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Welcome to the latest issue of Bracewell’s FINRA Facts and Trends, a monthly newsletter devoted to condensing and digesting recent FINRA developments in the areas of enforcement, regulation and dispute resolution. This month, we report on FINRA’s focus on uses of artificial intelligence as an emerging risk, oral argument in the Alpine Securities case that has broad […]

The US Securities and Exchange Commission’s recently adopted rules governing climate-related disclosures, although significantly pared back from the rules proposed two years ago, represent a major change to the existing public-company disclosure regime. Read More.

Months after US Securities and Exchange Commission Chair Gary Gensler warned regulated business owners about potential securities law liability over conduct known as AI washing, or misleading investors as to the company’s true artificial intelligence capabilities, a class of plaintiffs has filed suit in New Jersey federal court, seeking damages under this novel theory. Read […]

In the Closing Remarks of a Compliance Conference on December 7, 2023, the Director of the Office of Municipal Securities of the US Securities and Exchange Commission noted the SEC recently finalized its cybersecurity rule for public companies. The Director then suggested that “everyone take a minute to review the Adopting Release for the rule […]

In recent years, the Department of Justice (DOJ) has rolled out a significant and increasing number of carrots and sticks aimed at deterring and punishing white collar crime. Speaking at the American Bar Association White Collar Conference in San Francisco on March 7, Deputy Attorney General Lisa Monaco announced the latest: a pilot program to […]

Carbon capture and sequestration, or CCS, is a prominent carbon removal technology that has the unique advantage of being favored by both government and industry. CCS has emerged as a favored tool to mitigate climate change due to its potential to capture and store anthropogenic carbon dioxide, or CO2, into deep, subsurface reservoirs.[1] Unfortunately, it can […]

On March 1, 2024, the US District Court for the Northern District of Alabama granted summary judgment to Issac Winkles and the National Small Business Association (NSBA), holding that the Corporate Transparency Act (CTA) is unconstitutional because it represents legislative action outside the federal government’s enumerated powers. The court issued an injunction for the benefit […]

As lawyers, corporate executives and federal law enforcement officials prepare to gather this week in San Francisco for the ABA’s 39th National Institute on White Collar Crime, we offer our takeaways from January’s Houston forum on the Foreign Corrupt Practice Act as context to help anticipate the discussions on trends related to the current state […]

On 21 December 2023, Mr Justice Waksman handed down his judgment in the second trial of the Eurasian Natural Resources Corporation (ENRC) saga. The judgment, along with its earlier companions, is extraordinary in many ways and has been much written about as a result. We write to identify an additional level of concern with regards […]

Since the first Johnson & Johnson talc bankruptcy was filed in 2021, Judge Michael Kaplan has faced countless disagreements in the US Bankruptcy Court. These range from discovery fights, disputes over administration of tens of thousands of individual claims and all-out conflict over the total amount in controversy. Had Kaplan been a district court judge presiding over […]

The US Army Corps of Engineers (USACE) recently issued a proposed rule (the Proposed Rule) that, if finalized, will change the regulations applicable to the agency’s compliance with the National Historic Preservation Act (NHPA) for purposes of USACE’s Regulatory Program. Read more.

Since the first Johnson & Johnson talc bankruptcy was filed in 2021, Judge Michael Kaplan has faced countless disagreements in the US Bankruptcy Court. These range from discovery fights, disputes over administration of tens of thousands of individual claims and all-out conflict over the total amount in controversy. Had Kaplan been a district court judge presiding over […]

On 29 December, 2023, Federal Decree-Law No. 36 of 2023 on the Regulation of Competition (the New Law) was issued, replacing Federal Decree-Law No. 4 of 2012 (the Old Law) and introducing a new merger control regime, including a number of new concepts which will potentially lead to parties in M&A transactions having to file […]

The Federal Trade Commission (FTC) has announced the annual revisions to the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) thresholds and HSR filing fees, which will become effective on March 6, 2024. The revised thresholds will apply to any merger or acquisition closing on or after the effective date. The FTC is required to adjust the […]

We summarise the key events from 2023 in Nigeria’s energy sector – a year that saw the start of a new presidency and the end of the fuel subsidy. There was considerable M&A activity, significant legal developments and court rulings and some important PIA milestones. We also look ahead to explore what we can expect […]

Earlier this week, the Federal Acquisition Regulatory Council proposed a new rule that would amend the Federal Acquisition Regulation (FAR) to impose new restrictions on federal contractors and subcontractors, including: (1) prohibiting, seeking or considering an applicant’s compensation history; (2) requiring compensation disclosures in job advertisements; and (3) affirmatively providing written notice to applicants with specific language […]

Welcome to the latest issue of Bracewell’s FINRA Facts and Trends, a monthly newsletter devoted to condensing and digesting recent FINRA developments in the areas of enforcement, regulation and dispute resolution. We dedicate this month’s issue to FINRA’s 2024 Annual Regulatory Oversight Report. Read more here.

