Author: National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.

$7B in Contracting Opportunities for Renewable Energy Projects

Recently The National Law Review published an article regarding Renewable Energy Projects written by Stephen E. Ruscus, Kenneth M. Kulak, and Wayne W. Song of Morgan, Lewis & Bockius LLP:

 

U.S. Army issues an RFP to secure locally generated renewable and alternative energy.

On August 7, the U.S. Army Corps of Engineers issued its long-awaited request for proposal (RFP) to procure up to $7 billion worth of locally generated renewable and alternative energy through power purchase agreements and other contractual equivalents. The RFP solicits contractors that can develop, finance, design, build, operate, own, and maintain solar, wind, biomass, or geothermal power generation facilities under energy purchase contracts of up to 30 years.

The RFP calls for the award of multiple indefinite delivery, indefinite quantity (IDIQ) contracts with a base period of three years and seven one-year options (total 10 years). These contracts do not guarantee work and are not project specific. Rather, each contract serves as a “license to hunt,” and the Army intends to award such contracts to all qualified offerors. Individual task orders for specific projects will be issued after qualified contract holders are given a fair opportunity to be considered. To satisfy this requirement, the Army must issue a notice of the task order containing a clear statement of its requirements and allow for a reasonable response period. The winner of each task order will be awarded the work described in the task order’s statement of work.

Project locations are not identified in the RFP but will be specified in subsequent individual task orders. The locations may include private land or installations under the jurisdiction of the Department of Defense located within the continental United States. Renewable energy facilities also may be located on any properties available for use by the contractor that are in the proximity of the location of the federal property for which the services will be provided.

The RFP divides projects into three categories: (1) For projects greater than 12 MW, task order competition will be unrestricted by contractor size; (2) for projects 4 MW up to 12 MW, the contracting officer will consider reserving the task order for small businesses; and (3) for projects less than 4 MW, the task order will be reserved for small businesses. Under the terms of the RFP, a firm is considered small if it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million MWh.

The RFP and an accompanying “frequently asked questions” (FAQ) document raise several important issues for contractor qualifications and for projects to be constructed under future task orders:

  • The RFP requires all offerors to submit Small Business Participation Plans. It is the Army’s goal to have 50% of the total contract value go to small businesses.
  • The RFP requires contractors to offer a maximum price per kWh, project-specific variables notwithstanding. The figure should be based on an offeror’s estimate of the total cost for development, construction, operation, and maintenance of the renewable energy production facility at a location and size that is “suitable, but not ideal for the technology proposed.” The figure is intended to operate as a ceiling price, and a contractor will not be required to submit a task order proposal on a project exceeding its ceiling price.
  • The RFP includes a most-favored-customer provision stating that, as a general rule, the government will require that its energy unit price under a task order remain equal to or lower than the unit price offered to any other customer with a contract containing substantially similar terms and conditions for power generated at the renewable energy facility or facilities.
  • The RFP includes a government contract clause requiring certifications regarding the country of origin of photovoltaic devices; requiring proof, at certain total estimated values, of a specified price differential between foreign and domestic devices; and prohibiting, at other total estimated values, consideration of offers utilizing photovoltaic devices from certain countries. Other provisions incorporated in many government contracts will also apply (e.g., compliance with Buy American Act and Davis-Bacon Act labor requirements).
  • The RFP FAQ addresses the question of termination liability in the event the government terminates a particular power purchase agreement in accordance with a required Termination for Convenience Clause. Specifically, the FAQ acknowledges contractor concerns and contemplates inclusion, in task orders, of a negotiated floor and ceiling for termination charges as well as additional negotiable elements.
  • The RFP also anticipates issues relating to third-party financing through special purpose entities. It suggests these issues can be addressed through government contract novation of the underlying IDIQ contract to isolate a project for financing purposes and through reissuance of a separate IDIQ contract to the original awardee to maintain that contractor in the contract pool.

Comments on the final RFP may be submitted by August 24, 2012; the Army intends to hold a pre-proposal conference at a date to be announced (tentatively in Chicago). The deadline for submission of proposals in response to the RFP is October 5, 2012.[1]

[1]. The RFP, Attachment A – Table of Max Unit Price Rates, Amendment 1, and FAQs can be accessed at here.

