Jackson Walker

Texas Supreme Court Upholds Gas Utility's Rate Schedule Containing a Cost of Service Adjustment Clause

On January 17, 2014, the Texas Supreme Court held that the Railroad Commission of Texas (the "Commission") has the authority to adopt a gas utility rate schedule providing for automatic annual adjustments based on increases or…more

Public Utilities Commission, Utilities Sector

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Laches Remains a Valid Defense to Patent Infringement Notwithstanding 'Petrella v. Metro-Goldwyn-Mayer'

On Friday, September 18, 2015, the Federal Circuit sitting en banc, confirmed in SCA Hygiene Products v. First Quality Baby Products that the common law doctrine of laches is still a viable defense to patent infringement when…more

Copyright Infringement, Damages, Laches, Lanham Act, Limitation Periods

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Stacy Allen Speaks: Newsroom Victories During the 2015 Texas Legislative Session

Sometimes, killing a bad bill can be as important as enacting a good one. So it was for newsrooms during the 2015 session of the Texas Legislature. My partner Paul Watler and I were privileged to assist the Texas Association of…more

Car Accident, Defamation, Journalists, Pending Legislation, Police

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Texas Ninth Court of Appeals Issues Contrasting Opinions Addressing Pipeline Condemnation Authority

Recently, the Texas Court of Appeals for the Ninth District at Beaumont issued two contrasting opinions which provide guidance for the application of the Texas Supreme Court's 2012 decision in Texas Rice Land Partners, Ltd. v…more

Common Carriers, Keystone XL Pipeline, Liquid Natural Gas, Petroleum, Pipelines

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Renewable Energy Case Law Update

This case law update describes a selection of renewable energy cases from 2015. It is not intended to address all renewable energy cases over the previous year, but rather, highlight a few that are more likely to be of interest…more

Carbon Emissions, Clean Energy, Clean Power Plan, Endangered Species, Environmental Litigation

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Chip Babcock Speaks: In Search of Atticus Finch

Atticus Finch, who sometimes went by the name of Gregory Peck, was not a litigator. In fact, "he had a profound distaste for the practice of criminal law" and made a living mostly on people's "entailments" and making "somebody's…more

Young Lawyers

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Railroad Commission Order Clarifies Scope of the Common Carrier Act

Last week, in a 3-0 decision, the Railroad Commission of Texas ("Railroad Commission") overturned a Hearings Examiner's interim ruling that the Common Carrier Act does not apply to a pipeline transporting ethylene. In a case of…more

Common Carriers, Railways

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Looks Like Frack is Back, Governor Abbott Signs House Bill 40

Yesterday, Governor Gregg Abbott signed into law House Bill 40, also known as the Denton Fracking Bill, which leaves municipalities with minimal power to regulate the oil and gas industry. The bill takes effect immediately and…more

Fracking, Fracking Bans, Local Ordinance, Municipalities, New Legislation

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New Law Continues to Require Out-of-Network Facility-Based Physicians to Notify Patients of Mediation Rights

Early last week, Gov. Greg Abbott signed SB 481 into law. The new law, which will become effective on September 1st, gives Texas consumers the option to mediate medical bills that they receive from out-of-network facility-based…more

Billing, Healthcare, Mediation, New Legislation, Out of Network Provider

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Current Water Utility CCN Decertification Issues At The Public Utility Commission Of Texas

The responsibility for the regulation of water and sewer service, including the oversight of certificates of public convenience and necessity (“CCNs”), was recently transferred from the Texas Commission on Environmental Quality…more

Administrative Authority, CCN Decertification, Expedited Actions Process, Expedited Release, Property Owners

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Sabine Court Gives 'Non-Binding' Ruling That Gathering Agreements Are Not Covenants Running with the Land Under Texas Law

After extensive briefing and hearing oral arguments related to Sabine's motion to reject two gathering agreements with Nordheim Eagle Ford Gathering as well as two gathering and handling agreements with HPIP Gonzales Holdings,…more

Bankruptcy Court, Commercial Bankruptcy, Covenants that Run With the Land, Debtors, Equitable Servitudes

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Conflict Minerals: Dodd-Frank, the SEC's Rule...and Beyond

Designed to reduce funding sources for those perpetrating human rights abuses and engaging in armed conflict in the Democratic Republic of the Congo ("DRC") and adjoining countries, Section 1502 of the Dodd-Frank Wall Street…more

Conflict Mineral Rules, Consumer Protection Act, Dodd-Frank, SEC

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Standing: How Much Is A Ticket To The Dance?

The purpose of this article is to explain the concept of “standing” in probate and guardianship actions, to discuss how the topic should be raised, and to provide some specificexamples of situations where the standing of a…more

Estate Planning, Standing

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eDiscovery: Tips and Traps (Presentation)

•GHOST/MIRROR: Complete bit by bit copy of a drive. (Not just copying data; actually reproducing the hard drive.) •LEGACY: Information from older systems no longer actively supported and not easily…more

Data Retention, Discovery, Document Productions, Electronically Stored Information, Litigation Hold

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The A.R.T of Franchising Advice - Reminders - Tips - July 2013

National Franchise Expansion – Minimizing Risks - Many of my clients have implemented national expansion plans. By doing so, they have certainly increased their pool of prospective franchisees. However, expansion that…more

Business Development, Franchises, Marketing, Risk Management, Trademarks

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Managing Your Online Content and Website

A SURVEY OF PRIVACY, COPYRIGHT, AND TRADEMARK ISSUES - Today, even Elvis has a Facebook page, Instagram2 and Google+ accounts, a Twitter handle, a Pinterest board, and a mobile app. The Internet and the mobile electronic…more

Content Marketing, Copyright, Data-Sharing, Do Not Track, Entertainment Industry

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IRS Reduces Cost to Fix Some Missed Deferral Errors

The Internal Revenue Service has issued new guidelines that should be advantageous for employers that sponsor 401(k) and 403(b) plans. The new rules reduce and, in some cases, completely eliminate the windfall in favor of…more