On January 1, 2024, the reporting requirements under the Corporate Transparency Act (CTA) became effective. The CTA was enacted by Congress on January 1, 2021, as part of the Anti-Money Laundering Act of 2020 and requires certain types of entities to report beneficial ownership information (BOI), unless exempt. The design and implementation of the reporting […]

The United Arab Emirates (UAE) has been making significant in-roads across the last few years to position itself as an attractive destination for foreign direct investment (FDI). Whilst 2022 saw a global decline in FDI, mainly attributed to overlapping geopolitical and socio-economic crises, the fact that the UAE has become – and remains – one of the […]

2023 was a banner year in the sanctions space and regulators seem primed to continue that performance in 2024. In December 2023, numerous government officials and industry experts convened at the New York Forum on Economic Sanctions to discuss lessons learned and predictions for the year to come. The conference featured officials from numerous agencies, […]

By any measure, 2023 was a breakout year for generative artificial intelligence, with businesses of every kind racing to adopt AI tools. As a result, regulators are keeping pace, and firms’ use of AI – including the way public companies disclose the way they use AI use to the public – is likely to become […]

Bracewell’s Taylor Stuart, Joshua Robichaud and Catherine McCarthy recently contributed a chapter on renewable energy for the American Bar Association’s Recent Developments in Infrastructure and Regulated Industries 2023. This chapter provides a high-level summary of notable developments in the US renewable energy sector, including generator interconnection reform and the status of offshore wind rulemakings, litigation and advancements in transmission planning. Read […]

On December 18, 2023, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued the final version of new merger review guidelines (Merger Guidelines), five months after the agencies published a draft for public comment. The new 2023 Merger Guidelines describe the analytical frameworks used by the current DOJ and FTC to assess whether […]

On December 22, 2023, the Department of the Treasury and the Internal Revenue Service (IRS) released a notice of proposed rulemaking and notice of public hearing containing proposed regulations (Proposed Regulations) with respect to Internal Revenue Code of 1986, as amended (the Code), Section 45V, Credit for Production of Clean Hydrogen and Code Section 48(a)(15), Election to […]

The Department of Justice has published — and continues to update and emphasize — a set of practical guidelines on what it views as an effective compliance program and how it makes decisions about bringing charges and evaluating resolutions. Companies that are struggling to address the current hot trends in compliance and enforcement, and new ones that could potentially emerge, can […]

On November 22, 2023, the Internal Revenue Service and Treasury Department released proposed regulations (the Proposed Regulations) relating to the investment tax credit (the ITC) under Section 48 of the Internal Revenue Code of 1986, as amended (the Code). The Proposed Regulations would amend certain existing Treasury Regulations that define the scope of ITC-eligible property (referred to […]

Welcome to the latest issue of Bracewell’s FINRA Facts and Trends, a monthly newsletter devoted to condensing and digesting recent FINRA developments in the areas of enforcement, regulation and dispute resolution. This month, we report on a significant proposed rule change that would permit firms to make performance projections when marketing to institutional investors, the […]

In The Federal Republic of Nigeria v Process & Industrial Developments Limited [2023] EWHC 2638 (Comm) the Commercial Court determined that arbitration awards against Nigeria had been obtained by fraud and were contrary to public policy. This decision is of the utmost importance to Nigeria given the sums involved. However, it will also be of interest to companies […]

Federal regulators have cracked down on the use of texts messages and messaging platforms for business communications, using their broad authority to root out record retention violations, resulting in significant fines and sanctions. In 2022 alone, the Securities and Exchange Commission charged 15 broker dealers and one affiliated investment advisor with widespread and longstanding failures […]

Judge Indira Talwani of the US District Court for the District of Massachusetts has rejected another challenge to federal permits and approvals for the Vineyard Wind Project (Vineyard Wind or the Project). Vineyard Wind is under construction off the coast of Massachusetts and will be the first modern utility-scale offshore wind energy project in the […]

On 7 November 2023, the Offshore Petroleum Licensing Bill (the Bill) was announced as part of King Charles III’s “King’s Speech”, outlining the UK Government’s legislative agenda for the upcoming UK parliamentary session. If enacted, the Bill would require the North Sea Transition Authority (NSTA) to hold annual licensing rounds for new oil and gas […]

On October 10, 2023, the Securities and Exchange Commission (the Commission) adopted amendments to modernize the rules governing beneficial ownership reporting. The amendments shorten the deadline for initial and amended Schedule 13D and 13G filings, clarify disclosure requirements for derivative securities and require that filings be made using a structured, machine-readable data language. The Commission […]

On September 29, 2023, the Internal Revenue Service (IRS) and the Department of the Treasury (Treasury) released their 2023–2024 Priority Guidance Plan (the Plan). The Plan describes the various guidance priorities of the IRS and Treasury for the period from July 1, 2023 through June 30, 2024 (the Plan Year). Read more.

