 

Texas Supreme Court Cautions Against Reliance on Wikipedia in “Welfare Queen” Defamation Case 03-22-2017

V&E High-Tech Law & Litigation E-communication, March 22, 2017

On Friday, the Texas Supreme Court decided a closely-watched defamation case brought by a woman who claimed she was libeled when a Dallas magazine referred to her as a “welfare queen.” See D Magazine Partners, L.P. v. Rosenthal, Case No. 15-0790 (Mar. 17, 2017).

Federal Circuit Upholds Attorneys’ Fee Award Despite Bayer’s Claim It Had an “Objectively Reasonable Case on the Merits” 03-21-2017

V&E IP Insights E-Communication, March 21, 2017

On March 17, 2017, the Federal Circuit issued a rare precedential opinion affirming an award of attorneys’ fees. Bayer Cropscience AG v. Dow Agrosciences LLC, No. 2015-1854 (Fed. Cir. Mar. 17, 2017).

No Right to be Forgotten from Commercial Registers in European Union 03-14-2017

V&E High-Tech Law & Litigation E-communication, March 14, 2017

The contours of the right to be forgotten — to have potentially damaging personal data removed from digital records — continue to take shape in the European Union (EU). 

Amgen Declines Genentech’s Invitation to the Patent Dance; Litigation Ensues 03-13-2017

V&E Hi-Tech Update E-communication, March 13, 2017

On March 1, 2017, the District of Delaware dismissed Genentech’s two-week old lawsuit against Amgen, which alleged violations of the Biologics Price Competition and Innovation Act (“BPCIA”).

Making It Easier to Challenge Arbitral Awards? UK Supreme Court Rules That a Party Challenging Enforcement of an Arbitration Award Does Not Have to Post Security 03-13-2017

V&E International Dispute Resolution Update E-communication, March 13, 2017

A recent decision of the UK Supreme Court clarified that parties raising, in good faith, genuine defences to enforcement of arbitral awards under the New York Convention may not have to put up security as a condition of having that defence heard.

Asking About Salary is Not Only Rude, It May Be Illegal 10-19-2017

Labor & Employment Blog

Most people agree that it is pretty tacky to ask someone how much they earn, at least in social situations. We usually don’t bat an eye when a prospective employer asks us how much we earned in our old job. In fact, many applications for employment ask for a complete salary history. That may be about to change.

Healthcare Post-Mortem: Medical Industry Continues to be High-Value Target for FCA Enforcement 10-18-2017

Lincoln's Law Blog

Last week we gave you the bottom line of how much DOJ (and relators) recovered in FY 2017. As we promised, we are doing a series of sector-specific posts – analyzing each for industry-specific trends. Today is Healthcare: Who’s paying, how often, and how much?

PSM and Petroleum Refineries: Lessons Learned (Part 1) 10-17-2017

Labor & Employment Blog

Although the PSM standard was promulgated by OSHA in 1992, it wasn’t until 2007 that OSHA began to systematically inspect petroleum refineries as part of its Petroleum Refinery Process Safety Management National Emphasis Program (NEP). Many safety managers at refineries around the country were surprised at how easily OSHA was able to use the PSM standard to issue dozens of high dollar value citations by simply issuing multiple citations for each subsection of the standard.

It’s Déjà vu All over Again: Resetting the FCA Stats Tracker for FY 2018 10-13-2017

Lincoln's Law Blog

It’s that time again; time to press the reset button and reflect on the past fiscal year’s FCA statistics. Fiscal Year 2017, which came to a close on September 30th, was a big year here at LLB as it marks the first year we were able to track FCA statistics for the entire year in real time. LLB has been through some changes since the last time we did this; just recently, we premiered our new custom date range tool on the data set for increased precision in your searches and today we premiered a new copy link feature. However, one thing has remained constant: our readership’s interest in FCA enforcement statistics. With that in mind, we now present to you a breakdown of our preliminary assessment of FY 2017.

Even Opera Sopranos Need Fall Protection 10-12-2017

Labor & Employment Blog

For those of you who don’t follow opera, Bellini’s “Norma” is considered by many to contain the Mount Everest of soprano roles, one that only a few divas — Maria Callas, for example — have truly mastered. 

