With two new commissioners confirmed by the Senate and sworn in, FERC’s seven-month period without a quorum is over and it can get back to business, reports Covington & Burling on its Inside Energy & Environment blog.

He writes that two more nominations are now before the Senate with a hearing scheduled for Sept. 7. Them the agency should be at full strength within the next few months and ready to take on important policy issues.

“There are quite a few critical generic electricity policy initiatives already teed up and awaiting Commission action. Together, the initiatives address fundamental issues spanning a broad range of FERC’s electricity authorities,” according to Peterson.

Read the article.

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Certain contracts must be in writing and signed, points out David E. Peterson of Lowndes, Drosdick, Doster, Kantor & Reed, P.A. But what if the “writing” is an email exchange? Is that enforceable, and if so, then what suffices as the signature?

Peterson discusses a recent case interpreting the Texas version of the Uniform Electronic Transaction Act and how this works in the case of an email exchange.

“In Khoury v. Tomlinson, the Texas Court of Appeals considered a situation where the parties had exchanged emails to resolve a dispute among themselves,” according to the article. In the end, a court held that Tomlinson’s name, appearing in the sender field of the email, was sufficient to constitute a signature.

Read the article.

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Cloud Service Providers (CSPs) are evolving their customer agreements, points out Kemp IT Law.

Richard Kemp discusses how CSPs are addressing the growing risks to service availability from patent claims and in particular how Amazon Web Services (AWS) had included in their Customer Agreement an unusual IP non-assert term.

“From the way the AWS terms work, it’s also at best an open question whether they protect the customer from the risk that open source software used in providing the service infringes third party patent or other rights,” he writes. “Open source is a critical component of the cloud and customers need to understand and review this aspect when selecting their CSP.”

Read the article.

As a result of a rule imposed by the Consumer Financial Protection Bureau, consumer contracts entered into after March 19, 2018, with a wide range of consumer financial services companies will need to be revised in regard to their agreements’ arbitration clauses.

Pillsbury Global Sourcing explains on its website that those companies “will need to: (a) remove language in pre-dispute arbitration provisions that bars consumers from participating in class actions; and (b) add language informing consumers of their rights to participate in class actions. The Rule will also require such companies to provide information on individual arbitration awards to the CFPB for publication in a public database (redacting consumers’ private financial information).”

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Alston & Bird asks and answers the question: In an international arbitration, when an arbitration provision is ambiguous about the seat of the arbitration, who resolves the question?

Authors Andy Tuck and Lee Deneen discuss Bamberger Rosenheim Ltd. v. OA Development Inc., in which the Eleventh Circuit held that interpretation of a venue provision is the arbitrator’s prerogative.

They write:

The federal circuits are split on whether the FAA serves as a proper basis for vacatur of an international arbitration award. In this case, the panel saw “no reason to analyze [Bamberger’s] arguments under the New York Convention or [the FAA] separately,” since Bamberger’s argument was the same for both bases for vacatur. The court stated in a footnote that it “assume[d], without deciding, that [the FAA] applies to the award in the present case.”

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Houston commercial real estate is still suffering from the collapse of oil prices and loss of tens of thousands of jobs, according to a post of the website of Androvett Legal Media & Marketing. The latest estimates are that more than a fifth of Houston office space sits empty as landlords struggle to find new tenants and existing tenants struggle to sublease unused space. Commercial real estate firm NAI Partners calculates that more than 2 million square feet in office space is expected to be returned to property owners in the next two years.

Houston commercial real estate lawyers Douglas Yeager and Jeffrey M. Smith of Winston & Strawn LLP have witnessed several real estate cycles in their careers. Their experience includes handling the purchase and sale of non-performing loans, as well as advising tenants, owners and developers.

“Without sufficient tenants in these buildings paying rent, the owners may not be able to service their debt. In a couple of years, once this sublease space comes back onto the market, there could be a number of workout agreements and foreclosures of office buildings,” said Yeager. “This is something we have not seen for a few years.”

Smith notes that “lenders will be keeping a close eye on properties as deadlines to extend leases approach. Will the owners be able to service debt if occupancy rates fall as tenants decide not to extend leases, or if they continue operations in less space? Owners that are unable to backfill space will be anxious to see whether lenders will work with them or whether they will try to unload non-performing loans. We would expect to see an uptick in not only workouts and foreclosures, but also opportunistic investors seeking to purchase non-performing loans.