On September 29, 2023, the Equal Employment Opportunity Commission (EEOC) released its long-awaited proposed guidance on workplace harassment. The last EEOC guidance on workplace harassment was issued in 1999. The public will have until November 1, 2023, to comment on the proposed guidance. The proposed guidance provides a broad overview of the legal standards for harassment and […]

On August 29, 2023, the IRS and Treasury Department released proposed regulations (the Proposed Regulations) regarding the prevailing wage requirements (the Prevailing Wage Requirements) and the apprenticeship requirements (the Apprenticeship Requirements and, together with the Prevailing Wage Requirements, the Labor Requirements) under the Internal Revenue Code (the Code), as amended by the Inflation Reduction Act […]

Significant changes to consumer protection legislation in the United Arab Emirates (UAE) will take effect on 14 October, 2023. Businesses should be aware of how such legislation may impact their current operations and in turn make the necessary adjustments to comply with its new requirements. Published on 14 July, 2023, pursuant to Cabinet Decision No. […]

On August 16, 2023, the Federal Trade Commission took action to resolve its antitrust concerns associated with a proposed transaction between EQT Corporation (EQT) and private equity firm QEP Partners, LP (Quantum) pursuant to which EQT agreed to acquire certain of Quantum’s upstream and midstream natural gas interests located in the Appalachian Basin in exchange for approximately […]

On July 26, 2023, the Securities and Exchange Commission (“SEC”) issued a final rule that requires registrants to provide enhanced and standardized disclosures regarding “cybersecurity risk management, strategy, governance and incidents.” This rule, the culmination of discussion following the March 9, 2022 proposed rule, applies to public companies that are subject to the  Securities Exchange Act of 1934 […]

On August 18, 2023, in Hamilton v. Dallas County, the US Court of Appeals for the Fifth Circuit, sitting en banc, expanded the circumstances under which an employer can be held liable for disparate treatment under Title VII of the Civil Rights Act (“Title VII”). Prior to Hamilton, employers could only be held liable for disparate treatment under Title VII […]

In line with Dubai’s Autonomous Transportation Strategy (the Strategy), on 14 April, 2023, Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the United Arab Emirates (the UAE) and Ruler of Dubai, introduced legislation to provide a legal basis for the Strategy being adopted as Law No. (9) of 2023 On regulating […]

A three-judge panel for the US Court of Appeals for the Second Circuit reversed a district court’s class certification in the decade-long Arkansas Teacher Retirement System v. Goldman Sachs Group litigation regarding allegedly false public disclosures made by Goldman regarding its corporate governance and ethics policies and procedures. Read more

On August 7, 2023, the US Equal Employment Opportunity Commission (EEOC) issued proposed rules for implementing the Pregnant Workers Fairness Act (PWFA). Once published in the Federal Register, the public will have 60 days to comment on the proposed rules. The PWFA, which was signed by President Biden on December 29, 2022, went into effect […]

On July 19, 2023, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued a draft version of new Merger Guidelines (Merger Guidelines), which would replace the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines (the latter were rescinded by the FTC in September 2021). The Merger Guidelines explain how the […]

racewell’s Andrej Kormuth recently confirmed to AGBI that its developer clients are having to allocate bigger budgets to complete projects due to the increased cost of renewables. “Inflation has created the potential for greater margin of error, particularly in relation to the construction budget,” Kormuth said. The Renewables 2023 Global Status Report showed that Africa […]

On August 2, 2023, in Stericycle, Inc. (Stericycle), the National Labor Relations Board (the Board) revised the test for determining whether an employer’s workplace policies comply with the National Labor Relations Act (the NLRA). Stericycle reverses the Board’s 2017 decision in Boeing Co. (Boeing), which outlined a balancing test between a policy’s impact on a […]

Battery Storage Funding to Grow to €30 Billion by 2030 July 31, 2023 In The NewsICIS Investment in new battery energy storage systems (BESS) in Europe is set to reach €30 billion by 2030, market participants told ICIS. BESS could play a crucial role in decarbonising the European power system by providing peak demand response, […]

On July 19, 2023, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued a draft version of new Merger Guidelines (Merger Guidelines), which would replace the 2010 Horizontal Merger Guidelines and the 2020 Vertical Merger Guidelines (the latter were rescinded by the FTC in September 2021). The Merger Guidelines explain how the […]

