Source: http://blogs.wsj.com/law/2012/06/28/the-am-roundup-all-eyes-on-scotus/?mod=WSJBlog
Saturday, June 30, 2012
In-Vitro Fertilization, Custody Rights and Family Law
A Massachusetts court orders a man to pay child support for twin girls, born through In-vitro fertilization and with donor sperm and eggs, even though he was estranged from his wife at the time of conception. Is this fair? With the rise in IVF treatments, there are more and more cases across the country with complicated custody matters. Lawyer2Lawyer co-hosts and attorneys, Bob Ambrogi and Craig Williams join Attorney Maureen McBrien from the firm, Todd & Weld LLP and Certified Family Law Specialist and trial attorney Violet P. Woodhouse, to explore the legal issues surrounding in-vitro fertilization, custody rights and family law.
Friday, June 29, 2012
What’s Trending in 2012?
Decriminalizing medical marijuana, fighting to repeal healthcare reform and using social media as evidence are just a few of the topics trending in the legal industry in 2012. Lawyer2Lawyer co-host and attorney, J. Craig Williams discusses the hottest trends currently transforming the legal world with attorney and legal trend-watcher Danny Cevallos, the founding partner of Cevallos & Wong, L.L.P.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/01/what%E2%80%99s-trending-in-2012/
Thursday, June 28, 2012
Smartphone Security
Is your smartphone really secure? On Digital Detectives, co-hosts Sharon D. Nelson, Esq., President of Sensei Enterprises, Inc. and John W. Simek, Vice President of Sensei Enterprises, welcome guest, computer scientist, and certified forensic analyst Andrew Hoog, co-founder of viaForensics, to talk about the ins and outs of smartphone security. Andrew shares his insight on the most secure smartphone, whether mobile devices are really a target for sophisticated cyber-criminals and the policies corporations and law firms need to address mobile devices.
Source: http://legaltalknetwork.com/podcasts/digital-detectives/2012/01/smartphone-security/
Texting While Driving and the Law
Texting while driving is a growing danger on American roads. Every day, people are severely injured and even killed by these distracted drivers. Lawyer2Lawyer co-hosts and attorneys, Bob Ambrogi and Craig Williams, get the legal lowdown on texting while driving laws and recent high-profile cases, including one where both parties involved in a texting conversation were sued from Attorney Matthew Weiss from Weiss & Associates, PC, Attorney Robert M. Schartz from the firm of Abrahams Kaslow & Cassman LLP and from Attorney Stephen "Skippy" Weinstein, a personal injury attorney at Stephen S. Weinstein, PC.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/06/texting-while-driving-and-the-law/
Wednesday, June 27, 2012
An Empirical Study of Predispute Mandatory Arbitration Clauses in Social Media Terms of Service Agreements
Michael Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director Intellectual Property Law Concentration at Suffolk Law, discusses his study on the use of mandatory arbitration clauses in social media. Read the article at: http://bit.ly/Kn6kKc.
DIY Discovery Trends & the Federal Circuit’s New Model Order on E-Discovery
E-discovery is constantly evolving, so if organizations stand still, they will lose ground. Many corporations and law firms are now re-examining their e-discovery processes and tools. On The ESI Report, host Michele Lange, Attorney and Director of the Thought Leadership & Industry Relations division at Kroll Ontrack welcomes Ken Ewell, Vice President of SaaS solutions for Kroll Ontrack, to explore do-it-yourself e-discovery trends and how law firms and corporations are re-evaluating their role in the Electronic Data Reference Model. In the Bits & Bytes Legal Analysis, Kroll Ontrack Legal Correspondent, Elliot Westman, takes a look at the facts surrounding DCG Systems, Inc. v. Checkpoint Technologies and the recently issued Model Order on E-Discovery in Patent Cases coming out of the Federal Circuit.
Tuesday, June 26, 2012
House Moving Toward a Vote This Week on Contempt for Holder
The House of Representatives appears ready to vote to hold Attorney General Eric Holder Jr. in contempt of Congress later this week. A last-minute settlement seems unlikely as the Justice Department reportedly said Holder would rather "take his lumps" than turn over documents from the botched Fast and Furious gun trafficking operation.
Court Upholds 'Show Me Your Papers' In Arizona
The Supreme Court has delivered a split ruling on Arizona's immigration law, striking down several key elements but upholding the "show me your papers" provision. The controversial provision allows local police to check the immigration status of people they stop in the normal course of their duties.
Source: http://www.npr.org/2012/06/25/155717375/-court-upholds-show-me-your-papers-in-arizona?ft=1&f=1070
Monday, June 25, 2012
Continental Breakfast: How Dewey's Management Got One Thing Right
The deals behind Dewey & LeBoeuf's international office moves show that its leaders may have gotten something right. Unlike a typical group lateral hire, Dewey's foreign transfers were structured almost as M&A deals to generate cash returns for creditors and minimize disruption to clients.
E-discovery Preservation: Reset to Neutral
The landmark Zubulake e-discovery decisions were the first of many to transform a narrow duty not to spoliate into a much broader duty to affirmatively preserve all possibly relevant evidence when there exists a "reasonable anticipation of litigation." But have these judicial opinions gone too far? In the December edition of Law Technology Now, Robert Owen, a partner at Sutherland Asbill & Brennan, says it’s time to shift gears and restore the balance. He talks with Monica Bay, editor-in-chief of Law Technology News, about his five proposed rules that he says will prevent substantial injustices, yet be comprehensive and comprehensible.
Sunday, June 24, 2012
Solos, Structured Settlements, & Medicare Set Asides
Solo attorneys need to know what is happening in the structured settlement industry for a more successful practice. New Solo host, Attorney Kyle R. Guelcher, a solo practitioner looks to the experts, Ringler Associates Consultant Peter Early, and Vincent Polinsky, Director of Operations at Ringler Medicare Solutions, to explain the evolving role of the structured settlement consultant today. Hear the discussion about the advantages of a Medicare Set-Aside, and the benefits overall to your client’s settlement.