“Tenants may be in a better position to negotiate moving forward, particularly in certain submarkets where vacancy rates are higher,” Smith said. ”On the flip side, tenants will need to get assurances from lenders that they have approved lease terms and, in a worst-case scenario, that the lender will allow the tenant to continue occupying the space if the lender forecloses on property.”

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Fitch, Even, Tabin & Flannery LLP will present a free webinar, “Understanding AIA 102: Prior Art Exceptions and Declaration Practice,” featuring Fitch Even partner Alan E. Schiavelli.

The webinar will take place on Thursday, August 17, 2017, at 9:00 am PDT / 10:00 am MDT / 11:00 am CDT / 12:00 noon EDT.

CLE credit has been approved for California, Illinois, and Nebraska. Other states may also award CLE credit upon attendee request. There is no fee to attend, but registration is required. Register at https://register.gotowebinar.com/register/8108721617713884931

More and more patent applications now being examined and granted by the U.S. Patent and Trademark Office are first-inventor-to-file applications under the America Invents Act (AIA). The AIA redefined which documents and activities constitute prior art that may be used to reject patent applications and invalidate patents.

During this webinar, attendees will gain a basic understanding of the statutory framework of 35 U.S.C. § 102, including the categories of prior art defined by the statute, the exceptions to those categories, and the manner in which the exceptions can be invoked. We will also discuss a recent Federal Circuit panel decision some see as undermining Congress’s intent in establishing the AIA’s on-sale bar.

Specific topics will include these and more:

• Changes to prior public use and sale
• Prior art under 102(a)(1) and exceptions
• Prior art under 102(a)(2) and exceptions
• Declaration practice under AIA 102
• Ramifications of Helsinn Healthcare v. Teva Pharmaceuticals

Following the live event, a recording of the webinar will be available to view for one year at www.fitcheven.com.

Register for the webinar.

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Foley & Lardner LLP announced that former federal prosecutor Rohan Virginkar is returning to the firm as a partner in its Government Enforcement, Compliance & White Collar Defense Practice. Virginkar most recently served as a trial attorney in the U.S. Department of Justice’s Foreign Corrupt Practices Act Unit. He also served as counsel to the Assistant Attorney General of the Criminal Division.

At Foley, Virginkar will advise corporations and executives on government and regulatory actions; conduct internal investigations; lead corporate compliance matters; and defend individuals and corporations in white collar matters, the firm said in a release.

The release continues:

During his tenure as a federal prosecutor, Virginkar led some of the Justice Department’s most sophisticated white collar criminal investigations, focusing particularly on violations of the FCPA, health care fraud and securities fraud laws. Virginkar led numerous global investigations of complex, international, white collar criminal matters involving major international companies spanning countries on six continents. He also prosecuted a major global pharmaceutical company, which resulted in over $280 million in combined penalties and fines — the largest ever against a healthcare company for violations of the FCPA.

Virginkar also was a member of the DOJ’s Deepwater Horizon Task Force, where he investigated crimes related to the deadly 2010 disaster and resulting oil spill. For his work on the Deepwater Horizon investigation, which included helping to secure the largest criminal settlement in U.S. history, Virginkar earned the Attorney General’s Award for Exceptional Service, the highest award in the Department of Justice, as well as the FBI Director’s Award for Excellence, one of the FBI’s most prestigious honors.

“We are thrilled to have Rohan return to Foley,” said Scott Fredericksen, managing partner of Foley’s Washington, D.C. office. “Rohan is a perfect fit for our culture of providing excellent service to our clients as they navigate the increasingly complicated and international landscape of enforcement activity by criminal and civil authorities.”
“Rohan’s experience investigating and prosecuting complex international cases, along with his unique insights into the approach taken by government enforcement authorities, will enhance our team’s widely recognized expertise in anti-corruption compliance and internal investigations,” said Mike Gay, chair of Foley’s Litigation Department.

Before entering public service, Virginkar practiced at Foley from 2004 until 2011. He is a 2004 graduate of The George Washington University Law School and a 2001 graduate of the University of California, Los Angeles.