Court Vacates BLM’s Postponement of Obama Methane Rule 10-11-2017

Climate Change Blog

On October 4, 2017, in a consolidated decision for Sierra Club, et al. v. Zinke, et al., No. 17-cv-03885, and State of California, et al. v. United States Bureau of Land Management, et al., No. 17-cv-03804, a Magistrate Judge in the U.S. District Court for the Northern District of California vacated BLM’s postponement of its 2016 final rule entitled “Waste Prevention, Production Subject to Royalties, and Resource Conservation” (the “Waste Prevention Rule” or “Rule”). The Waste Prevention Rule imposes additional emission control requirements relating to venting, flaring, and leaking of natural gas from oil and gas production operations on public lands in an effort to reduce methane emissions. The Rule required operators to submit “waste minimization” plans by January 2017 and includes other compliance deadlines, beginning in January 2018. On October 5, 2017, BLM published a proposed rule that would extend the January 2018 compliance deadlines to January 2019. The comment period for this proposed rule is currently open through November 6, 2017.

Time to Take Your Medicine: Fifth Circuit Decision Diagnoses Problems with Causation Arguments 10-10-2017

Lincoln's Law Blog

Last month, we covered United States ex rel. King v. Solvay Pharmaceuticals, Inc. on the issue of the FCA’s public disclosure bar pre-Affordable Care Act. Today, we explore another aspect of that same opinion — the causation requirements necessary to sustain a fraudulent inducement FCA claim. The Fifth Circuit delivered relators a dose of bitter medicine in its opinion, affirming the district court’s grant of summary judgment to the defendant pharmaceutical company on the grounds that relators failed to demonstrate a causal link between the alleged false statements and any actual false claims.

SOX Liability From A Whistleblower Outside the United States? Maybe 10-10-2017

Labor & Employment Blog

It is natural (and logical) to assume that United States laws do not apply to an individual’s actions in another country. Although this is not always the case — federal discrimination laws, for example, cover U.S. citizens employed by U.S. employers in a foreign country — one would usually expect that conduct is governed by the law of the country where the alleged violation occurred. A recent Department of Labor Administrative Review Board (“ARB”) decision, however, held that Sarbanes-Oxley’s (“SOX”) whistleblower protections may also apply to employees stationed outside the United States.

Litigation Update: Ninth Circuit Stays Mandate to allow Gilead to Seek Cert on Key Post-Escobar Issues 10-06-2017

Lincoln's Law Blog

We reported previously on yet another implied certification case raising significant questions about materiality and falsity in the post-Escobar world, United States ex. rel. Campie v. Gilead Sciences, Inc., in which the Ninth Circuit reversed the district court’s dismissal of the case.

Stop, Prioritize, and Simplify – the Mantra for a Better Health and Safety Program 10-05-2017

Labor & Employment Blog

Over the past year, we have held several roundtable discussions with safety and operations managers in which we have talked about the challenges of improving safety and health systems at the same time that top managers are trying to cut costs. Based on the helpful feedback that we received from many of the safety managers and operations managers who participated in these discussions, consultants from ERM helped us come up with a three-step mantra for addressing this problem: Stop, Prioritize, and Simplify.

Something for Everyone: Businesses Across All Industries Can Learn from FTC's "Stick with Security" Guidance on Data Security Best Practices 10-05-2017

High-Tech Law & Litigation Blog

As a dynamic follow-up to its “Start with Security” guide, the Federal Trade Commission (“FTC”) debuted in July its “Stick with Security” initiative to provide continued guidance to businesses on sound security practices. The initiative has kicked off with a series of Friday blog posts, each emphasizing a security best practice drawn from the FTC’s closed investigations, its law enforcement actions, and questions it has received from businesses. In the first blog post, published July 21, 2017, the FTC revealed some of the themes that resulted in the FTC not taking law enforcement action.

Some Thoughts About How to Prevent Gun Violence in the Workplace 10-04-2017

Labor & Employment Blog

Although it did not happen in the workplace, the recent mass shooting in Las Vegas is a fresh reminder of a serious problem that faces employers in the United States. How do you protect your employees from gun violence? 

Up-Up-And-Away: $92.9 Million FCA Verdict Balloons to $295.5 Million Judgment After Court Imposes Treble Damages and Near-Max FCA Penalties 10-03-2017

Lincoln's Law Blog

On Friday, a Houston federal court entered judgment totaling $295.5 million in an FCA and FIRREA (Financial Institutions Reform, Recovery, and Enforcement Act of 1989) case, up from the jury’s verdict of $92.9 million. The case is United States v. Allied Home Mortgage Corporation, et al., 4:12-cv-02676-GCH (S.D. Tex.), and it centers around defaulted home mortgage loans insured through the U.S. Department of Housing and Urban Development (HUD). We here at LLB previously wrote about the jury’s verdict in this intervened qui tam (available here).