Copyright © 2012 by Morgan, Lewis & Bockius LLP

Consumer Financial Services Basics – ABA Conference

The National Law Review is pleased to bring you information regarding the upcoming Consumer Financial Services Basics Conference sponsored by the ABA:

When

October 08 – 09, 2012

Where

American University

Washington College of Law

Washington, DC

Program Description

Facing the most comprehensive revision of federal consumer financial services (CFS) law in 75 years, even experienced consumer finance lawyers might feel it is time to get back in the classroom. This live meeting is designed to expose practitioners to key areas of consumer financial services law, whether you need a primer or a refresher.It is time to take a step back and think through some of these complex issues with a faculty that combines decades of practical experience with law school analysis. The classroom approach is used to review the background, assess the current policy factors, step into the shoes of regulators, and develop an approach that can be used to interpret and evaluate the scores of laws and regulations that affect your clients.Program FocusThis program will explain each of the major sources of regulation of consumer financial products in the context of the regulatory techniques and policies that are the common threads in a complex pattern, including:

  • Price regulation and federal preemption of state price limitations
  • Truth in lending and disclosure requirements
  • Marketing, advertising and unfair or deceptive conduct
  • Account servicing and collections
  • Regulating the “fairness” of financial institution conduct
  • Data security, fraud prevention and identity protection
  • Consumer reporting: FCRA & FACT Act
  • Fair lending and fair access to financial services
  • Remedies: regulators and private plaintiffs
  • Regulatory and legislative priorities for 2012 and beyond

Who Should Attend…The learning curve for private practitioners, in-house lawyers and government attorneys to understand the basics and changes to CFS law is very steep. This program is a great way to jump up that curve for:

  • Private practitioners with 1-10 years of experience who focus on CFS products or providers
  • In-house counsel at financial institutions and non-bank lenders
  • Government attorneys, in financial practices regulatory agencies
  • Compliance officers (who may be, but need not be, attorneys)

A Sticky Situation—Secondary Considerations Require NEXUS to the Claimed Invention

Addressing issues of invalidity and non-infringement of patents asserted between direct competitors in the chewing gum market, the U.S. Court of Appeals for the Federal Circuit explained that in order to be entitled to rely on evidence of unexpected results commercial success or copying, the evidence of secondary translations must be tied to the claimed invention, i.e., the so-called nexus requirement. WM Wrigley Jr. Co. v. Cadbury Adams USA LLC, Case Nos. 2011-1140, 1150 (Fed. Cir., June 22, 2012) (Bryson, J.) (Newman, J. concurring-in-part and dissenting-in-part).

Wrigley and Cadbury cross-alleged patent infringement of patents directed to chewing gum that provides a cooling sensation when chewed.  The Wrigley patent was directed to chewing gum containing a combination of menthol and WS-23 coolant, while the Cadbury patent was directed to a chewing gum containing a combination of menthol and WS-3 coolant.

The district court found that one claim of Wrigley’s patent was invalid as anticipated by a patent to Shahidi and another was invalid as obvious in view of a patent to Luo and a publication by Parrish.  The lower court rejected Wrigley’s evidence of unexpected results, commercial success and copying.  The district court also found that Cadbury’s patent was not infringed, either literally or under the doctrine of equivalents.  Wrigley appealed.

The Federal Circuit affirmed the lower court’s finding of obviousness as to Wrigley’s patent, concluding that Wrigley failed to demonstrate that the combination of menthol and WS-23, as claimed, resulted in an unexpected benefit beyond what was already known in the art.  The Court stated that prior art teaches that the combination of menthol and WS-3 yields “enhanced breath freshening effects” and that it was known that WS-3 and WS-23 share similar characteristics.  The Federal Circuit dismissed Wrigley’s evidence of unexpected results because there was no clear showing that the claimed invention resulted in the alleged unexpected benefits that were attributable to the claimed components and not to other factors, including sweetener levels, higher gum base and filler levels and more expensive ingredients.  Likewise, the Court dismissed Wrigley’s evidence of commercial success and copying for a lack of a nexus to the claimed invention.

The Federal Circuit also affirmed the lower court’s finding of anticipation based on Shahidi. The Federal Circuit found that Shahidi disclosed a number of different combinations of cooling and flavoring agents, one of which was the claimed combination of menthol, which Shahidi identified as one of the most suitable flavoring agents, and WS-23, which Shahidi listed among a group of other flavoring agents.

Regarding Cadbury’s patent, the Federal Circuit found that Cadbury could not prove infringement under the doctrine of equivalents because it had chosen to limit its claimed chewing gum composition to a certain species and not to the broader genus, despite knowing at the time of filing its application that WS-23 and WS-3 were interchangeable.  Cadbury’s decision to narrowly recite claim N-substituted-p-menthane carboxamides, which excludes WS-23, was detrimental to its infringement case.