The Controversy over Cameras in the U.S. Supreme Court
Should the U.S. Supreme Court broadcast its sessions to the American public or should cameras be kept out of the SCOTUS chamber? Proponents of cameras say they are needed for transparency. Opponents call the idea potentially unconstitutional and harmful. Lawyer2Lawyer co-hosts and attorneys, J. Craig Williams and Bob Ambrogi welcome Nancy Marder, Professor of Law at Chicago-Kent College of Law and Eric P. Robinson, Deputy Director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada in Reno, for an in depth discussion on both sides of this very important issue.
Saturday, June 23, 2012
Space Law and Enforcement of Intellectual Property Rights
On this edition of IP Counsel, host Attorney Peter Lando, partner at the firm of Lando & Anastasi, LLP, welcomes Matt Kleiman, an expert in Space Law and Corporate Counsel for the Charles Stark Draper Laboratory, Inc, to explore extraterritoriality and the development of space law with regard to enforcement of intellectual property rights. Peter and Matt discuss the growth of the commercial space industry, the development of international space law, and jurisdictional issues that may arise as related intellectual property rights are created and enforced.
Evaluating and Negotiating Workers’ Compensation Claims
Closing a workers’ compensation claim involves a two-step process: evaluation and negotiation. On Ringler Radio, host Larry Cohen joins colleague, Teddy Snyder, Esq. and Attorney Sylvia Lopez from Bakersfield, California, to talk about closing workers’ compensation claims. They explore the risks and advantages to a claimant and employer in closing a workers’ compensation claim, the importance of rated age and how a structured settlement can give injured workers the best of both worlds.
Friday, June 22, 2012
First Circuit Holds That Section 806 of the Sarbanes-Oxley Act Extends Only to Employees of Public Companies, Not Employees of Private Companies Who Are Contractors or Subcontractors for Covered Public Companies
In Lawson v. FMR LLC, No. 10-2240, 2012 U.S. App. LEXIS 2085 (1st Cir. Feb. 3, 2012), the United States Court of Appeals for the First Circuit, in a case of first impression, held that the whistleblower provision in Section 806 of Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A (“SOX”), applies only to employees of public companies, and does not protect employees of private companies who are contractors or subcontractors for the covered public company. This decision, the first decision by a United States Court of Appeals on this issue, helps clarify the definition of “covered employee” under whistleblower provisions of SOX.
Plaintiffs Jackie Hosang Lawson and Jonathan M. Zang each brought separate actions in which they alleged unlawful retaliation by their employers in violation of the whistleblower protections of Section 806 of SOX. Section 806(a) of SOX provides, in relevant part, that “[n]o company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 . . . or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee . . . . ”
The employers of Lawson and Zang were each private companies that provided advising or management services by contract to the Fidelity family of mutual funds. Lawson’s and Zang’s employers each moved to dismiss the claims arguing, in part, that the plaintiffs were not “covered employees” within the meaning of Section 806. The United States District Court for the District of Massachusetts denied the motions, ruling that the SOX whistleblower protection of Section 806 extended to employees of private agents, contractors and subcontractors to public companies. Defendants moved for an interlocutory appeal and the district court certified a “controlling question of law” to the First Circuit.
On appeal, the First Circuit limited its review to the question certified by the district court: “Does the whistleblower protection afforded by Section 806(a) of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, apply to an employee of a contractor or subcontractor of a public company, when that employee reports activity which he or she reasonably believes may constitute a violation of 18 U.S.C. §§ 1341, 1343, 1344, or 1348.” Upon reviewing the language and legislative history of the statute, the First Circuit concluded that the whistleblower protections of Section 806(a) do not extend to an employee of a contractor or subcontractor and, accordingly, reversed the holding of the district court.
In reaching its conclusion, the First Circuit scrutinized the language and legislative history of the statute to determine the true intent of Congress. Initially, the First Circuit looked to the plain language of the statute. Given the language of the statute, the Court held that the “more natural reading” of the statute is that “only employees of the defined public companies are covered by this whistleblower provision . . . [because] the clause officer, employee, contractor, subcontractor or agent of such company goes to who is prohibited from retaliating or discriminating, not who is a covered employee . . . .”
Next, the First Circuit held that the title and caption of Section 806 also supported its finding. The caption of Section 806 is titled “Protection for Employees of Publicly Traded Companies who Provide Evidence of Fraud” while the caption of Section 806(a) is titled “Whistleblower protection for employees of publicly traded companies.” Based upon the plain language of these captions, the First Circuit held that only employees of publicly traded companies are protected by the whistleblower provision in the statute. Similarly, the First Circuit also noted that Congress enacted other whistleblower protections in SOX which are broader than the provisions included in Section 806(a), thereby evidencing an intent to keep the scope of the statute narrow. For instance, 18 U.S.C. § 1513, which concerns retaliation against informants, “requires neither a public company, nor an employment relationship, nor a securities law violation to trigger coverage . . . [whereas] [t]he scope of § 1514A is, by contrast, conspicuously narrow.”
Finally, the First Circuit held that the legislative history of Section 806(a) confirms that it does not apply to employees of private companies. Specifically, the First Circuit noted that the statute was amended in 2010 to explicitly extend whistleblower coverage to employees of public companies’ subsidiaries and nothing in the reports of the Senate committee indicates that Congress intended to extend the protections of the statute to employees of contractors and subcontractors of publicly traded companies.
In light of the First Circuit’s ruling, the definition of the term “covered employee” has been clarified and the group of persons potentially covered by the protections of Section 806(a) have been significantly narrowed to include only employees of publicly traded companies — not employees of contractors and subcontractors who provide services to the publicly traded companies.
