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LexisNexis Expands Its Social Presence
The LexisNexis® Social Media & Communities team is pleased to announce that we are expanding our social presence to make it even easier for you to find free legal resources to keep you up to date on emerging legal developments, delivered to you in the format you enjoy.
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LexisNexis Launches Financial Restructuring & Bankruptcy Module for Lexis® Practice Advisor
NEW YORK—LexisNexis Legal & Professional has announced a new module of its Web-based practical guidance offering from Lexis® Practice Advisor addressing the needs of bankruptcy attorneys. The Financial Restructuring & Bankruptcy module was developed to help law firms increase the productivity of their bankruptcy practices by providing practical guidance, “on point” content and analysis—backed by Collier on Bankruptcy®, the preeminent treatise in the bankruptcy field. Click here to learn more.
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Bankruptcy Law:
Government Forfeiture Beats Creditor Claim in Petters Ponzi Scheme
When a Ponzi scheme breaks, the government rushes to forfeit the assets that constitute or are derived from proceeds traceable to the crime. At the same time, creditors, thinking that they had properly secured their claims, try to grab those very same assets for themselves. Click here to read this blog post by Kathy Bazoian Phelps.
Financial Advice for the NFL Draft Class of 2012
Stories of Warren Sapp’s bankruptcy filing has been all over the news lately. It’s hard to imagine he’d find himself in such a predicament. After all, he’s a Pro-Bowler with at least $40 million in career NFL earnings. He has a good job as a very entertaining television analyst which has led to other money-making endeavors, such as “Dancing with the Stars.” Click here to read this blog post by Ted Connolly.
A Chicago Bankruptcy Case Lands at the U.S. Supreme Court: The RadLAX Oral Argument—Part I
Chicago bankruptcy professionals descended on the U.S. Supreme Court to catch the final chapter in the RadLAX bankruptcy saga, one that had a remarkably swift journey to the highest court of the land. The case started as the neglected stepchild of Amalgamated Bank, the trustee of the deeply undersecured Longview Ultra I Construction Loan Investment Fund (having about $100 million of collateral to support a $300 million original investment). Click here to read this blog post by Steve Jakubowski.
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Corporate & Securities Law:
CISPA—Evil Spawn of SOPA and PIPA?
The House of Representatives has passed The Cyber Information and Security Protection Act, sponsored by Rep. Mike Rogers, R-Mich., and introduced not long after SOPA and PIPA were abandoned in the wake of a popular uprising of opposition. Its fate in the Senate is uncertain, but it’s clear the federal government is determined to find a way to further reduce any semblance of privacy and protection of your electronic information . . . for your own good, of course. Click here to read this blog post by Thomas L. Bowden Sr.
Wal-Mart and the Strategic Transformation of a Compliance Culture
In every crisis, there is an opportunity. This was presented, perhaps less starkly, in an article in the spring 2012 issue of the MIT Sloan Management Review, titled “Achieving Successful Strategic Transformation,” by authors Gerry Johnson, George S. Yip and Manual Hensmans. “Happy accidents are unanticipated circumstances or events that ultimately support [strategic] transformation.” While those in Bentonville, Ark., are probably not thinking that their current situation is a “happy accident,” Wal-Mart is presented with a unique opportunity to create a world-class compliance program. Click here to read this blog post by Thomas Fox.
Podcast: Dick Phillips, Alan Berkeley and Stan Keller Discuss the JOBS Act
In this podcast, Dick Phillips and Alan Berkeley of K&L Gates, and Stan Keller of Edwards Wildman discuss the JOBS Act (Jumpstart Our Business Startups Act), which was signed into law April 5 by President Obama. They provide an overview of the legislation and explore some of the controversies of the bill. Click here to listen.
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Emerging Issues Law:
Two Settlement Agreements Related to Gulf Oil Spill Claims Get Preliminary Approval
NEW ORLEANS—The Louisiana federal judge overseeing the multidistrict litigation for claims arising from the explosion of the Deepwater Horizon rig and ensuing oil spill in the Gulf of Mexico gave preliminary approval for two separate class settlement agreements, one resolving certain economic and property damage claims and one resolving certain medical claims stemming from the cleanup response effort. Click here to read the full story.