In Volume 48, Number 26 of the Texas Register, the Railroad Commission of Texas (RRC) published proposed amendments to 16 Texas Administrative Code Chapter 5 (relating to Carbon Dioxide and related storage activities). These proposed rules are essential to Texas’ push to obtain permitting and enforcement primacy for Class VI Underground Injection Control (UIC) wells […]

On June 29, 2023, the Department of Interior’s Bureau of Ocean Energy Management (BOEM) published a proposed rule that, if adopted, would substantially revise the financial assurance requirements applicable to offshore oil and gas operations. The proposed rule is designed to address BOEM’s concern that under its current financial assurance regulations, taxpayers are vulnerable to […]

On June 29, 2023, in Groff v. DeJoy, the US Supreme Court unanimously adopted a new interpretation of the standard for when an employee’s religious accommodation poses an “undue hardship” for an employer under Title VII of the Civil Rights Act (Title VII). In Groff, the Supreme Court repudiated the commonly held understanding of Transworld […]

Last week the US Supreme Court reaffirmed the constitutionality of state laws requiring businesses to consent to lawsuits in the state after registering with state authorities to conduct business there. In Mallory v. Norfolk Southern Railway Co.,[1] the Court resolved conflicting authority and held that such laws do not violate the Due Process Clause of […]

Two recent developments may have meaningful impacts on the implementation of Section 7 of the Endangered Species Act (ESA). First, the DC Circuit Court of Appeals issued an opinion in Maine Lobstermen’s Association v. National Marine Fisheries Service and held that the National Marine Fisheries Service (NMFS) may not give species the benefit of the doubt when […]

On June 14, 2023, the Treasury Department and the Internal Revenue Service (IRS) released long-awaited guidance (the Credit Transfer Guidance) regarding the transfer of energy transition tax credits under Section 6418, which was enacted under the Inflation Reduction Act of 2022 (the IRA). The Credit Transfer Guidance is in the form of proposed regulations (the Proposed […]

Texas has joined the nine other states that have comprehensive data privacy laws after Governor Greg Abbott signed the Texas Data Privacy and Security Act (the “TDPSA”). Subject to exemptions, the TDPSA applies to any entity (labeled controller under the Act) that (1) conducts business in Texas or produces a product or service consumed by […]

It may be punny or even funny, but a unanimous Supreme Court has decided that the “Bad Spaniels” dog-toy brand may infringe and dilute the “Jack Daniel’s” trademark. Last week’s opinion puts an end to the toy maker’s attempt to invoke the Rogers test.  The Second Circuit established that test in 1989 as a substitute for […]

The domestic content bonus credit (the DC Bonus), which was introduced by the Inflation Reduction Act of 2022 (the IRA), provides an enhanced tax credit for renewable energy and storage projects constructed with sufficient US-sourced materials and components (the Domestic Content Requirement). The DC Bonus is available for projects that qualify for the production tax […]

The federal government has successfully defended its approvals of the Vineyard Wind project offshore Massachusetts (Project), setting the stage for further decisions as other challenges proceed. Vineyard Wind is the first modern utility-scale offshore wind project to reach the construction phase in the US market. On May 17, 2023, Judge Indira Talwani of the U.S. […]

Today, in an opinion that purports to be narrow but will have sweeping implications, the Supreme Court ruled that Andy Warhol’s well-known “Orange Prince” illustration is not a transformative fair use of Lynn Goldsmith’s photograph of Prince. Discounting the new expression and meaning that Warhol added to the photograph through his famous silk-screening process, the […]

Welcome to the latest issue of Bracewell’s FINRA Facts and Trends, a monthly newsletter devoted to condensing and digesting recent FINRA developments in the areas of enforcement, regulation and dispute resolution. This month, we report on FINRA’s appearance at SIFMA, new Reg BI guidance, and the SEC’s approval of further changes to the expungement process. […]

The US Securities and Exchange Commission has adopted a package of amendments, originally proposed in late 2021, to the disclosure requirements for corporate issuers’ share repurchases. The SEC stated that the new rules are designed to provide investors with more information about the purposes and effects of share buybacks. Read more.