For further information, please contact John Stigi at (310) 228-3717 or Sean Kirby at (212) 634-3023.
A Reason to Revisit Maine's Indian Claims Settlement Acts: The United Nations Declaration on the Rights of Indigenous Peoples
Ms. Nicole Friederichs, Practitioner in Residence at Suffolk Law School, discusses her recent article and upcoming Indian Law and Indigenous Peoples Clinic at Suffolk Law School. To learn more about Ms. Friederichs, visit http://bit.ly/vtHwNp.
Thursday, June 21, 2012
Gone Clio with Attorney Chad E. Burton
Listen as Clio co-founder and CEO Jack Newton talks with special guest, Chad E. Burton, founding attorney of Burton Law in Dayton, Ohio, who has developed a unique virtual law firm model. You’ll hear Jack and Chad talk about everything from the iPad to paperless depositions.
Source: http://legaltalknetwork.com/podcasts/gone-clio/2011/11/gone-clio-with-attorney-chad-e-burton/
House Panel's Contempt Vote Against Holder Part Of Political Firefight
There's little evidence that the flap over Fast and Furious will make a difference to most voters come November. But there are a number of conservative gun owners in battleground states like Ohio who could be energized to oppose President Obama.
Wednesday, June 20, 2012
Legal Talk Network Live at LegalTechNY 2012-Onit’s Eric Elman Spotlights Onit Apps
Eric Elfman spotlights "Onit Apps" for the legal marketplace which solve very specific problems for legal departments. Be sure to watch the interview, hosted by Legal Talk Network producer, Kate Kenney.
What's New in the Structured Settlement Industry for 2012
On Ringler Radio, host Larry Cohen welcomes Ross Duncan, the newly appointed Chairman of the Board of Ringler Associates. Ross and Larry discuss the current status of the settlement industry and the direction Ringler Associates is headed in 2012. In addition, Ross explains how to adapt to changes in the industry, how his colleagues can benefit from Ringler's new website and his personal goals for the year.
Tuesday, June 19, 2012
Christopher v. SmithKline Beecham - update
Christopher v. SmithKline Beecham Corp. (11-204) Issue: Whether pharmaceutical sales representatives were exempt from FLSA overtime-pay requirements as "outside salesmen." Christopher, a pharmaceutical sales representative (PSR), sued the employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to...
Source: http://www.lawmemo.com/blog/2012/02/christopher_v_s.html
The Government We Deserve
Alasdair Roberts, Suffolk Law's Rappaport Professor of Law and Public Policy, discusses his recent article on the Neoliberal Revolution. Read the article at: http://bit.ly/K4dhiu.
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/06/the-government-we-deserve/
Monday, June 18, 2012
Why Dewey Died: Three Perspectives
A collection of post-mortems analyzing the possible reasons behind the fall of a powerful law firm.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202559736339&rss=nlj
DOMA down, but why?
The 1st Circuit today held that the Defense of Marriage Act's denial of federal benefits to married same-sex couples is unconstitutional. Massachusetts v. US Department of Health and Human Services (1st Cir 05/31/2012). The federal Defense of Marriage Act (DOMA)...
Source: http://www.lawmemo.com/blog/2012/05/doma_down_but_w.html
Sunday, June 17, 2012
America's First Great Depression: Economic Crisis and Political Disorder after the Panic of 1837
Alasdair Roberts, Suffolk Law's Rappaport Professor of Law and Public Policy, discusses his upcoming book and how it relates to the United States economy today. Learn more about Professor Roberts at http://bit.ly/zTKaZP.
Tampering with documents in connection with a merger investigation can land you in jail!
By Robert Magielnicki and Malika Levarlet
One does not usually associate the possibility of criminal penalties with the Hart-Scott-Rodino Act premerger review process. However, on May 3, 2012, the U.S. Department of Justice ("DOJ") announced that an executive of a South Korean company agreed to plead guilty to obstruction of justice charges and to serve five months in prison for altering documents filed with the DOJ and the Federal Trade Commission ("FTC") in connection with a proposed merger.
This plea agreement is the latest development in a civil merger investigation initiated by the Antitrust Division of the DOJ of the proposed acquisition by automated teller machine maker Nautilus Hyosung Holdings Inc. ("NHI") of a competing manufacturer of ATM systems, Triton Systems of Delaware Inc., in 2008. The Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR"), as amended, requires companies contemplating mergers and acquisitions valued above certain thresholds to make premerger filings with the DOJ and the FTC. The federal antitrust agencies have authority to investigate and challenge the proposed transactions under Section 7 of the Clayton Act, if the transactions may substantially lessen competition. Before the Antitrust Division reached a decision regarding whether to challenge the transaction, the parties abandoned it.
In the two-count felony charge, the DOJ stated that Kyoungwon Pyo, in his role as senior vice president for corporate strategy of Hyosung Corporation, an affiliate of NHI, altered and directed subordinates to alter numerous corporate documents before they were submitted to the DOJ and the FTC in conjunction with the premerger HSR filings. The DOJ further alleged that, after the Antitrust Division opened a civil investigation of the proposed acquisition, Pyo falsified additional documents in response to a document request with the intention of impairing their integrity and availability for use in an official proceeding. According to the DOJ "the alterations misrepresented and minimized the competitive impact of the proposed acquisition."
On October 20, 2011, after voluntarily disclosing that numerous documents had been altered before being submitted to the government and agreeing to cooperate in the ongoing investigation, NHI pleaded guilty to two counts of obstruction of justice and paid a $200,000 criminal fine for its role in the document tampering. Following his employer, Pyo has agreed to plead guilty and to serve five months in prison for his conduct in a plea agreement which is subject to court approval. Pyo is charged with obstruction of justice, which carries a maximum penalty of 20 years in prison and a criminal fine of $250,000 for individuals.