Cadwalader Friends & Clients Memo: EPA Proposes CO2 Emissions Standards for New Fossil Fuel-Fired Power Generators
On March 27, 2012, the Environmental Protection Agency submitted for publication in the Federal Register a notice of proposed rulemaking that would set standards of performance for CO2 gas emissions for new fossil fuel–fired electric utility generating units with a base load rating of more than 73 MW. Click here to read this blog post from Cadwalader, Wickersham & Taft LLP.
William A. Ruskin: Hydraulic Fracturing Risks and Opportunities
On April 18, 2012, Winston & Strawn LLP and the Environmental Law Institute co-hosted an informative seminar on, “Hydraulic Fracturing Risks and Opportunities: Regulator, NGO, Industry and Investor Perspectives,” in New York City. The meeting was expertly chaired by May Wall, a partner in the law firm’s Environmental Law Department in Washington, D.C. The panelists included Kate Sinding, an NRDC Senior Attorney and Deputy Director of NRDC’s New York Urban Program; John Imse, a principal at Environ in Denver, who advises clients in the oil and gas industry; Lawrence A. Wilkinson, an analyst with Standard & Poor’s Oil & Gas Team; and Carol R. Collier, the Executive Director of the Delaware River Basin Commission. All four speakers were knowledgeable, informative and articulate. Click here to read this blog post by William A. Ruskin.
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Environmental Law & Climate Change:
Raising the Stakes in Farm Nuisance Cases
Indiana farms that are the victims of “nuisance” suits by neighbors who don’t like the smell, sounds or sights associated with farming are generally protected by Indiana’s Right to Farm Act. The Right to Farm Act bars nuisance suits against “agricultural operations” that have been in operation for more than one year at the time the alleged “nuisance” began. In spite of the strength of the Right to Farm Act, nuisance suits against Indiana farmers—based upon the author’s personal observations—have been on the rise in recent years, due to the expansion of small farms combined with the number of non-farmers moving into rural areas. Click here to read what constitutes a nuisance and the impact of new legislation in this area by Indianapolis attorney Todd Janzen.
Parties Can Toll California Environmental Quality Act Statute of Limitations
Last month in Salmon Protection and Watershed Network v. County of Marin, the California Court of Appeals found that a public agency and a party disputing the adequacy of an environmental impact report under the California Environmental Quality Act (CEQA) could enter into a tolling agreement to toll or suspend the CEQA statute of limitations. In upholding the validity of the tolling agreement, the court acknowledged that there was a strong public policy favoring prompt disposition of CEQA challenges. However, the court found that there was an equally strong public policy to encourage settlement. Click here to read why California attorney Sedina Banks says that a contrary ruling that parties could not toll the CEQA statute of limitations would have a disastrous effect on public agencies.
U.S. EPA Promulgates New Fracking Air Rules
While the focus of the environmental controversy concerning hydraulic fracturing (“fracking”) has been the alleged contamination of aquifers and other drinking water supplies, a recent University of Colorado study indicates that a much bigger health risk to the public may emanate from air emissions from fracking operations, such as exhaust high in natural gas and its major component methane leaving the mine and entering the atmosphere. With this in mind, the EPA has promulgated new final rules regulating air emissions from fracking and other production methods of natural gas. Click here to read an analysis of these new rules by Marc Karell of Climate Change & Environmental Services, LLC.
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Estate Practice & Elder Law:
Gift Tax Planning Opportunities: The Window Is Closing
As reported in this space over the last several months, there has been unprecedented upheaval in the federal transfer tax world in the last few years. One element of this was the unexpected increase in the federal gift and estate tax “applicable exclusion amount” in 2011 to $5 million per person and the reduction in the tax rate—to 35%—for gifts or bequests in excess of that exclusion amount. This was a temporary two-year feature put in place by the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Authorization Act of 2010. As such, these features are scheduled to “sunset” at the end of 2012, at which point the estate and gift tax exemptions and rates will revert to levels from more than a decade ago, namely: a $1 million per person exemption, and a top tax rate of 55% for gifts and bequests. Click here to read this post by Morrison & Foerster LLP.