401k, 403(b) Plans, EEDF, Employee Benefits, IRS

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Sabine Court Gives 'Non-Binding' Ruling That Gathering Agreements Are Not Covenants Running with the Land Under Texas Law

After extensive briefing and hearing oral arguments related to Sabine's motion to reject two gathering agreements with Nordheim Eagle Ford Gathering as well as two gathering and handling agreements with HPIP Gonzales Holdings,…more

Bankruptcy Court, Commercial Bankruptcy, Covenants that Run With the Land, Debtors, Equitable Servitudes

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Preparing for the 2014 Proxy Season - Process and Expectations

Annual Meeting Timeline: - Stockholder Proposals: ..Generally 120 days before the date on which the previous year’s proxy materials were mailed - Determine Proposal Inclusion/Exclusion: ..Procedural…more

No-Action Letters, Proxy Season, Proxy Voting Guidelines, SEC, Shareholders

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Important Patent Law Changes

The most significant changes in U.S. patent law since 1790 apply to patent applications filed after March 15, 2013. If you have any new inventions or improvements on old inventions that you are considering patenting, or…more

America Invents Act, First-to-File, First-to-Invent, Grace Period, Patent Reform

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Alert on Ransomware Attacks and Prevention

Imagine entering your office, sitting down with a cup of coffee, and going through the routine task of logging on to your computer to review your emails and schedule for the day. Except this time, there is a problem. A message…more

Cyber Attacks, Cybersecurity, Data Security, Health Care Providers, Network Security

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Supreme Court Rebukes EPA's Broad Interpretation Of Its Power To Regulate GHGs And Sends Message For EPA To Carefully Proceed With Its Ongoing GHG Programs

On June 23, 2014, the Supreme Court, in a 5–4 decision,1 affirmed in part and reversed in part the D.C. Circuit Court of Appeals' decision regarding the U.S. Environmental Protection Agency's ("EPA") greenhouse gas ("GHG")…more

Carbon Emissions, Clean Air Act, Environmental Policies, EPA, Greenhouse Gas Emissions

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Looks Like Frack is Back, Governor Abbott Signs House Bill 40

Yesterday, Governor Gregg Abbott signed into law House Bill 40, also known as the Denton Fracking Bill, which leaves municipalities with minimal power to regulate the oil and gas industry. The bill takes effect immediately and…more

Fracking, Fracking Bans, Local Ordinance, Municipalities, New Legislation

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All Texas Medicaid Providers Must Re-Enroll by June 17th...or Else!

As a requirement of the Patient Protection and Affordable Care Act ("PPACA"), all Texas Medicaid providers, including ordering and referring providers, must revalidate their enrollment in the Texas Medicaid program if they…more

Affordable Care Act, CMS, Enrollment, Medicaid, Medicare

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Navigating The Rocky Shoals Of Software Copyrights

Originally published in Chapter 17 of the State Bar of Texas - Advanced Intellectual Property Law. Contents: I. Introduction II. In Which Our Hero is Dashed on the Rocky Shoals of Software Coypright A…more

Android, Copyright, Derivative Works, Google, Java

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The Double-Fraction Dilemma: Intent-Focused Inquiry Prevails

As the oil and gas industry has moved away from the legacy of the 1/8th royalty, double-fraction language has generated a multitude of disagreements as to whether a royalty interest should be construed as "fixed" or "floating"…more

Gas Royalties, Intent of the Parties, Inter Vivos Gifts, Mineral Leases, Oil & Gas

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eDiscovery: Tips and Traps (Presentation)

•GHOST/MIRROR: Complete bit by bit copy of a drive. (Not just copying data; actually reproducing the hard drive.) •LEGACY: Information from older systems no longer actively supported and not easily…more

Data Retention, Discovery, Document Productions, Electronically Stored Information, Litigation Hold

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Supreme Court Revisits Stock Drop Fiduciary Standards

In Amgen v. Harris, the Supreme Court for the second time considered whether the plan participants sufficiently stated a claim against the plan fiduciaries for breach of fiduciary duty under ERISA by continuing to provide Amgen…more

Amgen, Duty of Prudence, ERISA, Failure To State A Claim, Fiduciary Duty

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Inflation Adjustments for 2016

On October 21, 2015, the IRS released the annual inflation adjustments which will apply to tax year 2016. These adjustments will help determine a taxpayer's tax bracket and available deductions, credits, exclusions, and…more

Estate Tax, Flexible Spending Accounts, Gift-Tax Exemption, Health Savings Accounts, Income Taxes

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New EEO-1 Reporting Requirements on Pay for Women and Minorities for Employers with 100+ Employees

The Obama Administration has directed the EEOC to collect additional data about the pay of women and racial/ethnic minorities from all employers with more than 100 employees. The updated EEO-1 reporting will provide data for the…more

EEO-1, EEOC, Equal Pay Report, Obama Administration, Reporting Requirements

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A Tale of Equal Pay Laws to Come? How Two New Executive Actions for Federal Contractors Could Eventually Affect All Employers

On Tuesday, April 8, 2014, President Obama signed an Executive Order and a Presidential Memorandum that, according to the White House, are aimed at combating pay discrimination and strengthening the enforcement of equal pay for…more

Barack Obama, Equal Pay, Executive Orders, Federal Contractors, Pay Discrimination

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IP Litigation Insider - March 2016

Are Ex Parte Reexaminations An Overlooked Method of Challenging Patents? In the wake of the September 16, 2011, enactment of the America Invents Act ("AIA"), many third-party individuals and organizations began utilizing…more

America Invents Act, Email Policies, EU-US Privacy Shield, Ex Partes Reexamination, Patents

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Aviation Flyer - Summer 2014

In This Issue: - Forum Non Conveniens - A Defendant’s Initial Impulse Could Be The Riskiest - Providing Information To Expert Witnesses: A Quick Guide To The Proper Procedures And Potential Pitfalls - Lennar…more

ADA, Aviation Industry, Federal Aviation Administration (FAA), Forum, Forum Non Conveniens

