Features

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Communications

For the time period covered by this report (roughly May 1, 2018 to April 30, 2019), several developments in the field of communications law are likely to be remembered as significant. In addition, numerous matters that could have equal or greater impact on the industry remain pending at the Federal Communications Commission and in the courts, promising more significant developments in the months and years ahead. The FCC continues to promote and implement a deregulatory agenda, reflective of the larger deregulatory approach taken by the Trump administration across virtually all U.S. economic and industry sectors. In addition, consolidation within the communications sector, and more broadly across the communications, entertainment, and information services sectors, remains an important industry trend.

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Corporate Governance and Compliance

Five insights relating to corporate governance and compliance emerge during the period covered by this report (March 2018 through April 2019): (1) it is vital to understand the context in which regulatory enforcement authorities were created to properly erect and nurture effective compliance programs; (2) compliance programs needed to evolve as seminal cases gave nascent agencies significant enforcement and interpretive authority over the statutes they administered; (3) organizations were forced to develop and mature key attributes with the promulgation of the Federal Sentencing Guidelines for Organizations; (4) compliance and ethics programs continue to mature under the watchful, welcome guidance of the Department of Justice; and (5) DOJ’s recent application of the Foreign Corrupt Practices Act Corporate Enforcement Policy placed boards of directors and management teams on notice of their affirmative fiduciary responsibilities to sustain a culture of compliance, ethics, and integrity.

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Electricity

This report is a collaborative effort to cover the significant developments within the electric industry that are currently being addressed in the various regions of the United States, including proceedings before the Federal Energy Regulatory Commission; expansion of the renewable energy industry (e.g., offshore wind development projects, battery storage systems, solar-plus battery projects, and electric vehicle infrastructure development); legislative initiatives intended to address greenhouse gas emissions; and possible effects of the Tax Cuts and Jobs Act to spur regulatory proceedings to evaluate and consider the effects on investor-owned utilities’ cost of service. Among other notable events, the Midcontinent Independent System Operator, Inc. completed implementation of five-minute settlements; the Electric Reliability Council of Texas remains focused on price formation issues; and utilities and regulators in California continue to grapple with the aftermath of damages caused by wildfires.

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Finance, Mergers, and Acquisitions

The second half of 2018 and early 2019 saw revisions to reporting and disclosure policies by various regulatory bodies. The Securities and Exchange Commission continued to pursue disclosure reform and simplification initiatives under the Fixing America’s Surface Transportation Act (FAST Act). In line with its recent focus on the use of financial disclosures not in accordance with Generally Accepted Accounting Principles (GAAP), the SEC announced an enforcement action focused on certain non-GAAP disclosures. Additionally, companies continued to adapt to the planned phasing out of the London Interbank Offered Rate (LIBOR). Finally, new rules adopted by the Financial Crimes Enforcement Network within the U.S. Department of the Treasury require financial institutions to identify and verify the beneficial owners who own or control legal entity customers of the financial institutions.

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Maritime

Over the past year, U.S. courts have addressed a number of maritime issues, including the validity of the bare-metal product liability defense under maritime law; the scope and availability of punitive damages under the Jones Act; and the legality of President Barack Obama’s 2016 decision to designate a 5,000-square-mile area in the Northwest Atlantic Ocean as a national monument. In addition, U.S. regulators proposed important amendments to the definition of “waters of the United States” under the Clean Water Act to clarify the scope of the federal government’s authority under that statute. At the state level, the New York Attorney General’s Office embarked on a comprehensive investigation into seafood fraud at retail supermarkets.

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Nuclear Energy

On the legislative front, this report period saw continued focus on advanced nuclear technology and efforts to streamline Nuclear Regulatory Commission regulatory processes, but no long-term solution for spent nuclear fuel storage. The most noteworthy judicial cases during the year upheld states’ authority to provide incentives to nuclear generators. Continued attention to new reactor licensing, subsequent license renewal (SLR), and updates to the NRC Reactor Oversight Process and Enforcement Manual marked the Commission’s regulatory and policy agenda. In administrative proceedings, notable developments include the Atomic Safety and Licensing Board’s denial of contentions in the Holtec interim storage facility docket and ongoing adjudication in emerging areas of SLR and license transfers for plants entering decommissioning.

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