Reporting Obligations of U.S. Beneficiaries of Foreign Trusts and New Form 8938
The Foreign Account Tax Compliance Act amended the IRC to improve tax reporting and compliance with respect to foreign accounts and foreign assets. Among these changes were new reporting requirements that affect U.S. beneficiaries of foreign trusts. In this analysis, Diane L. Mutolo discusses the new requirements under FATCA, new temporary and proposed regulations providing guidance on the reporting of specified foreign financial assets, and new Form 8398. Click here to learn more.
Margaret M. Hand on Aspects of the Uniform Principal and Income Act in California Regarding Trust Accounting
California’s adoption of the UPIA imposes on trustees the duty to invest and manage trust assets as would a prudent investor. Trustees are required to diversify trust investments, but may invest for total return following a modern portfolio theory. In this analysis, Margaret M. Hand addresses the powers given trustees by the UPIA, including the power to make adjustments between income and principal and to account separately for a business or other activity. Click here to learn more.
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Immigration Law:
Transcript: Supreme Court Oral Argument, Arizona v. U.S.
On April 25, the U.S. Supreme Court heard oral arguments in the case involving Arizona’s controversial S.B. 1070. Click here to read or download the transcript.
New from LexisNexis: Global Business Immigration Practice Guide
This new practice guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world. It was written and edited by a global team of expert attorney members of the Alliance of Business Immigration Lawyers. Click here to learn more.
Excerpts from the May 15 Bender’s Immigration Bulletin: Immigration Activity in the Supreme Court
On April 25, the U.S. Supreme Court heard oral arguments in the case involving Arizona’s controversial S.B. 1070. The transcript is available via lexis.com® at 2012 U.S. Trans. LEXIS 35. The decision is expected by the end of June. Also pending are decisions in the companion cases of Holder v. Gutierrez and Holder v. Sawyers, which involve “tacking,” or using a parent’s time in the United States to make a child eligible for cancellation of removal. Those cases were argued in January, and also should be decided by the end of June. Click here to read these excerpts from Bender’s Immigration Bulletin.
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Insurance Law:
2nd Circuit Holds No Duty to Defend Intellectual Property Claim
In its recent decision titled Feldman Law Group v. Liberty Mut. Ins. Co. (2012 U.S. App. LEXIS 7787 [2d Cir. Apr. 18, 2012]), the U.S. Court of Appeals for the Second Circuit, applying Pennsylvania law, had occasion to consider whether a claim for copyright and trade dress infringement involving designer jewelry triggered coverage under a general liability policy as an advertising injury. Click here to read the explanation by Brian Margolies as to why the claim was not an advertising injury.
McKenna Long & Aldridge LLP on a Roadmap for Determining Coverage for Construction Defect Claims In New York
In their commentary, “McKenna Long & Aldridge LLP on a Roadmap for Determining Coverage for Construction Defect Claims in New York,” Richard B. Friedman, J. Stephen Berry and P. Michael Freed observe that New York law makes it difficult for general contractors to establish coverage for construction defect claims under their Commercial General Liability policies. Insureds will seldom if ever find coverage when sued for defects in their own work. The law is especially strict with regard to general contractors; according to George A. Fuller Co. v. United States Fidelity & Guaranty (613 N.Y.S.2d 152 [N.Y. App. Div. 1994]) and its progeny, their “own work” includes the entire project. Click here to read more about this insightful expert commentary.
No Surprise—Raw Sewage Is a Pollutant
The Colorado Court of Appeal was called upon to determine whether an “absolute pollution” exclusion applied to a suit for bodily injuries from exposure to raw sewage. Plaintiffs, Shadi Figuli, Joshua Figuli and Jean Chu appealed the district court’s summary judgment in favor of defendant, State Farm Insurance Companies, concluding that raw sewage was a pollutant excluded from coverage by State Farm policies’ absolute pollution exclusion. The Figulis became ill while living in a rental property owned by Chu, which was found to contain toxic mold and raw sewage. The property was covered by a rental dwelling policy with State Farm, and Chu also had a personal liability umbrella policy. Click here to read Barry Zalma’s analysis of why the claim by the tenants against their landlord was excluded from insurance coverage.Mobile Access:
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Intellectual Property Law:
Can Content Owners Pin Infringement on Pinterest?
