Practice Areas & Industries: Eversheds Sutherland (US) LLP

 




Employee Benefits & Executive Compensation Return to Practice Areas & Industries

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Practice/Industry Group Overview

For more than 40 years, Sutherland has helped clients find practical and innovative solutions to employee benefits and executive compensation issues.

Sutherland’s skilled employee benefits and executive compensation team is adept at finding creative solutions to our client’s legal and technical challenges. With 14 attorneys dedicated to this practice area, we have substantial knowledge and understanding in the nuances of qualified retirement plans, health and welfare benefits and executive compensation. We counsel employers in connection with ongoing plan design and compliance, corporate transactions and negotiations with government agencies, as well as financial services companies with respect to retirement products and services.

Our broad-based knowledge and varied backgrounds are key in helping clients find innovative approaches to employee benefits and executive compensation. Our attorneys have served at the Department of Labor and on Congressional staffs, and have gone on to leadership positions at the U.S. Treasury. We represent public and private companies, non-profit entities and governmental organizations; and we have extensive experience representing providers of retirement plan and other benefits services and products.

We are comfortable working with various departments within client companies—including HR, tax and legal—while maintaining effective communications and an appropriate chain of command. Each of our benefits and executive compensation attorneys has particular specialties, but we do not work in silos—we all have substantial experience with the different types of plans and transactions in our field.

Why Sutherland
Health and welfare understanding.
We have advised on health and welfare benefits, including compliance under the Internal Revenue Code and ERISA, over a substantially longer period than most law firms. This includes health savings accounts and reimbursement arrangements, flexible spending accounts and other cafeteria (section 125) plans. We are thoroughly familiar not only with traditional health and welfare benefit programs but also with post-retirement life and medical benefits, voluntary employees' beneficiary association (VEBA) trusts, severance and vacation pay programs and other similar arrangements. We are actively counseling insurers and several Fortune 500 companies on employer compliance with national health reform under the Patient Protection and Affordable Care Act.

Sophistication on executive matters. We are sensitive to the dynamics of executive compensation issues and deal with them effectively. We regularly assist in negotiating high-level executive employment agreements and structuring virtually all forms of elective and non-elective compensation and incentive programs. We advise on life, health and other welfare benefits for executives as well as issues involving company-provided transportation and other fringe benefits. Our lawyers are well versed in the securities laws applicable to executive compensation.

M&A experience.
We negotiate the benefits provisions in transactions, perform due diligence, draft acquisition agreements and agreements used in spin-offs, and assist in implementing the integration or transition to new benefits arrangements on behalf of both buyers and sellers. At times, we participate as part of a team from the firm handling all aspects of the transaction; at other times, clients engage us specifically to resolve employee benefits issues.

Retirement incentives and layoff cushions. We assist a number of clients in structuring retirement incentives, right-sizing programs and similar arrangements in accordance with tax, ERISA, age discrimination and other legal requirements. We address enhanced benefits both inside and outside qualified pension plans, appropriate welfare benefit program continuation and the design and implementation of effective ADEA waivers in the context of involuntary layoffs and voluntary window programs.

Federal knowledge.
We regularly represent clients in dealing with the various federal regulatory agencies responsible for employee benefits. On some occasions, we seek guidance or relief from those agencies; on others, we respond to issues raised by an agency. We are well acquainted with key personnel at the Treasury, IRS, DOL, PBGC, SEC and EEOC, and with the formal and informal procedures for dealing with them.

Nuts and Bolts

Sutherland's employee benefits and executive compensation practice has broad and deep experience in all aspects of the field including:

  • Qualified retirement plans
  • Compliance reviews
  • IRS correction programs, including self-correction (SCP), the voluntary correction program (VCP) and the Audit Closing Agreement Program (Audit CAP)
  • Employee stock ownership plans (ESOPs)
  • ERISA’s fiduciary and prohibited transaction rules
  • ERISA litigation
  • Health plans
  • Patient Protection and Affordable Care Act (PPACA)
  • HIPAA and COBRA
  • Welfare programs and benefits
  • Executive compensation
  • Code section 409A
  • Deferred compensation
  • Proxy compensation disclosure
  • Equity compensation
  • Code section 162(m)
  • Fringe benefits
  • Payroll tax and withholding

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We know that people are truly the most valuable asset in any endeavor, and providing effective benefits and compensation plans is critical to business.

Selected Experience


Sutherland advises a Fortune 30 consumer products company on employee benefits and executive compensation matters.
This engagement includes advice on the client's qualified retirement plan matters, covering more than 40,000 U.S. employees. We advised the company on the complicated fiduciary and tax law considerations in connection with a $1.5 billion corporate transaction that affected company stock held in retirement plans. We also advised on executive compensation matters, including the correction of operational and plan document errors for nonqualified deferred compensation under Code section 409A.

Sutherland provides full-spectrum advice to a Fortune 100 global manufacturing company on equity and executive compensation programs.
Sutherland provides ongoing advice to a Fortune 100 global manufacturing company regarding all aspects of its equity and executive compensation programs, including tax, securities and contract issues. In addition, we handle separation agreements for internationally mobile employees.

Represented Rio Tinto in the $185 million sale of Alcan Cable in North America and China.

Represented Rio Tinto in the $151 million sale of its Alcan Cable business in the United States, Canada and Mexico, and in the related $34 million sale of the Alcan Cable business in China.

Sutherland advises on fixed and variable insurance products.

Sutherland advises insurance companies on fixed and variable products for the retirement market.

Sutherland advises on bank collective trust funds.
Sutherland advises banks on structuring and ERISA compliance issues in bank collective trust funds.

Sutherland advises on ERISA issues in derivatives and securitizations.
Sutherland advises on ERISA issues in derivatives and securitizations.

Sutherland assists clients with ERISA fiduciary advice structures for securities firms.

Sutherland assists with ERISA fiduciary advice structures for broker-dealers and investment advisers.

Sutherland assists with plan participant investment advice arrangements.
Sutherland assists with the structuring and regulatory compliance of investment advice arrangements for plan participants.

Sutherland advises on revenue sharing arrangements and defends in audit and litigation.
Sutherland advises on revenue sharing and other indirect compensation arrangements, and when the situation warrants, defends in Labor Department audits and litigation.

Sutherland advises sponsors and providers on 408(b)(2) and 404a-5 disclosures.
Sutherland advises plan sponsors, retirement platform providers and other service providers on 408(b)(2) and 404a-5 disclosures.

Sutherland helps clients with worker classification issues and consequences for employee benefits.
Sutherland advises on worker classification issues in various industries, consequences for employee benefits and resolution of benefits issues. Sutherland acted as managing counsel in Nationwide Mut. Ins. Co. v. Darden (Sup.Ct. 1992).

Sutherland client wins tax court declaratory judgment reversing revocation of qualified plan exemption by IRS.
Sutherland successfully petitioned the U.S. Tax Court for a declaratory judgment reinstating the tax exemption of a Taft-Hartley pension plan revoked by the IRS.

Sutherland counsels clients with captive insurance structures for employee benefits.

Sutherland attorneys, who pioneered DOL prohibited transaction exemptions, counsel clients with the design, regulatory approval, implementation and operation of captive insurance arrangements for employee benefits.

Sutherland assists multiple insurance companies with acquisition/disposition-related employee benefits issues.
Sutherland assists multiple insurance companies with the employee benefits aspects of stock and asset acquisitions and dispositions and integration issues for the companies' employees and benefits products marketed by the companies.

Sutherland advises major entertainment company on employment tax related to services company arrangement.
Sutherland advised a major entertainment company regarding employment tax issues in connection with a services company arrangement.

Sutherland counsels major U.S. telecom company on fringe benefit issues.

Sutherland advised a major U.S. telecommunications company on fringe benefit tax issues, including company-provided discount services, de minimis fringes and working condition fringe benefits.

Sutherland aids leading energy company in nondiscrimination testing of retirement plan.

Sutherland assisted a 10,000-employee energy company in its qualified retirement plan nondiscrimination testing by developing a plan for managing risk as its major workforce demographics changed substantially over time.

Sutherland advises on hundreds of plan financial products and service arrangements.
Sutherland advises on the design and operation of several hundred insurance, real estate and investment products; consulting, investment advisory, investment management and broker-dealer arrangements and record keeping and other plan service arrangements.

Sutherland counsels a government entity on multijurisdictional defined benefit plan compliance issues.

Sutherland counseled a large government entity on complex compliance issues involving a multijurisdictional defined benefit plan.

Sutherland advises numerous types of entities on 403(b) issues.
Sutherland advises public and private educational institutions and nonprofit employers, as well as financial institutions on 403(b) plan compliance issues and assists a major quasi-governmental entity in extensive negotiations with multiple plan service providers in connection with section 403(b) arrangements.

Sutherland counsels clients on unusual structures and other issues in qualified plans.
Sutherland counsels clients on unusual structures in qualified plans, including 401(h) retiree medical account arrangements and variable annuity accumulation and distribution options, as well as more common issues regarding various cash balance plan designs, plan mergers or spin-offs and implementation of automatic enrollment features.

Sutherland handles regulatory filings and negotiations for benefit plans.
Sutherland handles filings with Department of Labor (DOL), Internal Revenue Service audits (IRS) and Pension Benefit Guaranty Corporation (PBGC), including determination letters applications, private letter ruling requests, prohibited transaction exemption applications and requests for advisory opinions for qualified plans, welfare plans and other benefit arrangements.

Sutherland counsels Fortune 500 companies on health reform compliance.
Sutherland provides ongoing and routine counseling to several Fortune 500 companies on employer compliance with the PPACA.

Sutherland advises several insurance clients on various compliance issues in the Affordable Care Act.

Sutherland advises several insurance clients on various matters related to compliance with the Affordable Care Act, including reporting and disclosure requirements, the application of the medical loss ratio provisions to group health plan products and the long-term implications of insurance market mandates on various health plan products.

Sutherland advises on retiree medical funding through VEBAs and other structures.

Sutherland advises on retiree medical funding through voluntary employee beneficiary associations (VEBAs) or otherwise. We assist with the design, establishment, operation and termination of VEBAs for retiree medical, long-term disability and other benefits and advise on funding, deduction and UBIT issues with respect to VEBAs.

Sutherland helps Fortune 100 company update welfare benefit plans.

Sutherland assisted a Fortune 100 company with amending and updating its welfare benefit plans for multiple business lines.

Sutherland assists clients dealing with federal agencies overseeing PPACA.
Sutherland assists clients with the process of directly engaging federal administrative agencies (DOL, HHS/CCIIO, IRS) regarding PPACA compliance and policy issues.

Sutherland works with global reinsurer on the redesign of its equity compensation program.

Sutherland worked with an international reinsurer on the redesign of its global equity compensation program, including U.S. tax, employment, and securities issues. Tax issues included section 409A compliance, payroll tax withholding, section 3121(v), and section 83 in the context of a unique restricted stock unit/phantom stock design.

Sutherland advises financial institution on its post-merger stock option plan.

Sutherland advised a financial institution regarding the design and implementation of a post-merger stock option plan for key employees.

Sutherland advises a private college on key aspects of a nonqualified retirement plan.
Sutherland advised a private college on key aspects of a nonqualified retirement plan combining a section 457(b) and a section 457(f) arrangement.

Sutherland counsels global textile firm on section 409A effects on executive employment agreements.

Sutherland counseled a global textile manufacturer on the application of section 409A to its executive employment agreements. We drafted the company's equity incentive plan and coordinated review and advice on labor, tax and securities issues for grants to be made in six other countries to U.S. and British expatriates and citizens of those countries.

Sutherland advises Fortune 100 insurer on benefits and executive compensation in retirement services company acquisition.

Sutherland advised a Fortune 100 company with regard to the employee benefits and executive compensation aspects of a $50 million stock acquisition of a retirement services company.

Sutherland advises BDC on merger-related employee issues.
Sutherland advised a BDC regarding the treatment of complex employment, retention and equity arrangements related to its $850 million merger into another business development company.

Sutherland advises stable value fund entities on appropriate terms for products following financial downturn.
Sutherland advises stable value fund sponsors and wrap providers on the appropriate terms for these products following the financial downturn. We also assist multiple new market entrants who seek to fill some of the diminished capacity in this market.

Sutherland develops first-of-its kind retirement income products.
Our team is deeply involved in developing lifetime income products for retirement plan participants. That includes advising on the structure and design of the first product that will divide the income guarantee among more than one annuity issuer for credit diversification purposes and seeking regulatory guidance on various products from IRS/Treasury and state insurance commissioners.

Sutherland advises one of the world's largest food and snack manufacturing companies on post-acquisition benefits and compensation matters.
Sutherland advised the buyer on certain integration issues relating to employee benefits and executive compensation matters (including golden parachute and related issues), following the $15-plus billion acquisition of an international snack food manufacturer, which resulted in the formation of one of the world's largest food and snack manufacturing companies.

Sutherland advises Allied Capital in Emporia Capital asset purchase.

Sutherland advised Allied Capital Corporation in its acquisition of substantially all the assets of Emporia Capital Management.

Sutherland wins $400 million in IRS audit case for Fortune 100 company.

Sutherland represented successfully a Fortune 100 company in the resolution of a more than $400 million pension audit dispute with the IRS in which the IRS alleged multiple prohibited transactions and other violations.

Sutherland negotiates the acquisition of financial products for benefit plans.
Sutherland negotiated the acquisition of more than 50 sophisticated investment and insurance products for benefit plans and sponsors.

Represents retirement product and service providers before the IRS, Treasury, EBSA, PBGC, SEC, FINRA, OCC and state regulators.
Represents retirement product and service providers in matters before the IRS, the U.S. Department of Treasury, the DOL's Employee Benefit Security Administration (EBSA), the Pension Benefit Guaranty Corporation (PBGC), the U.S. Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), the Office of the Comptroller of the Currency (OCC) and state regulators.

Sutherland manages more than 45 federal tax and ERISA cases.

Sutherland managed more than 45 tax and ERISA cases in federal court.

Sutherland advises a global reinsurer on the redesign of its equity compensation program.

Sutherland advised an international reinsurer on the redesign of its global equity compensation program, including U.S. tax, employment and securities issues. Tax issues included section 409A compliance, payroll tax withholding, section 3121(v), and section 83 in the context of a unique restricted stock unit/phantom stock design.

A Fortune 30 consumer products client seeks Sutherland's help with deferred compensation issues.

Sutherland advised a Fortune 30 consumer products company on the correction of deferred compensation issues under section 409A, including operational and plan document errors. We devised a practical solution that minimized risk while maintaining participant elections to the maximum extent possible.

Sutherland assists clients with early retirement windows and reduction-in-force programs.
We help clients develop, design and document early retirement windows and reduction-in-force programs in retirement plans and severance arrangements. This counsel includes analysis of qualified plan nondiscrimination issues and compliance with the Age Discrimination in Employment Act (ADEA) and obtaining waivers under ADEA.

Sutherland aids clients with compliance reviews of qualified retirement plans.
Sutherland helps clients with compliance reviews of qualified retirement plans and the use of IRS correction programs for over 100 plans. These include self-correction (SCP), the voluntary correction program (VCP) and the Audit Closing Agreement Program (Audit CAP). The filings include group submissions, filings for 403(b) tax sheltered annuity arrangements and all types of qualified retirement plans under Internal Revenue Code section 401(a).

Sutherland handles the employee benefits issues in a $1 billion international joint venture.

Sutherland handled the employee benefits aspects, both due diligence and transition planning, of a $1 billion international joint venture.

Sutherland aids public companies of all sizes on executive compensation proxy disclosure and "say on pay" materials.

Sutherland assists companies in the Fortune 100, as well as mid-size and smaller companies, on their executive compensation proxy disclosure and “say on pay” materials. We draft and critique the most sensitive portion of the disclosure, including employment agreement descriptions and summary compensation table footnotes. Sutherland assisted one company with potentially controversial pay practices to explain its practices in the disclosure, helping to achieve over 90% shareholder approval in “say on pay” vote.

Sutherland advises numerous and varied clients with all aspects of qualified plan compliance.
We advise clients with all aspects of qualified plan compliance, from plan design and drafting to interim and final amendments and plan termination. Clients include public and private companies, nonprofit organizations, governmental entities, and financial institutions maintaining prototype plans and plan administration facilities.

Sutherland represents individuals in negotiation of C-suite employment agreements.

Sutherland represents individuals in negotiating CEO or other executive officer employment agreements with large public companies, private equity firms owning public companies and other financial institutions.

Sutherland aids major companies and tax-exempts in deferred compensation compliance.

Sutherland advises numerous Fortune 25 to Fortune 200 companies and tax-exempt organizations in redesigning deferred compensation plans for compliance with Internal Revenue Code section 409A nonqualified deferred compensation rules, and ongoing operational issues, including correction of document and operational errors. The firm also assists public companies with compliance with section 162(m) performance-based compensation requirements and section 280G golden parachute issues in plan design and operation and related executive compensation proxy disclosures.

Sutherland advises Altria on employees' benefits in spin-off.
Two of the largest public company spin-offs took place when the Altria Group, Inc. shed Kraft Foods, Inc. and Philip Morris International, Inc. Sutherland advised Altria Group, Inc. on all employee benefits issues in connection with the dispositions.

Represented British Nuclear Fuels plc in the $5.4 billion auction sale of its U.S. subsidiary, Westinghouse Electric Company, to Toshiba Corporation.
Represented British Nuclear Fuels plc in all aspects of the $5.4 billion auction sale of its U.S. subsidiary, Westinghouse Electric Company, to Toshiba Corporation.
 


 
 
Articles Authored by Lawyers at this office:

A Texas Trademark Tussle
Maryann B. Zaki, January 25, 2017
In her article for The Tipsheet, a State Bar of Texas newsletter, Sutherland attorney Maryann Zaki analyzes a brand battle between two Houston law schools and discusses how it provides future litigants with an interesting example of a timeline in a high-stakes trademark litigation case.

Alaska in Talks to Purchase ConocoPhillps’ Nikiski LNG Plant
, January 25, 2017
KTVA Alaska reports that Alaska’s state LNG project developer, Alaska Gasline Development Corporation (AGDC), confirmed in a presentation before the Senate Resources Committee yesterday that it is in discussions to purchase ConocoPhillips’ liquefaction and LNG export terminal plant in...

How Mobility-Focused Tech Will Affect Auto Regs
Kara D. Ford,Michael R. Nelson, January 25, 2017
Mobility! That was the buzzword at the Consumer Electronics Show (CES) in Las Vegas this January for anything that moves. Attendees spoke openly about the need to rethink everything, including how the insurance marketplace and risk-management practices will adapt to a mobility-focused world.

Magnolia LNG Signs Heads of Agreement with VGS
, January 25, 2017
Magnolia LNG, LLC (Magnolia), has signed a non-binding Heads of Agreement (HOA) with Vessel Gasification Solutions, Inc. (VGS), which provides for a 20-year Free-on-Board Sale and Purchase Agreement of up to 4 million metric tonnes per annum from Magnolia’s proposed LNG export terminal at...

New Book Recommends Regulators take a Proactive Approach to Driverless Cars
, January 25, 2017
A driverless license is a good start, but a significant amount more research and exploration of regulatory oversight is needed. Ideally, the highest levels of the government should adopt a proactive, rather than reactive, approach.

Toshiba Signs Agreement with JERA to Market Freeport LNG Supplies
, January 25, 2017
The Japan Times reports that Toshiba has signed a sales and marketing contract with Jera, a joint venture between Tokyo Electric Power Company Holdings and Chubu Electric Power, to help find buyers for 2.2 million tons of LNG Toshiba is under contract to purchase from the Freeport LNG project under...

Transmission Partnership Not Deemed Includible in Consolidated Return and Allowed To Collect Income Tax Allowance in its Rates
James M. Bushee,James E. Guy,Danielle R. Lowe,Ellen McElroy,Lino Mendiola,Richard P. Noland,Bradley M. Seltzer,Amish M. Shah, January 25, 2017
On January 6, 2017, Texas utility companies organized as pass-through entities, including partnerships, received welcome news regarding their ability (1) not to elect to be treated as a corporation eligible to be included in a consolidated return, regardless of whether such inclusion would be...

ACA Brief: Path to Repeal - No Waiting Period for the New Administration
Brenna M. Clark,Adam B. Cohen,Brittany Edwards-Franklin,Michael A. Hepburn,Cristopher D. Jones,Paul R. Lang,Carol T. McClarnon,Alice Murtos,Meredith L. O'Leary,Vanessa A. Scott,Ryan M. Session,W. Mark Smith,William J. Walderman,Allison E. Wielobob, January 24, 2017
This ACA Brief is the second in a series of installments that will closely track congressional and administrative actions relating to ACA provisions that impact large employer-sponsored plans.

Dairyland Pledges to Cut Reliance on Coal and Diversify Energy Sources
, January 24, 2017
Dairyland Power Cooperative (Dairyland) CEO Barbara Nick recently informed a renewable energy forum that it will aim to cut its reliance on coal by 20 percent within the next ten years. Nick asserted that this pledge will be kept even if Donald Trump loosens environmental regulations on coal...

Is Your Website ADA Compliant?
Alexander P. Fuchs,Lewis S. Wiener, January 24, 2017
Compliance with the Americans with Disabilities Act (ADA) is not a novel concept for the restaurant industry. Since the ADA’s enactment, restaurants have grappled with ways to ensure that they are accessible to individuals with disabilities. The steady shift in our economy from physical...

Mohave Electric and Constellation Complete 13.8 MW Solar Generation Project in Arizona
, January 24, 2017
On January 18, 2017 Mohave Electric Cooperative (Mohave Electric) and Constellation, a subsidiary of Exelon Corporation, announced the completion of a 13.8-megawatt (DC) solar generation project in Fort Mohave, Arizona. The project is a ground-mounted solar power system that is located across 84...

NHTSA Finds No Vehicle Defects in Tesla Accident Investigation
, January 24, 2017
The National Highway Traffic Safety Administration (NHTSA) has found no evidence of design or performance defects in its investigation of a May 2016 fatal accident involving a Tesla. The accident occurred near Williston, Florida when a driver operating his Model S in Autopilot collided with a...

SBA Adopts Final Passive Business Rule Impacting BDCs with SBIC Subsidiaries
Cynthia R. Beyea,Steven B. Boehm,Terri G. Jordan,Cynthia M. Krus,Ingrid E. Messbauer,Lisa A. Morgan,Harry S. Pangas,Sara Sabour, January 24, 2017
On December 28, 2016, the Small Business Administration (SBA) released the final version of the Passive Business Rule (the New Rule) under § 107.720 of the small business investment company (SBIC) regulations.1 Among other provisions, the New Rule expands the permitted use of holding companies...

DOL Issues Additional FAQs Related to New Fiduciary Rule
Eric A. Arnold,Wilson G. Barmeyer,Bruce M. Bettigole,Nicholas T. Christakos,Adam B. Cohen,Thomas W. Curvin,Olga Greenberg,Dodie C. Kent,Clifford E. Kirsch,Michael B. Koffler,Susan S. Krawczyk,Ben Marzouk,Carol T. McClarnon,Michael R. Nelson,S. Lawrence Polk,Stephen E. Roth,Brian L. Rubin,Vanessa A. Scott,Cynthia R. Shoss,Holly H. Smith,W. Mark Smith,Phillip E. Stano,Steuart H. Thomsen,Gail L. Westover,Allison E. Wielobob,Mary Jane Wilson-Bilik, January 20, 2017
The Department of Labor (DOL) has released two additional sets of FAQs providing guidance related to its final rule expanding the definition of fiduciary “investment advice” (the Final Rule) for purposes of the Employee Retirement Income Security Act of 1974, as amended (ERISA).

Death Knell for the Telephone Consumer Protection Act
Wilson G. Barmeyer,Francis X. Nolan,Lewis S. Wiener, January 20, 2017
The presidential transition has left many prognosticators scrambling to figure out the policy implications of the change in administration. Among countless other things, companies affected by the Telephone Consumer Protection Act (TCPA) should consider whether the upcoming shift in political power...

NYC Administrative Law Judge Determines Long Distance Telecommunications Service Fees Exempt from Utility Tax
Andrew D. Appleby,Zachary T. Atkins,Open Weaver Banks,Madison J. Barnett,Todd G. Betor,Michele Borens,Nicole D. Boutros,Stephen A. Burroughs,Charles C. Capouet,Elizabeth S. Cha,Eric J. Coffill,Stephanie T. Do,Jessica A. Eisenmenger,Jonathan A. Feldman,Jeffrey A. Friedman,Ted W. Friedman,Timothy A. Gustafson,Evan M. Hamme,Charles C. Kearns,Michael J. Kerman,Nicholas J. Kump,Todd A. Lard,Christopher T. Lutz,Chelsea E. Marmor,Chris M. Mehrmann,Robert P. Merten,Douglas Mo,DeAndre R. Morrow,Amy F. Nogid,Suzanne M. Palms,Hanish S. Patel,Alla Raykin,Carley A. Roberts,Leah Robinson,Marc A. Simonetti,Maria M. Todorova,Samantha K. Trencs,Eric S. Tresh,Douglas J. Upton,W. Scott Wright, January 20, 2017
On December 29, 2016, a New York City administrative law judge (ALJ) determined that Sprint’s long distance telecommunications service fees were exempt from the City’s Utility Tax. The ALJ concluded that the Utility Tax enabling statute—which limits the scope of the Utility Tax to...

Revised 2017 Antitrust Guidelines for IP Licensing; Qualcomm Ensnared in New Antitrust Suits for Licensing Activities
Ann G. Fort,Robert R.L. Kohse, January 20, 2017
On January 12, 2017, the U.S. Department of Justice and the Federal Trade Commission issued updated “Antitrust Guidelines for the Licensing of Intellectual Property” for the first time since 1995. The updated Guidelines are intended to play a fundamental role in the agencies’...

ACA Brief: Path to Repeal - ACA Nearing Its Lifetime Limit?
Brenna M. Clark,Adam B. Cohen,Brittany Edwards-Franklin,Michael A. Hepburn,Cristopher D. Jones,Paul R. Lang,Carol T. McClarnon,Alice Murtos,Meredith L. O'Leary,Vanessa A. Scott,Ryan M. Session,W. Mark Smith,William J. Walderman,Allison E. Wielobob, January 19, 2017
This ACA Brief is the first in a series of installments that will closely track congressional and administrative actions relating to ACA provisions that impact large employer-sponsored plans.

Lloyds Energy Group Files FTA LNG Export Application
, January 19, 2017
Lloyds Energy Group LLC (Lloyds) has filed an application with the U.S. Department of Energy for authorization to export up to 9 million metric tons per annum (1.25 Bcf/day) of domestically produced LNG over a 25-year period. Lloyds intends to export the LNG to nations having a Free Trade Agreement...

NextDecade Signs Lease for Potential LNG Terminal
, January 19, 2017
NextDecade, LLC announced it has signed lease agreements with the State of Texas and City of Texas City for an approximately 1,000-acre site at Shoal Point for the potential development of a multi-billion dollar LNG export facility. Texas City owns almost 376 acres at Shoal Point, while the Texas...

Nortel, Lucent, and California and Treatment of Embedded Software
Eric J. Coffill, January 19, 2017
In his Board Brief for State Tax Notes, Sutherland Senior Counsel Eric Coffill, who is also a member of the publication’s Advisory Board, discusses what he believes to be the dark house issues of 2017.

