http://www.fulbright.com/publications Publications from the International Law Firm of Fulbright & Jaworski L.L.P. 30 http://www.fulbright.com/img/logos/logo_RSS.gif http://www.fulbright.com/publications 144 48 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4373&site_id=494&detail=yes In keeping with the recent trend of increased FCPA enforcement, on March 16, 2010, the Department of Justice (“DOJ”) announced that Nexus Technologies Inc. (“Nexus”) pleaded guilty to a superseding indictment charging the company and three individuals with conspiracy to violate the Foreign Corrupt Practices Act (“FCPA”), substantive FCPA anti-bribery violations, and substantive Travel Act violations. According to the DOJ’s press release, the Philadelphia-based company’s plea agreement included an acknowledgment that the company operated through... Fri, 19 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4373&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4374&site_id=494&detail=yes On March 18, 2010, President Obama signed the Hiring Incentives to Restore Employment (HIRE) Act (H.R. 2847), which provides certain qualifying businesses with an income tax credit of up to $1,000 for each qualifying new employee hired and retained for at least 52 weeks. Additionally, the bill offers many businesses a payroll tax holiday from paying Social Security taxes on wages paid to certain new employees who were unemployed for at least 60 days prior to being hired. Payroll Tax Holiday The 2010 HIRE Act provides employers with a payroll tax holiday, effectively exempting a... Fri, 19 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4374&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4375&site_id=494&detail=yes Topics In This Issue Senator Dodd Introduces New Version of Financial Oversight Bill Financial Accounting Standards Board Clarifies Treatment of Embedded Credit Derivatives Delaware Chancery Court Clarifies Extent of Fiduciary Duty to Preferred Stockholders in Merger Context Department of Labor to Propose Regulations on Disclosure of 401k Fees Senator Dodd Introduces New Version of Financial Oversight Bill On March 15, 2009, Senator Christopher Dodd of Connecticut introduced a 1,336-page bill substantially reforming the financial... Fri, 19 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4375&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4372&site_id=494&detail=yes President Obama Proposes Use of Bounty Hunters to Combat Health Fraud On March 9, the White House announced that President Obama wants to use “high-tech bounty hunters” to uncover health care fraud. The plan was released prior to the President’s second public appearance of the week, and was part of a renewed effort to encourage Congressional Democrats to support the Administration's healthcare reform legislation. The announcement also came hours after major business groups unveiled a multimillion-dollar targeted ad campaign designed to challenge the administration by... Fri, 12 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4372&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4371&site_id=494&detail=yes In Reed Elsevier Inc v. Muchnick, et. al . 559 U.S. __ (2010), the Supreme Court has clarified that while the registration requirement contained in § 411(a) of the United States Copyright Act, 17 U.S.C. § 411(a) (the “Copyright Act”), is a precondition to filing a copyright infringement claim, a copyright holder’s failure to comply with that requirement does not restrict a federal court’s subject-matter jurisdiction over infringement claims involving unregistered works. Case History In 2000-2001, a number of freelance writers brought copyright... Thu, 11 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4371&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4376&site_id=494&detail=yes Fri, 05 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4376&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4363&site_id=494&detail=yes Topics In This Issue SEC Adopts New Short Selling Restrictions IRS and the Department of the Treasury Release Guidance on Foreign Bank Account Reports The Delaware Chancery Court Analyzes Fiduciary Duties of LLC Controlling Members and Managers and Addresses Third Party Vote Buying Claims SEC Issues Statement on Global Accounting Standards and Publishes a Work Plan to Study Potential Adoption of IFRS for U.S. Issuers SEC Adopts New Short Selling Restrictions On February 24, the Securities and Exchange Commission approved a new rule... Fri, 05 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4363&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4364&site_id=494&detail=yes President Obama Signs Legislation Temporarily Delaying 21% Reduction in Physician Medicare Reimbursement President Obama signed the Temporary Extension Act of 2010 into law on March 2, 2010, which extends current Medicare reimbursement rates for physicians through March 31, 2010. The Senate approved the legislation (H.R. 4691) by a 78-19 vote earlier