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EEOC's New Procedure Provides Position Statements to Charging Parties

For the past few decades, information provided to the Equal Employment Opportunity Commission ("EEOC" or "Commission") has been protected from disclosure during the pendency of an investigation and to some degree after the…more

Complaint Procedures, Confidential Information, Discovery, EEOC, Employment Discrimination

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Current Water Utility CCN Decertification Issues At The Public Utility Commission Of Texas

The responsibility for the regulation of water and sewer service, including the oversight of certificates of public convenience and necessity (“CCNs”), was recently transferred from the Texas Commission on Environmental Quality…more

Administrative Authority, CCN Decertification, Expedited Actions Process, Expedited Release, Property Owners

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HHS Proposes New Safe Harbor Rules, Revises Others

Last week the Department of Health & Human Services ("HHS") issued a proposed rule amending the safe harbor regulations promulgated under the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b). The proposed rule would make…more

Anti-Kickback Statute, Healthcare, HHS, Safe Harbors

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Hot Employment Topics For 2014 Part V: Use Of Arrests And Convictions In The Employment Process

This is the fifth of a seven-part series describing "Hot Employment Topics for 2014." Part V focuses upon "Use of Arrests and Convictions in the Employment Process." One hot topic in 2014 will be the issue of employer…more

Arrest, Background Checks, Ban the Box, Convictions, Criminal Background Checks

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Joint Venture Governance And Business Opportunity Issues

The joint venture is a vehicle for the development of a business opportunity by two or more entities acting together, and will exist if the parties have: (1) a community of interest in the venture, (2) an agreement to share…more

Antitrust Provisions, Business Entities, Business Opportunities, Business Taxes, Choice of Entity

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Railroad Commission Order Clarifies Scope of the Common Carrier Act

Last week, in a 3-0 decision, the Railroad Commission of Texas ("Railroad Commission") overturned a Hearings Examiner's interim ruling that the Common Carrier Act does not apply to a pipeline transporting ethylene. In a case of…more

Common Carriers, Railways

See All Updates »

eDiscovery: Tips and Traps (Presentation)

•GHOST/MIRROR: Complete bit by bit copy of a drive. (Not just copying data; actually reproducing the hard drive.) •LEGACY: Information from older systems no longer actively supported and not easily…more

Data Retention, Discovery, Document Productions, Electronically Stored Information, Litigation Hold

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I Can Fly it For Fun–Why Not For Profit? Proposed FAA Rules For Unmanned Aerial Vehicles

Every week, it seems you hear another business is using unmanned aerial vehicles. So why are you, or your company, still grounded? That could change soon…more

Certifications, Commercial Use, Drones, Exemptions, Federal Aviation Administration (FAA)

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Aviation Flyer - Spring 2013

In This Issue: - The United States Supreme Court’s Competing Guidance Regarding Personal Jurisdiction Over Foreign Manufacturers - Recent French Appeals Court Decision in Concorde Crash Step Forward Towards…more

Airplane Accidents, Federal Aviation Administration (FAA), Foreign Corporations, Personal Jurisdiction, SCOTUS

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A Tale of Equal Pay Laws to Come? How Two New Executive Actions for Federal Contractors Could Eventually Affect All Employers

On Tuesday, April 8, 2014, President Obama signed an Executive Order and a Presidential Memorandum that, according to the White House, are aimed at combating pay discrimination and strengthening the enforcement of equal pay for…more

Barack Obama, Equal Pay, Executive Orders, Federal Contractors, Pay Discrimination

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Interplay Between Texas Workers' Compensation Law and Federal Family Medical Leave Act: Texas Supreme Court Addresses Impact of FMLA on Workers' Compensation Anti-Retaliation Clause

On December 4, 2015, the Texas Supreme Court provided significant guidance for employers by clarifying the relationship between the Texas Worker’s Compensation Act and the federal Family Medical Leave Act ("FMLA") in Kingsaire,…more

ADA, Anti-Retaliation Provisions, FMLA, Hiring & Firing, TX Supreme Court

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SEC Issues Guidance on Disclosures Made via Social Media

The Securities and Exchange Commission (the "SEC") recently issued a Report of Investigation (the "Report") in which it provides helpful guidance to public companies regarding their use of social media to disclose material…more

Disclosure Requirements, Form 8-K, Regulation FD, SEC, Social Media

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Ebola and the Workplace: What Employers Need To Know

In light of the Ebola virus outbreak abroad and the recent Ebola cases in the U.S., employers should be aware of the laws implicated in their treatment of employees. Though employment issues related to Ebola may appear to be…more

ADA, Best Management Practices, CDC, Ebola, Employer Liability Issues

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EEOC's New Procedure Provides Position Statements to Charging Parties

For the past few decades, information provided to the Equal Employment Opportunity Commission ("EEOC" or "Commission") has been protected from disclosure during the pendency of an investigation and to some degree after the…more

Complaint Procedures, Confidential Information, Discovery, EEOC, Employment Discrimination

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Federal Procedure Update - 2012

I. FEDERAL PROCEDURE - A. Overview of Article. The purpose of this article is to provide summaries and brief discussion of significant recent cases from the United States Supreme Court, the United States Circuit…more

Arbitration, AT&T Mobility, AT&T Mobility v Concepcion, Class Certification, Disclosure Requirements

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Texas Legislature Imposes Statutory Subordination of Real Estate Mortgages to Oil and Gas Leases

The explosive growth of oil and gas leasing and drilling in the Barnett Shale play turned an issue that had always been a nuisance for the oil and gas industry into a significant problem. When an oil and gas producer takes a…more

Mineral Leases, Mortgages, Oil & Gas, Subordination Agreement

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Aviation Flyer - Spring 2013

In This Issue: - The United States Supreme Court’s Competing Guidance Regarding Personal Jurisdiction Over Foreign Manufacturers - Recent French Appeals Court Decision in Concorde Crash Step Forward Towards…more

Airplane Accidents, Federal Aviation Administration (FAA), Foreign Corporations, Personal Jurisdiction, SCOTUS

