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'Round the Turn They're A-Comin'! The Wild Patent Enforcement Ride of Marine Polymer v. HemCon
Problems arise when you suddenly realize that you have prepared for one type of race and you find yourself in the middle of a completely different type of competition. Those involved in patent infringement cases analogize the process to running...
Second Circuit Clarifies Elements of a Domestic Securities Transaction Under Morrison v. National Australia Bank
On March 1, 2012, the United States Court of Appeals for the Second Circuit held that a foreign plaintiff may assert a fraud claim under the federal securities laws based on its purchases of securities issued by U.S. companies that...
USPTO Preliminary Guidelines Spread Mayo on Patent-Eligibility
A day after the United States Supreme Court delivered its decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. , 1 the United States Patent and Trademark Office issued preliminary guidance 2 instructing examiners to reject process claims that invoke...
Employer Safety Incentive Programs Might be Unlawful - New OSHA Memo Clarifies, Threatens
Employers who reward employees through certain kinds of safety incentive programs for the absence, or limited number, of workplace injuries might be violating OSHA's anti-retaliation and recordkeeping rules, according to a March 12, 2012, Guidance Memorandum issued by the agency...
Supreme Court Allows Judicial Review of EPA Administrative Orders Under the Clean Water Act - But How Much Will It Help?
On March 21, a unanimous Supreme Court ruled that courts can review EPA administrative orders under the Clean Water Act before EPA seeks to enforce them. The Supreme Court’s ruling, while significant, is of uncertain benefit to those regulated by...
Can't Touch This - Supreme Court Finds Personalized Medicine Patent Claims Invalid
In Mayo Collaborative Services v. Prometheus Laboratories, Inc., the Supreme Court of the United States held unanimously that claims directed to a method of altering a drug dose based on levels of the drug’s metabolite are ineligible for patent protection...
FERC Order Appears to Find Most PJM Internal Bilateral Transactions Improper
In an order resolving a complaint filed by DC Energy, LLC and DC Energy Mid-Atlantic, LLC against PJM Interconnection LLC (PJM), 1 the Federal Energy Regulatory Commission (FERC) has ruled that in order for an Internal Bilateral Transaction (IBT) to...
Delaware Chancery Court Clarifies that Default Fiduciary Duties Apply to LLC Managers
In 2004, the Delaware General Assembly amended both the Delaware Revised Limited Uniform Partnership Act (“DRULPA”) and the Delaware Limited Liability Company Act (the “LLC Act”) to permit the wholesale elimination of fiduciary duties in an LLC Agreement. Specifically, the...
CFTC Regulation of Hedge Funds to Increase - Final Rules Adopted
On February 9, 2012, the Commodity Futures Trading Commission (CFTC) issued final rules rescinding and revising certain key exemptions to its registration requirements that have been routinely relied upon by the advisors and sponsors of private funds and investment companies...
A Private Foreign Issuer Who Issues US Notes Shielded by Sovereign Immunity??
Imagine an international issuer with US branch offices selling private placement notes in the US to US institutional investors, with the notes governed by NY law and the issuer submitting irrevocably to NY jurisdiction. Now imagine that the issuer’s common...
Adviser Performance Fee Rule Amended by the SEC
Introduction On February 15, 2012, the U.S. Securities and Exchange Commission (SEC) amended the “qualified client” standard of Rule 205-3 under the Investment Advisers Act of 1940, as amended (Advisers Act). Under the Advisers Act, and the rules promulgated thereunder...
FERC Decides to Retain Existing Merger Review Policies
On February 16, 2012, FERC issued an order ( February 16 Order ) reaffirming its existing merger review policies under Section 203 of the Federal Power Act (FPA) and its current framework for analyzing requests for market-based rate authority under...
FERC Orders Prior Authorization for a Subcategory of Locational Exchanges of Power
On February 16, 2012, FERC issued two orders regarding locational exchanges of wholesale electric power, the implications of which will require prior authorization for a subset of future locational exchanges. FERC also indicated that its decisions might result in modifications...
Pipeline Q&A: New Liquids Production, Shale Plays and Regulatory Challenges
Mark Lewis , an oil & gas attorney and Managing Partner of Bracewell & Giuliani's Washington, D.C. office, discussed some of the latest issues affecting the oil and gas industry with Pipeline & Gas Journal editor Jeff Share. On the...
Here We Go Again: Another Attempt at Recovery for Ratepayers Resulting from KeySpan-Morgan Stanley Swap
Another class action lawsuit has been filed against KeySpan Corporation (KeySpan) and Morgan Stanley Capital Group Inc. (Morgan Stanley), claiming damages for antitrust violations resulting from an allegedly illegal swap agreement that allowed KeySpan to manipulate energy prices in the...