This case marks the first time obstruction of justice charges have followed a civil merger investigation. The DOJ release is available at: http://www.justice.gov/atr/public/press_releases/2012/282873.htm
For more information on the applicable HSR thresholds please consult: http://www.antitrustlawblog.com/2012/01/articles/article/higher-filing-thresholds-for-hsr-act-premerger-notifications-and-interlocking-directorates-announced/
or contact: Bob Magielnicki at rmagielnicki@sheppardmullin.com; Jennifer Driscoll- Chippendale at jdriscoll-chippendale@sheppardmullin.com or Malika Levarlet at mlevarlet@sheppardmullin.com
Saturday, June 16, 2012
The Best Resources for Staying Current in E-Discovery
How do you keep up with all that is going on in the world of e-discovery? On Digital Detectives, co-hosts Sharon D. Nelson, Esq., President of Sensei Enterprises, Inc. and John W. Simek, Vice President of Sensei Enterprises, welcome guest, Neil Squillante, publisher of LitigationWorld, who discusses his selection of resources for staying current in e-discovery. Neil tells us how to keep up with e-discovery developments, lists his favorite blogs and podcasts, and explains how you can benefit from the Sedona Conference and webinars.
SU Discoverlaw.org PLUS
Suffolk University Law School Dean Camille Nelson and Keren Zuniga McDowell, director of the Office of Academic Affairs at Suffolk University, discuss the SU Discoverlaw.org PLUS program. Learn more about SU Discoverlaw.org PLUS at http://bit.ly/yZhpOL.
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/03/suplus/
Friday, June 15, 2012
Judge Kurt Kumli
Santa Clara Superior Court judge discusses use of technology and attorney calendaring.
Sorry Your Stepdad Is Such A Tool.
When he was a kid, in addition to being a tool, this California elected official must have really sucked at baseball. Sadly, below you can see him taking it out on his stepson.
You can read more about it here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/pDyLMV6q85c/post_430.html
Thursday, June 14, 2012
Imposter attorney catches a break on his sentence
The Tenth Circuit has upheld the conviction of Howard Kieffer, who never went to law school or held a law license but hoodwinked a "slew" of federal courts into admitting him to practice. The appeals court remanded to the U.S. District Court for the District of Colorado for a recalculation of his prison term and the restitution he was ordered to pay.
See related ruling (pdf).
See related ruling (pdf).
Wednesday, June 13, 2012
Rage Against The Machine
Be honest. You've smacked or kicked a machine - a parking meter, a vending machine, a copier ... But this guy took it to another level. Per The Salt Lake Tribune:
A Salt Lake City mortgage company employee allegedly got drunk, opened fired on his firm’s computer server with a .45-caliber automatic, and then told police someone had stolen his gun and caused the damage.Maybe he didn't do it?
Salt Lake County prosecutors say Campbell called police late on Aug. 12, claiming a man had stolen his gun and fired into the $100,000 computer server owned by RANLife Home Loans, located at 268 W. 400 South.
A probable cause statement alleges that Campbell told police he had been “mugged, assaulted with his own firearm and drugged” by a mystery assailant.So don't be so quick to judge. Wait, something is coming in over the wire ...
... acquaintances of Campbell reportedly told police he had earlier been drunk, was armed and had threatened to shoot the computer and maybe himself.Doh! Of note: "acquaintances" not "friends." The charges?
... criminal mischief, a second-degree felony; carrying a dangerous weapon while under the influence and providing false information to police, both Class B misdemeanors; and public intoxication, a Class C misdemeanor.No word on whether the server will make it ...
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/8SW6-ath-kM/post_429.html
HRW urges Myanmar to protect communities from sectarian violence
[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday urged [press release] Myanmar [BBC backgrounder; JURIST news archive] to ensure the safety of communities in the Arakan State. According to HRW, the violence between Arakan Buddhists and ethnic Rohingya Muslims creates a safety risk for the surrounding community leaving an unknown number dead. The violence began when earlier this month Arakan Buddhists attacked [BBC report] a bus of traveling Muslims, killing 10 people. The attack stemmed from anger about the...
Tuesday, June 12, 2012
Pacenti's rant: Law firm layoffs
It's not easy being a lawyer these days. And even harder being part of the law firm's support staff as law firms are cutting back on those positions. John Pacenti asks "Is this more about management or greed?"
Ultrabook Benefits for Attorneys
The big story at the 2012 Consumer Electronics Show was "ultrabooks." This new category of computer stole the thunder, at least for a few days, from tablet computers. Should lawyers be considering ultrabooks in 2012? In this episode, Dennis Kennedy and Tom Mighell take a look at the new world of ultrabooks, whether tablet computers like the iPad are taking over the computer market, and what it all means for traditional notebook computers and desktop PCs.After you listen, be sure to check out Tom & Dennis’ co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.
Monday, June 11, 2012
Massachusetts court rejects challenge to 'under God' in pledge
[JURIST] A judge for the Middlesex Superior Court in Massachusetts on Friday rejected a challenge [opinion, PDF] raised by public school children and their parents challenging the inclusion of the phrase "under God" in the US Pledge of Allegiance. In her decision, Judge S Jane Haggerty ruled that the inclusion of the phrase does not automatically convert the pledge into a prayer:I can only conclude that the insertion of "under God" into the pledge has not converted it from a...
Sunday, June 10, 2012
Building your Client Portfolio
Want to know how you can build your client portfolio? New Solo host, Attorney Kyle Guelcher, a solo practitioner and Chair of the Young Lawyers Division of the Massachusetts Bar Association, joins marketing expert, Richard DeLuca, Principal of MarketerAtLaw.com, to offer tips on how to build a solid client base. Rich talks about the approach new lawyers should take if attending a conference, the importance of blogging and search engine optimization (SEO) and how a new lawyer can stay motivated when the phone is not ringing.