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IRS Reduces Cost to Fix Some Missed Deferral Errors

The Internal Revenue Service has issued new guidelines that should be advantageous for employers that sponsor 401(k) and 403(b) plans. The new rules reduce and, in some cases, completely eliminate the windfall in favor of…more

401k, 403(b) Plans, EEDF, Employee Benefits, IRS

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IRA Charitable Rollover Made Permanent

President Obama signed the Protecting Americans from Tax Hikes (PATH) Act into law on December 18, 2015. As a result, the IRA charitable rollover is now available to qualifying taxpayers on a permanent basis…more

Charitable Rollover, IRA, IRA Rollovers, Protecting Americans from Tax Hikes (PATH) Act

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Nancy Hamilton's Notes: 18½ Minutes vs. 2 Years: Then and Now

During the Watergate scandal of 1973 and 1974, which ultimately led to the resignation of President Richard Nixon, the Nixon White House tapes were the focal point of a media firestorm and the nation's rapt attention,…more

Audits, Email, IRS, Tea Party

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Implications of Texas' Open Carry Law for Property Owners

Texas House Bill 910, also known as the "Open Carry" bill, was signed in to law by Governor Greg Abbott on June 13, 2015. Most of the provisions of the "Open Carry" law become effective on January 1, 2016. The new "Open Carry"…more

Commercial Property Owners, Gun Laws

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Texas Legislature Imposes Statutory Subordination of Real Estate Mortgages to Oil and Gas Leases

The explosive growth of oil and gas leasing and drilling in the Barnett Shale play turned an issue that had always been a nuisance for the oil and gas industry into a significant problem. When an oil and gas producer takes a…more

Mineral Leases, Mortgages, Oil & Gas, Subordination Agreement

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IRS: Investment Fund Managers are Subject to Self-Employment Tax

The Office of Chief Counsel of the Internal Revenue Service (the "IRS") recently issued internal guidance in the form of a Chief Counsel Advice (the "CCA") indicating that the IRS has taken the position that the "limited…more

General Partnerships, Investment Adviser, Investment Management, IRS, Limited Liability Companies

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The Double-Fraction Dilemma: Intent-Focused Inquiry Prevails

As the oil and gas industry has moved away from the legacy of the 1/8th royalty, double-fraction language has generated a multitude of disagreements as to whether a royalty interest should be construed as "fixed" or "floating"…more

Gas Royalties, Intent of the Parties, Inter Vivos Gifts, Mineral Leases, Oil & Gas

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Investment Adviser and SEC Agree to Settle Charges Arising out of Failure to Adopt Written Cybersecurity Policies Required by the Safeguards Rule

The SEC charged investment adviser R.T. Jones with willfully violating the Safeguards Rule by failing to adopt written policies and procedures designed to protect customer records and information. The Safeguards Rule requires…more

Cease and Desist Orders, Civil Monetary Penalty, Credit Monitoring, Cyber Attacks, Cybersecurity

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Enterprise Data Security For The Securities Lawyer

Assuring cybersecurity has become a necessity for businesses across all industries. Cybercrime — with over $1 trillion in annual profits — is now the most lucrative illegal global business. Any business with computers and…more

Cyber Crimes, Cybersecurity, Data Protection, Fiduciary Duty, Gramm-Leach-Blilely Act

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All Texas Medicaid Providers Must Re-Enroll by June 17th...or Else!

As a requirement of the Patient Protection and Affordable Care Act ("PPACA"), all Texas Medicaid providers, including ordering and referring providers, must revalidate their enrollment in the Texas Medicaid program if they…more

Affordable Care Act, CMS, Enrollment, Medicaid, Medicare

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Aviation Flyer - Summer 2014

In This Issue: - Forum Non Conveniens - A Defendant’s Initial Impulse Could Be The Riskiest - Providing Information To Expert Witnesses: A Quick Guide To The Proper Procedures And Potential Pitfalls - Lennar…more

ADA, Aviation Industry, Federal Aviation Administration (FAA), Forum, Forum Non Conveniens

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Higher Education Risk Management Conference: Establishing International Programs: Risks and Due Diligence

Globalization: -- Reshaping the world in the past several decades: .. continued growth of multinationals .. increased cross-border workers and consumers .. increased imported goods and services --…more

Due Diligence, Global Economy, Risk Management

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New Law Continues to Require Out-of-Network Facility-Based Physicians to Notify Patients of Mediation Rights

Early last week, Gov. Greg Abbott signed SB 481 into law. The new law, which will become effective on September 1st, gives Texas consumers the option to mediate medical bills that they receive from out-of-network facility-based…more

Billing, Healthcare, Mediation, New Legislation, Out of Network Provider

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IRS: Investment Fund Managers are Subject to Self-Employment Tax

The Office of Chief Counsel of the Internal Revenue Service (the "IRS") recently issued internal guidance in the form of a Chief Counsel Advice (the "CCA") indicating that the IRS has taken the position that the "limited…more

General Partnerships, Investment Adviser, Investment Management, IRS, Limited Liability Companies

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Texas Case Law Update – Judge Dismisses Putative Class Action Over Home Equity Modifications

In an ongoing effort to update our financial institution clients about developments in Texas jurisprudence that may impact them, we bring to your attention a recent decision of particular importance to mortgage and home equity…more

Dismissals, JPMorgan Chase, Loans, Mortgages, Putative Class Actions

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Texas Supreme Court Rules in Southern Crushed Concrete that Texas Clean Air Act Preempts City of Houston Land Use Ordinance

On February 15, 2013, the Texas Supreme Court reversed the rulings of both a trial court and lower appellate court and found in favor of Southern Crushed Concrete in holding that a City of Houston ordinance placing location…more

Air Quality Standards, Clean Air Act, Permits, Preemption

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Using Letters Of Credit For Tenant Credit Enhancement

I. Introduction. Cash security deposits (typically in the amount of one or two month’s rent) have been the traditional form of tenant credit enhancement required by commercial landlords. However, in instances where…more

