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- Currents - Energy Industry Insights - January 2020 #2
Trump Infrastructure Proposal Impacts 'Virtually Every' Federal Decision on Environment: DOI Secretary - "Trump's announcement focused largely on road and highway impacts, but industry groups and environmentalists note the implications for the energy sector are significant." Why this is important: The permitting process has become the single largest impediment for projects that cross state borders or federal lands. The most well-known example is the AEP 765 kV transmission line that was to start in West Virginia and terminate in Virginia after crossing through the Jefferson National Forest. While the line took only two years to build, it took AEP 14 years to obtain the requisite permits before it could begin construction.... Please see full Newsletter below for more information.
- United States Trade Report: Congress Approves Legislation to Implement US-Mexico-Canada Agreement
On January 16, 2020, the US Senate approved legislation implement the US-Mexico-Canada Agreement (USMCA) by a vote of 89 to 10, sending the legislation to President Trump to be signed into law. The Senate's approval follows a similarly lopsided vote in the House of Representatives, which approved the bill on December 19 by a vote of 385 to 41 (the widest margin in favor of any recent US trade agreement considered in the House). These votes occurred just weeks after the bill's introduction and publication, and despite the signing on December 10 of a "Protocol of Amendment" in which the Parties agreed on multiple, substantive changes to the USMCA text that had not previously been made public. Thus, despite Congress's approval of the USMCA, questions remain about the recent changes to the Agreement and how these and other novel USMCA provisions are reflected in the United States' implementing legislation. This report therefore examines the substance of the recent changes to the USMCA and the measures the United States intends to take in order to implement the Agreement. The report is organized as follows: - Section I describes the key changes that the Parties agreed to in the Protocol of Amendment to the USMCA, signed in Mexico City on December 10; - Section II provides an overview of the US implementing legislation, as well as the accompanying "Statement of Administrative Action" detailing actions the administration will take to implement the USMCA; and - Section III discusses the likely next steps towards the USMCA's entry into force and the implications of the revised Agreement.... Please see full Report below for more information.
- FTC and CFPB Extend Accuracy in Consumer Reporting Comment Deadline
On December 10, 2019, the FTC and CFPB hosted a public workshop on issues affecting the accuracy of both traditional credit reports and employment and tenant background screening reports. In conjunction with the workshop, the agencies sought comments on topics relating to these issues. WBK previously covered these topics.
- White House Proposes Significant Rollbacks to the National Environmental Policy Act
The Trump administration proposed rules intended to speed up approval of major projects subject to the National Environmental Policy Act (NEPA), such as pipelines, power facilities, mines, highways, and other public infrastructure projects. The proposal would allow federal agencies to approve projects subject to NEPA review without considering cumulative environmental impacts such as climate change. The proposed rule is expected to face legal challenges citing concerns relating to public health, climate change, and species protection. If adopted as final, it will be the first significant change to NEPA in over 40 years.
- Implementing FIRRMA: CFIUS’ Real Estate Final Regulations
On January 13, 2020, the U.S. Treasury Department, as chair of the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”), issued a final set of regulations (“Real Estate Final Regulations”) to expand its jurisdiction to cover certain transactions by non-U.S. persons involving U.S. real estate – a significant expansion that affects many transactions and transaction parties that previously were outside the scope of CFIUS jurisdiction. These regulations implement real estate-related provisions of the Foreign Risk Review Modernization Act of 2018 ("FIRRMA"), which was enacted in August 2018, that expand the scope of “covered transactions” subject to CFIUS review to include the purchase or lease by, or concession to, a non-U.S. person of certain real estate in the United States. The new regulations, which become effective on February 13, 2020, generally track the proposed regulations published in September 2019 and discussed in our prior OnPoint.
- Implementing FIRRMA: Highlights from CFIUS’ Final Regulations
On January 13, 2020, the U.S. Treasury Department, as chair of the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”), finalized two sets of regulations to implement the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”). The final rules conclude a multi-year effort to expand CFIUS’ jurisdiction and provide clarity regarding the CFIUS process. Transaction parties should consider carefully the new CFIUS regulations, as they will impact not only timing and terms but also the feasibility of many contemplated investments.
- Recent and Upcoming Changes to Bankruptcy Law That Affect Your Rights as a Creditor
The Small Business Reorganization Act of 2019 ("SBRA"), the Honoring American Veterans in Extreme Need ("HAVEN") Act, and the Family Farmer Relief Act were enacted into law on August 23, 2019. This alert summarizes these changes to the law and when they take effect.