Source: http://legaltalknetwork.com/podcasts/new-solo/2011/09/building-your-client-portfolio/
Saturday, June 9, 2012
Turn Your Solo Practice into a Highly Utilized Business
Looking to get your solo practice off the ground but aren’t sure how? Learn about the tools you need to turn your solo practice into a highly utilized business when New Solo host and solo practitioner, Attorney Kyle R. Guelcher, talks to Alex Vega ,a law firm consultant with The Vega Firm. Alex shares his great insight on the basic human skills a lawyer needs for a successful practice, how a solo can develop an effective word of mouth campaign and the importance of a realistic marketing plan.
A Chat with American Bar Association President: Bill Robinson
From court underfunding, to transparency in legal education to technology, there are many hot-button issues facing the legal profession today. Ringler Radio, host Larry Cohen along with co-host, Mike Casey, Chairman of the Board of Directors and Head of Midwest Operations for Ringler, welcome William T. (Bill) Robinson III, the 2011-2012 President of the American Bar Association, to discuss some of these important initiatives, the impact of the down economy on the legal system and the ABA’s goals for the future.
Friday, June 8, 2012
IRS Issues New Guidance to Private Foundations on Program Related Investments
The IRS recently issued proposed regulations that provide new examples that illustrate what types of investments qualify as "program-related investments" (PRIs). These new examples are based on published guidance and on financial structures that had previously been approved in private letter rulings.
Program Related Investments—In General
Excise taxes are imposed on private foundations, as well as their managers, for making investments that jeopardize the carrying out of the private foundation's exempt purposes. Generally, such "jeopardizing investments" occur when foundation managers fail to exercise ordinary business care and prudence in providing for the long- and short-term financial needs of the private foundation.
PRIs are exempt from being treated as jeopardizing investments. In general, PRIs are defined as investments that (1) have the primary purpose to accomplish one or more "charitable" purposes, (2) do not have the significant purpose of producing income or appreciating property, and (3) do not support legislation or political campaigns.
Using PRIs can be a great way for a private foundation to stimulate and advance charitable objectives. High-profile private foundations using PRIs include the Bill and Melinda Gates Foundation.
The Proposed Regulations
The proposed regulations do not modify the existing regulations—instead, they provide new examples of investments that qualify as PRIs by illustrating certain principles and current investment practices. While the examples in the existing regulations focus on domestic situations principally involving economically disadvantaged individuals in deteriorated urban areas, the new examples illustrate a broader range of situations more likely to be encountered in practice:
- PRIs can be achieved through a variety of investments, such as loans to individuals, tax-exempt organizations, and for-profit organizations, as well as equity investments in for-profit organizations.
- A private foundation's acceptance of an equity position in conjunction with making a loan does not necessarily prevent such investment from qualifying as a PRI.
- A credit enhancement arrangement (such as a deposit agreement or a guarantee agreement) may qualify as a PRI.
- A potentially high rate of return does not automatically prevent an investment from qualifying as a PRI.
- The charitable purposes that a PRI may serve are broad, and include advancing science, combating environmental deterioration, and promoting the arts.
- Activities conducted in foreign countries are considered to further a charitable purpose so long as the same activities would further a charitable purpose in the U.S.
- The recipients of PRIs do not need to be within a charitable class if they are the instruments for furthering a charitable purpose. For example, an investment in a for-profit that develops new drugs may qualify as a PRI if the for-profit business agrees to use the investment to develop a vaccine that will be distributed to poor individuals at an affordable cost.
Private foundations are permitted to rely on the new examples, even though the proposed regulations will not be effective until the Treasury publishes them as final regulations.
Benefits of Program Related Investments
PRIs receive special tax treatment, such as:
- PRIs are excluded from the assets that a private foundation takes into account when determining its "distributable amount" for the taxable year.
- PRIs are excluded from being treated as "business holdings" subject to excise tax.
- PRIs are generally treated as "qualifying distributions" for purposes of private foundation distribution requirements.
- PRIs do not constitute "taxable expenditures" provided that "expenditure responsibility" is exercised by the private foundation when required.
The new examples will be helpful to private foundations in determining if their investments may qualify as a PRI and receive such beneficial tax treatment.
Contact
For further information, please contact David Ulich at (310) 228-2274 or Danica Dodds at (310) 228-2274.
Disclaimer
This update has been prepared by Sheppard, Mullin, Richter & Hampton LLP for informational purposes only and does not constitute advertising, a solicitation, or legal advice, is not promised or guaranteed to be correct or complete and may or may not reflect the most current legal developments. Sheppard, Mullin, Richter & Hampton LLP expressly disclaims all liability in respect to actions taken or not taken based on the contents of this update.
America Invents Act: Micro Entity Status for Institutions of Higher Education
Janet Macleod and Christopher Kinkade of Fox Rothschild LLP, discuss their recent article America Invents Act: Micro Entity Status for Institutions of Higher Education. Read the article at http://bit.ly/vFi69v.
Thursday, June 7, 2012
Inside the Gerry Spence Trial Lawyers College
Structured settlement brokers have the pleasure of working side by side trial attorneys to help structure the best settlements for the injured and the less fortunate and many of these lawyers credit their success to special training that they received at the Gerry Spence Trial Lawyers College. On Ringler Radio, host Larry Cohen welcomes colleague and co‑host, Bill Wright from the Atlanta office of Ringler Associates and guest Attorney Joseph A. Fried, of Fried Rogers Goldberg, to talk about his experience and how he applies what he has learned to his law practice.
