Operational and Technical Changes for FACTA Compliance – January 30 – February 1, 2013

The National Law Review is pleased to bring you information about the upcoming Global Financial Markets – Operational and Technical Changes for FACTA Compliance:

key topics

  • Assess the full implications of the finalized FATCA regulation
  • Coordinate an optimal approach to operational, infrastructural and technical changes under FATCA
  • Identify strategies to effectively manage client accounts
  • Integrate existing internal procedures with FATCA compliance
  • Understand what is expected by the IRS

key features

  • Pre-Conference Workshop on January 30, 2013 for an Additional Cost:
  • Pre-Conference Workshop: The Intergovernmental Agreements: Changing the Face of International Tax lead by JP&MF Consulting and Mopsick Tax Law LLP

event focus

FATCA is amongst the biggest topics of debate in financial institutions across the globe. The effect that it will have on these institutions cannot be underestimated and its operational impact on the existing systems is set to be both time consuming and costly. The ability to successfully align all key stakeholders, including operations, technology, risk, legal and tax, will determine the ultimate cost of FATCA compliance. Moving on from mere interpretive matters, this GFMI conference will not only address key FATCA requirements but also discuss the practical impacts of IGAs and strategies for achieving operational and infrastructural efficiency.

The Operational and Technical Changes for FATCA Compliance Conference will be a two and half day, industry focused event, specific to Senior Executives working in Banks, Insurance and Asset Management Companies. Attendees will address key FATCA requirements, while discussing the practical implications of IGAs and strategies for achieving operational and infrastructural efficiency.

Key Themes of the Operational and Technical Changes for FATCA Compliance Conference Include:

1. Challenges of FATCA regulations and prospects for the final regulation

2. Achieving operational and infrastructural efficiency

3. Coordinating existing AML/KYC procedures with FATCA compliance

4. FATCA from the FFI’s perspective 5. Beyond banking: the challenges of FATCA implementation

6. Coping with the withholding obligation under FATCA

This is not a trade show; our conference series is targeted at a focused group of senior level executives to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.

New Year, New Laws for California Employers – Added Whistle-blower Protections, With Whom Will the EDD Share Employer Reports and Contracts with Commission Employees

The National Law Review recently published an article by Mark E. Terman of Drinker Biddle & Reath LLP regarding New Laws for California Employers:

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Continuing with our series “New Year, New Laws for California Employers,” we take a look at newly added whistle-blower protections, with whom the EDD will share employer reports and contracts with commission employees.  Prepared by  Mark Terman, partner in the Los Angeles office, this series looks at some of the significant new regulations becoming law in 2013 affecting private employers doing business in California.

Added Whistle-blower Protections

The California False Claims Act prohibits submission to the government of a false claim for money, property or services, and authorizes actions for treble damages and penalties. An example could be charging a government entity for goods or services that were not provided.

Employees, as “relators,” can inform the government or law enforcement, participate in these actions after satisfying certain requirements and share in the recovery.  Employers cannot prevent employees from disclosing information to the government or law enforcement agency, or from acting in furtherance of a false claims action.  There are similar statutes under federal law.

AB 2492 provides that contractors and agents can also be whistle-blowers under Cal-FCA.  The new law also makes clear that retaliation for trying to prevent a false claim is prohibited, and that relief in a whistleblower or “Qui Tam” action can include reinstatement, double back-pay, interest on the back pay, special damages, punitive damages and attorneys’ fees.

With Whom Will the EDD Share Employer Reports?

Existing law requires employers to provide employee wage information, new employee information and new independent contractor information to the Employment Development Department for use in the administration of tax and unemployment insurance.

We are entering an era of enhanced information sharing designed to make government agencies more effective in enforcing tax and other laws, including billions of dollars that state agencies believe are lost in tax revenue due to improper classification of independent contractors. AB 1794 now permits the EDD to share employer and employee information with the Joint Enforcement Strike Force on the Underground Economy for the purposes of auditing, investigating and prosecuting violations of tax and cash-pay reporting laws and other agencies.

The strike force includes the EDD; Department of Industrial Relations, Division of Labor Standards Enforcement and Division of Occupational Safety and Health; Contractors’ State License Board; Department of Insurance, State Compensation Insurance Fund; and Department of Justice (see www.edd.ca.gov/payroll_taxes).  Information sharing is also permitted with the California Department of Health Care Services, the California Health Benefit Exchange, the Managed Risk Medical Insurance Board, county departments and agencies, the Agricultural Labor Relations Board, the Franchise Tax Board and the State Board of Equalization.