Plaintiffs Have Come Up Empty on Class Action Slack Fill Litigation But Are Expected to Pick It Up in 2017
Brittany M. Cambre,Sarah Q. Chaudhry,Melissa A. Conrad-Alam,Michael R. Nelson,Meghana D. Shah,Ronald W. Zdrojeski, January 19, 2017
Complaints regarding the amount of product contained in a particular package appear to be the new battlefront on which plaintiffs are waging war on a wide range of consumer product manufacturers. The lawsuits are spurred by a set of regulations, issued by the U.S. Food and Drug Administration (FDA)...

Redial: 2016 TCPA Year in Review ¿ Analysis of Critical Issues and Trends
Curtis Arnold,Wilson G. Barmeyer,Thomas M. Byrne,Kristine M. Ellison,Alexander P. Fuchs,Francis X. Nolan,Lewis S. Wiener,Ronald W. Zdrojeski, January 19, 2017
The Sutherland TCPA team has published its third annual REDIAL: 2016 TCPA YEAR IN REVIEW - ANALYSIS OF CRITICAL ISSUES AND TRENDS.

When are Premiums Paid to a Captive Insurance Company Deductible for Federal Income Tax Purposes?
Saren Goldner,M. Kristan Rizzolo,P. Bruce Wright, January 19, 2017
In their article for Captive.com, Sutherland attorneys P. Bruce Wright, M. Kristan Rizzolo and Saren Goldner review the basic requirements that must be met for insurance premiums paid to a captive insurer to be tax deductible: risk transfer, risk distribution and insurance risk.

Checkfree - Another Taxpayer Win on New York State Online Service Receipt Sourcing; ALJ Determination Mirrors Expedia
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, January 16, 2017
New York taxpayers received additional guidance on the important issue of whether online services constitute “service” receipts, and how those receipts should be sourced, for New York corporate franchise tax purposes.

California Court of Appeal Holds Doing Business ≠ Any Activity Engaged In for Pecuniary Gain
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, January 16, 2017
On January 12, 2017, the California Court of Appeal held in a published opinion that a taxpayer passively holding a 0.2 percent interest in a California-based limited liability company (CA LLC) was not “doing business” in the state for purposes of being subject to California’s...

Eleventh Circuit Rules Co-op Members Are Not Entitled to Immediate Cash for Profits
, January 16, 2017
The U.S. Court of Appeals for the Eleventh Circuit dismissed (subscription required) a case brought by members of the Central Alabama Electric Cooperative (CAEC) against the central Alabama utility for distributing excess revenue by crediting the members’ capital accounts rather than making...

Is It Safe? Limits of “Safe Harbor” for Temporary Holds on Senior Investor Transactions Under Proposed FINRA Rule 2165
Bruce M. Bettigole,Clifford E. Kirsch,Sarah Razaq Sallis,Holly H. Smith, January 13, 2017
In addition to the recent increase in regulatory focus on senior investors,1 earlier this fall, the Financial Industry Regulatory Authority (FINRA) filed a rulemaking proposal (the filing) with the Securities and Exchange Commission (SEC) to adopt new FINRA Rule 2165 (Financial Exploitation of...

Alphabet Reduces Cost for Self-Driving Sensor
, January 12, 2017
Waymo, the self-driving vehicle unit of Alphabet, Inc., has announced that it reached a milestone of building all of its self-driving hardware in-house. The company noted that it was able to cut the cost of a key component by 90% from its cost in 2009. The component uses “LiDAR”...

How Technology May Affect Insurance in 2017
, January 12, 2017
Marsh has released a new report on trends anticipated in the United States casualty insurance marketplace in 2017. It noted that the Internet of Things, the sharing economy, and autonomous vehicles will all begin to make major changes to the insurance business in the coming year. In particular,...

KIUC Executes Agreement to Construct Hybrid Solar and Energy Storage System
, January 12, 2017
Kaua’i Island Utility Cooperative has executed a power purchase agreement with AES Distributed Energy, Inc. for a plant that will provide solar energy plus a battery-based energy storage system. The project will consist of 28 MW of solar photovoltaic energy and a 20 MW five-hour duration...

NIST Releases Revised Framework for Public Comment
, January 12, 2017
The National Institute of Standards and Technology (NIST) has released draft revisions to its voluntary “Framework for Improving Critical Infrastructure Cybersecurity.” This update revises the Framework to reflect input from NIST’s December 2015 Request for Information as well as...

2016 Year in Review
Brenna M. Clark,Adam B. Cohen,Brittany Edwards-Franklin,W. Mark Smith,Allison E. Wielobob, January 11, 2017
In 2016, the Department of Labor (DOL) continued a curtailed program of interpretive guidance under the Employment Retirement Income Security Act of 1974, as amended (ERISA). As has been the case for several years, the regulatory priorities of the DOL’s Employee Benefits Security...

Citigroup False Claims Act Lawsuit Remanded to New York State Court for Lack of Federal Question Jurisdiction
Zachary T. Atkins,Marc A. Simonetti, January 11, 2017
A federal district court denied a taxpayer’s motion to dismiss a lawsuit brought under the New York False Claims Act (FCA) for lack of subject matter jurisdiction and remanded the action to state court. The relator, an Indiana University professor, alleges that Citigroup violated the FCA by...

First U.S. Shale Gas Reaches Japan
, January 11, 2017
Reuters reports that Japan’s JERA Co., a joint venture between Tokyo Electric Power and Chubu Electric Power, has imported the country’s first LNG produced from U.S. shale gas in the lower-48 states. Historically, Japan has imported U.S. LNG only from Alaska. According the report, the...

MA ATB Determines a Securities Corporation Subsidiary Must File Required Application to Receive Favorable Tax Status as a Securities Corporation
Eric J. Coffill,Alla Raykin, January 11, 2017
The Massachusetts Appellate Tax Board (ATB) upheld the Commissioner’s assessment, resulting from a denial of a subsidiary’s securities corporation classification for corporate excise tax purposes. Companies classified as securities corporations receive favorable excise tax treatment...

Pardon My French, But You're A Taxpayer: Out-of-State Baker's Croissants Lead to B&O Nexus in Washington
Zachary T. Atkins,Timothy A. Gustafson, January 11, 2017
The Washington State Department of Revenue ruled that an out-of-state baker whose only in-state “presence” was its use of in-state independent commissioned sales representatives to solicit orders had substantial nexus with Washington and therefore was subject to the state’s...

WEC Installs Fourth Electric Vehicle Charging Station
, January 11, 2017
Washington Electric Cooperative (WEC) installed its fourth electric vehicle (EV) charging station on December 9, 2016. This project was aided by a $147,000 grant from the Vermont Low-Income Trust for Energy. This EV charging station is strategically located at Harwood Union High School in Duxbury,...

West Virginia Court Rules that Credit for Taxes Paid to Other States Must Include Local Taxes
Open Weaver Banks,Michael J. Kerman, January 11, 2017
The West Virginia Supreme Court held that a credit for taxes paid to other states on purchases of motor fuel is constitutional only if interpreted to include taxes paid to subdivisions of other states. The court determined that a credit that applies only to taxes paid to other states, and not...

Bluebonnet Electric Released from Liability Related to 2011 Wildfire
, January 09, 2017
The Smithville school board members voted to release Bluebonnet Electric Cooperative (Bluebonnet) for any liability related to the 2011 Bastrop County Complex Fire. The fire was caused by trees that fell on Bluebonnet’s power lines during high winds in the middle of the driest 12-month period...

California Appeal Court Upholds $2.8 Million Refund for Comcast on Unitary Business Issue
Madison J. Barnett,Chelsea E. Marmor, January 09, 2017
The California Court of Appeal upheld Comcast’s $2.8 million franchise tax refund, determining that: (1) Comcast and its subsidiary QVC were not unitary, such that QVC was properly excluded from Comcast’s combined group, and (2) a termination fee Comcast received from a failed merger...

Bear Head LNG Feeder Pipeline Receives Environmental Approval
, January 06, 2017
On December 22, 2016, the Nova Scotia Minister of Environment approved the environmental assessment authorizing construction of Bear Paw Pipeline Corporation Inc.’s (Bear Paw) 62.5 mile pipeline to provide gas to the proposed Bear Head LNG export facility in Point Tupper, Richmond County,...

Hit ‘em Where They Ain’t - TCCWNA Class Actions Target Broad Range of Consumer-Facing Practices
Kymberly Kochis,Francis X. Nolan,Lewis S. Wiener, January 06, 2017
Consumer-facing businesses that advertise and sell to New Jersey consumers, whether through brick and mortar operations or over the Internet, are being targeted in class action lawsuits under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA, pronounced...

More Taxes Coming in Oregon?
Eric J. Coffill, January 06, 2017
New Oregon Gross Receipts Tax Proposal. On December 14, 2016, the group behind Measure 97 (which was defeated at the November 2016 general election), released a booklet setting forth its 2017 legislative proposals. The document includes the basic structure for a new “$100 Million Business...

NYC Tax Appeals Tribunal Allocates Consulting Service Provider's Receipts Based on Location of Consultants
Jessica Allen,Jonathan A. Feldman, January 06, 2017
The New York City Tax Appeals Tribunal administrative law judge (ALJ) determined that a taxpayer’s receipts for consulting services should be allocated based on where the services were rendered, not where the solicitation and payment for the services occurred.

New Jersey Tax Court Analyzes Credit Card Receipt Sourcing
Andrew D. Appleby,Douglas J. Upton, January 06, 2017
The New Jersey Tax Court determined that credit card issuers must source to New Jersey all of their interest and interchange fee receipts, and half of their credit card service fees, from New Jersey accountholders. The Tax Court concluded that the Division of Taxation’s regulations required...

New Jersey Tax Court Rejects Application of 100% Apportionment Factor But Denies In-State Company's Bid to Use Three-Factor Formula
Zachary T. Atkins,Open Weaver Banks, January 06, 2017
The New Jersey Tax Court held that apportioning all of a company’s income to New Jersey for corporate business tax purposes, even with the allowance of a credit for taxes paid to separate-return states, failed to fairly reflect the company’s business activities in New Jersey.

SEC Staff Provides Guidance on Disclosure of Sales Load Variations and Filing of New Share Classes in Light of the DOL Fiduciary Rule
Eric A. Arnold,Frederick R. Bellamy,Cynthia R. Beyea,Thomas E. Bisset,Steven B. Boehm, January 06, 2017
On December 16, 2016, the Division of Investment Management (IM) of the Securities and Exchange Commission (SEC) published a Guidance Update (the Guidance) providing guidance on disclosure issues and filing requirements regarding variations in mutual fund sales loads and new mutual fund share...

State Corporation Takes Over Alaska LNG Project
, January 06, 2017
The Alaska Gasline Development Corporation (AGDC) announced that it has reached an agreement with affiliates of ExxonMobil, BP and ConocoPhillips, whereby AGDC will assume the responsibility for the technical and regulatory activities associated with the proposed Alaska LNG project, consisting of...

State Transit Authorities Develop “Smart Roads”
, January 06, 2017
A handful of states are responding to the smart car surge by developing and installing “smart roads”—technology-aided roads using fiber optics, cameras, and signaling devices to communicate with drivers, autonomous vehicles, and even transit authorities. For example, Virginia has...

Treasury and DOL Update 2016-2017 Regulatory Agendas for Employee Benefits
Brenna M. Clark,Adam B. Cohen,Brittany Edwards-Franklin,Ryan M. Session,W. Mark Smith, January 06, 2017
The principal regulators of U.S. employee benefits have recently published updates to their guidance plans for the coming months.

Two Bites, Zero Success: South Carolina Court of Appeals Determines Department Did Not Satisfy Its Burden to Justify Alternative Apportionment
Elizabeth S. Cha,Timothy A. Gustafson, January 06, 2017
On October 26, 2016, the South Carolina Court of Appeals reversed a lower court ruling and determined the Department of Revenue (Department) failed to satisfy its burden of showing that the statutory apportionment formula did not fairly represent Rent-A-Center West Inc.’s (RAC) business...

Federal Insurance Office Report Highlights Consumer Protection Issues Raised by Big Data, Cyber Risks
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Phillip E. Stano, January 02, 2017
On November 21, 2016, the Federal Insurance Office (FIO) issued its first ever annual Report on the Protection of Consumers and Access to Insurance (Report). The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) authorizes FIO to monitor all aspects of the insurance...

NY DFS Publishes Revised Proposed Cybersecurity Rules for Financial Services Companies
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Phillip E. Stano, January 02, 2017
On December 28, 2016, the New York Department of Financial Services (the DFS) published a revised proposed cybersecurity regulation (the Revised Regulation) for further public comment. First published in September 2016, the Revised Regulation is a culmination of three years of work by the DFS to...

NAIC Report: 2016 Fall National Meeting
B. Scott Burton,Ling Ling,Michael R. Nelson,John S. Pruitt,Stephen E. Roth, December 30, 2016
The National Association of Insurance Commissioners (NAIC) held its 2016 Fall National Meeting December 10-13. Despite the glitzy setting at the Fontainebleau Hotel in Miami Beach, there were no splashy new developments—save the announcement of the appointment of Michael Consedine as NAIC...

Enhanced Cyber Risk Management Standards Announced in Joint Rulemaking Initiative by Treasury, Federal Reserve, and FDIC
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Phillip E. Stano, December 29, 2016
On October 19, 2016, the three major federal banking regulators announced a joint advance notice of proposed rulemaking (ANPR) for enhanced cyber risk management standards (Enhanced Standards) for large and interconnected federally regulated financial institutions and their third-party service...

Christmas Comes Early: IRS Provides Additional Year of Relief for Taxpayers Seeking to Implement Tangible Property Rules
Ellen McElroy,Michael D. Resnick,Bradley M. Seltzer,Amish M. Shah,H. Karl Zeswitz, December 21, 2016
On December 20, 2016, the Internal Revenue Service (the Service) issued Notice 2017-6, which provides relief for a taxpayer seeking to change accounting methods in connection with the final tangible property regulations (often referred to as the repair regulations) and certain other related...

IRS Further Updates Beginning of Construction Guidance for Renewable Energy Tax Credits
Dorothy Black Franzoni,Bradley M. Seltzer,Amish M. Shah,Wes Sheumaker,Ram C. Sunkara, December 21, 2016
On December 15, 2016, the Internal Revenue Service (IRS) issued Notice 2017-04, which updates prior guidance regarding the beginning of construction requirement for renewable energy tax credits under IRC sections 45 and 48.1

The Deadline for Compliance With the U.S. Variation Margin Rules Is Approaching! Are You Ready?
Brian Barrett,James M. Cain,Catherine M. Krupka,David T. McIndoe,Paul Sinnott, December 21, 2016
The requirement that non-cleared swaps be fully margined, which is one of the last pillars of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), will take effect for “financial end-users” on March 1, 2017. Compliance with the new requirements will...

FERC Seeks Comments on Double Recovery Resulting from Current Income Tax Allowance and Rate of Return Policies
Paul F. Forshay,Jonathan W. Gottlieb,Meghan R. Gruebner,Allison E. Speaker, December 19, 2016
On December 15, 2016, the Federal Energy Regulatory Commission (FERC) issued a Notice of Inquiry (NOI) seeking comments on how to address any potential double recovery that may result from the agency’s current income tax allowance and rate of return policies. The NOI responds to the U.S....

NAIC Adopts Revisions to Actuarial Guideline 49
Eric A. Arnold,Frederick R. Bellamy,Thomas E. Bisset,Dodie C. Kent,Clifford E. Kirsch, December 19, 2016
On December 13, the National Association of Insurance Commissioners (NAIC) Executive (EX) Committee and Plenary adopted revisions to Actuarial Guideline 49 (AG 49) with an effective date of March 1, 2017. The revisions apply AG 49’s standards for determining the maximum annual rate of...

Final Regulations Impose Reporting Obligations on Foreign-Owned Domestic Disregarded Entities
Robert S. Chase,Taylor M. Kiessig,Engin K. Nural,Carol P. Tello,H. Karl Zeswitz, December 16, 2016
Amid the Panama Papers leak and international concern that foreign persons were concealing assets through U.S. entities that are disregarded for U.S. federal income tax purposes, the Internal Revenue Service (IRS) and the Department of the Treasury (Treasury) proposed and, on December 12, finalized...

Seller Beware? Rise of Consumer Class Actions Under New Jersey’s TCCWNA Statute
Kymberly Kochis,Francis X. Nolan,Lewis S. Wiener, December 16, 2016
Nearly 35 years ago, New Jersey enacted the Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA, pronounced “tic-wun-uh”), which provides additional protection for individual consumers who suffer harm as a result of unfair sales and advertising practices. A consumer can bring a...

The Trump Administration’s International Trade and Economic Policy: Available Options and Possible Implications for Industry
Jeffrey P. Bialos,Mark D. Herlach, December 16, 2016
During the recent campaign and the transition, President-elect Donald Trump generally has advocated a more aggressive U.S. international trade and economic policy as part of his plan to generate economic growth and retain and return U.S. manufacturing. This week he also expressed an unusual...

SEC Adopts Amendments to Regulation S-X Applicable to BDCs
Cynthia R. Beyea,Steven B. Boehm,Cynthia M. Krus,Lisa A. Morgan,Harry S. Pangas, December 14, 2016
On October 13, 2016, the Securities and Exchange Commission (SEC) issued a release adopting final rules to modernize and enhance the reporting and disclosure of information by registered investment companies (the Final Rules). Though the Final Rules primarily address the reporting and disclosure...

A Smaller Bite for Apple? Supreme Court Limits Damages for Design Patent Infringement
Ann G. Fort,Anna C. Halsey, December 09, 2016
In a case reversing a $399 million damages award to Apple, the U.S. Supreme Court has held unanimously that an “article of manufacture” under the design patent damages statute can be anything from an entire product to a single component of a multi-component product. The decision made...

SEC Adopts Rules to Modernize Information Reported by Registered Investment Companies
Frederick R. Bellamy,Cynthia R. Beyea,Steven B. Boehm,James M. Cain,Cynthia M. Krus, December 09, 2016
On October 13, 2016, the Securities and Exchange Commission (the SEC) issued a release adopting final rules to modernize and enhance the reporting and disclosure of information by registered investment companies (the Final Rules).1 The Final Rules are part of the SEC’s initiative to enhance...

Amendment to Criminal Procedure Rule 41 Impacts Data Privacy in U.S. and Abroad
Mark D. Herlach,Francis X. Nolan,Robert D. Owen,Phillip E. Stano,Mary Jane Wilson-Bilik, December 06, 2016
On December 1, 2016, amended Rule 41 of the Federal Rules of Criminal Procedure (FRCP) went into effect, thus expanding federal law enforcement’s power to search and seize electronic data. The new rule will allow law enforcement to seek a warrant from a “magistrate judge with authority...

Off the Grid: TCPA Class Action Settlement for Energy Utility Company
Thomas M. Byrne,Juan C. Garcia,Patricia A. Gorham,Phillip E. Stano,Rocco E. Testani, December 06, 2016
Utility companies continue to face ongoing litigation under the Telephone Consumer Protection Act (TCPA) that can arise from the use of automated communications with customers for purposes of marketing, customer servicing and collections. Recently, a New York federal court granted preliminary...

Heightened Focus on Renewable Fuel Standard Enforcement Increases Compliance Challenges
Paul C. Freeman,Catherine M. Krupka,Susan G. Lafferty,David M. McCullough,Ronald W. Zdrojeski, December 02, 2016
As the Renewable Fuel Standard (RFS) program continues to evolve and mature, so too does the manner in which the U.S. Environmental Protection Agency (EPA or the Agency) seeks to drive day-to-day compliance by the regulated community. From the program’s inception, EPA’s regulatory...

TCPA Hazards Abound Following Busy Month for the FCC
Thomas M. Byrne,Juan C. Garcia,Phillip E. Stano,Rocco E. Testani,Lewis S. Wiener, November 30, 2016
On November 16, 2016, the Federal Communications Commission (FCC) issued a final rule regarding the treatment of debt servicing and collection calls made by or on behalf of the federal government under the Telephone Consumer Protection Act (TCPA). The rule, a result of the Bipartisan Budget Act of...

CFPB: Consider the Future Post-Obama
Brian Barrett,Thomas M. Byrne,Kymberly Kochis,Lewis S. Wiener, November 23, 2016
The election of Donald Trump and the new administration means a changed political reality for the Consumer Financial Protection Bureau (CFPB). The President-elect is expected to replace Director Richard Cordray as head of the CFPB soon after taking office. Looking further ahead, the Republican...

FERC Proposes Adding Electric Storage and Distributed Energy Resources to the Wholesale Electric Market
Samina M. Bharmal,Dorothy Black Franzoni,Michael A. Stosser,Kyle E. Wamstad, November 23, 2016
On November 17, 2016, the Federal Energy Regulatory Commission (FERC or the Commission) issued a Notice of Proposed Rulemaking (NOPR) on electric storage and distributed energy resources, Docket Nos. RM 16-23-000; AD16-20-000.

TCPA RIP?
Thomas M. Byrne,Juan C. Garcia,Phillip E. Stano,Rocco E. Testani,Lewis S. Wiener, November 23, 2016
The outcome of the 2016 presidential election has left many prognosticators scrambling to figure out the policy implications of the incoming Republican change in administration. Among countless other things, companies affected by the Telephone Consumer Protection Act (TCPA) should consider whether...

Undoing the Clean Power Plan
Joshua L. Belcher,Samina M. Bharmal,Jay Holloway,Liz Williamson, November 23, 2016
The election of Donald J. Trump as the next President of the United States appears to have dealt certain defeat for the Obama Climate Action Plan. Central to that effort was the Clean Power Plan, finalized by the U.S. Environmental Protection Agency (EPA) in 2015, which would have imposed...

Cybersecurity Certifications Now Required to Access Death Master File
Wilson G. Barmeyer,Robert D. Owen,Phillip E. Stano,Steuart H. Thomsen,Mary Jane Wilson-Bilik, November 14, 2016
Tough cybersecurity certification requirements for parties seeking access to certain information in the Social Security Death Master File (DMF) take effect on November 28.

Impaired Access: ADA Website Accessibility Lawsuits On the Rise
Alexander P. Fuchs,Lewis S. Wiener,Amy Xu, November 14, 2016
An increasing number of class action lawsuits have been filed over the past year against private companies by individuals alleging violations of the Americans with Disabilities Act (ADA) for failure to maintain websites that are accessible to the blind and visually impaired. Since early 2015,...

SEC Adopts Liquidity Risk Management Rules for Mutual Funds and Other Open-End Investment Companies
Frederick R. Bellamy,Cynthia R. Beyea,Thomas E. Bisset,Steven B. Boehm,James M. Cain, November 14, 2016
On October 13, 2016, the SEC approved new Rule 22e-4 under the Investment Company Act of 1940, as amended (the 1940 Act), which will require certain open-end investment companies other than money market funds, to adopt and implement written liquidity risk management programs.1 In addition, new Rule...

FinCEN Issues Advisory to Financial Institutions on Suspicious Activity Reports of Cyber-Events and Cyber Enabled Crime
Peter J. Anderson,Brian L. Rubin,Amelia Toy Rudolph,W. Scott Sorrels,Ronald W. Zdrojeski, October 31, 2016
On October 25, the Financial Crimes Enforcement Network (FinCEN), one of the U.S. Department of the Treasury’s lead agencies in the fight against money laundering, issued an Advisory to Financial Institutions on Cyber-Events and Cyber-Enabled Crime and associated Frequently Asked Questions...

FERC Proposes Changes to Interstate Oil Pipeline Index Ratemaking and Cost and Revenue Reporting
Paul F. Forshay,Allison E. Speaker, October 28, 2016
The Federal Energy Regulatory Commission (FERC) has issued an Advance Notice of Proposed Rulemaking (ANOPR). This ANOPR is seeking comments on potential changes to FERC’s policies for evaluating interstate oil pipeline indexed rate increases based on industry-wide cost increases, and on...

IRS Provides Guidance on Reasonable Mortality Charges for Life Insurance Contracts Based on 2017 CSO Tables
Dennis L. Allen,Thomas A. Gick,Michael R. Miles,Mary E. Monahan,William R. Pauls, October 27, 2016
On October 19, the Internal Revenue Service (IRS) issued an advance version of Notice 2016-63, addressing the “reasonable mortality charge” requirement under IRC §§ 7702 and 7702A for life insurance contracts based on the 2017 Commissioners’ Standard Ordinary (CSO)...

Incentive Compensation for Employees: Instead of Increasing Banks' Bottom Lines, These Arrangements May Increase the Risk of Fines
Peter J. Anderson,Sarah Q. Chaudhry,Meghana D. Shah,W. Scott Sorrels,Ronald W. Zdrojeski, October 27, 2016
The New York State Department of Financial Services (DFS) recently issued guidance to regulated banking institutions (Institutions) prohibiting them from implementing incentive-based compensation programs unless these programs are accompanied by appropriate mechanisms designed to prevent employees...

Louisiana DOR Proposed Unique—and Troubling—Addback Regulation
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, October 27, 2016
The Louisiana Department of Revenue proposed a new regulation expansively interpreting Louisiana’s recently enacted related party expense addback statute. La. Reg. vol. 42, no. 10, pg. 1767 (Oct. 20, 2016) (the Proposed Regulation). Earlier this year, Louisiana enacted a new statute requiring...

NAIC Life Actuarial (A) Task Force Approves Revisions to Actuarial Guideline 49 for Exposure and Comment
Eric A. Arnold,Frederick R. Bellamy,Thomas E. Bisset,Dodie C. Kent,Clifford E. Kirsch, October 27, 2016
On October 20, the NAIC Life Actuarial (A) Task Force (LATF) of the Life Insurance and Annuities (A) Committee met and approved proposed revisions to Actuarial Guideline 49 (AG 49) for exposure and comment. If adopted, the proposed revisions would apply AG 49’s standards for determining the...

A Subtle Snare of the Justice Against Sponsors of Terrorism Act for Businesses Indirectly Supporting International Terrorism
Peter J. Anderson,Mary Beth Martinez,W. Scott Sorrels,Ronald W. Zdrojeski, October 25, 2016
While countless news outlets have reported the recent Congressional override of President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA), few have given much thought to the more nuanced consequences that JASTA could have on private businesses. While the primary goal of...

FINRA, SEC Renew Focus on Senior Investors in Immediate Aftermath of FINRA Submission of Proposed Rulemaking to SEC
Bruce M. Bettigole,Clifford E. Kirsch,Brian L. Rubin,Sarah Razaq Sallis,Holly H. Smith, October 25, 2016
On October 22-23, members of the securities industry, academia, regulators, and public policy experts gathered in Washington, D.C., at the joint Financial Industry Regulatory Authority (FINRA) and Securities Industry and Financial Markets Association (SIFMA) Senior Investor Protection Conference....

Federal Court Orders EPA to Evaluate Job Losses from Air Regulations
Joshua L. Belcher,Samina M. Bharmal,Jay Holloway,James A. Thompson,Liz Williamson, October 20, 2016
On October 17, the U.S. District Court for the Northern District of West Virginia ruled in favor of Murray Energy Corporation (Murray) in its section 321 suit against the U.S. Environmental Protection Agency (EPA). The court ordered that EPA must evaluate the job loss consequences of its air...

CFPB Single-Director Structure Unconstitutional: CFPB Director Now Serves at President’s Will
Thomas M. Byrne,Matt Gatewood,Kymberly Kochis,Lewis S. Wiener, October 14, 2016
A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled October 11, 2016, that the current structure of the Consumer Financial Protection Bureau (CFPB) is unconstitutional. The court concluded that an independent agency such as the CFPB cannot have a single director...