- Is “Ok Boomer” Really Ok?
If you haven’t heard the phrase “OK Boomer” yet, you probably are a boomer – a baby boomer. And if someone said it to you, it was just under their breath. For the uninitiated, the phrase is an ironic, dismissive expression used by younger generations to mock the perceived outdated ideals of the baby boomer generation.
- DOE Announces Funding For Bioenergy Crops Research
On January 10, 2020, DOE announced that it will provide up to $75 million for research and development (R&D) of sustainable bioenergy crops within a period of five years.
- Combating Improper Robocalls: The TRACED Act Signed Into Law
In the final days of 2019, the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”) was signed into law to combat the increasing number of illegal robocall practices and other intentional violations of telemarketing laws. The TRACED Act, a bipartisan bill, first introduced in Congress in 2018, broadens FCC authority to levy Telephone Consumer Protection Act (“TCPA”) civil penalties and extends the time period for the FCC to catch and take civil enforcement action against intentional violations.
- Should the sale of a product be enjoined for inflated sales figures and exaggerated claims of performance?
The Texas Court of Civil Appeals held that sales of the "phaser magnum" should be enjoined. REI Industries claimed that the product reduced air pollution in cars and offered a money back guarantee for the product, subject to several caveats. The product was sold through a network of...
- Holiday Magic v. Warren
The Court of Appeals held that the District court judge impermissibly ruled on the validity of Holiday Magic's constitutional claims, and should have instead deferred those questions to a three-judge panel. Holiday Magic challenged the Wisconsin Department of Agriculture's general order prohibiting ...
- Are independent "managers" and "dealers" of Tupperware employees of the company for payroll tax purposes?
The Oregon Court of Appeals upheld the decision of the Employment Division hearing referee finding the managers and dealers were employees of the Oregon Tupperware distributor, Timberland Sales. Although the managers and dealers were generally free from the control of Timberland, they were beholden ...
- Is a contract in furtherance of a pyramid scheme enforceable?
The Utica City Court held that the sales program was a pyramid scheme and enforcing the contract would be a violation of state public policy. Schaffer managed a sales program between Amway distributors where they would circulate products among themselves for bonuses and recruitment fees. The...
- Does a willful violation of the pyramid statutes require actual knowledge that the statute is being violated, or is constructive knowledge sufficient, and does some trial testimony by affidavit violat
The Court of Appeals held that constructive knowledge was necessary to violate the state pyramid statute and that no constitutional rights were violated in this case. Nest Egg operated a pure pyramid scheme where participants forwarded cash to a person at the top of a provided list, and received...
- Brown v. Coleman
The Maryland Court of Appeals held that the IRS had priority in collecting taxes due from the sale the assets of the promoter of an illegal pyramid scheme. The court had appointed a receiver to liquidate the assets of the promoter and distribute the proceeds to creditors. The proceeds were not...
- Did ILN sell "securities" in violation of federal law and is a preliminary injunction necessary?
The DC Circuit upheld the District Court ruling finding ILN's products were "securities" and subject to regulation by the SEC. The Defendants argued that the products were not securities because no money need be paid directly to ILN. The Court found that the intent was for a person to...
- Under Missouri State Law, did the activities of Consumer Auto Resources constitute a pyramid scheme?
The Missouri Court of Appeals held that C.A.R. was an unlawful pyramid scheme. C.A.R. members paid a monthly fee to receive discounts on the purchase of new cars though affiliated car dealers. Members were paid bonuses for signing up new members of their downline and also received a percentage of...
- BRADLEY v. HEALTH COALITION, INC., 687 So.2d 329 (FL Dist. Ct. App. 1997)
In Bradley V. Health Coalition, a salesman for a health products company signed a non-compete covenant whereby he would not compete for a period of two years after the termination of employment. The covenant not to compete prohibited the solicitation of "any active, paid up customers of the...
- Does Scott Fetzer's arrangement, where the independent dealers have sole responsibility for recruiting, hiring, firing and compensating independent contractors to sell vacuum cleaners, insulate them f
Scott Fetzer Co., manufacturer of Kirby Vacuum Cleaners, sells vacuums solely through independent dealers, who in turn utilize independent contractor-salespeople who sell the vacuums door-to-door. This sales system is required by the Kirby distributor agreement. Carter was a door-to-door...