In her dissent, Judge Newman pointed out that Shahidi, the purportedly anticipatory reference, “does not show the claimed combination at all, but merely presents the ingredients on lists” which can be combined in more than a million possible combinations.  Judge Newman also disagreed with the majority’s finding on obviousness, stating the record was “rife” with evidence demonstrating a nexus between Wrigley’s success of chewing gum combinations with menthol and WS-23, including Cadbury’s own internal records and marketing materials stressing the cooling effect of its reformulated chewing gum.

© 2012 McDermott Will & Emery

IP Law Summit – September 13-15, 2012

The National Law Review is pleased to bring you information about the upcoming IP Law Summit:

The IP Law Summit will highlight the current challenges and opportunities through visionary conference sessions and keynote presentations delivered by your most esteemed peers and thought leaders from Americas leading corporations. The one-on-one meetings with leading service providers will offer vast expertise in the area of intellectual property law. All this, seamlessly integrated with informal networking opportunities over three days, will provide a unique interactive forum. Do not miss this opportunity to network, establish new connections, exchange ideas and gain knowledge.

Top Ten Trends in I-526 Requests for Evidence

The National Law Review recently published an article by Kate Kalmykov of Greenberg Traurig, LLP regarding I-526 Requests for Evidence:

GT Law

1. Lack of five years of tax returns.  In countries where tax returns are not readily available it is advisable for applicants to provide copies of the relevant sections of the law that explain the tax filing requirements, as well as corroborating evidence from independent third parties such as accountants.  In certain countries employers pay taxes directly on their employees.  In these cases it is advisable that EB-5 investors request this documentation directly from their employer or a corroborating letter attesting to their salary and compliance with the tax filing requirements of their home country.

2. Sale of Property.  USCIS seems to be requesting extensive documentation related to the sale of property if it was purchased less than 7 years ago.  Investors are advised to present sales contracts, deeds, and bank statements showing the sale and transfer of proceeds from the sale of property.  In cases where property was purchased over 7 years ago and evidence is not readily available, as long as a reasonable explanation for the lack of funds is given, USCIS seems to be showing more leniency.

3. Home Equity Loans as Source of Funds.  As the EB-5 program grows in popularity, many investors, particularly those from China have begun to obtain home equity loans for their EB-5 investments.  While investment through loan proceeds are permitted in EB-5, USCIS requires that the Investor prove that they have secured the loan with collateral as well as evidence that they are able to make payments on the loan from a lawful source.

4. Loans from a Petitioner’s Business, another popular source of EB-5 investment funds, particularly with Chinese nationals.  In these cases, USCIS often requests proof of approval from the company’s Board of Directors for issuance of the loan.  Likewise, USCIS requires proof that the investor has the ability to repay the loan.

5. Petitioner’s Salary.  USCIS often requests evidence to show that the investor has a level of income and savings that enables the investor to make the EB-5 investment.  To this end, USCIS may request proof of the investor’s yearly expenses as well as records of ongoing salary.

6. Retained Earnings from Investor’s Business.   Investors must demonstrate that they were allowed access to the funds that they ultimately used for their EB-5 investment and that they had authority to make distributions to themselves.

7. Gift Taxes.  More and more USCIS is requesting proof that the investor has complied with the home country’s gift tax requirements.  Likewise, the giftor must demonstrate their source of funds, as well as their understanding that the gift was made without an expectation of repayment.

8. Use of Intermediaries.  In some countries, like China individuals are restricted in the amount of foreign currency that they can exchange each year.  Where “friends and family” are used to assist in transferring money out of the country, bank statements or currency exchange receipts are often required to demonstrate:

  • Transfers from the investor to the friends and family members
  • Transfers from each friend and family member to the investor’s overseas account
  • Transfer from the Investor to the Regional Center

9. Proof of Common Country Specific Currency Practices.  Many countries operate on a “cash” economy and money is not often deposited in banks.  In these instances, it is important to provide independent, third-party evidence of these practices to account for any “gaps” in the trace of funds.

10. Proof of Source of Administrative Fee.  In addition to the required $500,000 (TEA investments) or $1,000,000 investment amount required by the EB-5 regulations, regional centers often charge a one-time administrative fee ranging from $30,000-60,000 to each investor. EB-5 investors that have been through the process know that the regulations only require that they  demonstrate the source of their EB-5 investment.  Not their entire net worth or earnings over time.  However, USCIS has begun to impose an additional requirement as of late by requesting that investors demonstrate the source and trace of their administrative fee.

©2012 Greenberg Traurig, LLP

Class Actions National Institute October 24-25, 2012

The National Law Review is pleased to bring you information about the upcoming ABA Class Actions National Institute:

Attendees of the program will:

  • Gain practical knowledge on how judges view class-action lawsuits
  • Review class-action lawsuits in the Supreme Court
  • Learn trial techniques to sharpen their skills as class-action litigators

Who should attend?