A Chat with American Bar Association President: Bill Robinson
From court underfunding, to transparency in legal education to technology, there are many hot-button issues facing the legal profession today. Ringler Radio, host Larry Cohen along with co-host, Mike Casey, Chairman of the Board of Directors and Head of Midwest Operations for Ringler, welcome William T. (Bill) Robinson III, the 2011-2012 President of the American Bar Association, to discuss some of these important initiatives, the impact of the down economy on the legal system and the ABA’s goals for the future.
Wednesday, June 6, 2012
Preservation Problems, Federal Rulemaking Efforts & E-Discovery in Criminal Actions
On The ESI Report, host Kelly Kubacki, Attorney in the Thought Leadership & Industry Relations division at Kroll Ontrack welcomes Tom Allman, Attorney and Consultant, and Bill Butterfield, Partner with Hausfeld LLP in Washington, DC, to explore the recent efforts to amend the Federal Rules of Civil Procedure, including a discussion on whether amendments are even necessary or an actual possibility. On the Bits & Bytes Legal Analysis, Kroll Ontrack Legal Correspondent, Ben Kirk focuses on the facts surrounding United States v. Briggs.
FDA Faulted for Failure to Review Use of Antibiotics in Animal Feed
A New York federal judge has found that the Food and Drug Administration's denial of citizen petitions requesting it withdraw approval of classes of antibiotics for food-producing animals was "arbitrary and capricious," as it gave flimsy justifications for adopting only a voluntary compliance program on use of the drugs.
Tuesday, June 5, 2012
Second Circuit Affirms Dismissal of Securities Class Action Against CBS Due to Plaintiffs' Failure to Plead Scienter and Reliance
In City of Omaha v. CBS Corp., No. 11-2575, 2012 U.S. App. LEXIS 9535 (2d Cir. May 10, 2012), the United States Court of Appeals for the Second Circuit reaffirmed its decision in Fait v. Regions Financial Corp., 655 F.3d 105 (2d Cir. 2011) [see our prior blog article here], which held that statements regarding goodwill and loan loss reserves were “opinions” that could only be actionable under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities & Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder, if defendants did not genuinely believe the statements to be true at the time they were made. Separately, the Court also held that plaintiffs’ complaint did not sufficiently allege reliance upon a fraudulently inflated price where the alleged “red flags” purportedly indicating the need for earlier review of CBS’ goodwill were matters of public knowledge and thus were already incorporated into the price of the stock. This decision is notable for its recognition that the presumption that publicly available information, if material, necessarily affects the price of an efficiently traded stock, which typically is used by plaintiffs to support securities fraud complaints, can also be used by defendants to defeat securities fraud complaints.
In City of Omaha, plaintiffs alleged that CBS Corp. (“CBS”) and various members of CBS’ management made statements about CBS’s goodwill and its general financial condition that were knowingly or recklessly false. Specifically, plaintiffs alleged that, prior to an announcement by CBS in October 2008 that it was to perform an interim impairment test on its existing goodwill (and that, as a result, it expected to incur a non-cash impairment charge of approximately $14 billion), defendants knew about facts that indicated such a test was necessary at an earlier date. The United States District Court for the Southern District of New York dismissed the amended complaint, holding that plaintiffs “failed to cite a point, factually or temporally, when the defendants’ actions added up to something more than an exercise of real-time accounting judgment.” City of Omaha v. CBS Corp., No. 08 Civ. 10816, 2011 U.S. Dist. LEXIS 57647, at *12 (S.D.N.Y. May 24, 2011).
The Second Circuit affirmed. The Court relied upon its earlier decision in Fait, in which the Second Circuit held that estimates of goodwill and loan loss reserves are inherently subjective and thus constitute “opinions,” such that statements in this context could only be false or misleading if defendants did not genuinely believe them to be true at the time they were made. The Court concluded that because plaintiffs’ amended complaint was “devoid even of conclusory allegations that defendants did not believe in their statements of opinion regarding CBS’s goodwill at the time they were made,” plaintiffs’ fraud claims were properly dismissed.
The Court then turned to the element of reliance. It is well settled that to state a claim under Section 10(b) and Rule 10b-5, plaintiffs must plead reliance upon defendants’ allegedly false or misleading statements. Under Basic Inc. v. Levinson, 485 U.S. 224 (1988), plaintiffs’ reliance is presumed if, inter alia, the defendant issuer’s stock is traded in an efficient market because it is assumed that a stock price incorporates all publicly available material information. The presumption of reliance is rebuttable, however, upon any showing that the causal link between the alleged misrepresentation and the price is broken.
Here, the Second Circuit held that such causal link was severed where indications of CBS’s financial well-being were matters of public knowledge. The Court observed that plaintiffs claimed to have relied upon several indicia as to why CBS should have been aware that impairment testing of its intangible assets was required in early 2008: the widening gap between CBS’s book value and the company’s market capitalization, the declines in advertising revenues, and the expectations of analysts regarding the media business. The Court noted that these so-called “red flags,” as well as CBS’ last impairment test in 2007 prior to the appearance of these red flags, were all matters of public knowledge. Thus, “CBS’s market price would at all pertinent times have reflected the need for, if any, or the culpable failure to undertake, if any, interim impairment testing.” The Court reasoned that because market makers were aware of the alleged “red flags,” the market price would have accounted for such and would not have been affected by the alleged misrepresentations. Under such circumstances, there is no basis for finding that a fraud had been transmitted through the market price. Thus, the Court held the complaint failed to allege that CBS stock was fraudulently inflated and, consequently, failed to allege reliance upon such fraud.
Commentators have long recognized that issues of causation, reliance, materiality and price impact in securities fraud actions are interrelated. This decision moves the law closer to applying a more consistent approach to the issues. The United States Supreme Court’s decisions in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011) [see blog article here], and Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179 (2011) [see blog article here], previewed several of these issues, but a more comprehensive analysis still awaits Supreme Court consideration.