in the day. The Department of Defense Appropriations Act of 2010 extended the physician fee update to the single conversion factor at 0% through February 28, 2010. Subsequently, the Centers for Medicare and Medicaid Services... Fri, 05 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4364&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4358&site_id=494&detail=yes The trend for cooperation between international financial regulators has become a feature of the regulatory environment over recent years. On 24 February 2010, in a boost for the UK Financial Services Authority (“FSA”) in its approach to dealing with requests for assistance from overseas regulators, the Court of Appeal allowed an appeal and found in favour of the FSA in connection with the exercise of its powers in aid of United States Securities and Exchange Commission ("SEC") proceedings.[1] Businesses operating in the financial sector, particular on an international... Thu, 04 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4358&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4359&site_id=494&detail=yes On February 26, 2010, the Internal Revenue Service (“IRS”) issued Notice 2010-23 , 2010-11 I.R.B., and Announcement 2010-16 , 2010-11 I.R.B., providing guidance with respect to certain persons who may be required to report certain foreign financial accounts on Form TD F 90-22.1, Report of Foreign Bank Accounts (“FBAR”), by June 30, 2010, for the 2009 calendar year, and, in certain circumstances, earlier calendar years. Under Notice 2010-23, the IRS provided administrative relief to certain persons who may be required to file an FBAR for the 2009 and earlier... Thu, 04 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4359&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4360&site_id=494&detail=yes Almost five years on from the order of the UK Secretary of State for the Home Department (the “Home Secretary”) that Ian Norris, former CEO of UK-listed engineering company Morgan Crucible plc, should be extradited to the United States to face charges relating to alleged price-fixing, the US Department of Justice (“DoJ”) appears to have finally got their man. The DoJ had been thwarted in pursuing extradition in connection with alleged antitrust violations. Nevertheless, the judgment of the UK Supreme Court (until October 2009 known as the House of Lords) on 24... Tue, 02 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4360&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4361&site_id=494&detail=yes In the News Recent Rankings Spotlight Office: New York In the News Bond-Funded Alternative Energy Project Wins Project of the Year One of the alternative energy projects of the Southern California Public Power Authority ("SCPPA")—called the Milford Wind Corridor Phase I Project­—has been named 2009 Alternative Energy Project of the Year by the Renewable Energy World magazine. Fulbright assisted in the preparation of the Power Purchase Agreement, the Power Sales Agreements and other project agreements relating to the... Tue, 02 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4361&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4356&site_id=494&detail=yes The changes in antitrust enforcement promised by the new administration have begun to take shape. This program focuses on the practical implications of these changes for merger review, including recent investigations of transactions too small to require Hart-Scott-Rodino review and recent government challenges to "gun jumping" activities. The program also discusses the evolving antitrust theory of economically integrated entities – from Copperweld through Dagher and on to American Needle . If the NFL wins in the Supreme Court, how will it impact consumers... Tue, 02 Mar 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4356&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4357&site_id=494&detail=yes CMS Rescinds Prohibition on Certain DMEPOS Consignment Closets CMS has rescinded Transmittal 300, dated September 1, 2009, which would have imposed limitations on physicians' ability to enter into consignment closet arrangements with durable medical equipment, prosthetics, orthotics, and supplies (“DMEPOS”) suppliers. Under a traditional consignment closet arrangement, a DMEPOS supplier retains responsibility for goods maintained for convenience purposes in a physician’s office. Transmittal 300 would have required that physicians, rather than the DMEPOS supplier, bill for... Fri, 26 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4357&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4355&site_id=494&detail=yes Fulbright & Jaworski's 2009 Litigation Trends Survey, now in its sixth consecutive year, confirms a distinct and growing trend: almost one-half of 408 participants reported insourcing some aspects of eDiscovery. Corporate America is expanding its efforts to take control of eDiscovery risks and reduce overall litigation spending. Emerging technologies are changing the