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DLA Piper announced that Michael Fisco has joined the firm’s finance practice as partner in the Minneapolis office.

In a release, the firm said Fisco counsels clients, including banks, investment funds, debt purchasers and various creditors, on complex bankruptcy and restructuring matters. He works with distressed debt purchasers, indenture trustees and bondholders in restructuring corporate bond defaults, and he has successfully settled numerous high-value domestic claims.

“Multinational financial corporations continue to find themselves facing unclear, complex transactional matters that require strong and experienced counsel,” said John Cusack, global co-chairman of DLA Piper’s Finance practice. “Michael’s proven ability to manage high-profile transactions, debt restructuring and insolvency matters across the US and around the world will immediately strengthen our finance offerings to clients.”

Fisco has represented global asset management firms and leading U.S. banks regarding structured products in Asia and the United Kingdom, including the administration of a $2 billion claim in the Enron bankruptcy case.

“The Twin Cities are home to numerous Fortune 500 companies and global financial institutions,” said Kathleen Smith Ruhland, managing partner of DLA Piper’s Minneapolis office. “Michael’s strong experience combined with DLA Piper’s global platform will be an important value add for our clients.”

Fisco joins DLA Piper from Faegre Baker Daniels in Minneapolis, where he had served previously as the Finance and Restructuring practice leader and Financial Services industry team leader. He earned his J.D., with honors, from the Hamline University School of Law and his B.A. from the University of Minnesota.

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National law firm Dykema announced that it has been chosen by Texas Appleseed’s Board of Directors as one of three law firms to receive the organization’s Pro Bono Leadership Award. Dykema will be recognized at Texas Appleseed’s annual Good Apple Dinner November 16, 2017, at the Four Seasons Hotel in Austin, Texas.

The Pro Bono Leadership Award is presented to pro bono partners of Texas Appleseed who have contributed and continue to contribute excellent work. Dykema will be recognized for its role in helping to develop and produce the contents for an online toolkit that empowers Texans to defend property confiscated by law enforcement through civil asset forfeiture. Defending Against a Civil Asset Forfeiture Case, features answers to leading questions about asset forfeiture; animated videos in English and subtitled in Spanish; sample pleadings and forms that Texans can customize; and a checklist for appearing in court, among other information. It is available at www.EndForfeitureAbuseTx.org.

Texas Appleseed is a nonprofit public interest justice center that works to change unjust laws and policies and promote social and economic justice for all Texans. It works with a dynamic network of pro bono partners and collaborators to develop and advocate for innovative and practical solutions to difficult systemic problems. Texas Appleseed also conducts data-driven research that uncovers inequity in laws and policies and identifies solutions for lasting, concrete change.

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Bracewell LLP’s litigation practice has been named the 2017 “Large Law Firm Litigation Department of the Year” by Texas Lawyer.

The publication will profile the firm in the August edition.

In a release, the firm said:

In July 2016, Law360 named Bracewell to the inaugural list of “Litigation Powerhouses” identifying it as one of the top-50 litigation practices in the nation. The publication further highlighted the firm as one of an “elite group” of only five firms in the nation with fewer than 200 litigation lawyers included on its list of “litigation heavyweights.” In May of this year, Chambers USA called the team a “fast-growing litigation bench with a reputation for creative approaches to disputes both before and in trial for a range of major corporate clients.” In addition, Legal 500 United States named Bracewell to its list of nationally ranked disputes practices, noting that the team is “particularly well-versed in defending oil and gas industry clients in commercial and royalty disputes.”

“We have a great thing going,” said Stephen B. Crain, the firm-wide chair of Bracewell’s litigation practice. “These recognitions are the result of the concerted efforts of our entire team to provide excellent advocacy for our clients.”

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HR Dive reports on a federal case in which an employee’s Family and Medical Leave Act suit will go to trial over how she was fired after confusion about how much leave she had available.

Reporter Kate Tornone explains: “The employer’s handbook had two separate sections: one discussed employees’ entitlements to 12 weeks of unpaid FMLA leave, while the other offered workers eight weeks of paid maternity leave, with the option to take four more weeks unpaid.”

The company fired the employee when she didn’t return to work after 12 weeks absence.

Read the HR Dive article.

