In view of the importance of contract analysis for determining joint infringement, practitioners would do well to obtain contracts early in discovery to determine the strength of their positions, and practitioners drafting contracts should be mindful of potential joint infringement implications, reports Foley & Lardner LLP in a new white paper.

Justin M. Sobaje writes that the recent decision by the Federal Circuit in Akamai v. Limelight on remand that predictions attention would shift to contract analysis for determining direct, rather than induced, infringement in these multi-actor method situations, known as joint or divided infringement.

“Given the increased scrutiny of contract terms for determining instances of joint patent infringement, practitioners providing advice in the drafting of contracts should be aware of the potential issues and provide guidance aimed at avoiding anticipated dangers,” the paper says.

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User-friendly mobile apps make it easier to broadcast live videos, but, unfortunately for intellectual property rights holders, these apps also make it easier to for users to stream third-party content without permission.

A paper published online by Primary Opinion takes a look at the issue facing IP rights holders, as well as employers that could find work place incidents broadcast live online.

“Instead of battling against this trend, many IP rights holders and employers are being encouraged to avoid harsh knee-jerk reactions.” the paper says. “Unfortunately for broadcasters that rely on the exclusivity of time-sensitive content, matters aren’t so straightforward.”

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The 5th U.S. Circuit court of Appeals ruled in an arbitration award that a district court had wrongly concluded that the court was the proper decision-maker on contract formation, according to a report produced by Stinson Leonard Street and posted on JDSupra.

“Although courts are presumptively authorized to decide whether an arbitration agreement exists, the Fifth Circuit found the parties altered that presumption by ‘submitting, briefing, and generally disputing that issue throughout the arbitration proceedings’,” wrote Liz Kramer for the firm. The case was OMG, L.P. v. Heritage Auctions, Inc.,  2015 WL 2151779 (5th Cir. May 8, 2015).

She wrote that OMG claimed that it was owed more commissions than the auction house had paid it for firearm sales. The case involved a dispute between the parties on how to interpret the term “merchandise.”

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Reed Smith has posted a white paper advising general counsel how to master the first steps of dealing smoothly with a computer intrusion.

The steps begin with the initial debriefing from the IT director, the HR director or whoever presents the information about the compromise. They progress through such steps as contacting outside cyber security counsel, directing IT staff to freeze all internal audit trails – including vendor traffic, convening a meeting of the Incident Response Team within one hour, and more, ending with contacting the CEO.

The paper describes detailed actions that should be made at each step of the process.

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ProcessUnity has posted a white paper that explains how to use pre-contract due diligence to intercept vendor risks before they become problems.

“Today’s global, digital economy opens up a world of opportunities — and a whole new world of risk exposure,” ProcessUnity says on its website. “When important parts of your business can be fulfilled anywhere, risks may be everywhere. If one of your vendors takes a hit, you could take the fall. Which begs the question: Do you have a clear picture of your vulnerability? Download ProcessUnity’s white paper to learn how to get it right from the start, using pre-contract due diligence to intercept risks before they become problems.”

Topics include:

• The nine-step process to create a rational due diligence program
• Why manual due-diligence is just not manageable
• How to harness the power of automation to streamline vendor onboar

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Governance, risk, and compliance professionals often compete with economists for the most dismal view of events. To practitioners, “GRC” is not monolithic, but which one is the most popular?

Berkman Solutions has posted an examination of the question on its website.

A word about the less-than-scientific method to judge popularity: we looked at about 10 years of search history for “governance,” “risk management,” and “compliance.” The article contains the results of the popularity contest for the entire world. Regional preferences differ, so we also present the data for the following countries: United States, Australia, Great Britain, India, and South Africa.

The “R” in GRC typically means “Risk.” For this popularity contest, “Risk” was disqualified and “Risk Management” was ushered on stage instead. Risk alone towers over the others, probably (pun intended) because colloquial use of Risk pervades pop culture. Risk management seems to be the more dignified and professional option.

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Primary Opinion has published an article pointing to an almost exponential increase in worldwide patent publications relating to the graphene markete since 2006, and this is consistent with graphene first having been isolated in 2004 and the typical 18 month lag between filing and publication of a patent application.

This exponential growth shows no signs of abating, the article says.

