False Claims Act Relators Be Warned: Rule 54’s Taxable Costs Award Lies Ahead for the Overeager Relator

In a published opinion last week, the Fifth Circuit sent a reminder to would-be False Claims Act (“FCA”) relators that they better think carefully before filing suit because while they may be seeking treble damages, they may ultimately be held liable for significant taxable costs should their complaint fail to survive summary judgment. Continue Reading

SEC Publishes New Guidance on Investment Adviser Advertising

The SEC published new guidance on RIA advertising yesterday in a National Exam Program Risk Alert dated September 14, 2017 (https://www.sec.gov/ocie/Article/risk-alert-advertising.pdf).  The Risk Alert is entitled “The Most Frequent Advertising Rule Compliance Issues Identified in OCIE Examinations of Investment Advisers.”  This is particularly important because the SEC is focusing on marketing materials in its latest exam cycle.  In the Risk Alert, the SEC highlights common errors made by advisers in their marketing and advertising materials. Continue Reading

The Fifth Circuit’s Decision in In Re: DePuy Orthopaedics, Inc., et al, Illustrates the Possibility that Even When You Lose a Writ of Mandamus, You May Still Win

Faced with the prospect of having to defend another costly test-case trial in a multidistrict litigation proceeding involving over 9,000 plaintiffs, the defendants (petitioners before the Court of Appeals) filed a writ of mandamus challenging the district court’s decision that they waived their jurisdictional and venue objections (known as a Lexecon waiver).  Had the Court of Appeals granted the writ, the district court’s decision would have been reversed and the upcoming test-case trial would have been stopped for lack of jurisdiction and venue.  While the Court ultimately denied the writ, it did so in a way that advanced the defendants’ case.  In re: DePuy Orthopaedics, Inc., No. 17-10812 (5th Cir. Aug. 31, 2017). Continue Reading

IRS Announces Plan Loans, Hardship Distributions Relief For Victims Of Hurricane Harvey

On August 30, 2017, in Announcement 2017-11, the IRS provided retirement plan loan and distribution relief from retirement plans described in Code Sections 401(a) (including 401(k) plans), 403(a), 403(b), and governmental eligible deferred compensation plans described in 457(b) (collectively “Retirement Plans”) to affected participants. Continue Reading

Federal Court Finds A Continuing Duty Under Louisiana Law To Prevent The Erosion of Pipeline Canals

A recent decision from the Eastern District of Louisiana provides a mixed bag for pipeline companies or others whose operations involve canals.  Significantly, the decision from Judge Milazzo holds that during the existence of a right-of-way/servitude, Louisiana servitude law imposes a continuing duty to prevent canals from expanding and widening over time, unless unambiguous contractual language allows otherwise. Continue Reading

DOL May Delay Implementation of Fiduciary Rule

The Department of Labor in a brief filed in a Minnesota lawsuit on August 9, 2017 revealed that DOL had submitted to the Office of Management and Budget a proposal to delay the implementation of remaining parts of the DOL fiduciary rule from Jan. 1, 2018, until July 1, 2019.  This would delay the implementation of the BICE and BICE Lite procedures that will cause serious adjustments to most advisers’ business model and procedures.  The postponement of the effective date is not official yet, as it has to be approved by the Office of Management and Budget —a process that can take as long as 90 days. Continue Reading

Fifth Circuit Addresses A Complicated Cargo Dispute, Resulting In A Victory For Vessel-Operating Common Carriers

In GIC Services, L.L.C. v. Freightplus USA, Inc., No. 15-3097 (5th Cir. Aug. 8, 2017), the United States Fifth Circuit Court of Appeals held that an ocean carrier stiffed by an intermediary in a freight transaction may recover unpaid freight from the original NVOCC who arranged the cargo transportation unless the evidence clearly shows the carrier intended to release that party from liability.  The court further held that the carrier may protect its interest in unpaid freight against the cargo in rem, and weighed in on several other issues pertinent to the maritime field.  The key points of the lengthy opinion are highlighted below. Continue Reading

SEC Cybersecurity Alert

The SEC published a National Exam Program Risk Alert describing the results of cybersecurity exams of 75 broker-dealers and investment advisors on August 7, 2017. “National Exam Program Risk Alert, Observations from Cybersecurity Examinations,” (SEC August 7, 2017)

This report is useful in evaluating your investment advisory firm’s cybersecurity policies.  Two issues received particular attention from the SEC in the report:  (1) the need to make sure that security patches and upgrades are timely installed on all firm computer systems, and (2) the need for firms to tailor policies and procedures to actual practices (or vice versa). Continue Reading

Five Lessons Learned from Executing Shale Drilling Transactions

Shale drilling transactions typically involve (1) a party who holds oil and gas leases with underlying shale formations but who may not have the risk capital or expertise to explore such formations (the “Lease Party”) and (2) a party who has the risk capital and the expertise to drill and complete successful horizontal wells in shale formations using hydraulic fracturing techniques (the “Drilling Party”).

In these transactions, the Drilling Party pays for or “carries” all or a substantial portion of the Lease Party’s share of the costs of drilling and completing one or more wells on the leases (“Earning Wells”).  If an Earning Well is completed as a well capable of producing hydrocarbons, the Lease Party will assign a portion of its working interest in the lease or spacing unit to the Drilling Party. Continue Reading

U.S. Supreme Court’s Decision Not to Take Certiorari in United States v. DeCoster is a Reminder to the Food and Drug Industries to be Mindful of the Park Doctrine

Earlier this year there was hope in the food and drug industries that the Supreme Court would revisit and possibly revise the Responsible Corporate Officer Doctrine, also known as the Park Doctrine, by granting certiorari to the Eighth Circuit’s decision in United States v. DeCoster.  That hope was dashed in May when the Supreme Court declined, which left the Park Doctrine – with all of its ominous peril – the law of the land. Continue Reading

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