On May 4, 2023, the US Environmental Protection Agency (EPA) published its proposal to approve revision of Louisiana’s Safe Drinking Water Act (SDWA) Underground Injection Control (UIC) program to add Class VI injection well primary enforcement responsibility (primacy) for Class VI injection wells. 88 Federal Register 28,450 (May 4, 2023). The proposed rule would allow the Louisiana […]

The US Department of the Treasury announced the suspension of sales of US Treasury Obligations – State and Local Government Series (i.e., SLGS), effective 10:00 a.m. ET, May 2, 2023. New subscriptions for SLGS received after such time will not be accepted, and the SLGS window will remain closed until further notice. According to the announcement, the suspension is […]

On April 10, 2023, the Treasury Department and the Internal Revenue Service (IRS), without a formal announcement, released a revised version of Notice 2023-29 (the Revised Notice) on the IRS website.  The Treasury Department and the IRS released the initial version of Notice 2023-29 on April 4, 2023. Bracewell’s full discussion of Notice 2023-29 can be found here. […]

The low-income communities bonus credit (the LIC Bonus), which was introduced by the Inflation Reduction Act of 2022 (the IRA), provides an enhanced tax credit for renewable energy projects located in designated low-income communities. The LIC Bonus is available for wind and solar projects that qualify for the investment tax credit (ITC) under Section 48 […]

Just hours after the United States Bankruptcy Court for the District of New Jersey entered an order dismissing the Chapter 11 Case of Johnson & Johnson subsidiary, LTL Management, as a bad faith filing, LTL filed for Chapter 11 protection again in the same Bankruptcy Court. In an effort to improve upon its prior offering […]

Delaware Judge Brendan Shannon has joined calls for reforming Section 546(e) of the bankruptcy code, echoing concerns that the section’s safe harbor from fraudulent transfer liability has allowed investors to “loot privately held companies to the detriment of their non-insider creditors with effective impunity.” Judge Shannon is the second judge to recently press Congress to […]

In a decision that once again evidences the Fifth Circuit’s strong stance on the finality of asset sales in bankruptcy absent a stay of the applicable order, on March 8, 2023 the United States District Court for the Southern District of Texas published a memorandum opinion and order affirming a bankruptcy court’s exercise of Bankruptcy […]

The federal government’s offshore wind program notched another important victory on March 9, 2023, when the United States District Court for the District of Columbia dismissed a lawsuit seeking to overturn the New York Bight lease auction.  The court found the suit was not ripe, building on court precedent established in relation to an earlier […]

Investors from the United States, Mexico or Canada in the territory of one of the other two investment hosting states, who may have been adversely affected by the host government’s measures, need to act by the end of March 2023 to preserve NAFTA rights. If the investment was made between January 1, 1994 and July […]

In the second of a two-part episode of Bracewell Covered, Vince Morgan discusses insurance requirements and contracts with Suzanne Day, who recently joined the firm from The Lubrizol Corporation, where she worked for more than 20 years in their legal division, eventually serving as chief legal and ethics officer. Read more and listen to Part 2 here. Click […]

On this episode of The Bracewell Sidebar, hosts Matthew Nielsen and Seth DuCharme share their thoughts on the ABA White Collar Conference, held in Miami, Florida, March 1-3, 2023. Read more, and listen here.

In the second of a two-part episode of the Bracewell Environmental Law Monitor, host Daniel Pope continues the conversation with Bracewell partner Steven Cook about per- and polyfluoroalkyl substances (PFAS). They explore the unique challenges presented by the ubiquity of PFAS in society and how government and industry stakeholders can assess and respond to the long-term adverse consequences. Read […]

On 16 February 2023, the Association of International Energy Negotiators (“AIEN”, formerly the Association of International Petroleum Negotiators or AIPN) published an updated version of its model form joint operating agreement (the “JOA”).  The AIEN JOA has for many years been adopted as the standard agreement used across the oil and gas industry for unincorporated […]

On February 13, 2023, the Treasury Department and the Internal Revenue Service (the IRS) released Notice 2023-18 (the Notice), which established the program (the Allocation Program) to allocate $10 billion of advanced energy project credits (AEPCs) pursuant to section 48C(e),1 which was enacted as part of the Inflation Reduction Act of 2022 (the IRA).2 The goal of the program […]

Underground salt caverns are commonly used for the storage of liquids including liquefied hydrocarbons. These caverns are created by solution mining of salt from inside underground salt formations and could play a pivotal role in the growth and development of a variety of energy transition and energy storage developments, including carbon sequestration and hydrogen projects. […]

The National Labor Relations Board (the Board) which enforces the National Labor Relations Act (the Act) ruled this week that confidentiality of the agreement and non-disparagement provisions in the separation agreements for 11 terminated employees of a Michigan hospital impermissibly infringed on the employees’ rights under the Act. Read more.

The EPA continues to advance environmental justice policies, issuing its “Principles for Addressing Environmental Justice in Air Permitting” in December and preparing its much-anticipated guidance on addressing cumulative impacts in permitting expected later this year. Read more and watch here.