Automatic Stay, FDIC, Landlords, Letter of Credit, Security Deposits

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Federal Procedure Update - 2012

I. FEDERAL PROCEDURE - A. Overview of Article. The purpose of this article is to provide summaries and brief discussion of significant recent cases from the United States Supreme Court, the United States Circuit…more

Arbitration, AT&T Mobility, AT&T Mobility v Concepcion, Class Certification, Disclosure Requirements

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IP Litigation Insider - March 2016

Are Ex Parte Reexaminations An Overlooked Method of Challenging Patents? In the wake of the September 16, 2011, enactment of the America Invents Act ("AIA"), many third-party individuals and organizations began utilizing…more

America Invents Act, Email Policies, EU-US Privacy Shield, Ex Partes Reexamination, Patents

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SEC Adopts Final Crowdfunding Rules

On October 30, 2015, the U.S. Securities and Exchange Commission adopted final rules permitting issuers to use crowdfunding to raise capital. The rules, which were originally proposed more than two years ago pursuant to Title…more

Capital Raising, Crowdfunding, Funding Portal, JOBS Act, Offerings

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Seventh Circuit Upholds Method to Fund Transmission Expansions to Carry Renewable Energy

A recent Seventh Circuit opinion, Illinois Commerce Commission v. FERC, represents a significant victory for the future of renewable energy. The decision, authored by Judge Richard Posner, upholds the method Midcontinent…more

FERC, MISO, Renewable Energy, Wind Power

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Hedging Oil & Gas Production

The recent, dramatic decline in the price of oil illustrates the risk that every oil and gas producer has to declining energy commodity prices. This paper discusses various methods for “hedging” or reducing price risk. In…more

Commodities, Commodity Futures Contracts, Dodd-Frank, Exchange-Traded Products, ISDA Master Agreement

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The Double-Fraction Dilemma: Intent-Focused Inquiry Prevails

As the oil and gas industry has moved away from the legacy of the 1/8th royalty, double-fraction language has generated a multitude of disagreements as to whether a royalty interest should be construed as "fixed" or "floating"…more

Gas Royalties, Intent of the Parties, Inter Vivos Gifts, Mineral Leases, Oil & Gas

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Deference (And Related Issues)

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised…more

Legal Writing, Legislative Process

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FTC Announces Hart-Scott-Rodino Thresholds for 2016

On January 26, 2016, the Federal Trade Commission ("FTC") published in the Federal Register adjusted jurisdictional and filing fee thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR…more

DOJ, Filing Fees, FTC, Hart-Scott-Rodino Act, Pre-Merger Filing Requirements

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SEC Adopts Final Crowdfunding Rules

On October 30, 2015, the U.S. Securities and Exchange Commission adopted final rules permitting issuers to use crowdfunding to raise capital. The rules, which were originally proposed more than two years ago pursuant to Title…more

Capital Raising, Crowdfunding, Funding Portal, JOBS Act, Offerings

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Intellectual Property Basics (Updated)

You can buy or sell breakfast or a toaster without a lawyer. Business law is based on common sense. Intellectual Property (“IP”) is different. Common sense does not always apply to IP. This is dangerous because IP can be a…more

Business Assets, Copyright, Patents, Trade Secrets, Trademarks

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Insurers May Not Terminate Physicians for Recommending Out-of-Network Providers

Under a new Texas law, effective September 1, 2015, health maintenance organizations (HMOs) and Preferred Provider Benefit Plans (PPO) (collectively referred to as "Insurers") can no longer terminate a physician from their…more

Contract Termination, Health Insurance, HMOs, Out of Network Provider, Patient Referrals

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Drafting Tips: Securities Lending Authorization Agreements

Securities lending is a type of transaction in which an entity ("Lender") with a large portfolio of securities (e.g., a pension fund or endowment) lends its securities to a borrower ("Borrower") in exchange for collateral (often…more

Collateral, Credit Agreements, Debt Securities, Investment, Lending

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Texas Sales and Use Tax Issues

In This Presentation: - Senate Bill 1396 - Certificated Carriers - Sale for Resale Clarified and Expanded - Use Tax Presumption of Texas Use - Related Party Transactions - Fractional…more

Aircraft Sales, Federal Aviation Administration (FAA), New Legislation, Related Parties, Resale Exemption

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Supreme Court Rules Class Certification Requires Evidence of Damages Supported by a Valid Legal Theory

Effectively equates "rigorous analysis" with "merits analysis" - On March 27, 2013, in Comcast Corp. v. Behrend, the United States Supreme Court reaffirmed that district courts must perform a "rigorous analysis" of…more

Class Action, Class Certification, Comcast, Comcast v. Behrend, Damages

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OIG Again Cautions Providers (And Physicians) About Non-Compliant Physician Compensation Arrangements

On June 9, 2015, the Office of Inspector General ("OIG") of the Department of Health & Human Services issued a Fraud Alert reprising a familiar theme: ensuring that physician compensation arrangements comply with the…more

Anti-Kickback Statute, Fraud Alerts, Health Care Providers, HHS, OIG

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EEOC Issues Game-Changing Decision on Sexual Orientation Discrimination

Following the 2012 Equal Employment Opportunity Commission decision of Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives and the United States Supreme Court Obergefell v. Hodges decision, the EEOC has issued a decision…more

Chevron Deference, EEOC, Federal Aviation Administration (FAA), Hiring & Firing, Lateral Hiring

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United States Supreme Court Grants Stay of EPA's 111(d) Clean Power Plan Rule

On February 9, 2016, the United States Supreme Court granted a stay of EPA's 111(d) Clean Power Plan rule imposing emissions limits on existing power plants. This stay effectively blocks the implementation of this highly…more

Clean Power Plan, EPA, Greenhouse Gas Emissions, Order to Stay, Power Plants

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“Procedural and Evidentiary Issues in Condemnation Cases: What Gets in and What Doesn’t?”