landscape for insourcing eDiscovery, making it more accessible, feasible and cost-effective. Last month, in Part I of the Brave New World web seminar, the panel discussed aspects of eDiscovery most commonly insourced, as well... Thu, 25 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4355&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4370&site_id=494&detail=yes Fulbright lawyers Jeff Wray , Jacky Maroney and Carter Crow present "Labor and Employment Law Update," focusing on the most important recent developments in labor and employment and immigration law. Topics include: Business Immigration - What to Expect in 2010 Good News, Bad News - Top Current Labor and Employment Developments Wed, 24 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4370&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4353&site_id=494&detail=yes The IRS is about to start detailed employment tax audits of 6,000 U.S. employers to determine whether those employers are properly reporting and paying federal employment taxes. These audits will consist of a line-by-line review of the employers’ employment tax returns by some of the IRS’s most experienced and recently trained auditors. The audits will be conducted as part of the IRS’s National Research Project and occur over a three year period, with at least 2,000 employers randomly selected each year for audit. The employers audited under this research initiative will... Wed, 24 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4353&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4346&site_id=494&detail=yes White House Issues Health Reform Proposal Prior to Summit On February 22, 2010, the White House issued its proposal for health reform, three days before President Obama’s scheduled meeting with Democrat and Republican legislators. The proposal tracks closely health reform legislation passed in the Senate; major departures from that legislation include the elimination of the Nebraska federal medical assistance percentage (“FMAP”) provision in favor of broader Medicaid coverage nationwide and an increase in the threshold for excise taxes on expensive health plans, from... Tue, 23 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4346&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4347&site_id=494&detail=yes In a case handed down today, the United States Supreme Court clarified and simplified the judicial test to determine where a corporation has its principal place of business for diversity jurisdiction purposes. In Hertz Corp. v. Friend , No. 08-1107 (U.S. Feb. 23, 2010), Justice Breyer, writing for a unanimous court, noted that the “Court of Appeals’ divergent and increasingly complex interpretations” of the principal-place-of-business provision has grown unworkable. To simplify the inquiry and provide greater certainty as to jurisdiction for both potential plaintiffs and... Tue, 23 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4347&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4345&site_id=494&detail=yes Topics In This Issue SEC Announces Enforcement Cooperation Initiative Fifth Circuit Reaffirms Strict Class Certification And Loss Causation Requirements For Securities Class Actions U.S. Supreme Court’s Recent Ruling in Citizens United v. Federal Election Commission Creates Potential New Corporate Governance Issues RiskMetrics Launches New Corporate Governance Rating Methodology SEC Announces Enforcement Cooperation Initiative In January, the Securities and Exchange Commission announced its “ Enforcement Cooperation... Fri, 19 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4345&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4338&site_id=494&detail=yes Fulbright client MISTRAS Group, Inc., a leading global provider of technology-enabled asset protection solutions... Fulbright Assists MISTRAS GROUP in IPO Fulbright Securities Team Assists RANDGOLD in $342 Million Global Offering Fulbright Corporate Team Handles HELIX ENERGY'S $220M Public Offering Fulbright Representing BRINK'S HOME SECURITY in $2 Billion Sale Fulbright M&A Team Assists RANDGOLD in $500M Acquisition of Moto Goldmines... Tue, 16 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4338&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4339&site_id=494&detail=yes A Federal Circuit panel has addressed two significant aspects of patent infringement claims. SEB S.A. v. Montgomery Ward & Co., Inc. , No. 2009-1099 (Fed. Cir. Feb. 5, 2010). First, the panel addressed an issue left open by the en banc Federal Circuit DSU Medical Corp. v. JMS Co. , 471 F.3d 1293, 1304 (Fed. Cir. 2006) decision – the level of proof required to support an inducing infringement claim’s requirement that an accused infringer had actual knowledge of a patent-in-suit. The panel held that deliberately disregarding a known risk that a patent existed is adequate... Tue, 16 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4339&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4337&site_id=494&detail=yes 2011 