In the first of a two-part episode of the Bracewell Environmental Law Monitor, host Daniel Pope talks with Bracewell partner Steven Cook, who served as deputy assistant administrator at the EPA’s Office of Land and Emergency Management prior to joining the firm, about the ways that companies and agencies deal with per- and polyfluoroalkyl substances (PFAS) and a look […]

In a closely watched case,1 the United States Supreme Court held today that a tool pusher in the oil & gas industry, who was paid a day rate of at least $963.00 per day, was not exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”).  While the highly paid tool pusher was otherwise exempt under […]

The longstanding UAE Commercial Agency Law (Federal Law No. 18 of 1981 Regulating Commercial Agencies, as amended) (the “Current Law”) is set to be replaced by the newly issued UAE Commercial Agency Law (Federal Law No. 3 of 2022 Regulating Commercial Agencies) (the “New Law”) which is due to come into force in June 2023. […]

Now that state legislatures across the country are working to approve the much anticipated Article 12 to the Uniform Commercial Code (UCC), it is time to prepare for transactions with cryptocurrencies and non-fungible tokens (NFTs) as collateral. At the heart of the UCC amendments is the concept of “controllable electronic records” (CER), which will normally […]

In a decision that may provide much-needed boundaries around the permissibility of debtors created from “out-of-the-box” prepetition corporate transactions, on January 30, 2023, the United States Court of Appeals for the Third Circuit issued a unanimous opinion dismissing Johnson & Johnson subsidiary LTL Management, LLC’s (“LTL”) chapter 11 case pending in the United States Bankruptcy […]

The Federal Trade Commission (FTC) has announced the annual revisions to the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) thresholds, which will become effective on Monday, February 27, 2023. The revised thresholds will apply to any merger or acquisition closing on or after the effective date. The FTC is required to adjust the HSR thresholds annually […]

On December 19, 2022, the Treasury Department and the IRS released Notice 2023-6 (the Notice), which provides guidance with respect to the credit for sustainable aviation fuel (SAF). The Inflation Reduction Act of 2022 (the IRA) enacted Section 40B of the Internal Revenue Code of 1986, as amended (the Code), which allows a credit with respect to […]

On January 12, 2023, the U.S. Department of the Interior’s Bureau of Ocean Energy Management (“BOEM”) announced a proposed rule (the “Modernization Rule”) to modernize its regulations for renewable energy development on the U.S. Outer Continental Shelf (“OCS”). The announcement marks the first time BOEM has substantially updated its renewable energy program regulations since they […]

Earlier this month, the Federal Trade Commission (FTC) launched unprecedented challenges to noncompete provisions in employment contracts through both rulemaking and individual enforcement actions. Proposed Rule to Ban Noncompetes Most significantly, on January 5, 2023, the FTC released a sweeping notice of proposed rulemaking (NPRM), aimed at barring the use of noncompete agreements by deeming those covenants […]

In a January 5, 2023 opinion from the United States Court of Appeals for the Fifth Circuit, the panel held the Just Energy bankruptcy court erred in exercising jurisdiction over the debtor’s suit to recover Winter Storm Uri payments made to ERCOT. The Fifth Circuit found the underlying issue—i.e., the propriety of ERCOT and PUCT’s pricing—to be […]

On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), expanding federal protections for both pregnant and nursing workers. Pregnant Workers Fairness Act The PWFA creates a legal obligation for employers to grant reasonable accommodations for pregnant workers. […]

Overview On January 9, 2023, the Council for Environmental Quality (“CEQ”) published interim National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change (hereafter, “guidance” or “GHG Guidance”).1  CEQ intends for agencies to apply the guidance now even as CEQ seeks public comment on it.2  The guidance aims to establish best […]

Cryptocurrency in Celsius’ Earn Accounts belongs to the bankruptcy estate, and not to the depositors who placed it there, according to a January 4 memorandum opinion from Judge Martin Glenn of the U.S. Bankruptcy Court in the Southern District of New York. The decision is a blow to the individual customers who deposited crypto assets […]

On December 29, 2022, President Biden signed into law The Consolidated Appropriations Act of 2023 (also known as The Omnibus Appropriations Bill), which includes the Merger Filing Fee Modernization Act.  The Merger Filing Fee Modernization Act, which marks the most significant change to HSR filing fees in over twenty years, increases the HSR filing fees […]

In late December 2022, the United States District Court for the District of Delaware issued an opinion affirming the Mallinckrodt1 bankruptcy court’s November 2021 decision that the debtor could discharge certain post-petition, post-confirmation royalty obligations for the sale of Acthar Gel. Read more here.