Reverse the Charges: Challengers Push Forward in Appeal of 2015 TCPA Order, Oral Argument Set for October 19
Thomas M. Byrne,Juan C. Garcia,Phillip E. Stano,Rocco E. Testani,Lewis S. Wiener, October 14, 2016
n July 2015, the Federal Communications Commission (FCC) issued a much-anticipated Declaratory Ruling and Order aimed at clarifying certain aspects of the Telephone Consumer Protection Act (TCPA). As previously reported, more than a dozen parties filed appeals to the Order, claiming that it did...

When Outside Compliance Monitors May Be a Blessing: Companies Subjected to Corporate Integrity Agreements May Be Undone by Rogue Employees
Peter J. Anderson,Sarah Q. Chaudhry,W. Scott Sorrels,Yvonne M. Williams-Wass,Ronald W. Zdrojeski, October 12, 2016
Companies face ever-increasing pressures to implement mechanisms designed to prevent or effectively address employee malfeasance. (We’ve previously addressed the increased prevalence of companies terminating employees who refuse to cooperate with investigations undertaken in response to...

ISAO Standards Group Releases Guidelines for Information Sharing
, October 07, 2016
Information and Sharing and Analysis Organizations, or ISAOs, can now look to four new publications for guidance in establishing ISAOs and in sharing cybersecurity information and interacting with the intelligence community, law enforcement agencies, U.S. regulatory agencies, and the Department of...

FERC Releases Update on Review of Venture Global Plaquemines LNG Application
, October 06, 2016
FERC has released an update on its pre-filing environmental review of Venture Global Plaquemines LNG’s (Plaquemines LNG) application to construct a liquefaction and export terminal on the west bank of the Mississippi River in Plaquemines Parish, La. and the Gator Express Pipeline...

Generating Steam Heat: Materials and Labor Used to Build Power Plant Exempt From Florida Sales Tax
Jonathan A. Feldman,Michael J. Kerman, October 06, 2016
The Florida Department of Revenue advised that certain materials and labor a taxpayer plans to use to construct a combined heating and power plant will be exempt from Florida sales and use tax. The plant will produce electricity for sale. Florida exempts purchases of machinery and equipment...

Construction Begins on Bandera Electric Cooperative Solar Project
, October 05, 2016
SoCore Energy has started construction on a 1.9 MW ground-mounted solar project for Bandera Electric Cooperative (BEC). This solar project will allow BEC’s members to subscribe to community solar power for their homes and businesses. The project is expected to generate an estimated 3,587 Mwh...

STOLI Scheme Saved By Expiration of Contestability Clause
Wilson G. Barmeyer,Kristine M. Ellison,Phillip E. Stano,Steuart H. Thomsen,Gail L. Westover, October 05, 2016
On September 22, the Florida Supreme Court in Wells Fargo Bank NA v. Pruco Life Insurance Co., No. SC15-382 (Fla. Sept. 22, 2016) denied Pruco Life Insurance Company’s challenge to the validity of an insurance policy purchased under a stranger-originated life insurance (STOLI) scheme because...

Travels With Charley, Post Script
, October 05, 2016
Who is Charley? Rather what is Charley? Charley would be my new traveling companion, a Tesla Model S 90D. And why the name Charley one might ask? As I was about to embark on a cross country trip, I was reminded of one of my favorite books by John Steinbeck, Travels with Charley. Since the Tesla is...

Unclaimed Property Disputes Over State Priority Take Center Stage, Head to U.S. Supreme Court and the Third Circuit
Wilson G. Barmeyer,Joseph A. Ficarrotta,Phillip E. Stano,Mary Jane Wilson-Bilik, October 05, 2016
Disputes over the unclaimed property priority rules continue to intensify. The U.S. Supreme Court accepted review of a clash involving more than 20 states regarding the right to take custody of official checks. Meanwhile, a holder will appeal a federal district court’s decision that Delaware...

FERC to Prepare EIS for Proposed Driftwood LNG Export Terminal
, October 04, 2016
FERC has issued a notice of its intent to prepare an environmental impact statement (EIS) for the proposed Driftwood LNG liquefaction and export terminal and interconnected pipeline in Calcasieu, Jefferson Davis, Acadia, and Evangeline Parishes, La. Comments on the scope of the EIS are due November...

Going Au Naturel: New York Federal Judge’s Recent Decision Represents the Increasing Class Action Litigation Risks of “Natural” Product Labels
Melissa A. Conrad-Alam,Ann G. Fort,Gregory S. Kaufman,Ronald W. Zdrojeski, October 04, 2016
In today’s competitive food and beverage industry, product labeling plays a significant role in marketing. Labels touting a product’s “natural” ingredients or health benefits allow manufacturers to charge a premium for their product and capture market share. Natural product...

Empty Miles, Empty Factor? Texas Comptroller Clarifies "Empty Miles" Treatment in Transportation Apportionment Factor
Timothy A. Gustafson,Chelsea E. Marmor, October 03, 2016
The Texas Comptroller of Public Accounts issued a franchise tax letter clarifying that “total mileage” for purposes of computing the Texas special apportionment formula for transportation receipts may either include or exclude “empty miles” provided symmetry is maintained...

Kentucky Court of Appeals Finds Retroactive Statute Constitutional
Andrew D. Appleby,Chelsea E. Marmor, October 03, 2016
The Kentucky Court of Appeals held that a Kentucky statute, which retroactively reduced vendors’ 1% deduction of the sales tax collected and remitted to Kentucky to $1,500 in any monthly reporting period, did not violate the Kentucky Constitution. Wal-Mart argued that the statute violated the...

Petronas Considering Selling Stake in Proposed B.C. LNG Terminal
, October 03, 2016
Reuters reports that three unnamed sources “familiar with the matter” have revealed that Petronas is considering selling its majority stake in the proposed $27 billion Pacific NorthWest LNG export terminal near Prince Rupert, British Columbia due to financial constraints and low global...

Reversing Course—Proposed Regulations Reverse IRS Ruling Position on Treatment of Income from CFCs and PFICs for RIC Qualification Purposes
Michael R. Miles,David A. Roby,Rich Sun, October 03, 2016
On September 27, the Internal Revenue Service (IRS) and the Department of the Treasury (Treasury) issued proposed regulations (REG-123600-16) (the Proposed Regulations) under section 851 addressing the income test applicable to regulated investment companies (RICs) that hold interests in certain...

Choctawhatchee Electric Cooperative Wins $360 Million Air Force Base Contract
, September 30, 2016
The Defense Logistics Agency recently announced that Choctawhatchee Electric Cooperative (CHELCO) will be responsible for owning, operating and maintaining the electrical grid at Eglin Air Force Base, which is located on the Choctawhatchee Bay near Fort Walton Beach, Florida. The contract, which...

Wolverine Begins Construction of One of Michigan’s Largest Solar Arrays
, September 30, 2016
Spartan Renewable Energy, a member-owner of Wolverine Power Cooperative (Wolverine), today announced that it will soon begin construction of a 1.2 megawatt solar array in Cadillac, Michigan. Wolverine will purchase 100 percent of the power output from the project. While this is Wolverine’s...

Canadian Government Conditionally Approves Petronas’s Pacific NorthWest LNG Terminal
, September 29, 2016
CBC News reports that the Canadian federal government has approved Petronas’s proposed Pacific NorthWest LNG export terminal near Prince Rupert, British Columbia with 190 legally binding conditions. According to the report, majority sponsor Malaysian state oil company Petronas...

D.C. Circuit Hears Challenge to Clean Power Plan
, September 29, 2016
Ten D.C. Circuit judges heard argument regarding the EPA’s authority to enact the Clean Power Plan and the rule’s constitutionality. All active judges on the D.C. Circuit, with the exception of Merrick Garland, heard arguments from state government, power industry groups, the federal...

GridLiance to Purchase Transmission System from Valley Electric Association
, September 28, 2016
The Board of Directors of Valley Electric Association has approved the sale of its 230 kV High Voltage Transmission System to GridLiance Holdco, L.P. (GridLiance). The acquisition consists of approximately 160 miles of transmission lines and related substation equipment.

Minnesota DOR to Pay Taxpayer's Attorney's Fees from Challenging a Not "Substantially Justified" Assessment
Eric J. Coffill,Alla Raykin, September 28, 2016
The Minnesota Supreme Court upheld the Minnesota Tax Court’s award of attorney’s fees to a taxpayer that had challenged the Minnesota Commissioner of Revenue’s assessment of sales and use tax. The Minnesota Supreme Court affirmed the Tax Court decision, because it reasonably...

NYC Tax Appeals Tribunal Finds LLC Owes Real Property Transfer Tax Under Step Transaction Doctrine
Ted W. Friedman,Charles C. Kearns, September 28, 2016
The New York City Tax Appeals Tribunal held that the Petitioner, a Delaware LLC, owed New York City real property transfer tax (RPTT) on the transfer of an interest in certain real property. The Tribunal applied the step transaction doctrine and treated the contribution of the Petitioner’s...

Environmental Assessment for Petronas Project Due Next Monday
, September 27, 2016
CBC News reports that the Canadian Environmental Assessment Agency’s final environmental report on Petronas’s proposed Pacific NorthWest LNG (PNWLNG) export terminal near Prince Rupert, British Columbia is due to be released October 3. According to its website, PNWLNG announced a...

Heads I Win, Tails You Lose: TCPA Defendants Finding Success in Striking “Fail-Safe” Class Allegations
Thomas M. Byrne,Juan C. Garcia,Phillip E. Stano,Rocco E. Testani,Lewis S. Wiener, September 27, 2016
The 1964 cold war era movie, “Fail-Safe,” centered on the plight of a U.S. military jet pilot who received an errant instruction to drop a nuclear bomb on Moscow.

U.S. Senators Ask DOE to Slow Down LNG Export Approvals
, September 27, 2016
A group of twelve U.S. Senators has sent a letter to U.S. Secretary of Energy Moniz requesting that “DOE slow its [LNG export] approval process until the full impacts of currently approved exports are realized.” The letter expresses concerns that LNG exports will increase domestic...

Great River Energy and WH Launch Dickinson Solar Project
, September 26, 2016
The Dickinson Solar Project constructed by Great River Energy and Wright-Hennepin Cooperative Electric Association (WH) is now operational and will generate 2.25 MW of solar energy for the members of WH. The project is the second largest solar installation in Minnesota and the largest solar array...

US Court of Appeals to Hear Arguments Regarding Clean Power Plan on Tuesday
, September 26, 2016
The United States Court of Appeals for the District of Columbia will hear arguments regarding the EPA’s Clean Power Plan on Tuesday, September 27. Twenty-six states have joined West Virginia to challenge the Plan, which requires states to cut greenhouse gas emissions by a cumulative 32...

A New Way to Buy Car Insurance?
, September 23, 2016
A car insurance startup has recently acquired an insurance company with licenses in 50 states. Metromile, which has received funding from investors such as Mark Cuban, charges for car insurance based on miles driven. (A hardware “dongle” tracks how many miles the subscriber drives.) The...

Alaska and ConocoPhillips Sign MOU to Market North Slope Gas
, September 23, 2016
The State of Alaska, through the Alaska Gasline Development Corporation (AGDC) and ConocoPhillips Alaska Inc. have executed a Memorandum of Understanding (MOU) regarding negotiations to form a joint venture company (JV) to market LNG from the proposed Alaska LNG project to global LNG markets and...

Germany Proposes Laws for Driverless Cars
, September 23, 2016
Germany’s Transport Minister recently proposed a law to govern the performance of autonomous vehicles. The proposed law would require that a car always opt for property damage over personal injury; that it not distinguish between humans based on categories such as age or race; and that a...

NY DFS Announces Proposal for Cybersecurity Rules for Financial Services Companies
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Phillip E. Stano, September 22, 2016
On September 13, 2016, New York Governor Andrew Cuomo announced a proposal by the New York Department of Financial Services (the DFS) of a rule that establishes cybersecurity requirements for financial services companies regulated by the DFS (the NY Regulation). The NY Regulation is the culmination...

Changes to Power Contracts Authorized by Basin Electric Directors
, September 21, 2016
The directors of Basin Electric Power Cooperative (Basin Electric) authorized an amendment to Powder River Energy Corporation’s and Upper Missouri Power Cooperative’s wholesale power contracts that will allow Basin Electric to supply electricity to Tongue River Electric Cooperative,...

Coal Ash Legislation Passes Senate
, September 21, 2016
New coal ash legislation passed in the Senate recently in a 95-3 vote. The new legislation gives state agencies the authority to enforce federal regulation through state permits.

DOE Releases July 2016 LNG Import and Export Data
, September 21, 2016
The U.S. Department of Energy (DOE) has released LNG import and export data for July 2016. The report shows the following shipments of domestically produced LNG from the Sabine Pass LNG terminal in Cameron Parish, La.: one shipment to Spain for $4.51, one shipment to China for $5.60, one shipment...

NHTSA Releases Driverless Car Guidelines
, September 21, 2016
The National Highway Traffic Safety Administration (NHTSA) has released its highly anticipated guidelines on the regulation of autonomous vehicles. The Federal Automated Vehicles Policy signals NHTSA’s continued support of driverless technology development by promising manufacturers expedited...

Sabine Pass Train 2 Reaches Substantial Completion
, September 21, 2016
Cheniere Energy announced that liquefaction Train 2 at its Sabine Pass LNG terminal in Cameron Parish, La., has reached “substantial completion.” Commissioning has been completed and construction contractor Bechtel “is turning over care, custody, and control of Train 2 to Cheniere...

SEC Adopts Changes to Form ADV and Books and Records Rules
Eric A. Arnold,Clifford E. Kirsch,Michael B. Koffler,Susan S. Krawczyk,Holly H. Smith, September 19, 2016
On August 25, the Securities and Exchange Commission (the SEC) adopted amendments to Form ADV Part 1 that will require SEC-registered investment advisers to provide a significant amount of new information.1 The SEC adopted these amendments to Form ADV to improve the depth and quality of information...

Cruise Ships Miss the Boat on TCPA Compliance to the Tune of Up to $76 Million
Thomas M. Byrne,Juan C. Garcia,Phillip E. Stano,Rocco E. Testani,Lewis S. Wiener, September 16, 2016
With a trial looming like storm clouds on the horizon, several cruise ship companies and their affiliated travel agencies settled a “robocall” Telephone Consumer Protection Act (TCPA) class action up to $76 million. The settlement, announced on September 8, 2016, was reached just weeks...

Lumber War May Be Imminent
Mark D. Herlach,Gregory S. Kaufman,Allison E. Speaker,Ryan R. Weiss, September 16, 2016
Negotiations to keep the peace in the complex and long-running international trade dispute between the United States and Canada over U.S. imports of Canadian softwood lumber appear to have stalled. Parties on both sides of the border are preparing for another round of import relief actions, which...

Congressional Republicans Urge Auto Safety Regulators To Step Up Cybersecurity Efforts
, September 14, 2016
In a recent letter to the National Highway Traffic Safety Administration, four Republican members of Congress outlined their concerns regarding vehicle hacking, in which a hacker could take control of a vehicle’s steering or brakes. The letter was responding in part to research published in...

Pittsburgh To Be Testing Ground for Uber’s Driverless Cars
, September 14, 2016
As part of what has been called “greenlight governing,” a hands-off approach to regulating businesses that gives companies plenty of free rein to experiment, Pittsburgh has become a key testing ground for driverless cars. Uber is a key example: Uber is anticipated to roll out a fleet of...

CFTC Finalizes Rules on Cybersecurity Testing for Futures Industry
, September 13, 2016
Under new rules adopted by the Commodity Futures Trading Commission (CFTC), various entities in the futures industry must undertake cybersecurity testing. At its open meeting on Sept. 8, 2016, the CFTC amended its system safeguards rules for exchanges, clearinghouses, and data repositories to...

Cobb EMC is the Most Affordable Electric Provider in Georgia
, September 13, 2016
The 2016 Georgia PSC (PSC) summer survey found that the rates of the Cobb Electric Membership Corporation (Cobb EMC) are the lowest in Georgia. According to the PSC’s survey, compared to the average electric utility customer, Cobb EMC members save approximately $31.66 dollars per month on...

Dairyland Power Begins Construction of New Solar Project
, September 13, 2016
Dairyland Power Cooperative (Dairyland Power) recently broke ground on what will become one of Wisconsin’s largest solar projects. The project, which is located in Medford, Wisconsin, will generate approximately 2.5 MW of electricity—enough to power around 450 homes. Once completed, it...

Volvo and Autoliv Team Up on Driverless Car Software
, September 13, 2016
Volvo and auto safety group Autoliv have announced a new joint venture to develop driverless vehicle software. The joint venture is expected to develop advanced driver assistance systems (ADAS) and autonomous driver (AD) systems for use in Volvos. Volvo also recently announced a $300 million...

Michigan Senate Committee Approves Autonomous Vehicle Legislation
, September 07, 2016
Michigan may soon pass a law that would allow autonomous vehicles on Michigan roads for any reason. A set of four bills regulating autonomous vehicles received has passed committee, and may move to the Senate for a vote in the next week. Several states permit driver less cars on the road for...

NAIC Report: 2016 Summer National Meeting
B. Scott Burton,Ling Ling,Michael R. Nelson,John S. Pruitt,Cynthia R. Shoss, September 07, 2016
The National Association of Insurance Commissioners (NAIC) held its 2016 Summer National Meeting from August 26 through August 29 in San Diego, California.

New Legal Risks Posed by Automated Driving
, September 07, 2016
Vehicle technology is advancing at a rapid, seemingly implausible pace, with fully autonomous driving the ultimate goal. Although fully automated driving is still years away, significant advancements in automated technology are here today. This new technology is quickly advancing, outpacing current...

Pivotal LNG and Carib Energy Reach Multi-Year Supply Agreement for Puerto Rican Company
, September 06, 2016
Pivotal LNG announced that it has reached a multi-year agreement to sell LNG to Carib Energy LLC, a Crowley Maritime Corp. subsidiary. Crowley will transport and deliver the LNG in ISO containers from its Jacksonville, Fla. shipping terminal to Molinos de Puerto Rico, a subsidiary of Ardent Mills...

Western Farmers Adds Utility-Scale Solar
, September 02, 2016
Western Farmers Electric Cooperative (Western Farmers) is adding 43 MW of utility-scale solar through power purchase agreements and projects it has planned or under construction. Western Farmers has agreed to purchase 25 MW from the Caprock Solar Power Project, which is under development in New...

FERC Orders Approving Aguirre Offshore Gasport Challenged in Court
, August 31, 2016
Comité Diálogo Ambiental, Inc. (“Diálogo”) has filed a petition for review with the U.S. Court of Appeals for the D.C. Circuit challenging FERC’s orders authorizing construction and operation of Aguirre Offshore GasPort, LLC’s (“Gasport”)...

Virginia Announces First Community Solar Project
, August 31, 2016
BARC Electric has developed the first community solar project in Virginia. The facility in Rockbridge, Virginia will benefit the member-owners who reside in the counties of Rockbridge, Bath, Highland, Augusta and Alleghany.

Because ... It's All in the Cloud: Sales of Cloud-Computing Services Do Not Create Nexus in Virginia
Nicholas J. Kump,Amy F. Nogid, August 30, 2016
The Virginia Department of Taxation (Department) ruled that a company’s sales of cloud computing services did not create nexus with Virginia for corporate income tax purposes. The Department also said that in applying P.L. 86-272, it uses the same “solicitation” test for both the...

Coop-Friendly Railroad Reform Law Reportedly on Track
, August 30, 2016
Federal regulators have reported that they are on track in implementing a railroad reform law intended to promote shipping efficiency and potentially competition among railroads. The NRECA and electric cooperatives generally have pushed for reforms, recognizing the impact that costs of hauling coal...

Coops Offer Net Metering Alternatives
, August 30, 2016
Michigan’s Cherryland Electric Cooperative and its supplier, Wolverine Power Cooperative, have developed a plan that would allow customers to choose between three options for participating in solar generation—a community solar subscription, a “buy all, sell all” option,...

DOE Grants American LNG Marketing Blanket Export Authority
, August 30, 2016
The U.S. Department of Energy (DOE) has issued an order granting American LNG Marketing blanket authority to export up to 3.02 Bcf/year of LNG over two years from its proposed Hialeah facility near Medley, Fla. to nations with and without a Free Trade Agreement with the United States with which...

Don’t Hail the CAB - Why FINRA’s Capital Acquisition Broker Rule Set Will Not Get Private Funds to their Destination
Eric A. Arnold,Clifford E. Kirsch,Michael B. Koffler,Susan S. Krawczyk,Yasho Lahiri, August 30, 2016
For many years, the private fund industry and the securities bar have called for a limited rule set to govern broker-dealers solely engaged in raising capital for private funds or other issuers of unregistered securities or in merger and acquisition advisory activities.

Driverless Taxis Coming to Singapore?
, August 30, 2016
NuTonomy, a company in Singapore, began testing a taxi-hailing service using self-driving vehicles this week. Certain members of the public can use a smartphone app to hail an autonomous vehicle (with a computer engineer and a backup human driver) within a small business district in Singapore....

Honolulu Regulates Ride-Sharing
, August 30, 2016
A new law in Honolulu will require taxi drivers and drivers for ride-sharing services such as Uber and Lyft to obtain a certificate, hold a Hawaii driver’s license, and pass background checks in order to operate. The City Council passed the bill earlier this month, and the mayor recently...

Iowa Coop Doubles as Solar Installer
, August 30, 2016
Western Iowa Power Cooperative (WIPCO) has embraced growing interest in customer-owned solar and has begun installing solar systems—for both its customers and other utilities. WIPCO installed its first system in 2014 and has installed 952 kilowatts to date.

NAIC Task Force Releases Revised Draft Insurance Data Security Model Law
Mark D. Herlach,John S. Pruitt,Stephen E. Roth,Cynthia R. Shoss,Mary Jane Wilson-Bilik, August 30, 2016
On August 17, the National Association of Insurance Commissioners (the NAIC) Cybersecurity (EX) Task Force (the Task Force) released for comment a revised draft Insurance Data Security Model Law (the Model Law). This Model Law purports to “establish exclusive standards . . . for data security...

NRECA Joins PJM Seeking Shutdown of FERC Floor Price Dispute
, August 30, 2016
The NRECA has joined with PJM Interconnection LLC (PJM) and other utility groups to back the changes by the Federal Energy Regulatory Commission (“FERC”) to the PJM proposal dealing with artificial price suppression on the grid. PJM asked the D.C. Circuit to deny the grid’s power...

New Sedona Conference Commentary Recommends Restricting the Reach of Document Requests Directed to U.S. Affiliates of Overseas Companies
Francis X. Nolan,Robert D. Owen, August 30, 2016
Earlier this month, the Sedona Conference issued the final version of its “Commentary on Rule 34 and Rule 45 ‘Possession, Custody, or Control.’” The Commentary recommends adopting the “legal right” test to analyze the enforcement of subpoena and document...

Producer Sponsors Not Moving Forward on Alaska LNG Project
, August 30, 2016
Alaska Dispatch News reports that at a hearing before Alaska state legislators, ExxonMobil said it will not move forward with the front-end engineering and design, or FEED phase of development of the Alaska LNG Project, which was set to start in 2017 and was expected to cost up to $2 billion....

Study: Alaska LNG Project Too Expensive to be Competitive
, August 30, 2016
Alaska Public Media reports that consulting firm Wood Mackenzie has released a study finding that in its current form, the Alaska LNG Project is too expensive to be competitive with other LNG projects proposing to serve north Asian markets. The report offers options to reduce the costs of the...

Treasury Announces 2016-2017 Regulatory Agenda for Employee Benefits
Brenna M. Clark,Adam B. Cohen,Brittany Edwards-Franklin,Michael A. Hepburn,W. Mark Smith, August 30, 2016
The principal regulators of U.S. employee benefits have recently published updates to their guidance plans for the coming months.

U.S. LNG Cargo Reaches China Via Expanded Panama Canal
, August 30, 2016
MarketWatch reports that the first shipment of LNG produced from the lower 48 U.S. states to reach China was shipped from the Sabine Pass LNG terminal in Cameron Parish, La., passed through the expanded Panama Canal, and arrived at the Yantian Port in southern China on Monday. The report states...

Corpus Christi Liquefaction and Sabine Pass LNG File Construction Progress Reports
, August 24, 2016
Corpus Christi Liquefaction (CCL) and Sabine Pass LNG (SPL) have filed reports with FERC covering construction activities at their LNG export terminals through July 2016. For its liquefaction and LNG export terminal under construction at Corpus Christi, Texas, CCL reports that engineering has...

East Kentucky Power Invests $2.9 Million in Landfill Production Expansion
, August 24, 2016
East Kentucky Power Cooperative (East Kentucky Power) is expanding the capacity of its landfill gas-to-electric power plant next to the Bavarian Landfill in Boone County, Kentucky. The $2.9 million expansion will increase power production to 4.6 MW and is expected to be completed before the end of...

ISDA Publishes Variation Margin Protocol
Brian Barrett,James M. Cain,Catherine M. Krupka,David T. McIndoe,Mark D. Sherrill, August 24, 2016
On August 16, 2016, the International Swaps and Derivatives Association, Inc. (ISDA) published the ISDA 2016 Variation Margin Protocol (VM Protocol). The VM Protocol is intended as a tool to help market participants that will be subject to regulatory variation margin requirements,1 and their...

Oregon Tax Court Rules Electricity Sales to California Purchasers May Not Be Sourced to Oregon
Eric J. Coffill,Michael J. Kerman, August 24, 2016
On remand from the Oregon Supreme Court, the Oregon Tax Court ruled that receipts from sales of electricity to California purchasers cannot be sourced to Oregon. The Oregon Supreme Court had ruled in Powerex Corp. v. Dept. of Rev., 357 OR. 40 (2015) that sales of electricity are sales of tangible...

Venture Global LNG Closes Additional $15 Million Funding Deal
, August 24, 2016
Venture Global LNG, Inc., announced that it has closed a fifth round of equity investment, raising additional capital of $15 million and bringing the total capital raised to date to over $280 million. The proceeds will fund Venture Global LNG’s proposed 10 million tonnes per annum (MTPA)...

Additional LNG Export Authority Sought for Lake Charles Terminal
, August 19, 2016
Lake Charles Exports, LLC and Lake Charles LNG Export Company, LLC each have filed applications for authority to export an additional 121 Bcf/year of LNG from the proposed export terminal at Lake Charles, La (Lake Charles Terminal). The companies propose to export the LNG to Free Trade Agreement...

Cooperatives Financing Efficiency Upgrades through Opt-in Tariffs
, August 19, 2016
Smaller, rural cooperatives have been experimenting with a model that gets around a customer’s inability or unwillingness to take on debt or invest in energy efficiency upgrades through offering a voluntary on-bill tariff. Cooperatives have been able to lead this innovation because...

Department of Energy to Award $34MM for Cybersecurity Projects
, August 19, 2016
The U.S. Department of Energy announced its plan to award $34 million for projects aimed at developing technologies and tools to increase cyberattack protection for the country’s energy infrastructure. The National Rural Electric Cooperative Association is receiving funding for a technology...

FERC Dismisses Downeast LNG Applications
, August 19, 2016
FERC issued an order today dismissing and terminating Downeast LNG (Downeast) and affiliates’ applications for a bidirectional import/export LNG terminal and associated pipeline facilities near Robbinston, Maine. FERC stated: “Downeast’s project has been before the Commission in...

Ford Announces Commercial Rollout of Driverless Cars By 2021
, August 19, 2016
Ford recently announced plans to mass produce driverless cars for commercial operation in ride-hailing services by 2021. Ford further stated that these new vehicles will vary significantly from vehicles on the road today by omitting steering wheels, gas pedals and brake pedals. As part of its plan,...