Traditional eminent domain trial work is unique. Liability, in the true sense of the word, is not at issue, and very often there is only one simple question for the jury to answer – what amount of money will adequately and…more

Condemnation, Eminent Domain, Evidence, Rules of Civil Procedure

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New Law Necessitates Online Privacy Audits and Updates - What You Need to Consider Now If You Have a Website, Online Service or Mobile App

As online businesses and technologies evolve, so do the laws affecting them. On January 1, 2014, a new law amending the California Online Privacy Protection Act ("CalOPPA") went into effect. See CAL. BUS. & PROF. CODE §§…more

Audits, CalOPPA, Internet, Mobile Apps, Privacy Laws

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Laches Remains a Valid Defense to Patent Infringement Notwithstanding 'Petrella v. Metro-Goldwyn-Mayer'

On Friday, September 18, 2015, the Federal Circuit sitting en banc, confirmed in SCA Hygiene Products v. First Quality Baby Products that the common law doctrine of laches is still a viable defense to patent infringement when…more

Copyright Infringement, Damages, Laches, Lanham Act, Limitation Periods

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Hedging Oil & Gas Production

The recent, dramatic decline in the price of oil illustrates the risk that every oil and gas producer has to declining energy commodity prices. This paper discusses various methods for “hedging” or reducing price risk. In…more

Commodities, Commodity Futures Contracts, Dodd-Frank, Exchange-Traded Products, ISDA Master Agreement

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IP Litigation Insider

Eastern District of Texas Adopts Model Order for Focusing Patent Claims and Prior Art - On Tuesday, October 29, 2013, Chief District Judge Leonard Davis, on behalf of the Eastern District of Texas, adopted a model "Order…more

Patent Litigation, Patents, Prior Art

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Ebola and the Workplace: What Employers Need To Know

In light of the Ebola virus outbreak abroad and the recent Ebola cases in the U.S., employers should be aware of the laws implicated in their treatment of employees. Though employment issues related to Ebola may appear to be…more

ADA, Best Management Practices, CDC, Ebola, Employer Liability Issues

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Conflict Minerals: Dodd-Frank, the SEC's Rule...and Beyond

Designed to reduce funding sources for those perpetrating human rights abuses and engaging in armed conflict in the Democratic Republic of the Congo ("DRC") and adjoining countries, Section 1502 of the Dodd-Frank Wall Street…more

Conflict Mineral Rules, Consumer Protection Act, Dodd-Frank, SEC

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Gas Royalty Calculation 2015 – An Update

We would all agree, I think, that oil and gas producers and royalty owners share at least one clear, common objective – the accumulation of wealth from hydrocarbon production. Nevertheless, because their’s is not a relationship…more

Gas Royalties, Marketing, Natural Gas, Oil & Gas, Performance Standards

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$3 Million Verdict in Fracking Case - Fluke or the Harbinger of Claims to Come?

In a highly anticipated verdict reached on April 22, 2014, a Dallas County Court at Law jury awarded the Parr family $2.925 million against Aruba Petroleum on a nuisance claim arising out of drilling in the Barnett Shale in Wise…more

Fracking, Fracking Bans, Nuisance, Oil & Gas, Property Damage

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Case Study: Setting Up A United States Business

In This Presentation: I. Introduction – UK Consulting Company History: 1. Established UK company with foreign subsidiaries. Core business is sale of consulting services to E&P companies and proprietary…more

Board of Directors, Business Formation, Corporate Governance, Foreign Corporations, Foreign Subsidiaries

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Another Successful First Amendment Challenge to the Prohibition of Off-Label Promotion for FDA-Approved Drugs

The Free Speech Clause of the First Amendment prevailed in the latest challenge to the FDA's prohibition against marketing FDA-approved drugs for off-label (or non-FDA-approved) uses. Applying the Second Circuit’s…more

Advertising, Amarin, Commercial Speech, Drug Approvals, FDA

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Another Successful First Amendment Challenge to the Prohibition of Off-Label Promotion for FDA-Approved Drugs: Part Two

The Free Speech Clause notched another victory in the latest and, perhaps, final chapter of the lawsuit between the FDA and Amarin Pharma, Inc. concerning off-label marketing of an FDA-approved drug. On March 8, 2016, the FDA…more

Amarin, FDA, FDA Approval, First Amendment, Free Speech

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Another Successful First Amendment Challenge to the Prohibition of Off-Label Promotion for FDA-Approved Drugs: Part Two

The Free Speech Clause notched another victory in the latest and, perhaps, final chapter of the lawsuit between the FDA and Amarin Pharma, Inc. concerning off-label marketing of an FDA-approved drug. On March 8, 2016, the FDA…more

Amarin, FDA, FDA Approval, First Amendment, Free Speech

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Federal Court Halts Implementation of BLM Fracking Rules

On September 30, 2015, the U.S. District Court for the District of Wyoming held that the Interior Department's Bureau of Land Management ("BLM") did not have Congressional authority to promulgate and finalize hydraulic…more

Administrative Authority, Bureau of Land Management, Federal Land, Fracking, Oil & Gas

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The Accommodation Doctrine Revisited: A Question of "Fairness to Both Parties"

As Texas holds tight to its position as the nation's number one oil and natural gas producing state, the Texas Supreme Court's decision to revisit the over forty-year-old accommodation doctrine, which requires oil and gas…more

Barnett Shale, Duty to Accommodate, Fracking, Horizontal Wells, Mineral Leases

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Private Entity Access To Capital Markets - Through Rule 144A For Life Offerings

Many privately or family owned entities may believe access to U.S. capital markets is foreclosed due to burdensome and cost prohibitive regulatory requirements. With interest rates at historical lows and a robust supply of…more

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IP Litigation Insider - March 2016

Are Ex Parte Reexaminations An Overlooked Method of Challenging Patents? In the wake of the September 16, 2011, enactment of the America Invents Act ("AIA"), many third-party individuals and organizations began utilizing…more

America Invents Act, Email Policies, EU-US Privacy Shield, Ex Partes Reexamination, Patents

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Looks Like Frack is Back, Governor Abbott Signs House Bill 40