The past few months have seen numerous high-profile enforcement actions highlighting an increasing trend, what Deputy Attorney General Lisa Monaco called “the biggest shift in corporate criminal enforcement that I’ve seen during my time in government: the rapid expansion of national security-related corporate crime.” From the first-ever criminal resolution for sanctions violations from illicit sales […]

On December 30, 2022, the Environmental Protection Agency and the United States Army Corps of Engineers announced their finalization of the agencies’ redefinition of the Clean Water Act’s “waters of the United States” phrase, or “WOTUS”, a key phrase in the Clean Water Act that determines the jurisdictional reach of the act. The rule will […]

“Turbulent” is the usual adjective to be tastefully employed when assessing years such as 2022 that are subject to extreme events such as the Russian-Ukraine conflict and its reverberations on global energy supplies (along with other terrible consequences). Against that backdrop, activity within the global upstream M&A space has been modest, with deal volumes and […]

In this holiday episode of the Environmental Law Monitor, Tim Wilkins, Jason Hutt, and Ann Navaro from Bracewell’s Environment, Lands and Resources Practice Group join host Daniel Pope to discuss the events of 2022 while looking ahead to 2023, and also some of their favorite things for the holidays. Click here for more.

Last week, Attorney General Merrick Garland issued a new DOJ charging and sentencing policy memorandum, replacing existing guidance to federal prosecutors in their exercise of prosecutorial discretion.  The thrust of the extraordinary new policy is that prosecutors are no longer expected to charge the highest most readily provable offense, but rather to consider potential punishments […]

On Thursday, December 15, 2022, the Federal Energy Regulatory Commission (“FERC” or “Commission”) issued a Notice of Proposed Rulemaking (“NOPR”) proposing changes to FERC’s authority under section 216 of the Federal Power Act (“FPA”).  Section 216 provides FERC with jurisdiction over the siting of interstate transmission projects in National Corridors designated by the Department of Energy (“DOE”)—commonly […]

Bracewell’s Amber Dodds and Bob Nichols look at potential unforeseen compliance and legal concerns with long-term remote work arrangements, including practical steps to address those issues. Read more.

On November 30, 2022, the IRS and the Treasury Department published Notice 2022-61 (the Notice) in the Federal Register. The Notice provides guidance regarding the prevailing wage requirements (the Prevailing Wage Requirements) and the apprenticeship requirements (the Apprenticeship Requirements and, together with the Prevailing Wage Requirements, the Labor Requirements) that taxpayers must satisfy to be eligible […]

On December 2, 2022, the U.S. Department of Commerce unveiled the highly anticipated, preliminary findings of its solar tariff anti-circumvention investigation. The Commerce Department found that four leading Chinese solar cell and solar module manufacturers (BYD Hong Kong, Canadian Solar, Trina and Vina Solar) avoided U.S. tariffs by routing some of their operations through Southeast […]

Welcome to the latest issue of Bracewell’s FINRA Facts and Trends, a monthly newsletter devoted to condensing and digesting recent FINRA developments in the areas of enforcement, regulation and dispute resolution.  This month, we report on FINRA’s first Regulation BI enforcement action, reveal rare praise from the investors’ bar for FINRA’s arbitration procedures, and outline […]

Scoring a victory for the Securities and Exchange Commission in its efforts to qualify digital tokens as securities, a New Hampshire federal court ruled this week that tokens sold by LBRY Inc., known as LBC, are securities and subject to U.S. securities laws. The case, like others in the crypto space, centers on the legal […]

In his final opinion, Judge Robert D. Drain of the United States Bankruptcy Court for the Southern District of New York held that dividends paid from proceeds of safe-harbored transactions under section 546(e) of the Bankruptcy Code are not safe-harbored. While only approximately 15 pages of Judge Drain’s 109-page final opus are dedicated to consideration […]

Welcome to the latest issue of Bracewell’s FINRA Facts and Trends, a monthly newsletter devoted to condensing and digesting recent FINRA developments in the areas of enforcement, regulation and dispute resolution.  This month, we report on FINRA’s first Regulation BI enforcement action, reveal rare praise from the investors’ bar for FINRA’s arbitration procedures, and outline […]

In its continued efforts to enhance the cybersecurity of transportation and other critical infrastructure systems across the country, the Transportation Security Administration (TSA) issued on October 19, 2022 a new security directive for passenger and freight railroad carriers. The Enhancing… Read more.

In this episode of the Environmental Law Monitor, Bracewell partners Ann Navaro and Sara Burgin join host Daniel Pope for a closer look at the US Supreme Court’s hearing of oral argument in Sackett v. EPA, the outcome of which… Read more.

