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=5298&site_id=494&detail=yes On January 26, 2012, the District of Columbia Court of Appeals, in Companhia Brasileira Carbuerto de Calcio—CBCC v. Applied Industrial Materials Corp , No. 11-SP-500 (D.C. Jan. 26, 2012), carved out an important exception to the long-standing general rule that personal jurisdiction in the District of Columbia is not conferred over nonresidents who enter the District of Columbia for the purpose of contacting federal government agencies. The origins of the case go back to 1993, when U.S. producers of an alloy used in manufacturing steel submitted false and misleading information... Thu, 02 Feb 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5298&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5297&site_id=494&detail=yes In today's economy every business relies upon technology to function. Regardless whether companies develop and monetize their own technology or use other companies' technologies to develop their products or run their back office, technology transactions are fundamental to every business. Mon, 30 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5297&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5287&site_id=494&detail=yes As reports have continued to emerge of the repression of anti-government protests in Syria, the European Union has gradually increased restrictive measures against the country. Recent reports of continuing levels of violence have now led to another widening of existing sanctions. From the outset, the EU has aimed to isolate the Assad regime in an attempt to influence a change of government policy. The impact of the new wave of sanctions remains to be seen. It has been reported recently that the Gulf Cooperation Council has pulled out their observers from the Arab League mission in... Fri, 27 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5287&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5296&site_id=494&detail=yes Executive compensation continues to be a hot-button topic in the public and the in the board room. Now that shareholders of public companies get a "say on pay," find out the latest on: Lessons learned from the 2011 "say-on-pay" voting results Proxy advisory firms' influence in 2012 Modifying executive compensation in response to "say-on-pay" voting results How to maintain stockholder support for your executive compensation program in 2012 How have "say-on-pay" suits fared in court so far? What can... Fri, 27 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5296&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5294&site_id=494&detail=yes The Obama Administration is currently working to implement the "National Defense Authorization Act for Fiscal Year 2012" (H.R. 1540) (the "Defense Act" or the "Act") which President Obama signed into law on December 31, 2011. Section 1245 of the Act, known as the "Menendez-Kirk Amendment," requires the President to impose sanctions on the financial sector in Iran as well as, for the first time, foreign financial institutions (including foreign central banks) found to be engaging in significant transactions with Iran's Central Bank (Bank Markazi) or... Thu, 26 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5294&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5295&site_id=494&detail=yes The New York Stock Exchange (the "NYSE") recently announced further restrictions in the application of its Rule 452 to certain corporate governance proposals. Under Rule 452, the NYSE will no longer permit brokers to vote customer shares, without specific customer instructions, on the following: Destaggering a company's board of directors; Majority voting in the election of directors; Eliminating supermajority voting requirements; Providing for the use of consents; Providing the right to call a special meeting; and... Thu, 26 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5295&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5290&site_id=494&detail=yes The Federal Trade Commission ("FTC") just announced increases to the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"). These changes result from amendments to the HSR Act enacted in 2000 that require the FTC to revise the reporting thresholds annually based on changes in the U.S. gross national product. The increases will apply to all transactions that close after the effective date, which likely will be in late February (30 days after publication of the changes in the Federal Register). Most... Thu, 26 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5290&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5288&site_id=494&detail=yes A federal court in Los Angeles has recently issued a decision that removes an important protection against liability for corporate officers of companies that operate in California. In FDIC v. Perry , No. CV 11-5561 ODW (December 13, 2011), Judge Otis Wright II ruled that, under California law, the business judgment rule is not a bar to a claim by the Federal Deposit Insurance Corporation against the former Chief Executive Officer of IndyMac Bank. IndyMac was a home mortgage lender that was closed and placed under FDIC receivership in 2008, due to the collapse of the mortgage backed... Wed, 25 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5288&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5286&site_id=494&detail=yes The European Union has taken steps against Iran imposing an oil embargo on the country and subject to certain exceptions, freezing the assets of the Iranian Central Bank held within the EU. The additional sanctions come just weeks after the Council of the European Union reiterated its "serious and deepening concerns" over Iran's nuclear programme as described in the latest report of the International Atomic Energy Agency. The intention is that the additional sanctions restrict further a number of sectors of the Iranian economy, including the financial system, transport... Wed, 25 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5286&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5284&site_id=494&detail=yes The Supreme Court recently confirmed that private rights of action for violations of the Telephone Consumer Protection Act ("TCPA") may be brought in either federal or state courts. On January 18, 2012, a unanimous Court decided Mims v. Arrow Financial Services, LLC , reversing the decision of the Eleventh Circuit and resolving a split between the circuits. The TCPA was enacted in 1991 to address Congressional concerns regarding the potential invasion of privacy caused by unrestricted telemarketing. The TCPA prohibits, among other things, (i) use of an automatic telephone... Mon, 23 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5284&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5285&site_id=494&detail=yes On the heels of a federal judge's dismissal of the Lindsay Manufacturing indictments, another federal judge issued yet