  • Attorneys who litigate class-action lawsuits
  • In-house counsel and litigators interested in learning about the current state of class actions, including recent Supreme Court class-action decisions
  • Lawyers who litigate class-certification motions

When

October 24 – 25, 2012

Where

  • Sax Chicago
  • 333 N Dearborn St
  • Chicago, IL, 60654-4956
  • United States of America

Federal Trade Commission Sends Strong Message with $22.5 Million Google Settlement

An article by Amy Malone of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding FTC’s Google Settlement was published recently in The National Law Review:

The FTC has finally released details of their settlement with Google, including the hefty price tag of $22.5 million, the highest fine ever slapped on a violator of an FTC consent order. The Internet giant was charged with breaking the terms of the consent order they entered into last year by misrepresenting how users could opt out of having certain cookies dropped on their browser.

A majority of Google’s earnings is generated through online advertising, some of which is targeted at online users through the use of third party cookies.  Those third party cookies are “dropped” from an advertising network on a user’s Internet browser (e.g., Internet Explorer, Firefox, Safari) which then allows that network to track information such as what sites the user visits and this allows targeted ads to be sent to the user.   Some users prefer not to receive targeted advertisements, and there are ways for them to opt out of having these types of cookies dropped on their Internet browsers.

The Safari Problem. According to the FTC complaint, when Safari (a browser provided by Apple) users visited the Google “Advertising Cookie Opt-out Plugin” page they were told that if they left the Safari default settings on they didn’t have to do anything else because those settings prevent third party cookies from being dropped.  Safari’s default settings prevent third party cookies from being dropped except in limited circumstances such as when a site uses a “form submission,”  used in situations such as online purchases when a user enters information like an email address. It’s important to note that once Safari accepts a third party cookie from a site it accepts all cookies from that site.   In this case Google communicated with the Safari browser saying it was generating a form submission, but in reality Google was dropping a cookie from DoubleClick, their advertising network. Once the cookie was set, Safari then accepted all cookies from DoubleClick and  DoubleClick sent targeted advertisements to those users.  Google managed to circumvent the Safari settings and do exactly what they said they were not doing.

Google denies the allegations in the FTC complaint, but has agreed to pay the fine.   According to the FTC’s statement they have enough reason to believe Google violated the order and assessing the fine is in the public interest. The FTC asserts that this penalty helps ensure that Google will abide by the consent order and provides a “strong message” that the FTC is paying attention to consent orders and those that misstep will be brought to task “quickly and vigorously”.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Securities Fraud National Institute – November 15-16, 2012

The National Law Review is pleased to bring you information about the upcoming Securities Fraud Conference by the ABA:

This national institute is an educational and professional forum to discuss the legal and ethical issues surrounding securities fraud.

Program highlights include:

  • Panel discussions with senior officials from the U.S. Securities and Exchange Commission  and U.S. Department of Justice
  • Updates since the passage of the Dodd-Frank Act
  • Breakout sessions focused on new financial reform legislation
  • Strategies for practitioners when representing clients under investigation, indicted and during appeals

When

November 15 – 16, 2012

Where

  • Westin New Orleans Canal Place
  • 100 Rue Iberville
  • New Orleans, LA, 70130-1106
  • United States of America

 

Gearing Up Electronic Discovery to Handle the New Generation of Smart Devices

The National Law Review recently published an article regarding Electronic Discovery written by Marcus Evans Summits:

New technologies are presenting Chief Litigation Officers (CLOs) with additional challenges during eDiscovery, which was an already daunting, time-consuming and expensive process, says Jay Hagan, Chief Executive Officer, DriveSavers Data Recovery. As more people make use of smart phones, tablets and storage devices based on Solid-State Drive (SSD) and NAND flash technologies, CLOs are facing a new set of failure issues and recovery challenges, he adds.

Jay Hagan discusses the data vulnerabilities that new devices are adding to the eDiscovery equation and how to handle them.

What are the data storage vulnerabilities that CLOs should be aware of?

There is heightened demand for document preservation, fueled by changes to the Federal and State Rules of Civil Procedure, proliferation of Electronically Stored Information (ESI) and the growing number of information storage devices. It is imperative that documents of all types receive proper handling and storage throughout the eDiscovery process, as the failure to properly preserve and produce ESI in litigation can result in serious consequences, including court sanctions, loss of reputation and financial implications.

What new challenges do SSD technologies present for CLOs during eDiscovery?