For further information, please contact John Stigi at (310) 228-3717 or Valentina Shenderovich at (212) 634-3019.
Legal Assistance for our Troops, Veterans & Military Families
With two wars winding down, there are great efforts in the legal community to help returning troops, their families and all other veterans with the many legal issues they face back home. Lawyer2Lawyer co-hosts and attorneys, Bob Ambrogi and J. Craig Williams join Attorney Nan Heald, the Executive Director of Pine Tree Legal Assistance and Jim Strickland, a nationally recognized expert on disability benefits, to discuss their personal missions to assist our service members with disability benefits and the Service Members Civil Relief Act. They also talk about the role of the VA and how lawyers can help these brave men and women who serve our country.
Monday, June 4, 2012
"Biggest Bunch of Crap Ever"
Sheriff Bill Watson has a contraband problem in his jail in Portsmouth, Virginia. Why, under his watchful eyes, he had such a problem, isn't exactly clear, given that his adopted tough on contraband position didn't do him much good before. But one it was a gaggle of nurses coming into his jail to care for the health of prisoners. Watson appreciated the strictest need possible for thoroughness.
Via Fox 8 News:
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Via Fox 8 News:
Nine female healthcare contractors providing healthcare services to inmates at the Portsmouth City Jail claimed that when they arrived at work they were sent with a female guard to a private room.
“They were told to completely remove their clothing, they were forced to bend over and cough while jail officials looked in their bodily cavities,” said ACLU lawyer Rebecca Glenberg.
These were contracted nurses, not misdemeanant or people arrested for unpaid parking tickets that were actually paid. You know, the sort of people who deserve a good body cavity search. Sheriff Watson, whose nickname around Portsmouth is Mr. Sensitivity, was unimpressed. When he learned he was being sued for the searches, he responded:
“I thought it was the biggest bunch of crap I’d ever heard in my life,” said Watson.
The Sheriff contends he has every right to strip search anyone coming in to his jail. He emphasized that includes his owns deputy. He says security is his primary concern and he had been having problems with contraband getting in to the jail.
Anyone? Lawyers meeting with their clients, for example? Though a defendant may have a constitutional right to counsel, the Constitution says nothing about the right of a lawyer to meet with his client with his clothes on, or not to undergo a myopic inspection as part of the entrance protocol. And if Sheriff Watson was really intend on being thorough, there is always the colonoscopy, just in case. You never know what a lawyer could be hiding in there.
“The nurses need to understand they don’t run the jail, we run the jail and they have the option to be searched or leave,” said Watson.
Watson believes the searches are part of his efforts to ensure inmate safety.
“The world’s gotten so politically correct you can’t do your job,” he said.
One might muse that the good Sheriff could be asked the same question if he happens to appear in an emergency room in extremis, and a nurse orders him to squat and spread before showing him any concern. While he may own the guns in the jail, the nurses have the juice in the ER. I wonder whether Sheriff Watson understands that it works both ways?
Certainly, one has to wonder why the nurses didn't turn on their heels and walk out of Sheriff Watson's domain. Perhaps they felt they had no option, since the screws had guns and gave them order. Maybe they were so dedicated to the health of prisoners they felt morally bound to endure the search lest the inmates' health suffer. It could even be as simple as they needed the money. Or maybe there were just foolish.
At a time when employer's demanding Facebook passwords causes outrage, it seems almost quaint in comparison to a body cavity search. This hardly seems to fall under the facile rubric of political correctness. The notion that Sheriff's keep their eyes (and all other body parts) out of nurses' orifices without a damn good reason.
The alternative for healthcare professionals who are needed to tend to the care of prisoners is to tell nice old sheriff's like Watson to enjoy his own body cavity search, and refuse to suffer the indignity. But then, that doesn't do much to help the prisoner in need of medical attention. Should they refuse to enter as long as Watson continues to have his head firmly implanted in the search zone and allow inmates to suffer, perhaps die, for lack of medical care?
The most absurd part of Watson's thinking, and I use that word in its broadest sense, is that there is an easy alternative means to protect against the introduction of contraband. After a prisoner is seen by a nurse, and before they re-enter general population, search the prisoner. It's not that I'm advocating this be done, or that prisoners should be needlessly search and forced to undergo the indignity of a body cavity search in order to obtain health care, but to note the stupidity of Watson's position.
Relative to the nurse, the prisoner is more rationally subject to search. That's comparative, of course, rather than absolute. There is just no sound reason to engage in any of this, absent a specific reason to believe that an individual has secreted contraband on his person. As far as Watson's contraband problems are concerned, there is an even better solution available to him since the primary source of unlawful stuff coming into a jail isn nurses' tushies.
The Sheriff contends he has every right to strip search anyone coming in to his jail. He emphasized that includes his owns deputy.
Now he's on to something. Maybe Sheriff Watson will let us know how that turns out. And when it's his turn to squat and cough, I'm sure there will be no shortage of volunteers to do the job.
© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2012/05/27/biggest-bunch-of-crap-ever.aspx?ref=rss
The Surefire Way to End Online Piracy: End Copyright
Dr. Dean Baker, co-director of the Center for Economic and Policy Research in Washington, D.C., discusses his recent article in the Huffington Post, "The Surefire Way to End Online Piracy: End Copyright." Read more about Dr. Baker at http://bit.ly/c6VVJo.
Sunday, June 3, 2012
Bridging the Gap in Copyright Protection of Symbols, Shapes and Letters
In this episode of the IP Issues podcast series, Thomas McNulty and Julia Mathis of Lando & Anastasi, LLP discuss copyright protection of symbols, geometric shapes, and letters. Learn more about Lando & Anastasi, LLP at http://www.lalaw.com.