In Case You Missed It, A New Act Amends Wisconsin’s Managed Forest Law
Evie M. Hightower, August 19, 2016
On April 14, 2016, Governor Scott Walker signed into law Wisconsin Senate Bill 434, a bill that significantly amends the Managed Forest Law (Sections 77.80 to 77.91, Wis. Stats.), thereby enacting the 2015 Wisconsin Act 3581 (the Act). Wisconsin legislators created the Managed Forest Law (MFL)...

Natural Gas Set Electricity Record
, August 19, 2016
Despite an increase in price in recent months, the Energy Information Administration (EIA) is reporting that the amount of electricity produced by natural gas hit 4,950 gigawatt-hours per day in July. This is 9 percent higher than the previous record set in July 2015. Most of the growth came in the...

Oklahoma Cooperative Executes Power Purchase Agreement to Receive Power from Cooperative
, August 19, 2016
Northeast Oklahoma Electric Cooperative (NEOEC) terminated its relationship with Grand River Dam Authority and has executed a power purchase agreement for its members to receive electricity from KAMO Electric Cooperative. NEOEC says the move will allow the members to receive electricity at a lower...

State to Take Over Alaska LNG Project
, August 19, 2016
Alaska Dispatch News reports that Alaska Gasline Development Corp. (AGDC) and the producer sponsors of the proposed Alaska LNG Project, ExxonMobil, ConocoPhillips and BP, “are working ‘cooperatively’ on a plan to turn over leadership of the project to Alaska,” according to...

Transco Proposes Pipeline to Serve Corpus Christi and Freeport LNG Terminal Customers
, August 19, 2016
Transcontinental Gas Pipe Line (Transco) has filed an application with FERC to construct and operate its Gulf Connector Expansion Project, which would provide 400,000 dt/day of firm transportation service to Corpus Christi Liquefaction, LLC (CCL) and 75,000 dt/day of firm transportation service to...

Day 4: Rain and Road Work
, August 17, 2016
9:54 A.M., St. Charles, Missouri. About 13 hours of drive time to go. I hit rain for the first time during the trip, and the windshield wipers activate without my touching any of the controls. While this is not that unique as new cars go, the wipers not only turn on but completely adjust based on...

Dominion Cove Point LNG Export Terminal 67% Complete
, August 17, 2016
Dominion Resources announced that its subsidiary Dominion Cove Point LNG’s liquefaction and export terminal at Lusby, Md. is now 67% complete and “continues on time and on budget for a late 2017 in-service date.”

Opting-In: Treasury Regulations Provide Rules for Electing into the New Partnership Audit Regime Early
Robert S. Chase,Reginald J. Clark,Thomas A. Cullinan,Joseph M. DePew,Daniel R. McKeithen, August 17, 2016
As reported in a prior Sutherland Legal Alert, the Bipartisan Budget Act of 2015 (the 2015 Budget Act) makes significant changes to the procedural rules governing federal income tax audits and judicial proceedings that apply to partnerships and other entities (such as limited liability companies or...

Rethinking the Term “Autopilot” in the Wake of Chinese Crash
, August 17, 2016
A recent car crash in Beijing has caused Tesla to reconsider the use of the word “autopilot” for its Model S sedan. The driver, who had activated the autopilot feature at the time of the crash, complained that the company had misled them about its capabilities. Following this complaint,...

Sabine Pass LNG to Begin Commissioning of Train 3
, August 17, 2016
Sabine Pass LNG has filed a request with FERC for authorization to introduce fuel gas in order to begin commissioning activities for liquefaction Train 3 at its LNG export terminal at Cameron Parish, La. Sabine Pass LNG requests approval to introduce fuel gas to Train 3 by August 19, 2016.

Day 2: Changing Lanes
Michael R. Nelson, August 15, 2016
2:47, P.M. Richland, Utah. We are about 1/5 the way across the country. It’s a big place! Automated features do decrease driver fatigue but using new technology and of course driving in new territories add to the effort.

Day 2: Leaving Las Vegas
Michael R. Nelson, August 15, 2016
Just outside of Vegas. We will just stop to refill battery. Nevada allows Level 3 driving while on a highway. Oddly on this section of Route 15, the lanes are not that clearly marked. Charlie seems to be struggling a little bit on staying in the center of the lines it is having a hard time seeing....

Day 2: Pit Stop
Michael R. Nelson, August 15, 2016
11:07 A.M. What is a little bit of an unexpected pleasure is the rest stops to charge the battery. The Tesla charge last about 300 miles but the Tesla real charging stations are about 100 miles apart so you have to stop more frequently than you would for a gas station. This charging station is in...

Day 2: Travels with Charlie
Michael R. Nelson, August 15, 2016
Yesterday we started the journey by heading out of Barstow, California at 5:30 pm driving northeast on Route 15. It was not ideal. Traffic on a Friday night in a L.A. rush hour on “the 5” was a bear.

Day 3: There’s an App for That
Michael R. Nelson, August 15, 2016
Starting off just outside of Denver. 42 degrees. I am charging Charlie and Drew is getting a few last winks in.

Tesla Crash in Beijing
, August 15, 2016
Telsa has reported that one of its vehicles was involved in collision while in auto pilot mode. The accident took place in Beijing last week when a Tesla model hit a parked car, causing vehicle damage but no injuries. Tesla states the driver’s hands were not detected on the steering wheel....

White House Cyber Commission Issues Requests for Information
, August 15, 2016
The White House’s Commission on Enhancing National Cybersecurity has announced in a Federal Register Notice that it is seeking information on a variety of cybersecurity topics. The Notice indicates that the Commission is seeking information on topics including critical infrastructure...

Cyber Storm V Highlights Need for Greater Info-sharing and Formalized Incident Response
, August 11, 2016
Results from the Department of Homeland Security’s (“DHS”) “Cyber Storm V” national exercise revealed that challenges remain around information and cyber threat indictor sharing, and that a plan for widespread cyber response would help improve response from government...

Federal Judge Dismisses Class Action Arising from Data Breach
, August 11, 2016
A D.C. federal judge has dismissed a putative class action against CareFirst BlueCross BlueShield that arose from a 2014 data breach. The judge determined that the alleged injuries suffered by the seven named plaintiffs failed to establish standing to sue, finding that “merely having...

Ten Things You Should Know About the 2016 Uniform Unclaimed Property Act
Wilson G. Barmeyer,Holly H. Smith,Phillip E. Stano,Steuart H. Thomsen,Mary Jane Wilson-Bilik, August 11, 2016
The 2016 Uniform Unclaimed Property Act (2016 Act) was adopted unanimously by the Uniform Law Commission (ULC) in a 49-0 vote at its 2016 summer meeting. The adoption of the revised model law is a significant step forward for the new 2016 Act, which has been under development by the ULC for more...

Three Coops Top J.D. Power Electric Utility Residential Customer Satisfaction Study
, August 11, 2016
For the second consecutive year, Central Florida-based SECO has topped the J.D. Power Electric Utility Residential Customer Satisfaction Study (J.D. Power Study). SECO’s customer satisfaction score of 769 was the highest recorded score not only among the coops but the entire J.D. Power Study,...

White House Issues Guidance Advising Agencies to Assess Climate Change in NEPA Reviews
Reginald J. Clark,Jay Holloway,Susan G. Lafferty,Peter Ligh,David M. McCullough, August 11, 2016
On August 1, the White House Council on Environmental Quality (CEQ) issued its final guidance for federal agencies on considering greenhouse gas (GHG) emissions and the effects of climate change in National Environmental Policy Act (NEPA) reviews.1 This final guidance comes after the first draft...

Coops Prominent on Solar Energy Top 10 List
, August 09, 2016
Electric cooperatives are major contributors to a surge of solar energy additions in the United States, according to an industry study. A trio of coops ranks among the top 10 utilities in cumulative solar watts per customer in a recent industry ranking.

EPA Denies Request to Reconsider MATS Startup-Shutdown Rules
, August 09, 2016
Last Friday the U.S. Environmental Protection Agency (EPA) denied a petition filed by environmental groups requesting that the EPA reconsider changes it had made to its Mercury and Air Toxics Standards (MATS) rule. The specific regulations at issue, which are now final, allowed certain operators of...

Electric Coops Fuel Rural Broadband Growth
, August 09, 2016
Electric cooperatives are helping to bring high-speed internet access to rural areas. Today, about 40 electric coops offer or are in the process of building networks to provide high-speed internet service, compared with just one in 2010.

Two Wisconsin Coops Lead Charge on New Solar Project
, August 09, 2016
A new solar project being developed in Wisconsin will serve the state’s electric cooperatives, providing 15 megawatts of capacity. The “Sunflower II” array, to be located in Hammond, will be interconnected into the distribution system of St. Croix Electric Cooperative, which has...

Auto Insurers, Buckle Up — Automated Tech Is Already Here
, August 08, 2016
Many auto insurers have developed a false sense of security based on a belief that vehicles with automated driving technology are still several years off, but recent events have demonstrated that the public is buying and driving cars that have a high degree of automation. Auto insurers, whose...

Power Play: Energy Utilities Score Big as FCC Approves Use of Robocalls and Texts Under the TCPA; Schools Get an Assist
Thomas M. Byrne,Juan C. Garcia,Patricia A. Gorham,Phillip E. Stano,Rocco E. Testani, August 08, 2016
Late last week, the Federal Communications Commission (FCC) issued a long-anticipated declaratory order, ruling that utility companies may make robocalls and send automated texts to their customers concerning matters closely related to the utility service, without violating the Telephone Consumer...

Recent Accidents Raise Questions About Self-Driving Cars
, August 08, 2016
Recent news of accidents involving cars in automated driving mode have provoked numerous questions and speculation concerning the viability of automated driving. There, however, has been limited commentary focused on how these accidents, though unusual with respect to the technology involved, are...

Bear Head LNG Feeder Pipeline Approved
, August 05, 2016
The Nova Scotia Utility and Review Board has approved construction of the proposed Bear Paw Pipeline, a 62.5-km pipeline, which would interconnect with the Maritimes and Northeast Pipeline (MN&P) mainline and other gas supply sources near Goldboro, Nova Scotia, and the proposed Bear Head LNG export...

Carib Energy To Supply Puerto Rico Flour Plant with LNG
, August 05, 2016
Carib Energy (USA) LLC, a subsidiary of Crowley Maritime Corp. (Crowley), has been awarded a multi-year contract to supply containerized LNG shipped from Crowley’s Jacksonville, Fla. terminal to Molinos de Puerto Rico, “the Caribbean arm of Ardent Mills LLC., the territory’s...

NHTSA To Release Automated Driving Guidelines by End of Summer
, August 05, 2016
The National Highway Traffic Safety Administration (“NHTSA”) recently announced that the organization will release guidelines for vehicles with automated driving technology by the end of the summer. The guidelines will address safety standards to aid manufacturers in the development and...

Unfair Apportionment in Arkansas: ALJ Requires Taxpayer to Use Marked-Based Method to Apportion Services Income
Chris M. Mehrmann,Carley A. Roberts, August 05, 2016
An administrative law judge (ALJ) of the Arkansas Department of Finance and Administration upheld the denial of a taxpayer’s corporate income tax refund claim, after the taxpayer attempted to amend its returns to apply the cost of performance method of sourcing income.

EPA Cuts to Landfill Methane Emissions Create New Opportunities for Credit Trading and Gas¿to-Energy Projects
Jay Holloway,Susan G. Lafferty,David M. McCullough,Ram C. Sunkara,Liz Williamson, August 03, 2016
On July 14, the Environmental Protection Agency (EPA) issued its latest set of methane regulations as part of the Obama Administration’s Climate Action Plan: Strategy to Reduce Methane Emissions. The Administration issued two rules that govern municipal solid waste (MSW) landfills—New...

Patronage Capital Case Successfully Removed to Federal Court
Matthew J. Bowness,Tracey K. Ledbetter,James A. Orr, August 03, 2016
In December 2015, two plaintiffs filed a class action complaint against Pennsylvania’s REA Energy Cooperative, Inc. The complaint, which was filed on behalf of current and former cooperative members, asserted that REA must retire approximately $53 million in allocated patronage capital.

Pressure Builds for EPA and CFTC to Investigate Manipulation in the RIN Markets
Catherine M. Krupka,Susan G. Lafferty,David M. McCullough,David T. McIndoe,R. Michael Sweeney, August 03, 2016
In what could foreshadow even further scrutiny of trading activities in the Renewable Identification Number (RIN) market, the Renewable Fuels Association (RFA) has asked the Environmental Protection Agency (EPA) and the Commodity Futures Trading Commission (CFTC) to investigate potential...

DOE Authorizes Non-FTA LNG Exports from Lake Charles Terminal
, August 02, 2016
The U.S. Department of Energy issued two orders on Friday authorizing Lake Charles LNG Export Company, LLC and Lake Charles Exports, LLC to export a total of 730 Bcf/year (2.0 Bcf/day), or 15 million metric tons per annum, of LNG over 20 years to nations without a Free Trade Agreement (non-FTA)...

Three Million Reasons to Understand the New Federal Rules: Deleting Emails Results in Multi-Million-Dollar Rule 37(e) Sanction
Francis X. Nolan,Robert D. Owen,Jim L. Silliman,Phillip E. Stano, August 02, 2016
On July 12, a federal district court imposed a $3 million punitive sanction pursuant to the recently amended Federal Rule of Civil Procedure 37(e). GN Netcom, Inc. v. Plantronics, Inc., No. CV 12-1318-LPS, 2016 WL 3792833 (D. Del. July 12, 2016). The sanction was imposed on a corporate defendant...

Tokyo Gas Looking to Swap U.S. LNG Supplies with Europe
, August 02, 2016
Bloomberg reports that to reduce shipping times and costs, Tokyo Gas is in talks with unnamed European companies to swap Tokyo Gas’s LNG supplies to be produced at Dominion Cove Point LNG’s terminal in Lusby, Md. with European companies’ LNG supplies produced in Asia. According to...

Big Rivers Announces 10-year Power Supply Contract with KyMEA
, August 01, 2016
Big Rivers Electric Corporation (Big Rivers), an electric generation and transmission cooperative, finalized a 10-year power supply contract with the Kentucky Municipal Energy Agency (KyMEA). Under the contract, Big Rivers will provide between 75 and 100 MW of electricity beginning June 2019 with...

FERC Releases FEIS for Golden Pass LNG Export Terminal
, August 01, 2016
FERC Staff has released its Final Environmental Impact Statement (FEIS) for Golden Pass LNG’s proposed liquefaction and export terminal on the Sabine-Neches Waterway in Jefferson County, Texas, and the interconnected pipeline. Staff concludes that if the project is constructed and operated in...

NAIC Life Insurance and Annuities (A) Committee Adopts Revisions to Actuarial Guideline 49
Eric A. Arnold,Frederick R. Bellamy,Thomas E. Bisset,Dodie C. Kent,Clifford E. Kirsch, August 01, 2016
On July 27, 2016, the Life Insurance and Annuities (A) Committee adopted revisions to Actuarial Guideline 49 (AG 49) to address situations where indexed universal life (IUL) insurance policies make available multiple index account options with different account charges (the dual account issue). The...

USDA Offers Loan Guarantees for Coops
, August 01, 2016
The United States Department of Agriculture (USDA) will provide up to $250 million in loan guarantees for commercial-scale refineries and manufacturing facilities as long as they focus on biofuels and renewable chemicals. Applicants must provide at least 20 percent of the funding for eligible...

Cooperative Invests in Smart Lighting Product Company
, July 29, 2016
CMA Ventures, a subsidiary of Central Iowa Power Cooperative, has participated in a Series B investment round in Igor, a Des Moines startup which has developed a “power-over-ethernet” product that can be used to help companies better manage lighting and electricity in their buildings.

New York’s New BSA/AML Rule Imposes Monitoring, Filtering and Certification Requirements
Brian Barrett,Kristin Ward Cleare, July 29, 2016
On June 30, 2016, the New York Department of Financial Services (DFS) adopted a new anti-terrorism and anti-money laundering (AML) regulation (Final Rule) that builds on federal anti-money laundering requirements to address what the DFS called “shortcomings” in current practices...

Regulation of Autonomous Vehicles
, July 29, 2016
A major issue to be addressed as autonomous vehicles come onto the market is who will regulate them. Traditionally, vehicle safety has been within the purview of federal governments, but states have regulated traffic laws. Some believe that increased uniformity will be required when cars no longer...

Shell Delays FID for Lake Charles LNG Export Terminal
, July 29, 2016
Reuters reports that Shell has indefinitely delayed a final investment decision (FID) for its affiliate BG Group’s proposed Lake Charles LNG export terminal at Lake Charles, La. In February, Shell Canada, primary sponsor of LNG Canada, indefinitely postponed an FID on its proposed LNG export...

Don't Take This Personally: Wisconsin Court Holds State Does Not Have Jurisdiction Over Mississippi DOR
Charles C. Capouet,Jonathan A. Feldman, July 28, 2016
The Wisconsin Court of Appeals held that Wisconsin courts lacked personal jurisdiction over the Mississippi Department of Revenue so as to subject it to a lawsuit in the state. An individual taxpayer asserted that the Mississippi DOR had filed a fraudulent tax lien against him. The taxpayer moved...

Insurers Preparing for a World of Autonomous Vehicles
, July 28, 2016
When autonomous vehicles become ubiquitous, what will be the need for car insurance? That is the question auto insurers are beginning to face as autonomous vehicle technology promises safer roads and fewer accidents. At least one insurer, State Farm, is participating in research on driverless car...

Cooperative CEO Urges Congress to Authorize FBI to Assist in Identifying Utility Insider Threats
, July 27, 2016
On July 12, before the Senate Energy Subcommittee, Duane Highley, CEO of Arkansas Electric Cooperative Corp., requested that Congress consider legislation that would allow the FBI to assist in background checks for personnel that perform critical functions. Highley cautioned the senators to avoid a...

Corpus Christi Liquefaction Files Construction Progress Report
, July 27, 2016
Corpus Christi Liquefaction has filed a report with FERC covering construction progress at its liquefaction and LNG export terminal near Corpus Christi, Texas through June 2016. The report states that engineering has progressed to 98.4%, procurement has progressed to 50.6%, Bechtel’s direct...

Cybersecurity Best Practices in the Auto Industry
, July 27, 2016
The Automotive Information Sharing and Analysis Center (Auto-ISAC) has released cybersecurity best practices to protect against risks in the auto industry. Auto-ISAC identified seven functions that cover the various ways in which cybersecurity threats affect the “motor vehicle...

EKPC Planning 60-Acre Solar Farm
, July 27, 2016
East Kentucky Power Cooperative (EKPC) has announced plans to build a solar project consisting of 32,000 photovoltaic on 60 acres next to its main office. EKPC will allow customers to purchase licenses to receive power from the project and receive credits on their monthly bills for doing so,...

Price Optimization: Courts Put Regulators in the Driver’s Seat
, July 27, 2016
Earlier this year, courts in California addressed class actions brought by customers claiming to be harmed by their auto insurers’ use of price optimization and big data in setting auto insurance rates. In both cases, the court stayed the class action and deferred to the regulator under the...

Questions Remain Regarding Impact of Brexit on Fund Managers
, July 27, 2016
Although the dust has somewhat settled following the historic “leave” vote on June 23, 2106, in which voters in the United Kingdom elected to leave the European Union, many questions remain. Of particular importance to fund managers based in the UK is the question of Brexit’s...

Second Sabine Pass LNG Cargo Lands in Europe
, July 27, 2016
Platts reports that a second shipment of LNG from Cheniere Energy’s Sabine Pass LNG terminal in Cameron Parish, La. has arrived in Europe at Spain’s Murgados LNG import terminal. The first cargo landed at Portugal’s Sines terminal at the end of April. According to the report, to...

Voice Over Internet Protocol and the TCPA: The Hidden Pothole on the Information Super Highway
Thomas M. Byrne,Juan C. Garcia,Patricia A. Gorham,Phillip E. Stano,Rocco E. Testani, July 27, 2016
Since the enactment of the Telephone Consumer Protection Act (TCPA) in 1991, technological advances in the way people communicate have often outpaced the ability of the courts and the Federal Communications Commission to reconcile those advances with the TCPA. The proliferation of cell phones and...

Eagle LNG Partners Jacksonville Granted Long-Term FTA Export Authority
, July 25, 2016
The U.S. Department of Energy (DOE) has issued an order granting Eagle LNG Partners Jacksonville LLC (Eagle LNG) authority to export 49.8 Bcf/year (0.14 Bcf/day) of LNG from its proposed production, storage, and export facility on the St. Johns River in Jacksonville, Fla. Eagle LNG is authorized to...

Venture Global Plaquemines LNG Granted Long-Term FTA Export Authority
, July 25, 2016
The U.S. Department of Energy (DOE) has issued an order granting Venture Global Plaquemines LNG, Inc. (Plaquemines LNG) authority to export 1,240 Bcf/year (3.4 Bcf/day) of LNG from its proposed liquefaction and export terminal near mile marker 55 on the Mississippi River in Plaquemines Parish, La....

Cybersecurity and Allocation of Liability Are Top Concerns Among Risk Managers
, July 22, 2016
A recent survey conducted by Munich Re found that, where autonomous vehicles are involved, the top concern for corporate risk managers is cybersecurity. More than half of the corporate risk managers surveyed (55%) named cybersecurity, which included potential hacks into a vehicle’s data...

Tennessee Coops Encouraged by Findings and Recommendations of Tennessee Department of Economic and Community Development
, July 22, 2016
The Tennessee Department of Economic and Community Development recently issued a report finding that regulatory barriers hinder electric cooperatives from providing broadband internet access to their members. The Tennessee Electric Cooperative Association issued a press release praising the report,...

Fortis LNG Deal Terminated After HECO/NextEra Merger Denied
, July 21, 2016
Pacific Business News reports that Hawaii Electric has terminated its contract for LNG supplies from Fortis Hawaii Energy Inc. The deal was contingent on Hawaii Public Utilities Commission approval of NextEra’s acquisition of Hawaii Electric, which was denied last week.

Hawaii Consumer Groups Push for Coop Utility after Failed Merger
, July 21, 2016
Since a merger between NextEra Energy and Hawaiian Electric failed, consumer groups in Hawaii are considering next steps for the state’s largest utility and creating the state’s second electric coop. The island of Kauai currently has an electric coop that was formed in 2002 when it...

Insurers Should Actively Monitor Automated Driving Technology Developments
, July 21, 2016
Automated technology will bring both new challenges and new opportunities for insurers. Although insurers may face the challenges associated with a shrinking market where manufacturers absorb more liability risk, insurers also have new opportunities. For example, such opportunities include new and...

U.S. LNG Supplies to be First Through Expanded Panama Canal
, July 21, 2016
LNG World Shipping reports that the first large LNG carrier to pass through the expanded Panama Canal will be the Shell-chartered Maran Gas Apollonia carrying an LNG cargo loaded at Cheniere Energy’s Sabine Pass LNG terminal in Cameron Parish, La. The cargo is expected to pass through the...

Colorado Coop Offers Ultra-Fast Internet Access
, July 20, 2016
Colorado’s Delta-Montrose Electric Association plans to provide one gigabit broadband internet to members this winter. It will take approximately five years for the cooperative to construct the facilities necessary to provide access to all of its members, however. Doing so will require...

DOE Approves Additional Non-FTA Exports from Cameron LNG Terminal
, July 20, 2016
Sempra Energy announced that Cameron LNG has received authorization from the U.S. Department of Energy (DOE) to export an additional 1.41Bcf/day of LNG from its proposed liquefaction and LNG export terminal expansion project in Cameron Parish, La. to countries without a Free Trade Agreement...

Following Halo Decision, Power Meter IP Suit Settles
, July 20, 2016
Denton County Electric Cooperative Inc. and other energy companies have settled patent infringement allegations (subscription required) involving power meters following the Supreme Court’s June Halo Electronics, Inc. v. Pulse Electronics, Inc. decision.

GRE to Retire North Dakota Coal Plant
, July 20, 2016
Minnesota generation and transmission cooperative Great River Energy (GRE) has decided to retire its Stanton Station, a coal plant located near Bismarck, North Dakota. The 189-megawatt plan served GRE’s customers in Minnesota.

Missouri Coop Selected for USDA Small Business Program
, July 20, 2016
Bourbon, Missouri-based Crawford Electric Cooperative has been selected to participate in a USDA’s Rural Economic Development Loan and Grant (REDLG) program. Through the REDLG program, the USDA makes interest free loans to utilities that they in turn lend to local businesses to promote...

NRECA Partners With Department of Energy
, July 20, 2016
The National Rural Electric Cooperative Association (NRECA) will be partnering with the Department of Energy and the American Public Power Association to enhance protection of the electric grid from attack. The partnership will give the nation’s electric cooperatives access to cybersecurity...

U.S. Customs Aims to Increase Enforcement of the Jones Act
David A. Baay,Jacob Dweck,Susan G. Lafferty,David M. McCullough,Ronald W. Zdrojeski, July 20, 2016
In what could foretell a significant increase in the enforcement of the coastwise trade provisions of the Jones Act, U.S. Customs and Border Protection (Customs) announced on July 18 the creation of the National Jones Act Division of Enforcement (JADE). The Jones Act’s coastwise trade...

Court Backs FERC on Dominion Cove Point LNG Terminal
, July 19, 2016
The U.S. Court of Appeals for the D.C. Circuit has issued an opinion rejecting EarthReports’, Sierra Club’s and the Chesapeake Climate Action Network’s joint appeal of FERC’s orders, which authorized construction and operation of the Dominion Cove Point LNG export terminal...

Court Remands BP Energy Appeal of Dominion Cove Point LNG Capacity Allocation
, July 19, 2016
The U.S. Court of Appeals for the D.C. Circuit has issued an opinion remanding to FERC for further explanation how FERC’s orders, which permitted Statoil Natural Gas, but not BP Energy, to turn back certain capacity held on Dominion Cove Point LNG’s system, were not unduly...

Court of Appeals Hears National Federation of the Blind’s Challenge to DOT Rule Regarding Blind-Accessible Kiosks at Domestic Airports
Lewis S. Wiener,Amy Xu, July 19, 2016
On June 29, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard the National Federation of the Blind’s (NFB) challenge to a Department of Transportation (DOT) Final Rule regarding air carriers’ duty to provide blind-accessible kiosks at domestic airports. The...

Parts Supplier Settles Price-Fixing Claims for more than $250M
, July 19, 2016
Auto parts supplier Denso Corp. has agreed to pay more than $250 million to settle price-fixing claims in a multi-district litigation. According to settlement documents filed in the District Court for the Eastern District of Michigan, Denso will pay approximately $193.8 million to car buyers and...

Analysts: U.S. LNG Supplies Not Expected in Asian Markets Anytime Soon
, July 15, 2016
Citibank analysts predict that with the current glut of LNG in the global market and resulting low prices, U.S. LNG supplies will not be shipped to Asia anytime soon even with the widened Panama Canal. The widened canal can now accommodate larger ships carrying LNG. “The Panama Canal...

Annova LNG Files Application for Brownsville Export Terminal
, July 15, 2016
Annova LNG Common Infrastructure, LLC, and affiliates (Annova LNG) have filed an application with FERC to construct and operate mid-scale liquefaction and LNG export terminal facilities on the Brownsville Ship Channel in Cameron County, Texas. The project will include six liquefaction trains, each...

FERC Releases Project Update for Port Arthur LNG Export Terminal
, July 15, 2016
FERC has released an update on its review of Port Arthur LNG’s proposal to construct liquefaction, LNG export terminal and interconnected pipeline facilities at Port Arthur, Texas. FERC is currently conducting its pre-filing environmental review process for the project and will provide...