Pinterest describes itself as “a Virtual Pinboard. Pinterest lets you organize and share all the beautiful things you find on the Web. People use pinboards to plan their weddings, decorate their homes, and organize their favorite recipes. Best of all, you can browse pinboards created by other people. Browsing pinboards is a fun way to discover new things and get inspiration from people who share your interests.” (http://pinterest.com/about/ visited on April 17, 2102). It operates by allowing users to upload visual images and others to browse them—in short, file sharing. In fact, a common description of Pinterest, though one no longer on its site, is “a content sharing service.” Visual images may or may not be worth a thousand words, or possess charms to sooth the savage breast, but they are eligible for copyright protection, and it appears for a cursory perusal of the Pinterest website that many of the “pinned” images were not original to the pinners. How does this phenomenally successful file sharing site navigate third parties’ intellectual property rights in a post-Grokster (MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 [2005]), post-YouTube (Viacom Int’l v. YouTube, Inc., 2012 U.S. App. LEXIS 6909 [2d Cir. N.Y. Apr. 5, 2012]) world? Is Pinterest’s harbor safe in the digital millennium? Click here to read this blog post by Henry Z. Horbaczewski.
Podcast: John McKeown and James Davis Update the Application Process for ICANN’s Expansion of Generic Top-Level Domains: What Brand Owners Need to Know
In this podcast, John McKeown of CasselsBrock in Toronto and James Davis of Arent Fox in Washington, D.C., provide an update on the application process for ICANN’s expansion of generic Top-Level Domains. They review the current timeline and what lies ahead for brand owners. Click here to listen.
Supreme Court: De Novo Review Proper For New Evidence in Patent Cases
The U.S. Supreme Court on April 18 rejected a call by the U.S. Patent and Trademark Office for stricter evidentiary rules and an elevated standard of review in challenges to adverse patentability rulings (David J. Kappos v. Gilbert P. Hyatt, No. 10-1219, U.S. Sup.). Click here to read the full story.
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International & Foreign Law/International Rule of Law:
Remedies for “Hardship” Under the CISG International Sales Convention and the Decision by the Belgian Supreme Court in Scafom International v. Lorrain Tubes
In light of a decision by the Belgian Supreme Court, American contract law practitioners need to be aware of the relationship between an exemption from liability for non-performance and the more fluid concept of financial “hardship.” Click here to learn more.
The UK Bribery Act 2010 and the Broader UK Anti-Corruption Legal Framework—A Comparative Roadmap for the FCPA Practitioner
The UK Bribery Act 2010 came into force on July 1, 2011, and represents a comprehensive revision of the United Kingdom’s anti-bribery laws. The act is the product of a long period of UK government deliberation and consultation with public stakeholders, and has attracted substantial attention from legal commentators and government enforcement authorities. Click here to read this post by David S. Lorello.
D.C. Circuit Vacates $185 Million Arbitration Award Against Argentina
WASHINGTON, D.C.—(Mealey’s™) A U.S. appeals court vacated a district court’s confirmation of a $185,285,485.85 arbitration award issued by a foreign tribunal against the Republic of Argentina and in favor of an English distribution company, finding that the arbitration panel failed to adhere to a precondition in the agreement between parties that required the investor to first file a claim in an Argentine court. Click here to read the full story.
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Labor & Employment Law:
The NLRB’s Dangerous Course: Arbitration Waivers and Protected Concerted Activity
The NLRB has announced the filing of a complaint against 24 Hour Fitness USA, Inc., claiming that the company’s requirement that its employees submit all employment-related disputes to individual arbitration violated federal labor law. According to the NLRB, 24 Hour Fitness, which is non-unionized, requires employees to agree, in writing and as a condition of employment, to forego any rights to collective or class action lawsuits or arbitrations, and instead resolve all employment disputes in single-employee arbitrations. The company permits employees to opt out of this waiver, but only by submitting a company-drafted written form within 30 days of signing the original waiver. Click here to read this blog post by Jon Hyman.
The Story of Ozzie and Fidel: There is No Free Speech in Corporate America
The Miami Marlins suspended new Manager Ozzie Guillen for saying: “I love Fidel Castro,” and “I respect Fidel Castro. You know why? A lot of people have wanted to kill Fidel Castro for the last 60 years, but that mother-f***er is still here.” First it was reported as a suspension without pay, but it turns out it’s a suspension with pay. He had to apologize for his remarks. No question; his remarks offended most of the community his employer serves. While you may not think they were that bad, trust me: the Cuban community was offended. If you don’t follow Cuban politics, just imagine someone saying they admire the KKK, Hitler or Bin Laden and you’ll get the drift. Click here to read this blog post by Donna Ballman.