Budget Decreases Funding for Medicare, Increases for Medicaid, Fraud Enforcement On February 1, 2010, the Obama administration issued its Budget of the United States Government, Fiscal Year 2011 (the “2011 Budget”) proposing, in part, increases for fraud enforcement and federal Medicaid funding and decreases in Medicare spending. Anti-fraud efforts such as the Medicare Fraud Strike Force will receive $250 million in additional fiscal year 2011 (“FY11”) funding, totaling $1.7 billion. Nondiscretionary spending on fraud programs such as Medicare’s... Fri, 12 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4337&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4335&site_id=494&detail=yes Topics In This Issue New Arbitration Rules Adopted by the Delaware Court of Chancery DOJ Breaks New Ground in Aggressive FCPA Enforcement SEC Issues Interpretive Guidance on Climate Change Disclosure New Arbitration Rules Adopted by the Delaware Court of Chancery Effective February 1, 2010, the Delaware Court of Chancery adopted new arbitration rules applicable to business disputes. The April 2009 legislation that authorized the new rules allows the Court to arbitrate disputes involving business and technology in which no pre-existing action... Thu, 11 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4335&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4334&site_id=494&detail=yes As the recent financial crisis and related economic downturn continue to impact the solvency of portfolio companies, private equity funds are seeing their investments in such companies undergo drastic changes. In many instances, private equity funds are exercising options which allow them to convert debt to equity. In other cases, funds may receive equity in exchange for debt in bankruptcy proceedings. In these situations, funds whose representatives serve on portfolio company boards may need to address varying duties of care and loyalty that carry potential liability for individual... Wed, 10 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4334&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4329&site_id=494&detail=yes Enforcement of the Foreign Corrupt Practices Act (“FCPA”)[1] has increased over the past several years. In 2009 alone, the Department of Justice (“DOJ”) and Securities Exchange Commission (“SEC”) announced 11 enforcement actions against corporations and 33 enforcement actions against individuals. The dollar value of the corporate enforcement actions in 2009 exceeded $644 million. Continued aggressive enforcement is expected, and 2010 opened with the announcement of a “sting” operation in which 22 individuals in the military law enforcement... Tue, 09 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4329&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4326&site_id=494&detail=yes Fulbright lawyers Keith Angle and Ronn Kreps join the Honorable Jeffrey J. Keyes, U.S. Magistrate Judge, District of Minnesota, and Priscilla McNulty , Counsel to Capella University, in an up-to-the-minute discussion on electronic discovery. The discussion includes a review of Judge Scheindlin's (S.D.N.Y.) recent decision that revisits Zubulake six years later and discusses how courts analyze the spoliating party's conduct including appropriate conduct, negligence, gross negligence, and willfulness, and the resulting consequences. Additionally, information is provided on how... Tue, 02 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4326&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4336&site_id=494&detail=yes Mon, 01 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4336&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4324&site_id=494&detail=yes The Securities and Exchange Commission (the “SEC”) issued a release proposing amendments to Rule 10b-18 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Rule 10b-18 provides issuers with a safe harbor from liability for manipulation if they repurchase their common stock in the open market in accordance with the rule’s manner, timing, price and volume conditions. The proposed amendments are intended to update the rule’s provisions to reflect market developments since the rule’s adoption in 1982, including: modifying... Mon, 01 Feb 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4324&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4325&site_id=494&detail=yes Senator Grassley Submits HIT Information Request to Hospitals On January 19, 2010, Senator Chuck Grassley (R. – Iowa) issued a letter intended to “gather information from hospitals regarding their perspective and experiences with [health information technology (“HIT”)].” The letter went out to thirty-one hospitals and focused on topics related to “administrative complications in implementation, formatting and usability issues… computer errors stemming from the programs themselves [and] interoperability between programs.” Most notable... Fri, 29 Jan 2010 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=4325&site_id=494