Maritime Administration Releases DEIS for Delfin LNG Application
, July 15, 2016
The U.S. Maritime Administration has released its Draft Environmental Impact Statement (DEIS) for Delfin LNG’s application for a license to construct and operate a deepwater port LNG export terminal and interconnected pipeline. The proposed Delfin LNG export terminal would be located in...

SEC Issues Guidance on Business Continuity Planning for Registered Investment Companies
Cynthia R. Beyea,Steven B. Boehm,Michael B. Koffler,Cynthia M. Krus,Lisa A. Morgan, July 15, 2016
On June 27, the staff of the Securities and Exchange Commission’s (Commission or SEC) Division of Investment Management (IM) issued a Guidance Update on business continuity planning for registered investment companies (funds).1 The Guidance Update provides the staff’s view on what funds...

Another Federal Agency Probing Tesla Crash
, July 14, 2016
The National Transportation Safety Board (NTSB) has assigned a team of investigators to look into the May 7 fatal crash in Willliston, Florida, involving a Tesla vehicle operating in Autopilot mode. Notably, the NTSB normally investigates accidents involving trains, planes, buses, and ships. The...

Appellate Court Upholds FERC Ruling Regarding “Right of First Refusal”
, July 14, 2016
The U.S. Court of Appeals for the D.C. Circuit upheld a rule preventing utilities from relying on a “right of first refusal” for transmission projects in Southwest Power Pool’s region, opening up competitive bidding. Oklahoma Gas & Electric Co. and other utilities sued the...

Argentina Relaxes Restrictions on Ownership of Rural Properties by Foreigners
Victor P. Haley, July 14, 2016
On June 29, 2016, the Argentine executive branch enacted decree 820/2016 (the New Decree), easing certain restrictions imposed under existing law on the acquisition and leasing of rural lands by foreign individuals and legal entities (Law No. 26,737, enacted in 2011 by the former administration,...

Automated Vehicle Hacking Brings New Risks to the Road
, July 14, 2016
Vehicle technology is advancing at a rapid pace, with fully automated driving the ultimate goal. The sensors, data connections and software that will ultimately revolutionize driving also create cyber-vulnerabilities that present unique safety and privacy concerns not previously experienced in the...

Deferred No Longer: Treasury and IRS Issue Long-Awaited 409A Guidance
Brenna M. Clark,Adam B. Cohen,Brittany Edwards-Franklin,Michael A. Hepburn,Cristopher D. Jones, July 14, 2016
On June 21, the Treasury Department and the Internal Revenue Service (IRS) issued proposed Internal Revenue Code (Code) section 409A regulations, modifying existing proposed and final section 409A regulations regarding deferred compensation arrangements. The proposed regulations consist of 19...

EU Leaders Approve EU-U.S. Privacy Shield
, July 14, 2016
The European Union’s (EU) Article 31 committee, which is made up EU member states, has voted to approve the EU-U.S. Privacy Shield. This Trans-Atlantic Privacy Shield data transfer procedure replaces the safe harbor data transfer arrangement that was struck down by the European Court of...

EU-U.S. Privacy Shield Adopted
, July 14, 2016
The European Commission has adopted the EU-U.S. Privacy Shield data transfer procedure, which replaces the safe harbor arrangement that was struck down by the European Court of Justice in October 2015. The Privacy Shield provides for additional protection of personal data, including dispute...

Environmental Compliance Costs Rise above $6 Billion
, July 14, 2016
The Energy Information Administration reports that power plant operators nationwide have spent at least $6.1 billion to comply with new environmental regulations, including the Mercury and Air Toxics Standard. Operators have also retired 20 gigawatts of coal generation capacity during the period...

FERC Authorizes Increased Production at Freeport LNG Facility
, July 14, 2016
FERC has issued an order authorizing Freeport Liquefaction to increase the authorized maximum peak day LNG production level at its liquefaction and export terminal facility under construction on Quintana Island in Brazoria County, Texas. The facility was authorized to increase its production from...

Federal Appellate Court Overturns Minnesota Law Restricting Imported Power
, July 14, 2016
The 8th U.S. Circuit Court of Appeals upheld a decision finding that a Minnesota law that prohibited sales of coal-based generation into a regional market violated federal statutes and interfered with interstate commerce. Basin Electric Power Cooperative and Minnkota Power Cooperative argued that...

LNG Canada Delays FID for Proposed Kitimat B.C. Export Terminal
, July 14, 2016
CBC News reports that LNG Canada has indefinitely delayed making a final investment decision (FID) on its proposed liquefaction and LNG export terminal near Kitimat, British Columbia (B.C.) due to global energy market conditions. According to the report, LNG Canada CEO Andy Calitz recently told a...

Storm Slows Urea Plant Progress
, July 14, 2016
Construction progress at a urea plant owned by a Basin Electric Power Cooperative subsidiary was set back when a storm with wind speeds clocking at almost 80 miles per hour hit the site over the holiday weekend. The plant, when complete, will produce 380,000 tons of urea annually.

Technical Corrections to Best Interest Contract and Principal Transaction Exemptions
Eric A. Arnold,Wilson G. Barmeyer,Bruce M. Bettigole,Nicholas T. Christakos,Adam B. Cohen, July 14, 2016
The Department of Labor has published technical corrections to two of the exemptions issued in conjunction with its final rule expanding ERISA’s definition of investment advice fiduciary.

Tesla on Autopilot Crashes in Montana
, July 14, 2016
A Tesla Model X traveling from Seattle to Yellowstone National Park on July 9th crashed on a two lane highway near Cardwell, Montana. The motorist and his passenger acknowledged that the vehicle was on Autopilot mode at the time of the collision and that his hands were not on the wheel at the time...

Compact, But No Contract: Minnesota Supreme Court Holds Compact Did Not Create Binding Contractual Obligation
Amy F. Nogid,Hanish S. Patel, July 08, 2016
The Minnesota Supreme Court held that Minnesota’s adoption of the Multistate Tax Compact (Compact) did not create a binding contractual obligation and, as a result, the state’s subsequent repeal of the Compact’s alternative apportionment election provision was not prohibited as...

D.C. Circuit Questions FERC’s Policy Statement on Income Tax Allowances
Paul F. Forshay,Meghan R. Gruebner,Allison E. Speaker,Michael A. Stosser, July 08, 2016
On July 1, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in United Airlines, Inc., et al. v. FERC. This oil pipeline rate case appeal involves SFPP, L.P., a pipeline organized as a limited partnership. In its ruling, the court rejects application of the Federal...

Driftwood LNG Files Draft Resource Reports
, July 08, 2016
Driftwood LNG (DWLNG) has filed draft Resource Reports 1 (General Project Description) and 10 (Alternatives) with FERC as part of the pre-filing environmental review process for its proposed liquefaction and LNG export terminal on the west bank of the Calcasieu River near Carlyss, Calcasieu Parish,...

Eleventh Circuit Holds That Bankruptcy Rules Apply to Adversary Proceedings in District Court, Orders Reinstatement of $6-Million Verdict on Procedural Grounds
, July 08, 2016
When a federal district court oversees adversary bankruptcy proceedings, is the post-trial deadline to request judgment as a matter of law governed by Federal Rule of Civil Procedure 50(b), which allows 28 days to file such a motion—or by Bankruptcy Rule 9015(c), which allows only 14 days?...

Eleventh Circuit Limits SEC’s Claims for Declaratory Judgment and Disgorgement to Five-Year Statute of Limitations
, July 08, 2016
Unless otherwise provided by law, 28 U.S.C. § 2462 ordinarily requires the government to bring any “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture” within five years of the claim’s accrual. In SEC v. Graham, — F.3d —, 2016...

FERC Denies Rehearing of Order Authorizing Lake Charles LNG Export Project
, July 08, 2016
FERC has issued an order denying Sierra Club’s request for rehearing of the order authorizing construction and operation of the Lake Charles LNG export terminal in Calcasieu Parish, La. FERC denied Sierra Club’s arguments that FERC’s National Environmental Policy Act analysis of...

FERC Releases Update on Review of Alaska LNG Application
, July 08, 2016
FERC has released an update on its pre-filing environmental review of the proposed Alaska LNG project. Currently, Alaska LNG is reviewing the comments from FERC and other agencies on its first set of draft resource reports (RRs), as well as comments received during scoping, and incorporating them...

Kit Carson and Tri-State Announce Split
, July 08, 2016
Kit Carson Electric Cooperative (Kit Carson) and Tri-State Generation & Transmission Association (Tri-State) jointly announced that they have reached an agreement that will sever ties between the two organizations and will terminate a wholesale electric service contract. Kit Carson has been a...

Money for Nothing: Massachusetts Appeals Court Finds Intercompany Financing Transactions Did Not Constitute Genuine Indebtedness
Zachary T. Atkins,Charles C. Kearns, July 08, 2016
The Massachusetts Appeals Court upheld an Appellate Tax Board decision disallowing interest expense on certain intercompany financing transactions because the underlying agreements did not establish an “unqualified obligation to repay.” The taxpayers, subsidiaries of a British utility,...

Sabine Pass LNG Cargo Shipped to Spain
, July 08, 2016
Platts reports that a cargo of LNG has left Cheniere Energy’s Sabine Pass LNG terminal in Cameron Parish, La., and is headed to Spain. This is the second shipment of U.S. LNG to Europe, where the LNG will compete with Algerian pipeline gas supplies in Spain and Portugal. According to the...

Washington ALJ Rules Out-of-State Insurance Provider's Marketing Subject to Business & Occupation Tax as Other Services
Jonathan A. Feldman,Alla Raykin, July 08, 2016
An administrative law judge (ALJ) held that a taxpayer’s activities in Washington were not selling, soliciting or negotiating insurance in the state, but rather marketing other in-state insurance companies’ products and receiving commissions from those marketing materials. Accordingly,...

Administration Signals Intent to Challenge Judicial Decision That Struck Down Fracking Rule as Unlawful
David A. Baay,Jim L. Silliman, July 01, 2016
On June 24, the Obama Administration filed its notice of appeal to challenge last week’s federal court decision to strike down the newest regulation over hydraulic fracturing on federal and Indian lands by the Bureau of Land Management (BLM) as being “in excess of its statutory...

Electric Grid Cyberattacks
, July 01, 2016
Utility companies and grids are becoming increasingly vulnerable to cyber attacks. The Manhattan Institute recently released a report warning that although greater grid-Internet connectivity results in greener, smarter grids, these grids are also more likely to be the targets of hackers. The...

New York Issues Two Advisory Opinions Regarding Surplus Lines Insurance
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, July 01, 2016
The New York State Department of Taxation and Finance (Department) issued two advisory opinions determining that unauthorized non-life insurance corporations (here, surplus lines insurance companies) are subject to insurance franchise tax (under N.Y. Tax Law § 1502) instead of premium tax...

Uncertainty of Alaska LNG Project Discussed at State Legislature Hearing
, July 01, 2016
The Alaska Journal of Commerce reports that new Alaska Gasline Development Corp. (AGDC) President and CEO Keith Meyer presented a plan to Alaska’s joint House-Senate Resources Committee to overhaul the financial structure of the proposed Alaska LNG Project. The plan would allow the state to...

Alabama Regulation Requires Software Update: Tax Tribunal Holds Modified Software Is Nontaxable Custom Software
Eric J. Coffill,Hanish S. Patel, June 30, 2016
The Alabama Tax Tribunal held that a taxpayer was entitled to a refund of sales taxes paid on purchases of software that was modified for its exclusive use because it constituted nontaxable custom software. Relying on its regulation, the Alabama Department of Revenue (DOR) denied the refund,...

Court Denies Sierra Club Appeals of Freeport LNG and Sabine Pass LNG Orders
, June 30, 2016
The U.S. Court of Appeals for the D.C. Circuit has issued two opinions denying (1) Sierra Club’s and Galveston Baykeeper’s challenges to FERC orders authorizing Freeport LNG Development, L.P. to construct and operate LNG export terminal facilities at its LNG import terminal on Quintana...

Insurance Coverage for Driverless Cars
, June 30, 2016
Who is liable for accidents involving autonomous vehicles? At least one insurance company in Britain is now offering an auto policy that will cover autonomous and partly automated vehicles. The policy covers accidents caused by malfunctions in the car’s driverless systems, as well as...

Morality and Autonomous Vehicles
, June 30, 2016
The classic “trolley problem” in ethics is now becoming the “autonomous vehicle problem.” The thought experiment asks: A trolley is hurtling towards five helpless people on a track. Do you pull a level to divert the trolley onto another track, hitting only one...

Solar and Wind Prices Expected to Continue to Fall
, June 30, 2016
The cost for solar photovoltaic (PV) generation and onshore wind power is expected to continue to fall and to be approximately 5 to 6 cents per kilowatt hour by the end of the decade, according to a report by the International Renewable Energy Agency. This decrease in cost is largely due to...

Cooperate or Terminate: Second Circuit Protects Companies that Terminate Employees for Failure to Cooperate with Investigations
Bruce M. Bettigole,Patricia A. Gorham,James A. Orr,Peter G. Pappas,Amelia Toy Rudolph, June 28, 2016
On June 16, the U.S. Court of Appeals for the Second Circuit upheld the right of a company to terminate for cause executives who refuse to cooperate with an internal investigation and remain “silent” even with the specter of criminal prosecution looming.

FAA Relaxes Drone Rules; Caution Urged for Coops
, June 28, 2016
The Federal Aviation Administration (FAA) has relaxed rules on commercial use of drones weighing less than 55 pounds. The NRECA is urging caution for coops interested in utilizing the new technology.

South By Southwest: Texas Supreme Court Rejects Processing Exemptions for Oil Company
Charles C. Capouet,Todd A. Lard, June 28, 2016
The Supreme Court of Texas held that an oil and gas exploration and production company’s purchases of casing, tubing, other well equipment, and associated services were not exempt from sales tax under various processing exemptions. Texas provides multiple exemptions from sales tax for certain...

TSCA Reform Presents Solutions and Questions for Industry
Samina M. Bharmal,Jay Holloway,Susan G. Lafferty,David M. McCullough,Liz Williamson, June 28, 2016
On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the first amendments to the Toxic Substances Control Act (TSCA) since its passage in 1976. The amendments significantly change the way that the U.S. Environmental Protection Agency...

Dominion Cove Point LNG Files Construction Progress Report
, June 27, 2016
Dominion Cove Point LNG has filed a report with FERC covering construction progress at its liquefaction and LNG export terminal at Lusby, Md. through May 2016. The report states that engineering is 99.8% complete, engineered equipment procurement is 99% complete, and construction is 38% complete.

Environmental Review of Petronas’s Proposed B.C. LNG Terminal Resumes
, June 27, 2016
Reuters reports that the Canadian Environmental Assessment Agency (CEAA) has resumed its review of the proposed Pacific NorthWest LNG (PNWLNG) project near Lelu Island, British Columbia. Malaysian state oil company Petronas is the primary sponsor of the PNWLNG project. The CEAA review process was...

New York Calling: Phone Card Kiosk Sales Subject to Sales Tax, but Not Telecommunications Excise Tax
Timothy A. Gustafson,Douglas J. Upton, June 27, 2016
The New York State Department of Taxation and Finance issued an Advisory Opinion concluding that a retail operator of kiosks selling various prepaid telecommunication plans and additional telecommunication rights for existing plans was subject to New York sales and use tax collection and remittance...

Brexit Impact on European Patents and Trademarks
Karissa F. Blyth,Peter G. Pappas, June 24, 2016
On June 23, in the popularly-termed “Brexit” referendum, the United Kingdom voted to exit the European Union, a decision which will have wide-ranging effects, including potential effects on intellectual property rights in the UK.

Insurers Aim to Use New Technology To Make Cars “Marketing Machines”
, June 24, 2016
Modern cars capture vast amounts of information about drivers through various computer technologies, tracking where drivers are going, when, and how they are driving. A new study from McKinsey and Company suggests that the future of car insurance lies in harnessing that data: by collecting and...

Rio Grande LNG Files Response to Opposing Parties
, June 24, 2016
Rio Grande LNG and Rio Bravo Pipeline Company, LLC (together, RGLNG) have filed an answer with FERC opposing various entities’ motions to intervene, protests and comments regarding RGLNG’s application to construct and operate a liquefaction and LNG export terminal along Brownsville Ship...

Alaska LNG Project Files Second Draft Resource Reports
, June 23, 2016
Alaska LNG Project has filed with FERC second drafts of Resource Reports 1 (General Project Description) and 10 (Alternatives) as part of FERC’s pre-filing environmental review process. The Alaska LNG Project, sponsored by the Alaska Gasline Development Corporation, BP Alaska LNG LLC,...

FERC Approves Freeport LNG Feeder Pipeline Project
, June 23, 2016
FERC has issued an order authorizing Gulf South Pipeline Company, LP (Gulf South) to construct and operate the Coastal Bend Header Project pipeline facilities which will provide 1.42 Bcf/day of firm gas transportation service to Freeport LNG Development, LP’s liquefaction and LNG export...

Sabine Pass LNG Files Construction Status Report
, June 23, 2016
Sabine Pass LNG filed a report with FERC covering construction progress at its LNG export terminal in Cameron Parish, La. through May 2016. The report states that liquefaction Train 1 substantial completion was achieved on May 27, 2016, and substantial completion for Train 2 is anticipated by late...

Solidifying Claim Construction in Inter Partes Review - Cuozzo Allows Patent Office to Govern the Inter Partes Review Process
Karissa F. Blyth,Ann G. Fort,Robert R.L. Kohse,Peter G. Pappas, June 23, 2016
On June 20, the U.S. Supreme Court’s decision in Cuozzo Speed Technologies, LLC v. Lee, 2016 WL 3369425 (June 20, 2016) upheld the Patent Office’s long-held policy of construing a patent claim according to its broadest reasonable construction even in review and also barred judicial...

State of Alaska May Increase Stake in Alaska LNG Project
, June 23, 2016
KTOO reports that Alaska Governor Bill Walker’s administration is considering increasing Alaska’s stake in the Alaska LNG Project or taking over ownership completely. Currently, the state owns 25% of the project through the Alaska Gasline Development Corporation. BP Alaska LNG LLC,...

USDA Announces New Program to Help Rural Utilities
, June 23, 2016
The United States Department of Agriculture (USDA) announced the new Rural Energy Savings Program (RESP). RESP is a program aimed at helping rural residents conserve energy and save money on their utility bills. The RESP will make available $52 million in interest free loans to rural energy...

DOE Releases April 2016 LNG Export Data
, June 21, 2016
The U.S. Department of Energy’s Office of Fossil Energy has released LNG import and export data for 2016 through April. The data show that in April three commissioning cargoes of domestically produced LNG were exported from the Sabine Pass Liquefaction terminal in Cameron Parish, La.: two...

Don’t be Phased by Annuity Treatment: Taxation of Distributions During Phased Retirement
Brenna M. Clark,Adam B. Cohen,Brittany Edwards-Franklin,Thomas A. Gick,W. Mark Smith, June 21, 2016
On June 10, the Internal Revenue Service (IRS) issued Notice 2016-39 in response to inquiries regarding the appropriate tax treatment under section 72 of the Internal Revenue Code (the Code) for payments received by an employee from a qualified defined benefit plan during phased retirement. For...

EIA Predicts Slow Sales Growth
, June 21, 2016
The Energy Information Administration (EIA) has forecasted slow electricity sales growth over the next 25 years in its latest Annual Energy Outlook. The EIA predicts that the electricity sales to commercial customers will increase at an average annual rate of 0.7 percent through 2040, while...

NIST Announces Smart Grid Advisory Committee Meeting
, June 21, 2016
The National Institute of Standards and Technology (NIST) announced that its Smart Grid Advisory Committee will meet July 13-14 at the NIST headquarters in Gaithersburg, Maryland. The meeting will provide an update on the NIST Smart Grid and Cyber-Physical Systems Program activities, and an...

NYC Tax Appeals Tribunal Determines HMO Subject to General Corporation Tax
Andrew D. Appleby, June 21, 2016
The New York City Tax Appeals Tribunal reversed an administrative law judge (ALJ) and determined that a health maintenance organization (HMO) was subject to the New York City general corporation tax.

Platts Launches LNG Gulf Coast Marker
, June 21, 2016
S&P Global Platts (Platts) [subscription] announced that it will launch the LNG Gulf Coast Marker (GCM), “a daily LNG assessment reflecting the value of spot LNG exported from the US Gulf Coast, on a FOB basis, expressed in US$/MMBtu.” Platts will also add new freight route costs from...

Sabine Pass Withdraws Application to Construct LNG Truck Loading Facilities
, June 21, 2016
Sabine Pass Liquefaction, LLC (Sabine Pass) has filed a letter with FERC withdrawing its application for authorization to construct and operate LNG truck loading facilities at the Sabine Pass LNG terminal in Cameron Parish, La. The letter request withdrawal of the application because “Sabine...

Sierra Club Files Court Appeal of Dominion Cove Point LNG Export Authorizations
, June 21, 2016
Sierra Club has filed a court appeal of the U.S. Department of Energy’s (DOE) orders authorizing long-term exports of LNG to nations without a Free Trade Agreement with the United States from the Dominion Cove Point LNG export terminal under construction at Lusby, Md. The appeal was filed...

CFTC Proposes to Expand Mandatory Clearing to Include Additional Classes of Interest Rate Swaps
James M. Cain,Catherine M. Krupka,David T. McIndoe,Mark D. Sherrill,R. Michael Sweeney, June 20, 2016
On June 9, the Commodity Futures Trading Commission (CFTC) released a notice of proposed rulemaking regarding an expansion of CFTC Regulation 50.4(a). If adopted, additional classes of interest rate swaps will become subject to mandatory clearing pursuant to the Dodd-Frank Act. The proposed...

DHS Issues Final Information Sharing Guidelines
, June 20, 2016
The Department of Homeland Security has issued final guidance on the implementation of the Cybersecurity Information Sharing Act of 2015. The final guidance documents include: Guidance to Assist Non-Federal Entities to Share Cyber Threat Indicators and Defensive Measures with Federal Entities under...

NIST Releases Draft Guidance on Cybersecurity Event Recovery
, June 20, 2016
The National Institute of Standards and Technology (“NIST”) released draft guidance that outlines practices for responding to and recovering from cyberattacks. The goal of this publication, according to NIST, is to offer “tactical and strategic guidance regarding the planning,...

Wolverine Announces Commission of Alpine Power Plant
, June 20, 2016
Wolverine Power Supply Cooperative, Inc. (Wolverine) announced that the new Alpine Power Plant, a natural gas-fired peaking plant located turbine in Elmira, Michigan, is now fully-powered. Once final commissioning is complete, the two generators, capable of producing a combined 410 MWs of...

Righting Copyright Wrongs Remains Elusive - Kirtsaeng Leaves Fee Awards to District Court Discretion
Ann G. Fort,James H. Johnson,Robert R.L. Kohse,Peter G. Pappas,Daniel J. Warren, June 17, 2016
On June 16, the U.S. Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons Inc., No. 15-375, resolved a circuit court split by reaffirming the test district courts should use to determine whether to award attorney’s fees to the prevailing party in copyright litigation. The...

NRECA Names Former U.S. Rep. Jim Matheson New CEO
, June 15, 2016
The National Rural Electric Cooperative Association (NRECA) has announced that former U.S. Rep. Jim Matheson has been selected to serve as NRECA’s sixth chief executive officer. He will join the association and assume his duties as CEO in July.

Stay Out of the Weeds: Egregious, Not Garden-Variety, Patent Infringement Is Subject to Enhanced Damages
Ann G. Fort,Walter S. Freitag,Robert R.L. Kohse,Peter G. Pappas,William L. Warren, June 15, 2016
On June 13, the U.S. Supreme Court unanimously rejected the Federal Circuit’s rigid two-part test for awarding enhanced damages in patent cases. In two cases decided together, Halo Elecs., Inc. v. Pulse Elecs., Inc., and Stryker Corp. v. Zimmer, Inc., the Court found that the Federal...

Tables Turned: 21 States Tell Delaware to “Fork Over Our Unclaimed Property!"
Wilson G. Barmeyer,Holly H. Smith,Phillip E. Stano,Steuart H. Thomsen,Mary Jane Wilson-Bilik, June 15, 2016
The latest salvo in an ongoing battle against Delaware was fired on June 9, when 21 states, led by Texas and Arkansas, filed a motion in the U.S. Supreme Court to force Delaware to return to the States between $150 million and $400 million that Delaware had allegedly wrongfully claimed as abandoned...

Texas Grid Operator Expects Major Increase in Solar Growth
, June 15, 2016
The Electric Reliability Council of Texas expects solar to become the second or third largest source of electric generation in Texas by 2031.

CFPB Fires Another Warning Shot for Processors to Be Aware of Their Merchants’ Activities
Brian Barrett,Brian M. Murphy,Robert J. Pile,Lewis S. Wiener, June 14, 2016
In a recent line of enforcement actions, the Consumer Financial Protection Bureau (CFPB) has signaled that it will hold payment processors liable if the CFPB believes the processors know or should have known that transactions processed for their processing customers are fraudulent or illegal. The...

CFTC Adopts Rules for the Cross-Border Application of Its Margin Rules
, June 14, 2016
On May 24, 2016, the U.S. Commodity Futures Trading Commission (“CFTC”) adopted rules (the “Final Rule”) establishing a framework for applying the CFTC’s previously adopted margin rules (the “CFTC Margin Rules”) to cross-border uncleared swaps. The Final...

Clean Power Plan to Rush Need for Infrastructure
, June 14, 2016
The North American Electric Reliability Corporation (NERC) has forecasted that by 2030 the Clean Power Plan will boost renewable resources 10-20 gigawatts and coal capacity will fall by as much as 27 gigawatts. This shift will accelerate the need for more transmission and pipeline infrastructure,...

Dairyland Power Cooperative Announces Significant Wind Expansion
, June 14, 2016
Dairyland Power Cooperative, located in La Crosse, Wisconsin, recently announced that it will begin purchasing energy from a 98 megawatt wind project located in southwestern Wisconsin. The project is owned by EDP Renewables North America. The project is currently working its way through the MISO...

Issues Favorable Report on Coop Credit
, June 14, 2016
On June 7 S&P Global Ratings (S&P) released a report on the electric cooperative sector. The report generally strikes a positive note, highlighting the “resilience” of electric cooperatives and concluding that even the implementation of the EPA’s Clean Power Plan will not pose an...

NIST Releases Framework of Standards for Cyber-Physical Systems
, June 14, 2016
The National Institute of Standards and Technology (NIST) has released a preliminary version of a framework for Cyber-Physical Systems (CPS). This framework was created with the goal of establishing a foundation from which CPS can be developed, designed, and built to work seamlessly with other...

Widened Panama Canal to Open June 26; U.S. LNG Supplies Expected to Remain in Atlantic Basin
, June 14, 2016
Hellenic Shipping News reports that the Panama Canal widening project is expected to be inaugurated June 26, allowing it to accommodate large LNG tankers and permitting U.S. Gulf Coast LNG producers to reduce the shipping time to markets in Asia by approximately ten days. However, according to an...

Automated Driving Technology to Have Significant Impact on Trucking Industry
, June 09, 2016
Automated driving technology is anticipated to have a widespread impact on the trucking industry, including decreased shipping costs and greater efficiency. As high as seventy-five percent of truck based shipping costs are labor related; by removing the human component from trucking, labor costs...

ECSC Planning South Carolina Solar Projects
, June 09, 2016
The Electric Cooperatives of South Carolina (ECSC) has announced the creation of the largest network of community solar installations in the state.