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The Associated Press reports that Google’s CEO canceled an internal town hall meant to address gender discrimination after employee questions for management began to leak online from the company’s internal messaging service.

“Sundar Pichai said in an email to staff that several Google employees became fearful for their safety and grew concerned about being outed for speaking up at the town hall,” writes technology writer Ryan Nakashima.

Employees had used an internal system to submit questions for executives to address, but some of those questions leaked and were published online.

Read the LA Times article.

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Plantronics faces a big hurdle in its upcoming trial on a competitor’s accusations that it used “monopolistic” power to control the market for telephone headsets: how to explain to a jury that its employees deleted potentially crucial emails, reports Bloomberg Law.

A federal judge concluded last July that Plantronics had engaged in bad faith discovery spoliation, and demonstrates the far reaching consequences of discovery. The presiding judge said at the time he would instruct the jury that “it may — not that it must” presume that the deleted emails — some of which were never recovered — were unfavorable to Plantronics, writes reporter Gabe Friedman.

The trial is scheduled for October.

Read the Bloomberg article.

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Zapproved has published an exclusive report that reveals insights about current and year-over-year changes in legal hold and data preservation processes.

The “2017 Legal Hold & Data Peeservation Benchmark Report” discusses automation maturity levels, allowing users to see how their company measures up.

This complimentary report offers in-depth analysis of:

• Legal hold automation trends over time
• Meeting best practices with automation
• Process satisfaction based on process type
• Power Preservers’ secrets to success
• Surprising dip in employee training

Download the guide.

The National Association of Corporate Directors has published a guide to leading practices for key committee succession planning and new-director onboarding.

The guide is available from the NACD’s website at no charge.

Download the resource.

When a Google employee wrote in a memo that women are not as qualified as men to be software engineers, he learned the hard way that free speech protections only go so far, writes Tracey Lien for The Los Angeles Times.

“One thing many misunderstand about the 1st Amendment is that it only protects the public’s right to free speech from government censorship — meaning it doesn’t apply to the relationship between private employers and employees,” Lien points out.

In her article, she discusses what protections employees have, what Google’s case entails, Google’s options, and how things might have been different.

Read the LA Times article.

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Robert S. Mueller III left a $3.4 million partner job in the white-shoe law firm WilmerHale, where he worked for clients such as Facebook, Apple, Sony and the NFL, to serve as the special counsel overseeing the law enforcement investigation into whether the Kremlin and the Trump campaign coordinated to impact the 2016 election, The Washington Post reports.

The Post filed a request for the Mueller team’s public financial disclosures, which offer a glimpse into whom the special counsel and the lawyers he has hired have worked for and where they have made and invested their money.

Three other WilmerHale lawyers who joined Mueller on the team left behind incomes ranging from $1.4 million to more than $5.8 million, reports Matt Zapotosky.

Read the Washington Post article.

Forbes tells the story of a plaintiffs lawyer who worked on a long-running class action for the past 13 years, and now his former firm wants nearly all of his $2.45 million in fees from a settlement, even though he resigned from the firm in 2004.

“On June 5, the Pittsburgh law firm Specter Specter Evans & Manogue filed a lawsuit against [R. Bruce] Carlson, who left the firm long ago to create Carlson Lynch in 2004,” explains John O’Brien, Forbes contributor and editor of Legal Newsline. “The Specter firm alleges Carlson owes it nearly all of his $2.45 million in fees gained in a recent $24 million settlement regarding fees imposed on those who took out second mortgages from Community Bank of Northern Virginia.”

The firm cites a separation agreement, but Carlson says the firm was only entitled to a percentage of his fees if the original 2003 settlement was approved. An appellate court rejected that settlement, and the case went on for another 11 years.

Read the Forbes article.

Exterro has published “The Definitive Guide to E-Discovery” and made the 90-page document available for free downloading.

“E-Discovery is a crazy-quilt of Law, Technology, Project Management, and Business. There is a lot to learn from many different angles, and it can be difficult to find a resource that is truly comprehensive,” Exterro says on its website.

About the guide:

• 90 pages of in-depth information, spanning every stage of the e-discovery process
• Each chapter features best practices, technology tips, up to date analysis of case law, and FRCP Rule changes
• Expert commentary from some of the top thought leaders in the industry

Download the guide.