Smart phones, tablets and other storage devices based on SSD and NAND flash technologies often contain digital records, forensic footprints, personal information and business-critical intellectual property. SSD technology continues to be in the design of mobile products for its many advantages to the user, but it presents a whole new set of failure issues and recovery challenges that adds variables to the eDiscovery equation.

While traditional magnetic data storage is well understood and reverse engineered with great success, we have far fewer “tools in the toolbox” for the new technologies. They are more difficult to reverse engineer or obtain cooperation, trust and proprietary tools from the original manufacturers. Vendor-specific SSD designs and encryption technologies, whether in the controller or in the NAND itself, are likely to be the norm and are creating new challenges from the data recovery perspective.

As the amount of valuable data stored increases, so does the impact of device failure and data loss. This is driving the need for a certified, secure, data recovery solution as part of the eDiscovery package.

How can CLOs minimize the cost of eDiscovery?

When making decisions on how to collect, preserve and produce ESI, CLOs will be required to balance convenience and security of the relevant data. For example, ensuring that ESI is protected from a breach during the eDiscovery process – from data collection and data analysis to data processing – is integral to a successful litigation, regulatory or investigation.

To avoid excessive cost, disputes, sanction or fine, a CLO must seek experts and consultants who can offer solutions customized to their case or specific project requirements. They also need to be prepared to not only utilize the best technology available, but also explain to the court or jury how and why it works for the case at issue.

It is impossible to achieve eDiscovery without the expertise, technology and methodology to successfully retrieve data from all storage devices, including smart phones and tablets.

 What are the data storage vulnerabilities that CLOs should be aware of?

There is heightened demand for document preservation, fueled by changes to the Federal and State Rules of Civil Procedure, proliferation of Electronically Stored Information (ESI) and the growing number of information storage devices. It is imperative that documents of all types receive proper handling and storage throughout the eDiscovery process, as the failure to properly preserve and produce ESI in litigation can result in serious consequences, including court sanctions, loss of reputation and financial implications.

What new challenges do SSD technologies present for CLOs during eDiscovery?

Smart phones, tablets and other storage devices based on SSD and NAND flash technologies often contain digital records, forensic footprints, personal information and business-critical intellectual property. SSD technology continues to be in the design of mobile products for its many advantages to the user, but it presents a whole new set of failure issues and recovery challenges that adds variables to the eDiscovery equation.

While traditional magnetic data storage is well understood and reverse engineered with great success, we have far fewer “tools in the toolbox” for the new technologies. They are more difficult to reverse engineer or obtain cooperation, trust and proprietary tools from the original manufacturers. Vendor-specific SSD designs and encryption technologies, whether in the controller or in the NAND itself, are likely to be the norm and are creating new challenges from the data recovery perspective.

As the amount of valuable data stored increases, so does the impact of device failure and data loss. This is driving the need for a certified, secure, data recovery solution as part of the eDiscovery package.

How can CLOs minimize the cost of eDiscovery?

When making decisions on how to collect, preserve and produce ESI, CLOs will be required to balance convenience and security of the relevant data. For example, ensuring that ESI is protected from a breach during the eDiscovery process – from data collection and data analysis to data processing – is integral to a successful litigation, regulatory or investigation.

To avoid excessive cost, disputes, sanction or fine, a CLO must seek experts and consultants who can offer solutions customized to their case or specific project requirements. They also need to be prepared to not only utilize the best technology available, but also explain to the court or jury how and why it works for the case at issue.

It is impossible to achieve eDiscovery without the expertise, technology and methodology to successfully retrieve data from all storage devices, including smart phones and tablets.

Interview with: Jay Hagan, Chief Executive Officer, DriveSavers Data Recovery

© Copyright 2012 marcus evans

ICC Rules of Arbitration – October 8-9, 2012

The National Law Review is pleased to bring you information about the upcoming ICC Training:

  • Location: ICC Headquarters, Paris
  • Date: 08/10/2012 – 09/10/2012
  • Event Type: Training
  • Language: French, English

After the success of the first round of trainings, ICC will be hosting another 2-day session on the 2012 ICC Rules of Arbitration in Paris in October.

Learning outcomes

  • Acquire theoretical and practical knowledge of the main changes in the 2012 ICC Rules of Arbitration on important topics such as Emergency Arbitrator; Case Management and Joinder, Multi-party/Multi-contract Arbitration and Consolidation
  • Study the 2012 ICC Rules of Arbitration in small working groups of about 10 participants applying various provisions to mock cases
  • Gaining valuable insights from some of the world’s leading experts in arbitration including persons involved in the drafting of the New ICC Rules of Arbitration

Who should attend?
Arbitrators, legal practitioners and in-house counsel who already have knowledge in arbitration and wish to know more about the 2012 ICC Rules of Arbitration.