FCC to Allow Auction Entry for Coops
, June 09, 2016
The Federal Communication Commission (FCC) has ruled that coops can have access to Connect American Funds (CAF), which are meant to promote broadband in rural areas. The FCC agreed, at the NRECA’s suggestion, that coops may satisfy the auction program’s technical qualifications by...

IEA Report: New LNG Supplies Will Need to Find New Markets
, June 09, 2016
The International Energy Agency (IEA) has released a report which predicts a major shift in the global natural gas market over the next five years due to a 45% increase in liquefaction capacity coming online, primarily from the United States and Australia, just as demand growth from the...

Toho Gas Signs Agreement for Cameron LNG Supplies
, June 08, 2016
Japanese utility company Toho Gas Co., Ltd. announced that it has entered into a sale and purchase agreement with Diamond Gas International Pte. Ltd., a 100% subsidiary of Mitsubishi Corporation, for the purchase of 200,000 tons/year of LNG produced at Sempra Energy’s Cameron LNG terminal...

FERC Initiates Pre-Filing Review Process for Driftwood LNG
, June 07, 2016
FERC has issued a letter approving Driftwood LNG’s request to initiate the pre-filing environmental review process for its proposed 26 million tonnes/year liquefaction facility and LNG export terminal on the west side of the Calcasieu River, Calcasieu Parish, La. and interconnected pipeline....

NAIC Task Force Continues Work on Insurance Data Security Model Law
John S. Pruitt,Cynthia R. Shoss,Mary Jane Wilson-Bilik,John Allen Zumpetta, June 07, 2016
On May 24 and 25, the National Association of Insurance Commissioners (the NAIC) Cybersecurity (EX) Task Force (the Task Force) hosted a meeting in which state insurance commissioners and interested parties were invited to provide comments to and voice concerns about the current draft of the...

The Federal Reserve Board’s ANPR with Respect to Capital Requirements for Supervised Institutions Significantly Engaged in Insurance Activities
Maureen Emmert Adolf,Brian Barrett,John S. Pruitt,Cynthia R. Shoss, June 07, 2016
On June 3, 2016, the Board of Governors of the Federal Reserve System (FRB), approved an advance notice of proposed rulemaking (ANPR)1 regarding two potential regulatory capital frameworks for institutions under the FRB’s supervision that are significantly engaged in insurance activities....

Deloitte Predicts Changes to Auto Insurance Due to “the Future of Mobility”
, June 06, 2016
Deloitte has released a white paper analyzing trends and potential future changes in auto insurance. Two key trends addressed are the rise of autonomous vehicles and the shift from individual vehicle ownership toward the sharing economy. Members of Deloitte’s actuarial practice modeled how...

FERC Authorizes Elba Island LNG Export Terminal Construction and Operation
, June 03, 2016
FERC has issued an order authorizing Kinder Morgan subsidiaries Elba Liquefaction Company, L.L.C. and Southern LNG Company, L.L.C. to construct and operate liquefaction and LNG export terminal facilities (Elba Liquefaction Project) at the existing LNG import terminal at Elba Island, near Savannah,...

Cheniere Announces Substantial Completion of Sabine Pass Train 1
, June 02, 2016
Cheniere Energy Partners, L.P. (Cheniere Partners) and Bechtel announced that they have achieved Substantial Completion of Train 1 of the Sabine Pass liquefaction and LNG export terminal project in Cameron Parish, La. According to the press release, “commissioning has been completed and...

Director of SEC’s Division of Enforcement Promises More Enforcement Actions against Private Equity Fund Advisers
, June 02, 2016
In a recent speech, Andrew Ceresney, the Director of the SEC’s Division of Enforcement, discussed his division’s focus on the private equity industry, reviewing eight recent enforcement actions that Enforcement’s Asset Management Unit has brought against private equity advisers,...

Magnolia LNG Files Construction Status Report
, June 02, 2016
Magnolia LNG has filed a report with FERC covering construction activities through May 2016 at its proposed liquefaction and LNG export terminal near Lake Charles, La. The report states that Magnolia is currently revising its Section 404/10 permit application to the U.S. Army Corps of Engineers...

Michigan to Allow Self-Driving Vehicles?
, June 02, 2016
This summer, the Michigan legislature is expected to consider various bills that could allow the sale and operation of autonomous vehicles in that state. One bill would allow self-driving cars to be operated on public roads without a driver behind the wheel. This could allow auto manufacturers to...

NHTSA to Consider Rear-Seat Safety
, June 02, 2016
The National Highway Traffic Safety Administration will soon begin to test safety for passengers in rear seats as well as in front seats. The increased use of car-sharing services has led to more people riding in rear seats, many times without using seat belts. In addition, consumer advocates...

Owner Claims Tesla Crashed While Autopilot System Engaged
, June 02, 2016
A California driver recently claimed that her car’s self-driving functions caused her to crash into another car on the freeway. According to the owner, her Tesla S Autopilot cruise control system was engaged, but the car failed to slow down when the car in front of her suddenly stopped. The...

Sabine Pass Train 1 Placed In Service
, June 02, 2016
Sabine Pass LNG (Sabine Pass) has filed a letter with FERC stating that on May 27, 2016, Sabine Pass “accepted Care, Custody, and Control of Train 1 and Stage 1 OSBL from its EPC contractor, Bechtel, and placed the facilities in service.” The letter further states that the Train 1 and...

Scientists Oppose Petronas’s Proposed Pacific NorthWest LNG Terminal
, June 02, 2016
A group of 90 international climate change scientists and climate policy experts has sent a letter to Canada’s Environmental Minister Catherine McKenna requesting that she “reject the proposed Pacific Northwest (PNW) LNG project due its significant adverse environmental effects from...

Signals Crossed: Satellite TV Receipts Sourced to South Carolina Based on Subscriber Location
Andrew D. Appleby,Michael J. Kerman, June 02, 2016
The South Carolina Administrative Law Court determined that a satellite television provider must source its subscription receipts to South Carolina based on the percentage of in-state subscribers. The administrative law judge (ALJ) determined that South Carolina is not a “strict” costs...

DOE Denies Rehearing of Orders Authorizing Corpus Christi Liquefaction and Sabine Pass Non-FTA Exports
, May 31, 2016
The U.S. Department of Energy (DOE) has issued two orders denying Sierra Club’s requests for rehearing of DOE orders which authorized: (1) Cheniere Marketing, LLC and Corpus Christi Liquefaction, LLC (CCL) to export LNG to nations without a Free Trade Agreement (non-FTA) from CCL’s...

NAIC Task Force Hosts Insurance Data Security Model Law Meeting
, May 31, 2016
On May 24 and 25, the National Association of Insurance Commissioners (the “NAIC”) Cybersecurity (EX) Task Force (the “Task Force”) hosted a meeting in which state insurance commissioners and interested parties were invited to provide comments to and voice concerns about the...

NRC has Approved Transfer of La Crosse License to La Crosse Solutions
, May 31, 2016
The Nuclear Regulatory Commission (NRC) has approved the transfer of the license for the La Crosse Nuclear Plant, which has been inactive since 1987, from Dairyland Power Cooperative to La Crosse Solutions LLC, a subsidiary of the radioactive waste disposal specialist Energy Solutions LLC. La...

Construction begins on Dairyland Power and Richland Electric Solar Projects
, May 27, 2016
On Monday, May 23, Dairyland Power Cooperative (Dairyland Power), Richland Electric Cooperative (Richland Electric) and SoCore Energy began construction on two solar projects. The first is a community solar project being constructed for members of Richland Electric and the second is the first of 12...

Customer Advocacy Groups Accuse the NHTSA of Doing Too Little On Automatic Braking
, May 27, 2016
The National Highway Traffic Safety Administration has been accused by consumer advocacy groups of doing too little to ensure that automatic emergency braking is standard in all light vehicles. The consumer advocacy groups have further accused the NHTSA of entering into a “backroom...

Major Companies Invest In Ride-Hailing Companies
, May 27, 2016
Two major car manufacturers have recently invested in ride-hailing companies, signaling their interest in and commitment to the mobility services market. Volkswagen AG is investing $300 million into Gett Inc., and Toyota Motor Corp. is investing in Uber Technologies Inc. Toyota’s partnership...

The Federal Reserve Board Outlines Approach For Capital Rules For Federally Supervised Insurance Groups
Maureen Emmert Adolf,Brian Barrett,John S. Pruitt,Cynthia R. Shoss, May 27, 2016
At the NAIC’s tenth International Insurance Forum, Daniel K. Tarullo, a member of the Board of Governors of the Federal Reserve System (FRB), outlined the FRB’s plans for

USDA Invests More Than $200 Million in Electric Infrastructure Improvements in Five States
, May 27, 2016
The USDA recently celebrated the 80th anniversary of the Rural Electrification Act and announced funding of more than $200 million to build and upgrade rural electric infrastructure in five states. East Kentucky Power Cooperative, Inc. will receive a $131.8 million loan to acquire the Bluegrass...

Alaska LNG Files Monthly Status Report
, May 26, 2016
Alaska LNG has filed a report with FERC covering through April 2016 the status of pre-filing environmental review activities for its proposed liquefaction and LNG export terminal at Nikiski, Alaska and 800-mile interconnected pipeline. The report states that due to ongoing pre-Front End Engineering...

Corpus Christi Liquefaction Submits Construction Progress Report
, May 26, 2016
Corpus Christi Liquefaction, LLC has filed a report with FERC covering through April 2016 construction progress at its liquefaction and LNG export terminal in Corpus Christi, Texas. The reports states that (i) engineering has progressed to 98.0%, (ii) procurement has progressed to 46.9%, (iii)...

DOL and Treasury Update 2015-2016 Regulatory Agendas for Employee Benefits
Brenna M. Clark,Adam B. Cohen,Brittany Edwards-Franklin,Michael A. Hepburn,Cristopher D. Jones, May 26, 2016
The principal regulators of U.S. employee benefits have recently published updates to their guidance plans for the coming months.

Flint Hill Resources Receives Non-FTA Export Authority
, May 26, 2016
The U.S. Department of Energy has issued an order authorizing Flint Hill Resources, LP to export over a 20-year period up to 3.62 Bcf/year of domestically produced LNG in ISO containers or in bulk to nations without a Free Trade Agreement (non-FTA) with the United States from an LNG liquefaction...

FINCEN Customer Due Diligence Rules Exclude Most Private Funds from Definition of Legal Entity Customers
, May 25, 2016
On May 5, 2016, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued final rules (the “Final Rules”) on customer due diligence requirements for banks, broker-dealers, mutual funds, and futures commission merchants and introducing...

NAIC Report: 2016 Spring National Meeting
Frederick R. Bellamy,Ling Ling,John S. Pruitt,Cynthia R. Shoss,Mary Jane Wilson-Bilik, May 25, 2016
The National Association of Insurance Commissioners (NAIC) held its 2016 Spring National Meeting from April 1 through April 6 in New Orleans, Louisiana. As host, Louisiana provided beautiful weather and bountiful great food. The Spring National Meeting was also highlighted by spirited discussions...

Purposeful By-Product: Louisiana Supreme Court Determines Purchases of Limestone Used in Electricity Generation Qualified for 'Further Processing Exclusion' Under Louisiana Sales & Use Tax
Marc A. Simonetti,Douglas Upton, May 25, 2016
The Louisiana Supreme Court concluded that limestone purchased for the dual purpose of absorbing sulfur during the generation of electricity and producing ash for sale to third parties was excluded from the definition of a “sale at retail” by application of the “further processing...

DHS to Clarify Liability Protections for Companies Sharing Cyber-threat Indicators
, May 24, 2016
The Department of Homeland Security (DHS) intends to issue revised guidance that will clarify liability protections for companies sharing cyber-threat indicators among themselves, and will reissue guidance on information sharing with non-federal entities under the Cybersecurity Act of 2015. DHS...

EPA to Reduce Methane Emissions from the Oil and Natural Gas Industry
Jay Holloway,Susan G. Lafferty,David M. McCullough,James A. Thompson,Liz Williamson, May 24, 2016
On May 12, the U.S. Environmental Protection Agency (EPA) released final regulations (the Rules) aimed at reducing methane emissions from certain new and modified oil and gas facilities by 40% to 45% from 2012 levels by 2025. Methane is considered to be a significant contributor to climate change,...

Middle Tennessee Cooperative Withdraws Offer to Purchase Electric Utility
, May 24, 2016
Middle Tennessee Electric Membership Corp. informed the Mayor of Murfreesboro that it has withdrawn its offer to purchase Murfreesboro Electric Department which was recently valued between $175.5 million and $247.3 million. The City Council is discussing whether to take away the utility’s...

Wabash Valley Power Association Purchases Participation Interest in Illinois Power Plant
, May 24, 2016
Wabash Valley Power Association purchased a 5 percent participation interest in a 1,600-MW coal-powered electric plant in the Prairie State Energy Campus for $57 million. The Campus, operational since 2012, is comprised of a power plant and an adjacent coal mine. The deal was completed a day after...

What Is Your Starting Salary? New FLSA Regulations Raise The Bar For U.S. Employers
Juan C. Garcia,Matt Gatewood,Michael A. Hepburn,Paul R. Lang,Gail L. Westover, May 24, 2016
Employers with salaried employees earning under $47,476 annually should evaluate the impact on their organizations of major changes to employee compensation following new federal wage requirements effective December 1, 2016.

Downeast LNG Up for Sale
, May 20, 2016
Downeast LNG, sponsor of a proposed 3 million ton/year liquefaction and LNG import/export terminal near Robbinston, Maine, announced that the company will be put up for sale as of July 1, 2016. According to the press release, Downeast LNG’s majority shareholder is energy private equity...

Eagle LNG to Construct Liquefaction Plant to Supply Crowley Ships
, May 20, 2016
Eagle LNG announced that it has begun the construction process for a 200,000 gallons/day (87,000 gallons/day initially) natural gas liquefaction plant in West Jacksonville, Fla., which is anticipated to be operational by early 2017. The LNG will be used to supply Crowley’s new LNG-powered...

FinCEN Customer Due Diligence Final Rules
Eric A. Arnold,Clifford E. Kirsch,Michael B. Koffler,Susan S. Krawczyk,Holly H. Smith, May 20, 2016
On May 5, 2016, the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) issued final rules (the Final Rules) on customer due diligence requirements for banks, securities broker-dealers, mutual funds, and futures commission merchants and introducing brokers in commodities...

Fortis Signs Agreement to Supply LNG to Hawaii Electric
, May 20, 2016
Fortis Inc. announced today that its subsidiary, Fortis Hawaii Energy Inc., entered into an agreement to supply Hawaiian Electric Company, Inc. with 800,000 metric tons/year of LNG over 20-years from FortisBC’s Tilbury LNG facility in Delta, British Columbia, starting in 2021. According to...

Hoosier Energy Constructing New Solar Panels in Johnson County, Indiana
, May 20, 2016
Hoosier Energy, a G&T cooperative, plans to start construction within the next month on a $2.5 million solar farm on a site recently selected in Johnson County, Indiana. Approximately 4,100 solar panels will be installed at this site, and each panel will eventually collect about 1.5 kilowatt hours...

House Passes Cybersecurity Consortium Act
, May 20, 2016
The House of Representatives passed the National Cybersecurity Preparedness Consortium Act, which will allow the Department of Homeland Security (DHS) to establish a consortium to address cybersecurity threats and incidents. The consortium would provide training to state and local first responders...

Implementing the Whistleblower Immunity Notice Provision under the Recently-Enacted Federal Defend Trade Secrets Act
Ann G. Fort,Matt Gatewood,Peter G. Pappas,William L. Warren,Gail L. Westover, May 20, 2016
The Defend Trade Secrets Act, signed into law on May 11, 2016, includes a whistleblower immunity notice provision. An employer that wants to preserve maximum recoveries for misappropriation against an employee should take action now.

New Mexico Coop Obtains Solar PPA
, May 20, 2016
Western Farmers Electric Cooperative (WFEC) has entered into a 25-year agreement with Duke Energy Renewables (DEN) to purchase power from DEN’s 25-MW Caprock Solar Power Project near Tucumcari in Quay County, New Mexico, allowing WFEC to further diversify its generating portfolio.

Texas Coop to Offer Broadband Service through WiFi
, May 20, 2016
Texas-based Bandera Electric Cooperative (Bandera) plans to run fiber cables along its power poles to feed WiFi access points, which will provide wireless internet service to its customers. Bandera estimates that service speeds will range from 10—50 Mbps. The service will be tested in 200...

Virginia Coop’s Permitting Dispute Drags On
, May 20, 2016
A Pennsylvania environmental appeals board recently denied Old Dominion Electric Cooperative’s motion for summary judgment in a permitting dispute related to a proposed gas-fired plant, citing the importance of a factual question—whether water discharged into a river after being used as...

JOVO Group and SCT&E LNG Sign Cooperation Agreement
, May 18, 2016
The JOVO Group and SCT&E LNG, Inc., announced today that they signed a long-term, multibillion-dollar agreement that they state “is a first of its kind between a U.S. LNG developer and a private Chinese LNG terminal owner.” According to the press release, the agreement provides for...

San Francisco StartUp Developing Driverless Trucks
, May 18, 2016
A new startup, made up of employees from Google, Apple, and Tesla, is focused on getting autonomous trucks on the roads. The company, Otto, is equipping trucks with software, sensors, lasers, and cameras, with the intent that the big rigs will eventually navigate U.S. highways autonomously. Otto...

DHS Announces Public Hearings and Requests Comments on Handling of Critical Infrastructure Information
, May 17, 2016
The Department of Homeland Security (“DHS”) announced that it will hold a series of public hearings and request comments on revising its regulations regarding the handling of protected critical-infrastructure information (“PCII”) in an automated and electronic format....

FTC Reviews Security Updates Practices of Eight Mobile Device Manufacturers
, May 17, 2016
The Federal Trade Commission is requiring eight mobile device manufacturers to provide the FTC with information about how they determine to issue security updates to address vulnerabilities in smartphones, tablets, and other mobile devices. The FTC plans to use these filings to study policies,...

Supreme Court Explores Injury Requirement for Federal Statutory Standing
Wilson G. Barmeyer,Thomas M. Byrne,Valerie Strong Sanders,Steuart H. Thomsen,Lewis S. Wiener, May 17, 2016
In a 6-2 opinion issued today, the Supreme Court vacated a Ninth Circuit holding that a plaintiff who alleges that his own federal statutory rights have been violated has alleged enough to establish Article III standing to sue. The Court remanded the long-pending Fair Credit Reporting Act case,...

Unclaimed Property Primer for Health and Property & Casualty Insurance
Wilson G. Barmeyer,Holly H. Smith,Phillip E. Stano,Steuart H. Thomsen,Mary Jane Wilson-Bilik, May 17, 2016
Unclaimed Property: It’s not just about life insurance. The same contingency-fee unclaimed property auditors that targeted unclaimed life insurance proceeds are now turning their focus to other types of insurance, including health insurance and property & casualty insurance (P&C). For...

DOE Releases First Quarter LNG Import/Export Data
, May 16, 2016
The U.S. Department of Energy’s (DOE) Office of Fossil Energy has released data covering U.S. LNG imports and exports for the First Quarter of 2016. The report shows that four vessel-borne commissioning cargoes of domestically-produced LNG, totaling 11.5 million Mcf, were exported from the...

Ex-Cheniere Energy CEO Charif Souki’s New Company, Driftwood LNG, Requests Initiation of Pre-Filing Review Process for Louisiana Terminal
, May 16, 2016
Driftwood LNG LLC and Driftwood LNG Pipeline LLC (together, Driftwood) have filed a request with FERC to initiate the pre-filing environmental review process for a 26 million tonnes/year LNG production and export facility on the west side of the Calcasieu River near Carlyss, Calcasieu Parish, La....

AltaGas/Idemitsu Suspend Joint Triton LNG Project
, May 13, 2016
The Canadian Press reports that AltaGas Ltd’s joint venture partner, Idemitsu Kosan Co. (Idemitsu), stated in its recent annual financial report that it has suspended work on the proposed Triton LNG export terminal that was planned at Kitimat or Prince Rupert, British Columbia (B.C.). The...

MARAD Approves Surrender of Port Dolphin Energy Deepwater Port License
, May 13, 2016
The U.S. Maritime Administration (MARAD) has granted Port Dolphin Energy’s request to surrender and terminate its Deepwater Port License authorizing it to own, construct and operate an LNG deepwater port approximately 28 miles off the western coast of Florida, and approximately 42 miles from...

OSHA Issues Final Rule Requiring Electronic Submission (for some) of Workplace Injury Data
, May 13, 2016
The Occupational Safety and Health Administration (OSHA) issued a final rule yesterday to require employers in certain industries to electronically submit injury and illness data. OSHA’s regulations (29 CFR Part 1904) require employers with more than 10 employees in most industries to keep...

Parts Manufacturer Delphi Joins Automaker Cybersecurity Group
, May 13, 2016
Delphi Automotive PLC, an automotive parts manufacturer, announced this week that it has joined the Automotive Information and Sharing Analysis Center, the automotive industry’s hub for addressing cyber-security threats to connected vehicles. The Center counts a majority of U.S. automakers,...

UPDATE: Federal Defend Trade Secrets Act Signed Into Law; Employers May Need to Notify Employees
Ann G. Fort,Matt Gatewood,Peter G. Pappas,William L. Warren,Gail L. Westover, May 13, 2016
After overwhelming passage in both the House and Senate, President Obama signed the Defend Trade Secrets Act into law on April 11, 2016. The Act provides a truly uniform, nationwide set of standards for protecting trade secrets, plus a private right of action to sue in federal court. By creating a...

Alaska Coop to Receive $8 Million from FEMA
, May 11, 2016
Alaska Village Electric Cooperative (Village Electric), located in Anchorage, Alaska, will be receiving more than $8 million from the Federal Emergency Management Agency (FEMA) to repair damages from a devastating 2013 storm. The storm produced 90 mph winds and significant flooding within Village...

Changes to Trading Documentation Will be Necessary to Recognize Regulatory Stays of Termination Rights
, May 11, 2016
On May 3, 2016, the Federal Reserve Board released a proposed rule (Proposed Rule) which would “require U.S. global systemically important banking institutions (GSIBs) and the U.S. operations of foreign GSIBs to amend contracts for common financial transactions to prevent the immediate...

FERC Authorizes Two Additional Trains for Cameron LNG
, May 11, 2016
FERC has issued an order authorizing Cameron LNG to construct and operate a fifth 160,000-cubic meter (m3) LNG storage tank, which would store LNG pending export, and two additional liquefaction trains, Trains 4 and 5, each with a liquefaction capability of 4.985 million metric tonnes per annum...

FERC Tolls Rehearing of Order Rejecting Jordan Cove Energy Project LNG Terminal Application
, May 11, 2016
FERC has issued a tolling order which extends indefinitely the time by which FERC must act on requests for rehearing of its order which rejected Jordan Cove Energy Project’s application to construct a liquefaction and LNG export terminal at Coos Bay, Ore., and Pacific Connector Gas...

GM and Lyft Plan to Test Self-Driving Taxis in 2017
, May 11, 2016
General Motors and Lyft have announced plans to roll out a fleet of self-driving taxis in an unidentified urban area in 2017. The plan, part of ongoing tests of GM’s automated driving technology, is the culmination of GM’s $500 million dollar investment in Lyft and $1 billion dollar...

Here’s the Deal: Georgia Governor Signs Several Significant Tax Bills
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, May 11, 2016
Following the conclusion of Georgia’s 2016 legislative session, Governor Nathan Deal signed into law several tax bills touching on a wide range of tax matters, including sales and use taxes, property taxes, corporate income taxes and state tax credits.

IRS Notice Offers Relief to Issuers of Variable Insurance Products in Response to Pending Money Market Fund Reforms
Dennis L. Allen,Frederick R. Bellamy,Thomas A. Gick,Michael R. Miles,Mary E. Monahan, May 11, 2016
On May 5, 2016, the IRS issued Notice 2016-32, 2016-21 I.R.B. 1, which affords relief with respect to the application of the diversification requirements of IRC § 817(h) to variable life insurance and annuity contracts (collectively, variable insurance products) that offer government money...

New Jersey Senate Considers Regulations for Ride Sharing Companies
, May 11, 2016
A bill was recently introduced in the New Jersey state senate that would impose new safety standards for ride sharing companies, like Uber and Lyft, operating in New Jersey. The bill, the Transportation Network Company Safety and Regulatory Act, would require background checks for all ride share...

Not on the Same Wavelength: Receipts from Radio Advertising Must Be Sourced to Texas When Broadcast from the State
Michael J. Kerman,Amy F. Nogid, May 11, 2016
The Texas Comptroller of Public Accounts concluded that a Texas-based national radio network must apportion its advertising receipts based on the ratio of radio stations that license and broadcast its programming from Texas compared to the total number of radio stations that license and broadcast...

Rio Grande LNG Files FERC Application
, May 11, 2016
Rio Grande LNG, LLC and Rio Bravo Pipeline Company, LLC (together, Applicants) have filed an application with FERC for authorization to site, construct and operate liquefaction and LNG export terminal facilities in the Brownsville Navigation District in Cameron County, Texas and an interconnected...

Woodfibre LNG Affiliate Signs Heads of Agreement with Chinese Customer
, May 11, 2016
Woodfibre LNG Limited (Woodfibre LNG) announced that its Singapore-based affiliate, Woodfibre LNG Export Pte Ltd., has signed a Heads of Agreement with Guangzhou Gas Group Co., Ltd., for potential LNG offtake of 1 million tonnes/year LNG for 25 years starting in 2020. The LNG will be sourced from...

Article Casts Doubt on Viability of Proposed Western Canadian LNG Export Terminals
, May 06, 2016
An article on CBCNews observes that no final investment decisions have been made for any of the several LNG export terminals proposed for the Canadian west coast. The author of the article asserts that the “collapse in global LNG prices is the main culprit for why so many Canadian LNG export...

Clean Energy Fuels to Supply LNG to Hawaii Gas
, May 06, 2016
Clean Energy Fuels Corp. announced that it has signed a contract to provide LNG to Hawaii Gas. According to the press release, “the agreement is consistent with the state’s intent to reduce its reliance on imported crude oil, using a cleaner and more economical fuel.” Details of...

EPA Denies Five Petitions for Reconsideration of New Source Performance Standards
Joshua L. Belcher,Jay Holloway,Cedric E. Seley,Liz Williamson, May 06, 2016
On April 29, the Environmental Protection Agency (EPA) denied petitions by the Utility Air Regulatory Group (UARG), American Electric Power (AEP), Ameren Corp., the State of Wisconsin, and the Energy and Environmental Legal Institute (EELI), seeking reconsideration of certain aspects of EPA’s...

FERC Denies Request to Rehear Aguirre Approval
, May 06, 2016
FERC has issued an order denying Comité Diálogo Ambiental, Inc.’s (Diálogo) request for rehearing of FERC’s July 24, 2015 order, which approved Aguirre Offshore GasPort, LLC’s (Aguirre) proposed LNG import terminal facilities along the southern shore of Puerto...

IRS Updates Beginning of Construction Guidance for Renewable Energy Tax Credits Extended by PATH Act
Dorothy Black Franzoni,Amish M. Shah,Wes Sheumaker,Ram C. Sunkara,Thomas H. Warren, May 06, 2016
On May 5, 2016, the Internal Revenue Service (IRS) issued Notice 2016-31, which updates prior guidance regarding the beginning of construction requirement for IRC sections 45 and 48 renewable energy tax credits following extensions of those credits in the Protecting Americans from Tax Hikes Act of...