Federal Legislation, SNOPA, Would Prohibit Facebook® Snooping
Employers who request an employee’s or job applicant’s Facebook password continue to face pushback in legislatures across the country. Several states have introduced bills that would prohibit this type of coerced Facebook access. These states are following Maryland’s example—Maryland was the first (and only, at the moment), to pass this type of law. Click here to read this blog post by Margaret (Molly) DiBianca.
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Lexis® HUB for New Attorneys:
From Dusk to Dawn, Working as a New Lawyer
Face time at the right time and other important tips for your first job in the legal profession. Click here to read this career guidance post.
You Just Graduated Law School, But Don’t Have a Job ...
What to do if you are still looking for a law job and have no prospects yet. Click here to read this career guidance post.
Is Your Résumé Helping of Hurting Your Chances of Being Hired?
Stand out from the hundreds of other candidates. Here are seven tips for a remarkable résumé. Click here to read this career guidance post.
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Litigation Resource:
Football Hall of Famers, Dallas Ring of Honor Recipients Bring Lawsuit Against NFL
HOUSTON—28 former NFL players on April 24 filed a personal injury lawsuit in Houston, home of the Houston Texans, claiming the NFL has purposefully attempted to hide a well-known link between concussions and permanent brain injury (Jordan, et al. v. National Football League, No. 4:12cv1296, S.D. Texas [Houston]). Click here to read the story and download the complaint.
William A. Ruskin: Remedies for Spoliation of Evidence
New York State courts are increasingly turning to federal Zubulake standards when confronted with spoliation of electronic evidence issues. However, in dealing with garden variety spoliation of evidence scenarios, not involving ESI, New York State courts have generally engineered their own solutions without turning to federal common law for guidance. Click here to read this blog post by William A. Ruskin.
Abbey Spanier: Parents Beat Motion to Dismiss in Suit Against Apple for App Purchases by Children
Plaintiffs filed a class action against Apple Inc. on behalf of parents who downloaded or permitted their minor children to download a supposedly free app from Apple and then incurred charges for game-related purchases made by their children without their parents’ knowledge or permission. In re Apple In-App Purchase Litig., 5:11-cv-1758 (N.D. Cal.) [enhanced version available to lexis.com subscribers]. According to the complaint, the children were able to purchase game currencies, which are virtual objects that are used when playing certain games, without their parents’ authorization. Click here to read the full blog post from Abbey Spanier Rodd & Abrams LLP.
RAND Corp.: Predictive Coding Could Reduce E-Discovery Costs, but More Guidance Needed on Data Preservation
Companies could lower the high cost of large-scale electronic discovery in lawsuits by using a computer application known as predictive coding to reduce the number of documents requiring human review, according to a new study from the RAND Corporation. Click here to read the story.
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Real Estate Law:
Deduct or Capitalize? New Definition for Property Expenditures
Temporary regulations, effective Jan. 1, 2012, provide guidance on IRC Sections 162 and 263(a) and address when amounts paid to acquire, produce or improve tangible property are deductible or capitalizable. The regulations modify the “general plan of rehabilitation” doctrine, define a safe harbor for routine maintenance on property other than buildings, and explain how landlords and tenants must capitalize expenses related to leased buildings. Click here to read this blog post by Patricia Hughes Mills.
DOJ’s Fair Lending Case Conflates Disparate Treatment and Disparate Impact Claims
In its latest fair lending lawsuit, the Department of Justice appears to be dodging an important legal question that the U.S. Supreme Court was poised to answer this term, but never did due to the dismissal of the case by the parties. Click here to read this blog post by Ballard Spahr LLP.
Construction Owner, General Contractor and Subcontractor Held Liable For Sub-Subcontractor Failure to Procure Required Liability Insurance
A recent decision by the Georgia Court of Appeals opens up a new (and potentially troubling) avenue for relief in cases involving personal injury and property damage caused by downstream subcontractors on a construction project. If not overturned, this decision would expose Georgia owners, prime contractors and upper-tier subcontractors to breach of contract liability for failing to ensure that all downstream subcontractors have secured and maintained required liability insurance coverage. Click here to read this blog post by Troutman Sanders.