Just over a year ago, President Biden issued an Executive Order requiring federal agencies to amend all contracts to mandate compliance with Safer Federal Workforce Task Force (the “Task Force”) guidance. The Task Force then issued guidance (the “November 2021 Guidance”) that required covered federal contractor employees be fully vaccinated for COVID-19 and comply with masking and […]

The mortgage bond indenture (herein called a “Mortgage”) under which many electric and gas utility companies in the United States issue debt securities (herein generically called “bonds”) may be one of the most unloved instruments in all corporate finance. Many of them were written nearly one century ago, in formal, legalistic language (hardly “plain English”). […]

On the second episode in this two-part series, Bracewell Sidebar hosts Matthew Nielsen and Seth DuCharme are joined by Sid Kamaraju, a former national security prosecutor in the Southern District of New York, to discuss the process by which classified… Read more.

In the second of a two-part series on government investigations and inspections, Bracewell partners Kevin Collins and Seth Du Charme join Environmental Law Monitor host Daniel Pope for a discussion of what to do when the government is actually knocking on your front door. Read more.

Bracewell (UK) LLP project finance and project development partners Oliver Irwin and Darren Spalding, along with Anglo Pacific Group General Counsel Alice England, have co-authored the chapter, “Competing Considerations in Intercreditor Agreements for Project Finance, Mining Streams and Royalties,” in International Comparative Legal Guide – Mining Law 2023. Read more.

Late last year, the Department of Justice (DOJ) announced material changes to the way it intended to investigate, prosecute, and resolve corporate cases. The changes were aggressive, leading us to title our update “DOJ’s Torpedoes Are in the Water: Be Your Own Monitor, or One Will Be Appointed for You.” The 2021 policy changes drew […]

In the first of a two-part series on government investigations and inspections, Bracewell partners Kevin Collins and Seth Du Charme join Environmental Law Monitor host Daniel Pope for a discussion of best practices for preparing for government inspections at facilities.  Kevin is a partner in our Austin office and Seth is a partner in New York. Read more.

Creditors do not have standing to assert derivative claims on behalf of a bankrupt Delaware limited liability company, according to a recent ruling by Delaware’s bankruptcy Judge John Dorsey in In re Ector County Energy Center LLC. The ruling, handed down orally on August 15, cuts off one avenue for creditors seeking to force a […]

On August 30, 2022, the U.S. Chemical Safety and Hazard Investigation Board (“CSB” or the “Agency”) issued a guidance document aimed at helping owners and operators of stationary sources and similar stakeholders understand and comply with CSB’s Accidental Release and Reporting Rule (the “Rule”), finalized by the Agency on February 21, 2020. The Rule reflects the Agency’s […]

On August 19, the U.S. Environmental Protection Agency (EPA) posted the pre-Federal Register publication of its latest effort to revise the Risk Management Plan (RMP) rule – this time titled the “Safer Communities by Chemical Accident Prevention” or SCCAP rule.  EPA proposes to reinstate many of the 2017 revisions (e.g., third-party audits, safer technology analysis, […]

Following an August 11, 2022 opinion from the Court of Appeals for the Fifth Circuit, certain irrevocable surety bonds will not be considered executory contracts in bankruptcy, even when a court applies a functional multiparty approach to the traditional Countryman definition of an executory contract. In industries like oil and gas, where surety bond programs are often […]

On Tuesday, August 16, President Biden signed the Inflation Reduction Act of 2022 (the Act) into law, which includes material changes to various sections of the Internal Revenue Code of 1986, as amended (the Code). The following is a general overview of the revenue raisers and certain of the energy and climate provisions of the Act. Revenue Raisers […]

During the pandemic it has become common for contractors to submit change orders to owners seeking reimbursement for COVID-19 related expenses and costs.  This is especially true for large construction projects.  These “COVID-19 Change Orders” seek reimbursement for everything from masks, dividers, hand sanitizer and other items required to follow and implement CDC guidelines (or […]

Proposed federal privacy legislation is not a new thing.  But the latest iteration – the American Data Privacy and Protection Act – has many wondering if this will be the legislation that finally goes the distance.  This is the first federal privacy legislation to advance out of committee, and despite the obstacles, momentum is on the […]

Among the many changes set forth in the U.S. Securities and Exchange Commission’s proposed rules governing climate-related disclosures are the attestation requirements1 covering registrants’ greenhouse gas (GHG) emissions disclosures. This article provides a general overview of these attestation requirements and identifies some practical consequences public companies could experience as they anticipate compliance with the new rules. […]

Managing the Risk of Occupational Accidents as Cannabis Use Increases and Legal Prohibitions Are Relaxed More Americans are smoking or ingesting marijuana in one form or another and the potency of the product in many instances is increasing.  At the same time, many states are relaxing or repealing marijuana prohibitions. Additionally, more of these jurisdictions are […]