Yesterday, Governor Gregg Abbott signed into law House Bill 40, also known as the Denton Fracking Bill, which leaves municipalities with minimal power to regulate the oil and gas industry. The bill takes effect immediately and…more

Fracking, Fracking Bans, Local Ordinance, Municipalities, New Legislation

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Considerations and Consequences of a Bankruptcy Filing in the Oil and Gas Industry

A Chapter 11 bankruptcy filing of an oil and gas company will likely have broad implications for a wide range of parties. Certain pervasive agreements in today’s oil and gas industry generate substantial, high-dollar…more

Assignments, Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Commercial Leases

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FTC Announces Hart-Scott-Rodino Thresholds for 2016

On January 26, 2016, the Federal Trade Commission ("FTC") published in the Federal Register adjusted jurisdictional and filing fee thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR…more

DOJ, Filing Fees, FTC, Hart-Scott-Rodino Act, Pre-Merger Filing Requirements

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Here's a Tip You Can Share: Federal District Court Strikes Down DOL Regulations Restricting Use of Tip Pooling Arrangements

Under federal and state wage-and-hour laws, tipped employees present unique compliance challenges for employers, particularly those in the restaurant and other service industries. Recent cases illustrate the potential risk. Any…more

DOL, Regulation, Restaurant Industry, Tip-Pooling, Tips

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Interplay Between Texas Workers' Compensation Law and Federal Family Medical Leave Act: Texas Supreme Court Addresses Impact of FMLA on Workers' Compensation Anti-Retaliation Clause

On December 4, 2015, the Texas Supreme Court provided significant guidance for employers by clarifying the relationship between the Texas Worker’s Compensation Act and the federal Family Medical Leave Act ("FMLA") in Kingsaire,…more

ADA, Anti-Retaliation Provisions, FMLA, Hiring & Firing, TX Supreme Court

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DOJ and SEC Release Much-Anticipated Guidance on FCPA

In recent years, corporations in the United States and around the world have seen record levels of enforcement of the Foreign Corrupt Practices Act ("FCPA"), resulting in billions of dollars of civil judgments and numerous…more

Compliance, DOJ, FCPA, FCPA Resource Guide, SEC

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Texas Case Law Update – Judge Dismisses Putative Class Action Over Home Equity Modifications

In an ongoing effort to update our financial institution clients about developments in Texas jurisprudence that may impact them, we bring to your attention a recent decision of particular importance to mortgage and home equity…more

Dismissals, JPMorgan Chase, Loans, Mortgages, Putative Class Actions

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British Bankers Association No Longer Administering LIBOR

Effective as of February 1, 2014, Intercontinental Exchange (ICE) Benchmark Administration Ltd. took over as the new administrator of LIBOR. A new administrator to replace the British Banker's Association (BBA) is one of the…more

British Bankers' Association, Libor, UK

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TDADS denying HCSSA License Renewals because of Tax Liens

In July 2012, the U.S. Government Accountability Office published a Report entitled "Providers in Three States with Unpaid Federal Taxes Received over $6 Billion in Medicaid Reimbursements" (the "Report")…more

Home Health Care, License Renewals, Medicaid Reimbursements, State Medicaid Programs, Tax Liens

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SEC Lifts Ban on General Solicitation and Issues Disqualification Rules for "Bad Actors" in Certain Private Offerings

On July 10, 2013, the Securities and Exchange Commission (the "SEC") adopted new rules to implement certain requirements of the Jumpstart Our Business Startups Act of 2012 and the Dodd-Frank Wall Street Reform and Consumer…more

Accredited Investors, Disqualification, Dodd-Frank, Form D Filing, General Solicitation

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Mandatory BEA Filings: Have You Complied?

Is your business owned, directly or indirectly, 10 percent or more by a foreign party? Does your business own, directly or indirectly, 10 percent or more of a foreign party? If so, your business may have the legal…more

BEA, Bureau of Economic Analysis, Filing Requirements, Foreign Affiliates, Foreign Direct Investment

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Here's a Tip You Can Share: Federal District Court Strikes Down DOL Regulations Restricting Use of Tip Pooling Arrangements

Under federal and state wage-and-hour laws, tipped employees present unique compliance challenges for employers, particularly those in the restaurant and other service industries. Recent cases illustrate the potential risk. Any…more

DOL, Regulation, Restaurant Industry, Tip-Pooling, Tips

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Case Study: Setting Up A United States Business

In This Presentation: I. Introduction – UK Consulting Company History: 1. Established UK company with foreign subsidiaries. Core business is sale of consulting services to E&P companies and proprietary…more

Board of Directors, Business Formation, Corporate Governance, Foreign Corporations, Foreign Subsidiaries

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Requests for Evidence

8 CFR § 103.2(b)(8) - Evidence of eligibility or ineligibility. If the evidence submitted with the benefit request establishes eligibility, USCIS will approve the benefit request, except that in any case in which the…more

Evidence, Immigrants, Requests for Evidence, USCIS

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I Can Fly it For Fun–Why Not For Profit? Proposed FAA Rules For Unmanned Aerial Vehicles

Every week, it seems you hear another business is using unmanned aerial vehicles. So why are you, or your company, still grounded? That could change soon…more

Certifications, Commercial Use, Drones, Exemptions, Federal Aviation Administration (FAA)

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Jackson Walker's VIA Media Postcard - November/December 2012

In This Issue: - Paul Watler's Perspective: One of the few places of refuge from the political campaign advertising onslaught was public television and radio. That may change depending on a little-noticed First Amendment…more

Advertising, First Amendment, Libel, Political Contributions

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Perils of PERM

- A Plethora of Pitfalls: • Precise Drafting • A reason for everything • Keep a handle on time • Harmonize ETA 9141 and ETA 9089 • Essential information in the recruitment • Normal, Foreign and Business…more

Compliance, PERM, Prevailing Wages

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Tex. Sup. Court Clarifies the Duties of a Non-Subscribing Employer in the Face of Known Dangers

Late last week, the Texas Supreme Court clarified duties of employers for premises defects and declared that they have multiple duties to invitees/employees who come onto their property facing known dangerous…more

Business Invitees, Dangerous Condition, Duty of Care, Duty to Warn, Employee Rights

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Intellectual Property Issues in Bankruptcy and the Exclusion of Trademark Licenses from the Definition of Intellectual Property

The Bankruptcy Code divides intellectual property into distinct categories depending upon the particular type of intellectual property. Issues with respect to intellectual property can be of utmost importance in bankruptcy, as a…more

Commercial Bankruptcy, Creditors, Debtors, Exemptions, IP Assignment Agreements

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Mandatory BEA Filings: Have You Complied?