U.S. Patents but International Problems: U.S. Supreme Court's Life Technologies and Lexmark Decisions Expected to Have Global Impact on Patent Rights and Technology Industry 10-03-2017

High-Tech Law & Litigation Blog

During its 2017 term, the Supreme Court decided two patent cases that are expected to have important repercussions on global supply chains and businesses, including manufacturing, sales, and the licensing of technology products.

Uber Settles with the FTC, Tying Itself to the Agency For Up To 20 Years 09-28-2017

High-Tech Law & Litigation Blog

On August 15, 2017, three years after it faced backlash from the media, Uber has settled with the Federal Trade Commission (FTC) over allegations that despite its representations, the company failed to secure customer data and failed to monitor employee access to that data, thus engaging in unfair or deceptive acts or practices affecting commerce in violation of the Federal Trade Commission Act, 15 U.S.C. § 45(a). We cannot explain why it took three years for the decision to be issued. Regardless, the decision is a reminder that parties must accurately describe their security programs, must take reasonable and appropriate steps to protect personal information, and must test the efficacy of their privacy programs.

Will Industry's Legal Challenge of New Silica Standard Succeed? 09-28-2017

Labor & Employment Blog

I just finished listening to the oral arguments that were made earlier this week before the D.C. Circuit in the case challenging OSHA’s new silica standard. As we have explained in other posts in this blog, the new silica standard not only reduces the permissible exposure limit (PEL) for silica dust to 50 micrograms per milliliter, but also requires many industries — including the fracking industry — to begin complying with a host of new requirements, including medical surveillance for exposed employees and implementing engineering measures to reduce exposure (see herehere, and here).

Futrell Enters the Fray on Whether the FCA Covers the E-Rate Program Despite Funding from Telecomm. Industry 09-28-2017

Lincoln's Law Blog

Last month, a Missouri district court in U.S. ex rel. Futrell v. E-Rate Program, LLC handed down a decision of interest to the telecommunications industry. The defendant contracts with schools and school districts to help them obtain funds under the E-Rate Program, a program that provides subsidies and discounts to schools to secure affordable telecommunications and Internet access. The program is administered by USAC, a private non-profit organization subject to regulations of (but not controlled by) the FCC, and is funded by mandatory contributions from private interstate telecommunications carriers. The Futrell court found that FCA liability may exist in such circumstances, even though the USAC funds are not government dollars. The Futrell decision adds to a disagreement between at least two district courts and one circuit court on this issue.

The ADA is Not a Leave Law, But Someone Forgot to Tell the EEOC 09-26-2017

Labor & Employment Blog

Does the ADA require employers to allow unpaid leave for accommodation when such leave doesn’t present undue hardship? This has actually been an open question under the ADA for a while, and the EEOC last year said that unpaid leave might sometimes be a reasonable accommodation; most employers would probably say that unpaid leave is not a reasonable accommodation. After all, an accommodation request can only be reasonable if the employee, “with or without reasonable accommodation, can perform the essential functions of the employment position.”

False Claims Act Cert. Monitor: Eight FCA Petitions on the 2017 Docket So Far 09-26-2017

Lincoln's Law Blog

With the first day of fall comes the new term at the Supreme Court, and with the new term comes the chance to catch up with petitions we wrote about last year and with new petitions filed over the summer. We know of at least six FCA petitions that were set to be considered at the Court’s Long Conference on September 25, and we should learn their fates this week. Meanwhile, we have tracked down two other petitions still in briefing. These petitions touch on everything from the Rule 9(b) pleading standard, to reverse false claims, to knowledge in the face of ambiguous rules, to Escobar’s two-part falsity test, to sanctions for relator misconduct.

It’s Time to Get Serious About International Human Rights 09-21-2017

Labor & Employment Blog

Take a look at your company’s website. When you do, is it quickly clear to you that your company is serious about its efforts to avoid violations of international human rights in its operations? If it is not, it is time to get to work on this issue. Governments, courts (legal and those of public opinion), and the markets are steadily showing less tolerance for companies whose operations either actively or through neglect create violations of internationally recognized human rights.

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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