Gone Clio with Attorney Beate Weiss-Krull
Listen as Clio co-founder and CEO Jack Newton talks with special guest, Beate Weiss-Krull, a general practitioner based in Portland, Oregon. You’ll hear Jack and Beate talk about how #cloudcomputing helps her manage her US and German cases, her switch from PC to Mac, ScanSnap and other #paperless productivity tips.
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/01/gone-clio-with-beate-weiss-krull/
Saturday, June 2, 2012
First Circuit Holds That Section 806 of the Sarbanes-Oxley Act Extends Only to Employees of Public Companies, Not Employees of Private Companies Who Are Contractors or Subcontractors for Covered Public Companies
In Lawson v. FMR LLC, No. 10-2240, 2012 U.S. App. LEXIS 2085 (1st Cir. Feb. 3, 2012), the United States Court of Appeals for the First Circuit, in a case of first impression, held that the whistleblower provision in Section 806 of Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A (“SOX”), applies only to employees of public companies, and does not protect employees of private companies who are contractors or subcontractors for the covered public company. This decision, the first decision by a United States Court of Appeals on this issue, helps clarify the definition of “covered employee” under whistleblower provisions of SOX.
Plaintiffs Jackie Hosang Lawson and Jonathan M. Zang each brought separate actions in which they alleged unlawful retaliation by their employers in violation of the whistleblower protections of Section 806 of SOX. Section 806(a) of SOX provides, in relevant part, that “[n]o company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 . . . or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee . . . . ”
The employers of Lawson and Zang were each private companies that provided advising or management services by contract to the Fidelity family of mutual funds. Lawson’s and Zang’s employers each moved to dismiss the claims arguing, in part, that the plaintiffs were not “covered employees” within the meaning of Section 806. The United States District Court for the District of Massachusetts denied the motions, ruling that the SOX whistleblower protection of Section 806 extended to employees of private agents, contractors and subcontractors to public companies. Defendants moved for an interlocutory appeal and the district court certified a “controlling question of law” to the First Circuit.
On appeal, the First Circuit limited its review to the question certified by the district court: “Does the whistleblower protection afforded by Section 806(a) of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, apply to an employee of a contractor or subcontractor of a public company, when that employee reports activity which he or she reasonably believes may constitute a violation of 18 U.S.C. §§ 1341, 1343, 1344, or 1348.” Upon reviewing the language and legislative history of the statute, the First Circuit concluded that the whistleblower protections of Section 806(a) do not extend to an employee of a contractor or subcontractor and, accordingly, reversed the holding of the district court.
In reaching its conclusion, the First Circuit scrutinized the language and legislative history of the statute to determine the true intent of Congress. Initially, the First Circuit looked to the plain language of the statute. Given the language of the statute, the Court held that the “more natural reading” of the statute is that “only employees of the defined public companies are covered by this whistleblower provision . . . [because] the clause officer, employee, contractor, subcontractor or agent of such company goes to who is prohibited from retaliating or discriminating, not who is a covered employee . . . .”
Next, the First Circuit held that the title and caption of Section 806 also supported its finding. The caption of Section 806 is titled “Protection for Employees of Publicly Traded Companies who Provide Evidence of Fraud” while the caption of Section 806(a) is titled “Whistleblower protection for employees of publicly traded companies.” Based upon the plain language of these captions, the First Circuit held that only employees of publicly traded companies are protected by the whistleblower provision in the statute. Similarly, the First Circuit also noted that Congress enacted other whistleblower protections in SOX which are broader than the provisions included in Section 806(a), thereby evidencing an intent to keep the scope of the statute narrow. For instance, 18 U.S.C. § 1513, which concerns retaliation against informants, “requires neither a public company, nor an employment relationship, nor a securities law violation to trigger coverage . . . [whereas] [t]he scope of § 1514A is, by contrast, conspicuously narrow.”
Finally, the First Circuit held that the legislative history of Section 806(a) confirms that it does not apply to employees of private companies. Specifically, the First Circuit noted that the statute was amended in 2010 to explicitly extend whistleblower coverage to employees of public companies’ subsidiaries and nothing in the reports of the Senate committee indicates that Congress intended to extend the protections of the statute to employees of contractors and subcontractors of publicly traded companies.
In light of the First Circuit’s ruling, the definition of the term “covered employee” has been clarified and the group of persons potentially covered by the protections of Section 806(a) have been significantly narrowed to include only employees of publicly traded companies — not employees of contractors and subcontractors who provide services to the publicly traded companies.
For further information, please contact John Stigi at (310) 228-3717 or Sean Kirby at (212) 634-3023.
School liability for supervisors' negligent supervision of molesting counselor
In C.A. v. William S. Hart Union High School (California Supreme Court 03/08/2012), the court held that a school district may be vicariously liable for its supervisors' negligent supervision of a counselor who allegedly molested a student. A high school...
Source: http://www.lawmemo.com/blog/2012/03/school_liabilit.html
Friday, June 1, 2012
Shareholder Activism
In this BU Law podcast, host David Yas, a BU Law alum, former publisher of Massachusetts Lawyers Weekly and a V.P. at Bernstein Global Wealth, welcomes David H. Webber, associate professor of law at BU Law, to talk about his interesting research in the area of shareholder activism and his paper "The Plight of the Individual Investor in Securities Class Actions," which will soon be published in the Northwestern University Law Review. Together they look at the forces that are driving shareholder activism, the Private Securities Litigation Reform Act, corporate governance reform and how to remedy conflicts between institutional and individual investors in class actions.
Source: http://legaltalknetwork.com/podcasts/boston-university-school-of-law/2012/04/shareholder-activism/
Value Billing
Ed discusses how to increase your value by understanding what is most important to your clients.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/53gKE3Bh0gg/
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