Is your business owned, directly or indirectly, 10 percent or more by a foreign party? Does your business own, directly or indirectly, 10 percent or more of a foreign party? If so, your business may have the legal…more

BEA, Bureau of Economic Analysis, Filing Requirements, Foreign Affiliates, Foreign Direct Investment

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President Issues an Executive Order on Cybersecurity

On February 12, 2013, President Barack Obama signed an ExecutiveOrder on cybersecurity designed to defend the nation's critical infrastructure. By passing Congress — which could not agree on a legislative proposal — the…more

Barack Obama, CISPA, Cybersecurity, DHS, Electricity

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New Pleading Requirements, Expedited Actions, Dismissal of Baseless Claims, Oh My!

In response to a legislative mandate to reduce the expense and delay of litigation in smaller cases, the Texas Supreme Court promulgated new Texas Rules of Civil Procedure…more

Dismissals, Expedited Actions Process, Frivolous Lawsuits, Pleadings

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Proposed Building Code Amendment is Harsh Reflection of Glaring Controversy

In what came as a complete surprise to many in the development industry, an otherwise low-profile City of Dallas board, the Building Inspection Advisory, Examining and Appeals Board, met on July 11 to recommend approval of a…more

Building Codes, Local Ordinance, Proposed Legislation

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Hedging Oil & Gas Production

The recent, dramatic decline in the price of oil illustrates the risk that every oil and gas producer has to declining energy commodity prices. This paper discusses various methods for “hedging” or reducing price risk. In…more

Commodities, Commodity Futures Contracts, Dodd-Frank, Exchange-Traded Products, ISDA Master Agreement

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Texas Supreme Court Rules in Southern Crushed Concrete that Texas Clean Air Act Preempts City of Houston Land Use Ordinance

On February 15, 2013, the Texas Supreme Court reversed the rulings of both a trial court and lower appellate court and found in favor of Southern Crushed Concrete in holding that a City of Houston ordinance placing location…more

Air Quality Standards, Clean Air Act, Permits, Preemption

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EEOC Issues Game-Changing Decision on Sexual Orientation Discrimination

Following the 2012 Equal Employment Opportunity Commission decision of Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives and the United States Supreme Court Obergefell v. Hodges decision, the EEOC has issued a decision…more

Chevron Deference, EEOC, Federal Aviation Administration (FAA), Hiring & Firing, Lateral Hiring

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United States Supreme Court Grants Stay of EPA's 111(d) Clean Power Plan Rule

On February 9, 2016, the United States Supreme Court granted a stay of EPA's 111(d) Clean Power Plan rule imposing emissions limits on existing power plants. This stay effectively blocks the implementation of this highly…more

Clean Power Plan, EPA, Greenhouse Gas Emissions, Order to Stay, Power Plants

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Paul Watler Speaks: Texas Supreme Court Opinions Firm Up Anti-SLAPP Rights For Online Journalists

Online journalists and scholars from the Americas and around the globe recently gathered at the University of Texas at Austin to assess the state of internet-based journalism. The keynote address of the 16th annual…more

Actual Malice, Anti-SLAPP, Attorney's Fees, Burden of Proof, Defamation

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Considerations and Consequences of a Bankruptcy Filing in the Oil and Gas Industry

A Chapter 11 bankruptcy filing of an oil and gas company will likely have broad implications for a wide range of parties. Certain pervasive agreements in today’s oil and gas industry generate substantial, high-dollar…more

Assignments, Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Commercial Leases

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An Update On The Legal Implications Of User-Generated Content: Facebook, Youtube, Twitter, And Instagram

Traditionally, media companies (as well as non-media companies) almost exclusively utilized their own content. However, because of the exponential growth in the public’s desire and ability to interconnect through social media…more

Communications Decency Act, Copyright, Defamation, DMCA, Facebook

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Members of U.S. Women's National Soccer Team Claim U.S. Soccer Should Be Assessed a "Red Card" for Its Payment of Female Athletes

On March 31, 2016, five key members of the U.S. Women's National Soccer Team announced their filing of a wage discrimination complaint with the Equal Employment Opportunity Commission ("EEOC") against the U.S. Soccer Federation…more

EEO-1, EEOC, Equal Pay Act, Gender-Based Pay Discrimination, Soccer

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The Texas Supreme Court Affirms TCEQ's Discretion to Deny Contested Hearing Requests on Water-Quality Permits

On August 23, 2013, the Texas Supreme Court issued a significant decision affirming the administrative discretion of the Texas Commission on Environmental Quality ("the Commission") to decide whether or not to grant a downstream…more

Environmental Claims, Environmental Policies, Farms, Water

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Members of U.S. Women's National Soccer Team Claim U.S. Soccer Should Be Assessed a "Red Card" for Its Payment of Female Athletes

On March 31, 2016, five key members of the U.S. Women's National Soccer Team announced their filing of a wage discrimination complaint with the Equal Employment Opportunity Commission ("EEOC") against the U.S. Soccer Federation…more

EEO-1, EEOC, Equal Pay Act, Gender-Based Pay Discrimination, Soccer

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Safe Harbor Invalidated

Last Tuesday, the European Court of Justice (ECJ) invalidated the US-EU Safe Harbor framework in Schrems v. Data Protection Commissioner. The Safe Harbor provided companies with a self-certification process through the US…more

Binding Corporate Rules, Data Protection Authority, EU Data Protection Laws, European Court of Justice (ECJ), International Data Transfers

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