another blow to the DOJ's prosecution of cases involving the U.S. Foreign Corrupt Practices Act ("FCPA"). On January 16, 2012, Texas Federal Judge Lynn Hughes acquitted John O'Shea ("O'Shea") of 12 FCPA counts, finding that the government could not meet its high burden of proof since its chief witness, Fernando Basurto, Jr., was unable to connect O'Shea to the bribery of a foreign official. In November 2009, O'Shea was... Mon, 23 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5285&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5283&site_id=494&detail=yes Estate Tax The federal estate tax applicable exclusion amount increases from $5,000,000 to $5,120,000 per person for 2012. The top estate tax rate for estates valued over this amount is 35%. During 2012, the portability of the deceased spousal unused exclusion amount (DSUEA) is still available, i.e., the federal estate tax applicable exclusion amount for married spouses is $10,240,000 combined. Generation-Skipping Transfer Tax The federal generation-skipping transfer ("GST") tax exemption amount increases from $5,000,000 to $5,120,000 per person... Fri, 20 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5283&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5281&site_id=494&detail=yes The Ninth Circuit's decision in Mazza v. American Honda Motor Co., Inc. , Case No. 09-55376 (Jan. 12, 2012), provides defendants significant protection against certification of nationwide classes alleging claims under California's consumer protection statutes for false advertising or misrepresentations in consumer transactions. In Mazza , Defendant sold Acura RL vehicles throughout the United States with an optional Collision Mitigation Braking System ("CMBS"). Plaintiffs allege there were various misrepresentations and omissions made in advertising and marketing... Thu, 19 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5281&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5282&site_id=494&detail=yes This web seminar examined recent developments in the use of fiduciary out provisions in public and private M&A transactions, including fiduciary out alternative provisions and recent market practice, common fiduciary out deal protective provisions being negotiated by buyers and sellers, and take-aways and guidance from recent Delaware judicial decisions. Download the presentation materials in the attached PDF Thu, 19 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5282&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5277&site_id=494&detail=yes In the past month, there has been a flurry of activity related to the National Labor Relations Board. Below is a summary of four of the most recent and important events. NLRB Majority Finalizes Union Election Rule; Sparking Controversy and a Court Challenge On December 21, 2011, the National Labor Relations Board ("NLRB" or "Board") released a final rule amending its procedures in union representation cases to limit the issues considered in NLRB hearings, eliminate pre-election Board review of regional directors' decisions, and take other... Tue, 17 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5277&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5276&site_id=494&detail=yes On January 9, 2012, the United States Court for the District of Columbia vacated a Delay Notice pursuant to which the Environmental Protection Agency (EPA) had intended to stay two of the agency's most contentious rules: (1) the Maximum Achievable Control Technology (MACT) standards for industrial, commercial, and institutional boilers and process heaters (the Boiler MACT Rule); and (2) emissions standards for commercial and industrial solid waste incineration units (the CISWI Rule). Due to the vacatur, the Boiler MACT and CISWI rules have suddenly and without warning become... Thu, 12 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5276&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5275&site_id=494&detail=yes The IRS, in a news release dated January 9, 2012, IR-2012-5 , announced the reopening of its offshore voluntary disclosure program ("2012 Offshore Voluntary Disclosure Program") that allows taxpayers with undisclosed offshore accounts to settle tax liabilities with the IRS to avoid criminal prosecution. This third iteration of the offshore voluntary disclosure program comes as "the IRS continues working on a wide range of international tax issues and follows ongoing efforts with the Justice Department to pursue criminal prosecution of international tax evasion.&quot... Wed, 11 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5275&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5266&site_id=494&detail=yes Federal contractors and subcontractors may soon have additional requirements and guidelines regarding the employment of individuals with disabilities. On December 9, 2011, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) published a Notice of Proposed Rulemaking proposing changes to the regulations that implement Section 503 of the Rehabilitation Act, as amended. Section 503 prohibits covered contractors from discriminating on the basis of disability and requires contractors to take affirmative action on behalf of individuals with disabilities. The... Wed, 11 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5266&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5274&site_id=494&detail=yes In the wake of the Supreme Court's decision in ATT Mobility v. Concepcion , 131 S.Ct. 1740 (2011), that the Federal Arbitration Act (FAA) preempts state laws prohibiting class action waivers in consumer arbitration agreements, some employers have been giving mandatory arbitration in the non-union setting another look. Among the questions being considered are whether a class action waiver in an employment arbitration agreement is enforceable and whether the ability to require employees to agree to such a provision as a condition of employment makes arbitration desirable. The National... Mon, 09 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5274&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5273&site_id=494&detail=yes Download Fulbright's Guide to Best Practices on China-Related Arbitration Agreements Fulbright lawyers have developed an informative guide to accompany its recent web seminar, Protecting Your Technology Interests in China: What Part Can International Arbitration Play? The speed of economic and technological advancement in China is staggering, bringing with it both great opportunity and risk for foreign technology owners. In pursuing opportunities in the region, it is important that technology owners actively protect their proprietary technology interests and... Fri, 06 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5273&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5269&site_id=494&detail=yes Significant USFWS Action Impacting Wind Projects On December 29, 2011, the U.S. Fish and Wildlife Service (the Service), Pacific