“Since 2012, commercial products using graphene have started to become a reality. Accordingly, companies as diverse as Samsung, IBM, Fujitsu and Head Technology GmbH are all filing patent applications concerned with graphene. Looking at the various patent portfolios, it appears that graphene may one day form an integral part of many touchscreen devices, energy storage devices, transistors, semiconductors, lubricants, inks, cars and even sporting goods,” the article says.

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Contract Analyst, a part of Berkman Solutions, has published a white paper discussing how to initiate a risk management framework for legal professionals, contract managers, and compliance officers.

Besides explaining risk management for legal professionals and contract managers, the article also outlines steps to develop and implement a framework to identify and track legal and compliance risks using contract examples.

The webinar walks through the steps of developing a risk management framework, such as, identifying “events with uncertainty,” breaking each event into risks, assessing each risk (qualitative rating), placing all risks in a risk register, and treating risks.

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Exari Group presents a complimentary white paper that provides an overview of document assembly and contract management solutions and gives an insight into what questions to consider when choosing software.

Those questions include:

• How many people will create documents?
• What are your infrastructure/IT requirements
• How complex are your documents?

On its website, Exari says it works with companies around the world to give them the ability to automatically assemble contracts, track every contract in their organization, and analyze those contracts to ensure compliance and enhance revenues.

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The Federal Energy Regulatory Commission issued a much-anticipated final rule modifying some of the scheduling practices used by interstate natural gas pipelines to better coordinate the scheduling of the wholesale natural gas and electricity markets (Order No. 809 or Final Rule), reports Reed Smith LLP is a new white paper.

“In the Final Rule, FERC retreated from certain changes it proposed in its April 1, 2014, Notice of Proposed Rulemaking (NOPR), which initiated this proceeding,” wrote authors Amy S. Koch, Michael A. Yuffee, Todd L. Brecher. “Notably, FERC did not implement its proposal to change the start of the Gas Day to better align it with the electric operating day. Based on the response of the electric and natural gas industries to this proposal, FERC determined that the record did not establish that the benefits of such a change outweighed the costs. FERC noted that ISO-NE and PJM – two of the regions of most concern – have recently undertaken operational and market actions to address generator availability and performance, and that all of the ISOs and RTOs are considering changes to better align their markets with the Gas Day.”

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As companies become more aware of — and liable for — breaches involving confidential data, they are seeing more negotiated provisions governing breaches, says a paper published by Nossaman LLP on JDSupra.

Some provisions require notice earlier than statutory requirements, notice in a particular manner, or specific information included with the notice, writes Nossaman partner Brendan Macaulay. Those provisions are often accompanied by indemnity provisions that can be burdensome and open-ended.

He advises companies to re-examine those indemnification provisions and scale back open-ended obligations in light of the current data breach and regulatory environment.

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Employers in the health care industry often subcontract labor through outside vendors to fill positions like travel nurses, security guards, and janitors. But outside contractors may not be in compliance with federal and state employment laws, including wage-and-hour laws, points out a white paper published by Fisher & Phillips.

Because of the “joint-employment” doctrine, the health care facility employer may be on the hook for the contractor’s violations, David Amaya wrote in the paper. “Failure to acknowledge and address this possibility could result in surprise and unforeseen financial responsibility. It’s important to understand the issues raised by this legal rule and to have strategies at the ready to proactively address them.”

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If you are thinking about signing any agreement with a non-disparagement clause, ask questions about it, understand it and get competent legal advice, especially if you are the one who is, let’s say, more likely to disparage the other party to the contract, advises David Farren of Phoenix-based Jaburg Wilk in a white paper.

The Equal Employment Opportunity Commission and other government agencies “have recently voiced concerns about whether some disparagement clauses may go too far by illegally prohibiting employees or former employees from filing legitimate, but “disparaging,” charges with those agencies,” he writes. “As a result, many disparagement clauses today carve out an exception for filing such charges, and you should ask for that and any other exception that might apply to you if you sign one.”

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The U.S. Supreme Court on April 21 ruled that state law antitrust claims brought against interstate pipeline companies by a group of manufacturers and other retail buyers of natural gas are not pre-empted by the Natural Gas Act, according to a report from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo.

The court considered whether the Natural Gas Act pre-empts state law antitrust claims when the challenged conduct affects both federally regulated wholesale natural gas prices and non-federally regulated retail natural gas prices, explained author Dionne Lomax.