Neither a Partner nor Employee Be: Treasury and the IRS Issue Regulations Clarifying the Employment Tax Treatment of Partners in Partnerships
Reginald J. Clark,Adam B. Cohen,Michael A. Hepburn,Paul R. Lang,Daniel R. McKeithen, May 06, 2016
The Treasury Department (Treasury) and the Internal Revenue Service (Service) have issued temporary regulations (Regulations) clarifying the federal employment tax treatment of the owners of partnerships and other entities classified as partnerships for federal tax purposes. In general, the...

TransCanada Receives Permit for LNG Canada Feeder Pipeline
, May 06, 2016
TransCanada Corporation announced that it has received the last of the permits it needs from the British Columbia (B.C.) Oil and Gas Commission to build and operate the Coastal GasLink pipeline, a 670-kilometre pipeline that would bring gas from the Groundbirch area near Dawson Creek to the...

Venture Global LNG Closes Additional $55 Million Funding Deal
, May 06, 2016
Venture Global LNG, Inc. (Venture) announced the successful closing of its fourth round of equity investments to fund its proposed liquefaction and LNG export terminal on the Mississippi River in Plaquemines Parish, La. According to the press release, the “round also is notable for adding to...

WhatsApp Enables End-to-End Encryption as Response
, May 06, 2016
On Tuesday, May 3, 2016, the popular messaging application WhatsApp enabled end-to-end encryption for all of its users. End-to-end encryption technology prevents messages sent via the application from being intercepted or viewed by any individual except the intended recipient. To further ensure the...

Basic-Supplemental Life Insurance Plan Pricing Structure Upheld in ERISA Class Action
Wilson G. Barmeyer,Carol T. McClarnon,Phillip E. Stano,Steuart H. Thomsen,Gail L. Westover, May 05, 2016
An employee benefit plan that includes an alleged subsidization component for its basic and supplemental options is neither prohibited by the Employee Retirement Income Security Act of 1974 (ERISA) nor a violation of the plan sponsor or service provider’s fiduciary duties, a federal district...

Georgia Supreme Court Expands as its Jurisdiction Contracts
Thomas M. Byrne, May 05, 2016
Somewhat obscured by the social-issue hubbub during the recently ended session of the Georgia General Assembly was the enactment of an historic expansion of the Georgia Supreme Court and a reallocation of not only its appellate jurisdiction but also that of the Georgia Court of Appeals.

Trial Court Dismisses Georgia Patronage Capital Lawsuits
Thomas M. Byrne,James A. Orr, May 05, 2016
On May 2, a trial court in DeKalb County, Georgia, dismissed two class action patronage capital lawsuits filed against Oglethorpe Power Corporation, Georgia Transmission Corporation (GTC) and certain distribution electric membership corporations. One lawsuit (Walker v. Oglethorpe Power Corp., et...

Cooperative Chosen to Build Walkemeyer Project
, May 03, 2016
The Southwest Power Pool Board of Directors has selected Mid-Kansas Cooperative to be the transmission owner responsible for building the new “Walkemeyer” line, a 22.6-mile, 115 kV line from Walkemeyer to North Liberal.

Damages Award Limited in Nevada Case Involving Tortious Conduct by California Franchise Tax Board
Charles C. Capouet,Jeffrey A. Friedman, May 03, 2016
In a 4-4 decision, the U.S. Supreme Court affirmed the Nevada courts’ exercise of jurisdiction over the California Franchise Tax Board (FTB), but held, by a majority of the justices, that the taxpayer could only receive the damages Nevada provides for suits by private citizens against Nevada...

FinCEN’s Long-Awaited Beneficial Owner Due Diligence AML Rule Could Be Finalized Soon
, May 03, 2016
Earlier this month, the Financial Crimes Enforcement Network (“FinCEN”), a bureau of the U.S. Department of the Treasury, submitted its long-awaited Final Rule on due diligence of beneficial owners of customer accounts to the White House Office of Management and Budget. This new...

Great River Energy and NRECA Co-Sponsor Research Regarding Underutilized Energy Storage Resources
, May 03, 2016
The National Rural Electric Cooperative Association (NRECA) and Great River Energy co-sponsored a research study that showed that residential electric water heaters can serve as energy storage for wind or solar power, increasing efficiency, better integrating renewable energy and saving customers...

Iowa Cooperative Raccoon Valley Becoming Carbon-Free with Purchase of Renewable Credits
, May 03, 2016
Raccoon Valley, an Iowa electric cooperative, plans to purchase renewable credits from three wholesale suppliers to offset its use of carbon-based fuels and become carbon-free. Purchasing the credits from its suppliers supports the cooperative of which it is a member and puts more renewables back...

SEC Chair White Throws Support Behind FSOC Statement on Review of Asset Management Products and Activities
, May 03, 2016
In a public statement earlier this month, SEC Chair Mary Jo White expressed her support for the Financial Stability Oversight Council’s (“FSOC”) Update Statement on its review of asset management products and activities for potential financial stability risks. The Update Statement...

Tri-State Electric Breaks Ground on Research Center
, May 03, 2016
Tri-State Electric has just broken ground on the Wyoming Integrated Test Center. The Center is an industrial-scale lab that will research methods that could be used to remove carbon emissions from coal-fired plants and convert them into a revenue-producing resource. Products made from waste carbon...

Only the Lonely: “Lonely” Life Insurance Companies Confront New Issues Under Proposed Debt-Equity Regulations
Dennis L. Allen,Thomas A. Gick,Michael R. Miles,Mary E. Monahan,William R. Pauls, April 29, 2016
The rules of IRC § 1504 and Treas. Reg. § 1.1502-47 provide the general parameters for determining whether a domestic life insurance company (within the meaning of IRC § 816(a)) may join in filing a consolidated U.S. federal income tax return with one or more domestic nonlife...

Bills, Bills, Bills: Texas Court of Appeals Scrubs Bill Pay Service Provider Free of Sales Taxes
Elizabeth S. Cha,Charles C. Kearns, April 28, 2016
In Hegar v. CheckFree Serv. Corp., a Texas Court of Appeals affirmed the trial court’s decision and held that the taxpayer’s online bill pay service was not a taxable data processing service for Texas sales tax purposes.

North Carolina Rejects Third-Party Sales of Solar-Generated Electricity
Tracey K. Ledbetter,James A. Orr, April 28, 2016
The North Carolina Utilities Commission recently ruled that third-party sales of solar-generated electricity violate state law. The Commission rejected a test case brought by an advocacy group seeking to legitimize such third-party sales.

Texas Comptroller Issues "Strong" Decision, Companies' Single Shared Administrator Not Sufficient to Require Unitary Combined Filing
Evan M. Hamme,Marc A. Simonetti, April 28, 2016
The Texas Comptroller upheld a taxpayer’s separate Franchise Tax return filing position, rejecting an Administrative Law Judge’s finding that the taxpayer and its affiliate shared a strong centralized management structure that required a unitary combined report.

UPDATE: Federal Defend Trade Secrets Act Clears the House, Passage into Law Expected
Ann G. Fort,Matt Gatewood,Peter G. Pappas,William L. Warren,Gail L. Westover, April 28, 2016
As expected, overwhelming support for the Defend Trade Secrets Act of 2016 led to its passage in the U.S. House of Representatives yesterday by a 410-2 vote. During the floor debate, one Congressman noted that “Congress has the responsibility to give industries the tools they need to protect...

Companies Create A New Lobbying Group To Present United Front for Self-Driving Cars
, April 27, 2016
In order to present a united front to regulatory agencies like the Department of Transportation and the National Highway Traffic Safety Administration, companies heavily invested in autonomous technology have created a new lobbying group called the Self-Driving Coalition for Safer Streets. The...

DOE Denies Rehearing of Order Authorizing Dominion Cove Point LNG Exports
, April 27, 2016
The U.S. Department of Energy (DOE) has issued an order denying Sierra Club’s request for rehearing of DOE’s order, which authorizes Dominion Cove Point LNG (DCP) to export 281 Bcf/year of LNG over a 20-year period from DCP’s proposed LNG export terminal at Lusby, Md. to nations...

GAO Says DOT Should Do More To Combat Real-World Cyberattacks
, April 27, 2016
In a recent report, the Government Accountability Office asserted that more needs to be done by the Department of Transportation and the National Highway Traffic Safety Administration in preparing for and combating real-world cyberattacks on automobiles. Although there have been no such attacks...

NIST Issues Streamline Guidance for Public Comment
, April 27, 2016
The National Institute of Standards and Technology (“NIST”) has issued a revised version of its guidance for sharing cyber-threat intelligence. The goal of this guidance is to help improve cybersecurity operations and risk management activities through information sharing practices....

PHMSA Schedules Public Meeting on LNG Facility Regulations
, April 27, 2016
The U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) has announced a public LNG Workshop meeting to be held May 18-19, 2016, “to solicit input and obtain background information for the formulation of a future regulatory change to 49 CFR part 193, Liquefied Natural Gas...

State Tax Fallout From Federal Proposed Related-Party Debt Regulations
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, April 27, 2016
Recently proposed Treasury regulations under IRC § 385 (the Proposed Regulations) would create sweeping changes to the federal income tax treatment of related-party debt. The Proposed Regulations could also have far-reaching effects for state income tax purposes, particularly on the...

Steelworkers Reverse Course and Withdraw Request for Import Relief on Aluminum
Mark D. Herlach,Allison E. Speaker, April 27, 2016
In an unusual change of course, the United Steelworkers Union (USW) has now withdrawn the Section 201 petition it filed just last week to request temporary relief against imports of primary unwrought aluminum. According to various sources, the USW petition faced opposition from the U.S. and...

AEPCO CEO Testifies in Support of Great Rate-Setting Transparency
, April 25, 2016
Arizona Electric Power Cooperative (AEPCO) CEO Patrick Ledger testified in support of a bill that would require federal power administrations to detail costs on wholesale electric bills. Ledger said after his testimony that AEPCO is fine with justified cost increases but does not have enough...

Effect of Energy Policy Bills on Natural Gas Exports
Jacob Dweck,Paul F. Forshay,Daniel P. LeFort,Michael A. Stosser,Kyle E. Wamstad, April 25, 2016
Legislative Update. On April 20, the U.S. Senate passed broad legislation that covers many different aspects of the energy and environmental sectors, including changes to streamline the approval process for the export of natural gas from the United States. The bill is the most comprehensive...

Minnkota Enters Into 35-Year Wind Power Purchase Agreement
, April 25, 2016
In an effort toward compliance with anticipated federal regulations, Minnkota Power Cooperative (Minnkota) will purchase wind energy from NextEra Energy Resources 100 megawatt wind farm addition when the project begins operation in early 2017, at which point nearly 35 percent of Minnkota’s...

Union Seeks Increased Duties on Imported Aluminum
Mark D. Herlach,Allison E. Speaker, April 25, 2016
On April 18, the United Steelworkers Union (USW) petitioned the U.S. International Trade Commission (ITC or Commission) for relief pursuant to Section 201 of the Trade Act of 1974, a safeguard provision of the U.S. trade laws. Under Section 201, a domestic industry can request temporary relief from...

Corpus Christi Liquefaction Files Construction Progress Report
, April 22, 2016
Corpus Christi Liquefaction has filed a report with FERC covering construction through March 2016 at its liquefaction and LNG export terminal at Corpus Christi, Texas. The report states that engineering has progressed to 97.1%, procurement has progressed to 46.0%, and Bechtel’s direct hire...

Drone Amendment to Senate FAA Bill Helpful to Coops
, April 22, 2016
Under a bill that passed the Senate by a vote of 95-3, drones may become a more useful tool for electric coops. The drone provisions, which were added as an amendment to a larger bill reauthorizing the Federal Aviation Administration (FAA), would ease current restrictions on drones and call for the...

Energy Bill Addressing Cyber Issues Passes Senate
, April 22, 2016
The Energy Modernization Act, a comprehensive energy bill that includes electric grid cyber protections, was passed by the Senate by an 85-12 vote. The bill includes language that gives the Department of Energy greater authority to intervene in cyber emergencies as well as language that protects...

Kansas Electric Cooperatives to Merge
, April 22, 2016
Leavenworth-Jefferson Electric Cooperative and Kaw Valley Electric Cooperative have approved a formal plan to merge and become FreeState Electric Cooperative, Inc. (FreeState), effective January 1, 2017. With 14,691 member-owners, FreeState will be the largest rural electric cooperative in eastern...

Sabine Pass LNG Supplies Headed to Portugal
, April 22, 2016
The Wall Street Journal [subscription] reports that a cargo of LNG from Cheniere Energy’s Sabine Pass LNG export terminal in Cameron Parish, La. is headed for the Port of Sines, Portugal and is expected to arrive on April 26, 2016. The cargo is the first shipment of LNG from the United States...

Senate Passes Energy Bill with Provisions to Expedite LNG Exports
, April 22, 2016
Reuters reports that today the U.S. Senate passed S.2012, the Energy Policy Modernization Act of 2015, the “first broad energy bill in nine years” which, among other things, “requires the Department of Energy [DOE] to issue a decision on LNG projects within 45 days of an...

Conference Addresses Challenges in AV Deployment
, April 20, 2016
On April 15, 2016, the University of Michigan Law School hosted Autonomous Vehicles: Legal and Regulatory Hurdles to Deployment. Representatives from the National Highway Traffic Safety Administration (NHTSA), automakers, insurers, and academia discussed the legal challenges autonomous technology...

New Air Bag Law in Washington
, April 20, 2016
A new law in Washington deems the manufacture, sale or import of counterfeit or nonfunctional air bags a felony. The legislation was originally introduced in the House and Senate earlier this year. The law goes into effect on June 9, 2016.

New Hampshire Coop Launches Peak Demand Management Programs
, April 20, 2016
New Hampshire Electric Cooperative (NHEC) has rolled out three voluntary demand management programs designed to incentivize reduced peak time usage and therefore ultimately reduce NHEC’s cost of providing power to its members.

Sabine Pass LNG Begins Train 2 Commissioning
, April 20, 2016
FERC has issued an order authorizing Sabine Pass LNG to introduce feed gas, refrigerants and process fluids in certain areas related to the commissioning of Train 2 LNG production at Sabine Pass LNG’s Cameron Parish, La., export facility.

FERC Approves Magnolia LNG Export Terminal Application
, April 18, 2016
FERC issued an order today granting Magnolia LNG, LLC’s application to construct and operate a liquefaction and LNG export terminal at Lake Charles, La. and Kinder Morgan Louisiana Pipeline LLC’s application to construct an interconnected pipeline. In approving the applications, FERC...

Flint Hills Resources Authorized to Export LNG to FTA Nations
, April 18, 2016
The U.S. Department of Energy (DOE) has issued an order authorizing Flint Hills Resources to export approximately 3.62 Bcf/year (approximately 120,000 gallons/day) of LNG, over a 20-year term, from a liquefaction facility owned by Stabilis LNG Eagle Ford, LLC in George West, Texas. The exports...

Southern California Edison Adds Most Solar Capacity in 2015
, April 15, 2016
According to an annual utility solar market survey conducted by the Smart Electric Power Alliance, Southern California Edison added 1,258 MWs of solar power to the grid last year. This was the largest addition of solar power made by any utility in the United States. Other cooperatives, including...

Sweeping Changes Proposed to Tax Treatment of Related-Party Debt May Impact Private Funds
Robert S. Chase,David A. Roby,Amish M. Shah,Madeleine M.L. Tan,H. Karl Zeswitz, April 15, 2016
Recently proposed Treasury regulations under IRC § 385 (the Proposed Regulations) would potentially treat related-party debt, in whole or in part, as equity for U.S. tax purposes. The Proposed Regulations generally apply to debt among members of an expanded corporate group, which includes...

Automakers Reach out to Auto Insurers on Recalls
, April 14, 2016
Two associations representing the largest automakers in the world have asked the auto insurance industry to assist them by reminding insureds of recalls when they renew their policies. The Alliance of Automobile Manufacturers and the Association of Global Automakers made their request in letters to...

NRECA Asking Regulators to Exempt Coop Truck Drivers
, April 14, 2016
The National Rural Electric Cooperative Association (NRECA) has asked regulators to exempt drivers of coop utility trucks from new standards that could subject them to the same entry-level training rules as drivers of 18-wheelers and other trucks. The Federal Motor Carrier Safety Administration...

Unusual Antitrust Agencies’ Guidance on Defense Mergers
Jeffrey P. Bialos,James R. McGibbon, April 14, 2016
The Department of Justice (Justice) and the Federal Trade Commission (FTC) today issued an unusual joint statement that highlighted their continued commitment to preserve defense industry competition by closely reviewing mergers and acquisitions in that sector, in cooperation with the Department of...

Federal Defend Trade Secrets Act Clears the Senate: Is the Uniform Act on Life Support?
Ann G. Fort,Matt Gatewood,Peter G. Pappas,William L. Warren,Gail L. Westover, April 12, 2016
The U.S. Senate has unanimously approved a bill increasing the protections available to companies for their commercial secrets. The Defend Trade Secrets Act of 2016 (DTSA or the Act) provides for the first time a truly uniform, nationwide set of standards protecting trade secrets, plus a private...

Jordan Cove Energy Project Requests Rehearing of FERC’s Order Denying LNG Export Terminal Application
, April 12, 2016
Jordan Cove Energy Project, L.P. and Pacific Connector Gas Pipeline, LP (together, Applicants) have filed a request for rehearing of FERC’s March 11, 2016 order which rejected, based on lack of market support, Applicants’ applications to construct and operate an LNG export terminal at...

CIPCO Launches State’s Largest Solar Project
, April 11, 2016
Central Iowa Power Cooperative (CIPCO), a G&T based in Des Moines, just launched a new solar project. The first phase of the new utility-scale project will produce up to 5.5 MWs of power by late 2016. CIPCO will be adding to its portfolio of emissions-free sources of energy, which currently make up...

GridLiance Holdco Acquires Transmission Assets of Tri-County
, April 11, 2016
Tri-County Electric Cooperative (Tri-County) sold its transmission substations in Oklahoma’s panhandle and turned over the operation and maintenance of 410 miles of power lines to GridLiance Holdco (GridLiance) on April 1. The acquisition fits into GridLiance’s partnership model with...

Panama Papers Leak 11.5 Million Documents, Exposing Public Officials
, April 11, 2016
On Sunday, April 3, 11.5 million confidential documents exposing a widespread system of global tax evasion were made public as a result of a hack. The documents, which were records of the Panamanian corporate service provider and law firm Mossack Fonseca, were obtained by an anonymous source,...

Veresen Announces Another Preliminary Agreement For Jordan Cove LNG Volumes
, April 11, 2016
Veresen Inc. announced that it has reached a preliminary agreement on key terms for the purchase by Japanese company, ITOCHU Corporation, of 1.5 million tonnes per annum of natural gas liquefaction capacity at the proposed Jordan Cove Energy Project at Coos Bay, Ore. for an initial term of 20...

Missouri Legislature Considers Regulation of Ridesharing Industry
, April 08, 2016
The Missouri House of Representative has advanced legislation imposing state wide regulations on the ridesharing industry. The bill, supported by both Uber and Lyft, mandates insurance for all rideshare vehicles and requires companies to conduct background checks on drivers. Both Uber and Lyft...

Taking Stock in Related-Party Debt: Regulations Propose Sweeping Changes
J. Randall Buchanan,Robert S. Chase,Reginald J. Clark,Thomas A. Cullinan,Joseph M. DePew, April 08, 2016
On April 4, the Treasury and the Internal Revenue Service (IRS) released proposed regulations under IRC § 385 (the Proposed Regulations)1 that are intended to combat perceived concerns associated with indebtedness between related group entities. Significantly, the Proposed Regulations apply to...

Alabama Tax Tribunal Determines Out-of-State Bookseller Has Nexus, Joins "Club"
Zachary T. Atkins,Eric J. Coffill, April 07, 2016
The Alabama Tax Tribunal concluded that an out-of-state retailer was required to collect and remit use tax on the sales of books and educational materials to in-state teachers and students, and that neither the Due Process Clause nor the Commerce Clause impeded the Alabama Department of...

New York State Tax Appeals Tribunal Holds that Pricing Information Services Are Taxable
Jessica A. Eisenmenger,Jeffrey A. Friedman, April 07, 2016
The New York State Tax Appeals Tribunal sustained a determination by a Department of Taxation and Finance Administrative Law Judge that receipts obtained from the sale of retail pricing information services are subject to sales tax. Under New York law, information services are taxable, but services...

SCT&E LNG Announces Fourth MOU for LNG Sales
, April 07, 2016
SCT&E LNG, Inc. announced today that it has signed a fourth non-binding Memorandum of Understanding (MOU) for the sale of LNG from its proposed liquefaction and LNG export terminal on Monkey Island in Cameron Parish, La. The announcement does not name the counterparty but states that “[t]his...

Supporters of Jordan Cove Energy Project File Comments with FERC
, April 07, 2016
Comments recently were filed with FERC by various entities supporting approval of Jordan Cove Energy Project’s proposed LNG export terminal at Coos Bay, Ore. and the interconnected pipeline. Comments requesting approval of the project were filed by the Oregon AFL-CIO, Laramie Energy,...

The Home Stretch: Virginia Tax Commissioner Rules that Single Employee Working From Home Creates Nexus
Open Weaver Banks,Michael G. Kerman, April 07, 2016
The Virginia Tax Commissioner ruled that an out-of-state corporation had nexus with Virginia because an employee performed accounting, human resources, payroll and customer support functions from a home office in Virginia. The Commissioner explained that out-of-state corporations are subject to...

China Positioned to Lead in Manufacturing Autonomous Vehicles
, April 05, 2016
A number of companies in China are deeply invested in developing driverless vehicles, lending credence to a Boston Consulting Group study finding China will be the largest market for autonomous vehicles within the next 15 years. China is well situated to take on the role. Unlike the U.S., China...

Gail India Purchases Second LNG Shipment from Sabine Pass Terminal
, April 05, 2016
Bloomberg reports that the second shipment of LNG produced at Cheniere Energy Inc.’s Sabine Pass LNG terminal in Cameron Parish, La. was purchased on a spot basis by Gail India Ltd. The shipment is expected to reach the Dabhol import terminal on India’s west coast by mid-April....

Texas LNG Brownsville Files FERC Application
, April 05, 2016
Texas LNG Brownsville LLC (Texas LNG) has filed an application with FERC for authorization to construct and operate a 4 million tonnes per annum gas liquefaction and LNG export terminal at the Port of Brownsville, Texas. Feed gas for the terminal will be provided via an approximately 150-mile...

Cooperatives Co-Commission New Solar Field in Arkansas
, April 04, 2016
Ouachita Electric Cooperative Corporation (OECC), Arkansas Electric Cooperative Corporation (AECC) and Aerojet Rocketdyne (Aerojet) formally commissioned a 12-megawatt (AC) array in the Highland Industrial Park in Arkansas.

Federal Judge Dismisses Lawsuit against Alabama Cooperative
, April 04, 2016
A federal judge dismissed a class action suit against Arab Electric Cooperative brought by its members for failing to refund profits back to members, as required by state law. The judge ruled that, because the cooperatives have contracts with the Tennessee Valley Authority (TVA) that restrict the...

Major Law Firms Hacked
, April 04, 2016
On March 29, 2016, it was reported that hackers infiltrated the systems of major U.S. law firms last summer, including Cravath, Swaine & Moore and Weil, Gotshal & Manges. Federal law enforcement is investigating the hacks, which likely sought confidential information of publicly-traded...

U.S. Senators Introduce Legislation to Tighten Schedule 13D Reporting Requirements and Increase Oversight of Activist Hedge Funds
, April 04, 2016
Two U.S. Senators recently introduced legislation that would result in significant changes to Schedule 13D reporting requirements. According to the press release announcing the introduction of the legislation, the proposed changes are designed to enhance transparency, protect companies from...

California Proposes Anti-Steering Regulation Focusing on Deceptive Statements
, April 01, 2016
Through a recently proposed regulation, the California Department of Insurance seeks to amend the rules preventing insurers from steering claimants to specific auto repair shops. The proposed amendments relate to a variety of issues, such as when a claimant has “chosen” an automotive...

NHTSA To Propose Safety Guidelines For New and Emerging Technology
, April 01, 2016
The National Highway Traffic Safety Administration is submitting a proposed enforcement guideline to address safety concerns relating to new and emerging technology, such as automated vehicles and crash avoidance technology. The NHTSA acknowledged that the increased use of electronic systems has...

TVA Awards Solar Capacity to Three Coops
, April 01, 2016
The Tennessee Valley Authority (TVA), in partnership with the Tennessee Valley Public Power Association, awarded 16.7 MWs of solar capacity to four power companies, three of which are coops. Chickasaw Electric Cooperative, East Mississippi Electric Power Association and Joe Wheeler Electric...

Tax-Free Transfer: Online Document Delivery Services Not Subject to New York Sales Tax
Madison J. Barnett,Chris M. Mehrmann, April 01, 2016
The New York State Department of Taxation and Finance issued an advisory opinion explaining that the petitioner’s Internet-based document transfer subscription plans are not subject to sales and use tax. Because the primary purpose of the transactions is to facilitate the transfer of files...

UK Payment Systems Regulator Issues Guidance Setting Credit and Debit Interchange Caps
Brian M. Murphy,Robert J. Pile,Marc A. Rawls, April 01, 2016
On March 24th, the United Kingdom’s Payment Systems Regulator (PSR) issued final guidance establishing interchange fee caps on credit and debit card transactions where the point of sale is located in the United Kingdom. The guidance was issued pursuant to European Union legislation adopted in...

Georgia Keeps It Interesting: Legislature Passes Novel Law on Interest Rates and Refund Claims
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, March 30, 2016
On March 24, the Georgia General Assembly passed House Bill 960 (H.B. 960), which would adjust the statutory interest rate applicable to tax assessments and refunds and addresses other issues related to refund claims for Georgia sales and use taxes.1 H.B. 960 passed the legislature while the...

Interagency Guidance: CIP Requirements Apply to Certain Prepaid Cards
Brian Barrett,Brian M. Murphy,Robert J. Pile,John Allen Zumpetta, March 30, 2016
On March 21, the Board of Governors of the Federal Reserve, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Office of the Comptroller of the Currency (OCC), and the U.S. Department of Treasury’s Financial Crimes Enforcement Network (collectively, the...

Temporary Storage, Long-Term Exemption: Illinois Department of Revenue Releases Ruling on Temporary Storage Exemption
Charles C. Capouet,Eric J. Coffill, March 30, 2016
In Private Letter Ruling ST 15-0016-PLR, the Illinois Department of Revenue explained the application of the temporary storage exemption to the imposition of use tax on the in-state storage of equipment. Illinois’ temporary storage exemption applies where the property is acquired outside...

Coop Adds Solar Power in the Sunshine State
, March 29, 2016
Seminole Electric Cooperative (Seminole), based in Tampa, Florida, will soon add 2 MWs of solar power to its generation mix. Seminole is in the process of erecting 8,400 photovoltaic panels near a combined-cycle gas plant that it owns. By early 2017 all nine of Seminole’s distribution...

Texas Court of Appeals Upholds Cost of Goods Sold Deduction for Seismic Data Gatherer
Elizabeth S. Cha,W. Scott Wright, March 29, 2016
The Texas Court of Appeals held that a seismic data gathering company was entitled to a cost of goods sold (COGS) deduction for costs of labor and materials incurred to acquire and process seismic data for its clients.