Region, issued a Draft Environmental Assessment (DEA) in response to West Butte Wind Power LLC's (West Butte) application for a programmatic Golden Eagle Take Permit. This is a significant agency action because the Service had not previously acted upon an application for a Programmatic Take Permit under the Bald Eagle and Golden Eagle Protection Act (BGEPA), 16 U.S.C. § 668a, where it acknowledged that the wind project would result in the death of... Thu, 05 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5269&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5272&site_id=494&detail=yes The new year brings new rules for federal court litigants. On January 6, 2012 , the Federal Courts Jurisdiction and Venue Clarification Act of 2011 ("Act") takes effect. In the most sweeping change to the Judicial Code since 1990, the Act settles statutory confusion and circuit disagreement by refining federal rules related to removal, venue, and jurisdiction. Generally, the changes are pro-defendant. This Article highlights the major revisions.[1] Removal In accord with the American Law Institute's Federal Judicial Code Revision Project, Congress... Thu, 05 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5272&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5268&site_id=494&detail=yes Two recent decisions in California litigation involving retailers that have been sued in class action litigation over collecting ZIP codes under California's Song-Beverly Credit Card Act have reached diametrically opposed conclusions regarding the relevance of consumer expectations to the issue of liability. California's Song-Beverly Credit Card Act prohibits retailers from requesting or requiring "personal identification information" ("PII") in connection with consumer credit card transactions. Specifically, corporations may not "request or... Tue, 03 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5268&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5278&site_id=494&detail=yes When we moved to Houston, I toured a house with our real-estate agent. It had what was, to my New York City eyes, a good-sized room off the master bedroom. This room had windows but also, oddly, shelving on all of its walls. "What's this?" I asked. After a long, searching pause, my agent answered, "Why, bless your heart, darling. That's a closet." Every year, tens of thousands of people, from around the country and the world, move to Houston. According to a recent study by the Kinder Institute for Urban Research at Rice University, Houston... Sun, 01 Jan 2012 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5278&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5267&site_id=494&detail=yes The Delaware Chancery Court recently granted a record $305 million fee award to the attorneys representing the plaintiff in a derivative lawsuit that challenged the decision by Southern Peru Copper Corporation (now Southern Copper Corporation) to purchase a mining company owned by Southern Copper's controlling stockholder. In October, Chancellor Strine held that the purchase of the mining company owned by the controlling stockholder was unfair to Southern Copper and its other stockholders. The court held that damages would be determined by the difference between the price Southern Copper... Fri, 30 Dec 2011 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5267&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5265&site_id=494&detail=yes The Surfaces in Biomaterials Foundation presented one of the best technical and most stimulating conferences in the field of biomaterials science in 2011. The BioInterface 2011 annual conference was held in Bloomington, MN on October 24-26, 2011. The science, and the high quality of interaction that was fostered by the unique blend of industry, academic, regulatory and clinical attendees provided an enriched experience for many. Fulbright senior associate Colin Fairman spoke at the conference on "Identifying, Creating and Commercializing Intellectual Property: Managing Patent... Tue, 27 Dec 2011 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5265&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5263&site_id=494&detail=yes In order to conform to the requirements of the Dodd-Frank Act, the Securities and Exchange Commission has amended its rules to exclude the value of a person's home from net worth calculations used to determine whether an individual may be considered an "accredited investor" and, therefore, able to invest in certain unregistered securities offerings. The revised standard will take effect 60 days after publication in the Federal Register with an effective date estimated to be before the end of February 2012. Under the amended rule, the value of an individual's primary... Thu, 22 Dec 2011 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5263&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5262&site_id=494&detail=yes As hydraulic fracturing operations in the Marcellus shale region and other shale formations throughout the country become more and more prevalent, more issues with lease agreements between energy companies and landowners are beginning to arise. Review the presentation materials from this webinar to learn about some of the special components of these lease agreements, how to avoid common pitfalls and best practices for negotiating the best terms possible for your client. Also learn the basics of hydraulic fracturing, how royalties are calculated, special issues for tax sale properties... Wed, 21 Dec 2011 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5262&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5261&site_id=494&detail=yes The Centers for Medicare & Medicaid Services ("CMS") has at last released long-awaited proposed regulations for the physician payment and ownership transparency provisions of the Patient Protection and Affordable Care Act ("PPACA"), commonly referred to as the "Sunshine Act." The proposed rules address numerous areas on which the industry has been anxiously awaiting guidance; describe in detail how CMS may expect reporting entities to disclose the required data; and also propose some significant expansions to the Sunshine Act itself (under CMS's discretionary... Mon, 19 Dec 2011 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5261&site_id=494 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5254&site_id=494&detail=yes The following is a summary of key points made during Fulbright & Jaworski's breakfast seminar, held November 30, 2011, on the effects of the Arab Spring on U.S. economic sanctions programs in various countries. Panelists included Fulbright International Trade attorneys, Steve McNabb, Marsha Gerber, and Stefan Reisinger and special guest, Celine Gerson, Chief Compliance and Ethics Officer of Cameron International. Read the full review in the attached PDF Thu, 15 Dec 2011 http://www.fulbright.com//index.cfm?fuseaction=publications.detail&pub_id=5254&site_id=494