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Tax Law:
Tax Considerations for Taxpayers Applying the Economic Substance Doctrine
Taxpayers face a continuing challenge in correctly interpreting how the economic substance doctrine applies to the formation of a corporation. Congress has codified the doctrine, but has left numerous unanswered questions about its application, while also enacting strict liability penalties under IRC § 6662(b)(6) (20% strict liability penalty) and IRC § 6662(i) (40% strict liability penalty). Esteemed authorities Rufus v. Rhoades and Alexey Manasuev explain Tax Considerations for Taxpayers Applying the Economic Substance Doctrine.
Final Regulations on Income Ordering Rules for Payments to Charitable Beneficiaries
For a trust to qualify for the charitable deduction, the contribution must come from gross income. Final IRS regulations, T.D. 9582 (I.R.S. 2012), issued in April provide guidance on the federal tax consequences of an ordering provision in a trust purporting to determine the tax character of sums paid to a charitable beneficiary of the trust or estate. Lexis Federal Tax Analyst Patricia Tyler examines implications of Final Regs on Income Ordering Rules for Payments to Charitable Beneficiaries.
Reporting Requirements of U.S. Beneficiaries of Foreign Trusts and New Form 8938
The Foreign Account Tax Compliance Act added IRC Sec. 6038D (information with respect to foreign financial assets) to the Internal Revenue Code. New reporting requirements apply to any individual holding an interest in a specified foreign financial asset that exceeds a threshold amount. Diane L. Mutolo explains particulars on Reporting Requirements of U.S. Beneficiaries of Foreign Trusts and New Form 8938.
Has the IRS Gone Rogue? Investigating Policy on RICs’ Commodity-Related Investments
Historically, IRS policy’s limited definition of “securities” has barred commodity investment in any form by regulated investment companies (RICs). In recent years, however, the Service has issued 70 Private Letter Rulings (PLRs) allowing indirect investment in commodities by mutual funds. These PLRs have permitted RICs to treat income derived from commodity investments (commodity-linked notes) by controlled foreign corporations as qualifying income eligible for favorable pass-through tax treatment. Lexis Federal Tax Analyst Deanne Morton asks Has the IRS Gone Rogue? Investigating Policy on RICs’ Commodity-Related Investments.
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Workers’ Compensation Law:
Medicare Secondary Payer: Will the SMART Act Pass This Year?
As the election year heats up, many with Medicare Secondary Payer (MSP) issues are curious as to what the chance the Strengthening Medicare and Repaying Taxpayers Act of 2011 (the SMART Act) has of getting passed during the 112th Congress. For those unfamiliar, the SMART Act proposes to improve the process through which CMS seeks Medicare reimbursements from insurance settlements. The SMART Act will facilitate a process through which a demand can be obtained before settlement, as well as resolve some other MSP issues, such as statute of limitations, appeal and the use of Social Security numbers. Click here to read what Jennifer C. Jordan learned about the future of the SMART Act while attending the recent RIMS Annual Conference.
California WCAB May Lack Jurisdiction Where Out-of-State Football Player Plays a Single Game in California
The California Workers’ Compensation Appeals Board has recently issued two noteworthy panel decisions related to the WCAB’s subject matter jurisdiction in which the professional football player claimed cumulative trauma but played only a single football game in California. While most attention recently has been on the bounties offered to members of the New Orleans Saints defense, and how concussions should be prevented, the issue of whether former players should be able to avail themselves of California’s generous workers’ compensation system is important to team owners and management. Click here to read more on these two decisions involving NFL players who played in Ohio for the Bengals and the Browns.
Oklahoma Opt Out Legislation Fails: A Post Mortem
Supporters of a controversial bill that would have allowed some Oklahoma employers to “opt out” of the state’s traditional workers’ compensation system (see Oklahoma House Bill 2155) have fallen short of having sufficient votes to move the legislation through the Oklahoma House of Representatives and on to the state’s governor. The measure would have allowed qualifying employers to establish written benefit plans pursuant to the Employment Retirement Income Security Act of 1974 in lieu of the existing state system. Click here to read why Thomas Robinson believes that this issue, while now dormant in Oklahoma, will arise in other states that seek advantages to attracting employers and jobs.
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