Wind Energy Strong in 2015
, March 29, 2016
Data from the Energy Information Administration (EIA) show that wind energy accounted for over 41 percent of generating capacity additions in 2015. Wind energy’s growth was strongest in Texas, Oklahoma, Kansas, Iowa and North Dakota.

FERC Releases EIS for Golden Pass LNG Export Terminal
, March 28, 2016
FERC has released its environmental impact statement (EIS) for the proposed Golden Pass LNG liquefaction and export terminal on the Sabine-Neches Waterway in Jefferson County, Texas, and the interconnected pipeline. The EIS concludes that construction of the project would result in some adverse...

Iranians Hackers Targeted Control of New York Dam
, March 28, 2016
The seven Iranian hackers that were indicted for conducting distributed denial of service attacks on banks also were charged with illegally accessing the supervisory control and data acquisition, or “SCADA,” system at a dam in New York State. This is reportedly the first time a breach...

Perspective: Attitudes Towards Autonomous Technology
, March 28, 2016
Andrew Ng, a chief scientist at Baidu, a Beijing based web services company, has authored an article that suggests a more productive way of thinking about autonomous driving technology. He posits that we should avoid trying to make autonomous vehicles act like human driven cars, change our...

Proposed FBAR Changes: One Step Forward, Two Steps Back
, March 28, 2016
On March 10, 2016, the Financial Crimes Enforcement Network (“FinCEN”), a division of the U.S. Department of Treasury, proposed significant changes to the Report of Foreign Bank and Financial Accounts (“FBAR”) regulations. Under current law, a “U.S. person,”...

SEC Issues Order To Solicit Comments On FINRA Capital Acquisition Broker Proposal And Determine Whether To Approve Or Disapprove The Proposal
, March 28, 2016
At the end of last year, the SEC issued a notice of a proposed FINRA rule change that would establish a separate rule set for broker-dealers that meet the definition of a “capital acquisition broker” and elect to be governed under such rule set. Last week, the SEC issued an order in...

Quill Part Deux: North Dakota Lost the Nexus Battle. Will South Dakota Win the War?
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, March 24, 2016
On March 22nd, South Dakota Governor Daugaard signed into law Senate Bill 106 (S.B. 106), the passage of which may be the ultimate vehicle to challenge Quill1 at the U.S. Supreme Court. With landslide support in the South Dakota Senate and House of Representatives, S.B. 106 adopts an economic nexus...

Tyson Foods v. Bouaphakeo: “Representative” Evidence May Be Used in (Some) Class Actions
Thomas M. Byrne,Thomas W. Curvin,Matt Gatewood,Patricia A. Gorham,Phillip E. Stano, March 24, 2016
On March 22, 2016, the United States Supreme Court affirmed the certification of a class of Tyson Foods employees under Rule 23(b)(3) and a collective action under the Fair Labor Standards Act (FLSA). The Court held that representative evidence could be allowed to fill an evidentiary gap created by...

Changes to 2016 ALTA Survey Standards - What You Need to Know
Alfred G. Adams,John W. Benson,H. Edward Hales,Victor P. Haley,James B. Jordan, March 24, 2016
The American Land Title Association (ALTA) and the National Society of Professional Surveyors (NSPS) recently adopted revised Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys. The new standards became effective February 23, 2016, and supersede the existing standards introduced...

Limited Liability Communication: Seventh Circuit Limits TCPA Liability for Communications Made by Third-Parties 
Thomas M. Byrne,Juan C. Garcia,Phillip E. Stano,Rocco E. Testani,Lewis S. Wiener, March 24, 2016
On March 21, the U.S. Court of Appeals for the Seventh Circuit affirmed a lower court’s ruling that a small business had no liability under the Telephone Consumer Protection Act (TCPA) for fax advertisements sent by a third-party outside the scope of the business owner’s express...

New York Federal Court Dismisses Whole Foods Class Action
Andrew D. Appleby,Nicole D. Boutros, March 24, 2016
A federal court dismissed a class action lawsuit against Whole Foods, finding the consumers lacked standing because they could not demonstrate they purchased any of the mislabeled foods for which they claimed Whole Foods systemically overcharged. The consumers alleged that Whole Foods engaged in...

Panama Canal Expansion to Open June 2016
, March 24, 2016
Bloomberg reports that the expansion of the Panama Canal is expected to open June 26, 2016, “almost two years behind schedule.” According to the report, the expansion will accommodate LNG carriers and enable such carriers traveling from the U.S. Gulf Coast to reach Asian markets...

Perspective: Smart Tires
, March 24, 2016
Some tire manufactures are developing “smart tires” that will be able to communicate the vehicle’s control system. This new autonomous technology will communicate with other vehicles and with smart transportation and roadway systems that many are predicting. In addition, one...

Three Iowa Coops May Be Able to Recover Their Costs After All
, March 24, 2016
An ice storm in April 2013 required three Iowa coops and a municipal utility to spend $19 million for repair and recovery work. The coops requested reimbursement for those expenses from the Federal Emergency Management Agent (FEMA), but their initial request was denied in the Fall of 2013. However,...

Veresen Announces Agreement for Jordan Cove LNG Supplies
, March 23, 2016
Veresen Inc., sponsor of the proposed Jordan Cove Energy Project LNG export terminal at Coos Bay, Ore., announced that it has finalized the key commercial terms with JERA Co., Inc., (JERA) for the purchase by JERA of at least 1.5 million tonnes per annum of natural gas liquefaction capacity for an...

Environmental Assessment for Petronas’ LNG Export Terminal Extended for Three Months
, March 22, 2016
The Canadian Environmental Assessment Agency (CEAA) has been granted a three month extension to review new information and complete its environmental assessment for the proposed Pacific NorthWest LNG (PNWLNG) export terminal near Lelu Island, British Columbia. Malaysian state oil company Petronas...

FTC Orders Data Security Auditors to Provide PCI DSS Assessment Data
, March 22, 2016
On March 7, 2016, the Federal Trade Commission (“FTC”) ordered nine data security auditing companies to provide detailed information within 45 days about how they conduct assessments of companies when measuring their compliance with the Payment Card Industry Data Security Standards...

PHMSA Announces Proposed Natural Gas Pipeline Safety Rules
Paul F. Forshay,Allison E. Speaker,Michael A. Stosser, March 22, 2016
The Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a proposal to implement regulations that would add new safety measures designed to raise existing safety standards applicable to pipelines currently regulated by PHMSA. The Administration also proposes to make those...

Plaintiff Sent Packing: Fourth Circuit Affirms Dismissal for Lack of Personal Jurisdiction
Chris M. Mehrmann,Amy F. Nogid, March 22, 2016
The U.S. Court of Appeals for the Fourth Circuit affirmed the Maryland district court’s determination that it lacked specific personal jurisdiction over a Brazilian poultry exporter, BRF S.A. (BRF), under the Due Process Clause of the U.S. Constitution. Perdue Foods LLC (Perdue), which sold...

Running on Empty: New York State ALJ Denies Deduction for Payments Made to Captive Insurance Company
Andrew D. Appleby,Charles C. Capouet, March 22, 2016
A New York State Division of Tax Appeals ALJ determined that payments by a corporation to its captive insurance company did not qualify as deductible insurance premiums because the arrangement lacked risk shifting and risk distribution. The taxpayer primarily owned and operated convenience stores...

Woodfibre LNG Receives Favorable Environmental Decision
, March 22, 2016
The Honourable Catherine McKenna, Canada’s Minister of Environment and Climate Change, announced that the proposed Woodfibre LNG export terminal (Woodfibre), located near Squamish, British Columbia, is not likely to cause significant adverse environmental effects. The Environmental Assessment...

DOE Grants Cameron LNG Authority to Export Additional Non-FTA Volumes
, March 21, 2016
Today, the U.S. Department of Energy issued a Final Opinion and Order authorizing Cameron LNG to export an additional 152 Bcf/year of LNG over 20 years from its export terminal under construction in Cameron Parish, La. to nations without a Free Trade Agreement (non-FTA) with the United States....

Automakers Pledge To Make Automatic Braking Standard
, March 18, 2016
Nearly all automakers have pledged to make automatic emergency braking standard on all models by 2022. Automatic braking systems exert control and stop vehicles without driver intervention in emergency situations. This technology is an improvement on many current systems that simply warn drivers of...

Repsol’s Canaport LNG Terminal Conversion to Exports Put on Hold
, March 18, 2016
CBC News reports that Repsol has put on hold its proposal to convert the Canaport LNG import terminal in New Brunswick, Canada into an export terminal. The company attributed the decision to its inability to find outside investors and current market conditions, which make the conversion...

Ford Tests Autonomous Vehicles in Winter Weather
, March 17, 2016
Ford recently announced that they are the first automaker to test fully autonomous vehicles in winter weather, including snow - a major step toward fully autonomous driving. Inclement weather, and in particular snow, has proven to be an issue for autonomous vehicles as the vehicles learn to process...

Is the SEC Poised to Broaden Standard Co-Investment Relief?
Steven B. Boehm,Cynthia M. Krus,Lisa A. Morgan,Anne G. Oberndorf,Harry S. Pangas, March 17, 2016
The U.S. Securities and Exchange Commission (SEC) Division of Investment Management recently issued a notice with regard to the application for co-investment relief filed by Apollo Investment Corporation and certain of its affiliates. Apollo’s application has been pending for more than six...

NHTSA to Hold Public Meetings on Autonomous Vehicles
, March 17, 2016
The National Highway Traffic Safety Administration has announced that it will hold a pair of public meetings to gather input as it develops guidelines for automated vehicle technology. The meetings, to be held in Washington, D.C. and California, will seek to gather information on several issues...

Oklahoma Supreme Court OKs Initiative to Amend State Constitution to Impose 1% Sales and Use Tax, Raise Public School Teachers' Salaries
Andrew D. Appleby,Evan M. Hamme, March 17, 2016
The Oklahoma Supreme Court held that an initiative to amend the state’s constitution does not violate the state’s constitutional rule that a public vote to amend the constitution must address only one general subject (one general subject rule). Although the proposed constitutional...

Will Autonomous Vehicles Be at Risk to Hacking?
, March 17, 2016
Vehicle hacking has become a serious concern in the wake of several high profile hacks like the 2015 hack of a Jeep Cherokee conducted by Wired Magazine. Mikko Hypponen, a Finnish security expert with the firm F-Secure, warns that hacking could present an even bigger threat to autonomous vehicles....

Georgia Supreme Court Answers “Yes”—A Guarantor May Waive Foreclosure Confirmation
Michael G. Kerman,Adam L. Sonenshine, March 16, 2016
In a decision issued on February 22, 2016, the Supreme Court of Georgia ruled that a guarantor can waive by contract the requirement for a lender to obtain confirmation of a foreclosure sale before pursuing the guarantor for a deficiency. PNC Bank, National Association v. Smith, 2016 WL 690406.

Industry Urges Congress To Take the Lead in Autonomous Vehicle Regulation
, March 16, 2016
Google, Lyft, General Motors and other automakers testified before the Senate yesterday, asking Congress to remove barriers in the way of autonomous vehicle development. Google stressed that a framework for regulation on autonomous vehicles is needed to avoid conflicting state laws. Conversely,...

South Mississippi Electric First to Bring Solar Power to Mississippi Gulf Coast
, March 16, 2016
South Mississippi Electric cooperative has completed two solar facilities in rural Mississippi that began generating electricity in February. The two projects in Kiln and Lucedale, Mississippi are the first to bring solar power to the Mississippi Gulf Coast.

Dial “C” for Confusion: Courts Split on TCPA Definition of Autodialer
Thomas M. Byrne,Juan C. Garcia,Phillip E. Stano,Rocco E. Testani,Lewis S. Wiener, March 15, 2016
Notwithstanding so-called “guidance” from the Federal Communications Commission (FCC) in its July 2015 Order, the definition of “automatic telephone dialing system” (ATDS or autodialer) continues to be a disputed issue. This issue perpetuates the uncertainty over the scope...

Florida Renews Its Membership: Florida DOR Finds Certain Online Membership Benefits Not Subject to Tax
Hanish S. Patel,Marc A. Simonetti, March 15, 2016
The Florida Department of Revenue (DOR) determined that the sale of certain online membership benefits—early, exclusive access to products and deals and unlimited cloud data storage—were not subject to Florida sales tax or the Communications Service Tax (CST). However, the DOR added...

Store Credits Not Subject to Unclaimed Property, Says California Court
Wilson G. Barmeyer,Holly H. Smith,Phillip E. Stano,Steuart H. Thomsen,Mary Jane Wilson-Bilik, March 15, 2016
In a decision with potentially broad implications, a California Superior Court has held that merchandise credits not redeemable for cash are not subject to California's Unclaimed Property Law (UPL). The court also held that these credits qualified for exemption under the California unclaimed...

The End of an Era—IRS Issues Additional Guidance on End of Determination Letter Application Program
Brenna M. Clark,Adam B. Cohen,Paul R. Lang,Alice Murtos,Meredith L. O'Leary, March 15, 2016
In 2015, the Internal Revenue Service (IRS) announced changes to its existing determination letter program, namely that the staggered remedial amendment cycle for individually designed retirement plans would end effective January 1, 2017, and the scope of the program would be limited to initial...

Veresen Responds to FERC Order Denying Jordan Cove Energy Project’s LNG Terminal Application
, March 15, 2016
Veresen Inc., sponsor of the proposed Jordan Cove Energy Project LNG export terminal at Coos Bay, Ore, released a statement in response to FERC’s order issued Friday, which rejected the application to construct the terminal and interconnected pipeline. Dan Althoff, President and CEO of...

FERC Denies Jordan Cove Energy Project’s Application to Construct LNG Export Terminal
, March 14, 2016
Today, FERC issued an order denying Jordan Cove Energy Project’s application to construct an LNG export terminal at Coos Bay, Ore. and Pacific Connector Gas Pipeline’s application to construct an interconnected pipeline. Regarding the interconnected pipeline, FERC found that...

Veresen Still Looking for First Customer for Jordan Cove LNG Export Terminal
, March 14, 2016
Financial Post reports that executives from Veresen Inc., sponsor of the proposed Jordan Cove Energy Project LNG export terminal at Coos Bay, Ore., recently stated that the company is still looking to sign up its first customer for the LNG supplies to be produced and exported at the terminal.

New York State Division of Tax Appeals Addresses Unauthorized Insurance Company Taxation
Michele Borens,Jonathan A. Feldman,Jeffrey A. Friedman,Todd A. Lard,Carley A. Roberts, March 11, 2016
A New York State Division of Tax Appeals administrative law judge (ALJ) issued three determinations addressing the tax implications for unauthorized insurance companies, both life and non-life.1 Significant uncertainty has surrounded New York State’s taxation of unauthorized insurance...

Sabine Bankruptcy Court Allows Rejection of Gathering Agreements
Warren N. Davis,B. Knox Dobbins,Eric R. Fenichel,Paul F. Forshay,Mark D. Sherrill, March 10, 2016
In a March 8, 2016 ruling from the bench, the U.S. Bankruptcy Court for the Southern District of New York issued a significant decision regarding the ability of a debtor in bankruptcy to reject gas gathering agreements and similar intrastate contracts. Judge Shelley Chapman, overseeing the...

Coalition of Scientists Urge Rejection of Pacific Northwest LNG Draft Environmental Assessment
, March 10, 2016
The Globe and Mail reports that more than 130 scientists have signed a letter to Canadian Environment Minister Catherine McKenna requesting that she reject a “scientifically flawed” draft environmental assessment for the proposed Pacific NorthWest LNG export terminal near Lelu Island,...

EIA Projects Record High Natural Gas Production and Consumption for 2016
, March 10, 2016
Reuters reports that U.S. natural gas production in 2016 is expected to reach a record high of 79.68 Bcf/day according to the U.S. Energy Information Administration’s (EIA) March 2016 Short-Term Energy Outlook. The forecast would be the sixth consecutive annual record high for U.S. gas...

IL House Considering Storage Fee Bill
, March 10, 2016
The Illinois House of Representatives is considering a bill that would require vehicle storage providers to send a certified letter disclosing their rates to a vehicle lienholder before charging storage fees. Under the proposed law, the storage provider must also provide the lienholder an...

In a New York Minute: Considerations for Filing 2015 New York Returns
, March 10, 2016
Waiting until the federal return is prepared and then simply allowing that return to flow through to the New York returns could be a dangerous approach, leaving you scrambling, missing some election opportunities, and potentially being subjected to penalties.

New USDA Program Supports Rural Economic Development
, March 10, 2016
The United States Department of Agriculture (USDA) has announced a new program to let electric cooperatives partner with regional organizations to boost rural economic development. The USDA has set aside $500 million for rural projects that support economic and community development plans.

Petronas Releases Statement on Pacific NorthWest LNG Export Project
, March 10, 2016
Malaysian state oil company Petronas, primary sponsor of the proposed Pacific NorthWest LNG export terminal in British Columbia, issued a press release stating that it “is proactively taking steps to mature the project towards its Final Investment Decision” and, once a federal...

EU-U.S. Privacy Shield - Full Text Released
Daniel E. Frank,Mark D. Herlach,Brian M. Murphy,Robert D. Owen,Brian L. Rubin, March 08, 2016
On February 29, 2016, the European Commission released the text of the EU-U.S. Privacy Shield. The text reveals the details of a new framework that will place stronger obligations on U.S. companies to protect the personal data of EU citizens. It will also involve heightened compliance requirements...

Electronically-Delivered Software Upgrades Not Taxable in Florida
Jessica A. Eisenmenger,Amy F. Nogid, March 08, 2016
The Florida Department of Revenue determined that software upgrades that are delivered electronically are not subject to sales tax because the upgrade was a stand-alone version of the software and did not rely on the earlier, physically-delivered software to operate. The Department also determined...

New System Aids LA Police Identify Drivers with Lapsed Policies
, March 08, 2016
A new monitoring system is being launched in Louisiana to assist police with enforcement of a state requirement that drivers are up to date on paying their auto insurance premiums. The system will pull reports from insurers and provide the data to the state Office of Motor Vehicles (OMV) and to...

Report: Planned U.S. LNG Export Terminals Face Market Uncertainty
, March 08, 2016
The U.S. Department of Energy, Energy Information Administration, has released a brief overview of the status of U.S. LNG export terminals. The report notes that “[m]arket conditions have changed since many LNG export projects in the United States were initially proposed[,]” and planned...

SBT Taxpayer Win in Michigan Compact Cases
Samantha K. Trencs,Eric S. Tresh, March 08, 2016
The Michigan Court of Appeals held that the mandatory apportionment provision of the Michigan Single Business Tax Act did not impliedly repeal Michigan’s enactment of the Multistate Tax Compact’s alternative apportionment election provision. In addition, the court held that the Single...

Credit Suisse Releases 8th Annual Hedge Fund Investor Survey
, March 07, 2016
On Wednesday Credit Suisse released a survey in which responses from 369 institutional investors, representing $1.1 trillion of hedge fund investments, were analyzed. The investors were surveyed on a number of topics including: key industry trends and forecasts; growth and return prospects for the...

High Court Rejects Bid to Stay Mercury Air Toxics Rule
, March 07, 2016
On Thursday, the U.S. Supreme Court rejected a request to stay the EPA’s Mercury and Air Toxics Standards rule. The rule, which requires coal-fired power plants to greatly reduce mercury and other toxic emissions, was struck down in June because the EPA had not considered the $1 billion cost...

New Auto Body Labor Rate Survey Regulations
, March 07, 2016
The Rhode Island Department of Business Regulation recently adopted amendments to regulations in the Division of Insurance and the Division of Commercial Licensing governing auto body labor rate surveys. The amendments provide that insurers writing less than 1% of the total premium volume of auto...

New Michigan Law Exempts Certain Data Center Equipment Purchases from Sales and Use Taxes as of January 1, 2016
Evan M. Hamme,Charles C. Kearns, March 07, 2016
Purchases of “data center equipment for assembly, use, or consumption in the operations of a qualified data center” on or after January 1, 2016, are exempt from Michigan sales and use tax. M.C.L. §§ 205.54ee, 205.94cc; see generally Notice Regarding Data Center Exemption, Feb....

Revised LB&I Examination Process Requires Taxpayer’s Written Acknowledgement of Facts for Unagreed Issues
Thomas A. Cullinan,Joseph M. DePew,Sheldon M. "Shelly" Kay,Mary E. Monahan,Daniel H. Schlueter, March 07, 2016
Recently announced changes to the Internal Revenue Service (IRS) Large Business and International (LB&I) Division’s examination process include a requirement that the audit team issue an Information Document Request (IDR) asking for the taxpayer’s acknowledgement of the facts for any...

Sixth Circuit Agrees to Review EPA’s Waters of the United States Rule
, March 07, 2016
The U.S. Court of Appeals for the 6th Circuit has agreed to review EPA’s Waters of the U.S. rule. The controversial rule has been criticized on the grounds that it would extend EPA’s regulatory authority to small streams and dry creek beds. According to Dorothy Kellogg, NRECA senior...

U.S. Senate Banking Committee Expected To Begin Confirmation Process For Two Nominated SEC Commissioners
, March 07, 2016
According to the Wall Street Journal, Senator Richard Shelby, the Chairman of the Senate Banking Committee, is ready to initiate the confirmation process for Lisa Fairfax and Hester Pierce, who were nominated by President Obama last fall to fill the two vacant seats at the SEC. A date has yet to be...

Upcoming Vote on Auto Glass Repair in Arizona
, March 07, 2016
A vote before the Arizona House of Representatives is anticipated this March on an amendment to a bill regarding unlawful practices relating to glass repair. The amended bill makes it a Class 6 felony to commit acts such as representing what auto glass coverage is available under the insurance...

Venture Global Plaquemines LNG Files Application to Export to FTA and Non-FTA Nations
, March 07, 2016
Venture Global Plaquemines LNG, LLC (VGPL) has filed an application with the United States Department of Energy to export up to 1,240 Bcf/year of LNG over a 25-year period from its proposed liquefaction and LNG export terminal on the Mississippi River in Plaquemines Parish, La. VGPL requests...

Crowley LNG Files for Canadian Export License
, March 04, 2016
Crowley LNG, Inc. has filed an application with the Canadian National Energy Board to export up to 10 Bcf/year of LNG over 25 years to the United States and its territories. The LNG to be exported will be produced at the Tilbury LNG Plant in Delta, British Columbia and/or the Mount Hayes LNG Plant...

Georgia Still Showing No Interest: Georgia Department of Revenue Holds Hearing on Proposed Regulation Eliminating Refund Interest for Direct Pay Permit Holders
Jonathan A. Feldman,Hanish S. Patel, March 04, 2016
The Georgia Department of Revenue held a public hearing on a proposed regulation amendment that would materially affect the use of direct pay permits in Georgia. The proposed regulation would cause all current permits to expire on December 31, 2016, and require all current holders to reapply and...

"Stay Just a Little Bit Longer" by Booking Online: Court Holds Orbitz's Services Not Taxable in Wisconsin
Todd G. Betor,Jonathan A. Feldman, March 03, 2016
On February 11, the Wisconsin Court of Appeals held that the receipts earned by Orbitz, an online travel company, from its services and markups for reserved rooms are not subject to sales tax. Specifically, the court determined that Orbitz is not “furnishing” rooms or lodging for...

Google’s Autonomous Vehicle (At Least Partially) Responsible for Accident
, March 03, 2016
In February, one of Google’s self-driving vehicles was involved in an accident with a city bus in Mountain View, California. Unlike the 17 previous accidents involving Google’s self-driving cars, this accident was at least partially the car’s fault. The accident occurred when the...

NAIC IUL Illustration (A) Subgroup Approves Proposed Revisions to Actuarial Guideline 49 for Exposure and Comment
Eric A. Arnold,Frederick R. Bellamy,Thomas E. Bisset,Dodie C. Kent,Clifford E. Kirsch, March 03, 2016
On February 24, the IUL Illustration (A) Subgroup of the Life Actuarial (A) Task Force approved proposed revisions to Actuarial Guideline 49 (A.G. 49) for exposure and comment. Among other things, A.G. 49, which was adopted by the NAIC in 2015, establishes a uniform methodology for determining the...

Perspective: The Evolution of 5G
, March 03, 2016
The evolution of 5G wireless technology is expected to be completed sometime between 2018 and 2020, and the speed of 5G will be somewhere between 10 to 40 times faster than the current system, 4G. 5G will also carry a higher volume of data along with a faster pace. But experts are concerned about...

Perspective: The US Legal System - An Impediment to Autonomous Vehicles
, March 03, 2016
Technology often outpaces the legal system, but when it comes to autonomous vehicles, the speed of the technology’s development and the piecemeal evolution of the US legal system may create confusion on the road. In their videocast, Michael Nelson and Kymberly Kochis discuss the current state...

Tokyo Gas Signs HOA for Cameron LNG Supplies
, March 03, 2016
Tokyo Gas Co., Ltd. announced that it has signed a heads of agreement (HOA) with Mitsubishi Corporation subsidiary Diamond Gas International Pte. Ltd. for the sale and purchase of 200,000 tons/year of LNG over 20 years from the Cameron LNG export terminal under construction at Hackberry, La. The...

Avocet LNG to Develop Deepwater LNG Port for Offshore Louisiana
, March 02, 2016
TC Offshore LLC has filed an application with FERC to abandon, by sale to Avocet LNG, LLC (Avocet), its Grand Chenier System located offshore and onshore Louisiana for use by Avocet as part of a proposed Deepwater Port LNG export project. According to the application, Avocet’s proposed...

CFTC Intermediaries to Adopt and Implement Cybersecurity Programs by March 1, 2016
Brian Barrett,James M. Cain,Daniel E. Frank,Daphne G. Frydman,Catherine M. Krupka, March 02, 2016
Commencing March 1, 2016, all commodity pool operators, commodity trading advisors, futures commission merchants, retail foreign exchange dealers, investment brokers, major swap participants and swap dealers that are National Futures Association (NFA) member firms (together the Covered Parties)...

Coal Transportation Costs Rise
, March 02, 2016
While the price of coal has been dropping, the price utilities pay to have it transported to their plants has been increasing. The Energy Information Administration (EIA) reports that transportation costs now account for 40 percent of the total cost of coal delivered, the highest share since the...

Downeast LNG Requests FERC Continue to Hold Application in Abeyance
, March 02, 2016
Downeast LNG has filed a letter requesting that FERC continue to hold processing of its application to construct an LNG export terminal in Robbinston, Maine, in abeyance until June 1, 2016. Downeast LNG requested the continuation because “discussions with existing and potential investors in...

IRS Publishes Regulations Requiring Reporting of Specified Foreign Financial Assets by Certain Domestic Entities
, March 02, 2016
On February 23, 2016, Treasury and the IRS issued final regulations requiring certain domestic entities to report specified foreign financial assets, including financial accounts with foreign financial institutions and interests in foreign entities, to the IRS on Form 8938. Individual U.S....

Look But Don't Touch: Tennessee DOR Ruling Analyzes Web-Based Software and Service
Elizabeth S. Cha,Todd A. Lard, March 02, 2016
Applying the “true object” test to the taxpayer’s web-based services, the Tennessee Department of Revenue ruled that charges for granting access to the taxpayer’s website for purposes of obtaining information would not be subject to sales tax. While the access to web-based...

Sourcing the Ticker Tape: California Ruling Addresses Sourcing of Financial Information Provider's Services
Hanish S. Patel,Marc A. Simonetti, March 02, 2016
In a Chief Counsel Ruling, the California Franchise Tax Board (FTB) ruled that, for purposes of determining its sale factor, a financial information provider should source the sales of its information services based on where the taxpayer’s customer receives the benefit of the service, and not...