“According to the majority, the state law price-manipulation claims were not pre-empted because they were directed at practices affecting retail rates, which falls squarely on the states’ side of the dividing line,” she wrote. “Justice Scalia and Chief Justice Roberts strongly dissented.”

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This 2015 update of Pepper Hamilton’s white paper on independent contractor misclassification details three ways companies that use independent contractors can minimize or avoid future independent contractor misclassification exposure.

The white paper, an update from the firm’s original 2012 version, is available at the Pepper Hamilton site.

The three methods mentioned in the paper are:

• bona fide restructuring and re-documentation, using IC Diagnostics™
• reclassification, either under a government program or voluntarily
• redistribution of independent contractors, using a workforce management or staffing company.

“These alternatives work for virtually all companies that use independent contractors – whether to supplement their workforce or to refer or offer qualified service providers to customers or clients as part of their business model.” the paper says.

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A recent settlement under the U.S. Environmental Protection Agency’s Energy Extraction Enforcement Initiative provides insight into EPA’s approach under the Clean Air Act and highlights the type of “beyond compliance” requirements on which industry should focus, reports King & Spalding in a white paper.

“Given its patchwork of regulatory authority over operations in the oil and natural gas industry, the U.S. Environmental Protection Agency (EPA) has adopted a national enforcement initiative to focus its efforts,” the paper says. “Through its Energy Extraction Enforcement Initiative, EPA has been steadily targeting the energy industry.”

Advanced air emissions monitoring tools that EPA pursues in its settlements may expose settling companies to future litigation based not on the compliance demonstration method of the applicable air rule, but rather on broader Next Generation technology, the authors write.

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The Obama Administration’s first comprehensive survey and analysis of the nation’s basic energy infrastructure needs for the 21st century provide a critical analysis of vulnerabilities in the energy transmission, storage, and distribution systems in the United States, according to a white paper published by Morgan Lewis & Bockius.

The report includes specific recommendations for investments in energy infrastructure upgrades and new policies designed to promote responsible development of domestic energy sources and to facilitate more timely environmental review and permitting decisions, the paper says. “Priorities outlined in the report will likely shape legislative and administrative actions that could affect markets and shape commercial opportunities in the energy sector.”

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Public policy justifications for refusing trademark registration is a common aspect of most trade mark regimes. But balancing the interests of potential trademark owners who wish to market their goods and services under vulgar signs and those who might be offended by such marks, has raised wider concerns about unnecessary restrictions on free speech, according to a white paper published by Primary Opinion.

The paper points to an opinion from the Court of Appeal for the Federal Circuit that upheld a refusal to register the mark THE SLANTS for “entertainment in the nature of live performances by a musical band,” finding that the mark “… would be perceived as disparaging to a substantial composite of the referenced group, namely persons of Asian descent.”

The paper considers some other U.S. cases, such as the case of the name of the Washington Redskins, as well as similar cases in Australia and Europe.

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Energy reform in Mexico means a new era of partnerships, foreign direct investment, and future success stories in the country, write Edward H. Warner and Daniela Suarez de los Santos of Kean Miller in a new article.

The recent announcement of a $900 million transaction to send U.S. natural gas to central Mexico represents the first large scale infrastructure investment in Mexico since its energy sector was opened to foreign investors in 2013. is only the beginning.

On its website, the firm says, “The questions to consider are: what are the opportunities, what are the challenges, and how can U.S. companies make this groundbreaking change work for them?”

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Many employers think they understand employment laws like the Fair Labor Standards Act, 29 U.S.C. §201, et seq. (FLSA), only to find out – after costly litigation – that they were just plain wrong.

Assouline & Berlowe has prepared a white paper that highlights 10 of the most common mistakes that private, non-governmental employers (with a non-unionized work force) make when attempting in good faith to comply with employment laws.

The 10 mistakes range from, number 1, “Paying an employee a salary and assuming the employee need not be paid overtime,” to number 10, “Classifying all staff as independent contractors means you do not have to worry about the employment laws.”

Ellen M. Leibovitch, Head of Labor and Employment Practice at Assouline & Berlowe, wrote the paper.

Assouline & Berlowe is a business litigation and transactional law firm serving the business needs of local, national, and international clients. The firm has offices in Florida.

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