Contracts with Commission Employees

Enacted in 2011, Labor Code Sec. 2751 becomes effective Jan. 1, 2013.  It requires an employer, when entering into a contract of employment calling for commissions as a method of payment, to create a contract that must be in writing and that describes the method of computation and payment of commissions. The employer must give a signed copy of the contract to the employee and obtain a signed receipt for the contract from the employee. If the contract expires and the parties nevertheless continue to work under the terms of the expired contract, the contract terms are presumed to remain in full force and effect until the contract is superseded or employment is terminated by either party.

“Commissions” generally mean the same as in Labor Code Sec. 204.1: “Compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.”

Commissions do not include: short-term productivity bonuses (such as are paid to retail clerks) and bonus and profit-sharing plans— unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed. AB 2675 adds that temporary, variable incentive payments that increase commissions but do not decrease payment are not covered.

Read the rest of the series:

New Year, New Laws for California Employers – Employer Access to Social Media

New Year, New Laws for California Employers – Religious Dress and Grooming Protected and Breastfeeding Further Protected

©2012 Drinker Biddle & Reath LLP

ABA Winter Institutes – January 23-25 and February 14-15, 2013

The National Law Review is pleased to bring you information about the upcoming ABA Winter CLE Institutes:

ABA National Institutes

 

Learn and network at these live in-person seminars that draw lawyers from across the nation.  January National Institutes include the 2013 E-Discovery and Information Governance, January 23-25 in Tampa, FL.  February National Institutes include the 2013 Gaming Law Minefield, February 14-15 in Las Vegas, NV.

Internet Defamation—What Can You Do When You Are the Target?

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We’ve all seen them.  Anonymous spewing hate-filled, defamatory statements on Facebook and Twitter, as well as in the comment pages of news stories on both local and national news.  The commenters have a certain entertainment value, until you or your business are in their sights.  So what do you do?  The answer is not always so simple, especially when you don’t even know who is speaking.

Internet freedom has allowed for an unprecedented expansion in opportunities for the Average Joe to speak, but that expansion has come with a price for those defamed on the internet.  In order to foster a free and expansive internet, in 1996 Congress enacted Section 230 of the Communications Decency Act, 47 U.S.C. § 230.  Section 230 grants interactive internet service providers (such as Facebook, Yelp, YouTube, and Twitter) immunity from civil defamation claims for user-created content.

There are very few exceptions to Section 230 immunity, with the only one recognized in case law being a case in which provider Roommates.com directed the posts to a certain extent using drop-down menus.  See Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9thCir. 2008).  Providers have learned from Roommates.com’s example and are careful to maintain their Section 230 immunity.

What this means in simple terms is that if you or your business is defamed on Facebook or Twitter, you can’t sue Facebook or Twitter, and you can’t force Facebook or Twitter to remove the defamatory postings.  Section 230 forces you to attempt to track down the user who originally posted the speech—often a virtual impossibility in this day and age when the vast majority of defamatory postings on the internet are done anonymously.

So what can you do?  First, don’t give up on social media and its ability to deal with at least some of the problems.  Interactive internet service providers are aware of the damage defamatory statements can do, and know that they risk losing their Section 230 immunity if they don’t self-police to a certain extent.  All interactive internet service providers have terms of service, and the majority ban defamatory and harassing speech.  Most will delete the offending material upon a showing that the material is indeed defamatory (i.e., not protected opinion), and most providers include a function allowing you to report the post directly from the webpage, without the need to send a demand letter from an attorney.

Furthermore, interactive internet service providers realize that though anonymity enjoys protections under the First Amendment, it also feeds a great deal of the ugliness seen on the internet today.  Facebook, for instance, requires posters to use their real names, and if Facebook is informed that a person is using a pseudonym, Facebook will disable the account.  Likewise, news sites are increasingly requiring commenters to link their comments to their Facebook accounts in order to provide a measure of accountability that anonymous posts lacked.  YouTube also recently began asking posters to use real names, though that is not currently a requirement.  Not all interactive internet service providers eschew anonymity – Twitter and Tumblr still tout the user’s ability to post anonymously – but increasing numbers of providers are requiring that speakers stand behind their comments.

If you can’t get posts removed through the interactive internet service provider, you still have legal options available.  Of course, quite often the best action at this point is no action.  Often defamation lawsuits are counterproductive in that they simply bring more attention to the posts than if the posts are simply ignored.  While difficult to do, sometimes ignoring a simply nasty post is the best policy.

If the post can’t be ignored but is not worth litigation, you can engage with the poster on the interactive site. If someone posts a negative review on Yelp, address the review and contest any factual misrepresentations.  If someone posts on your Facebook wall or sends an angry or defamatory Tweet, address the poster’s concerns.  You have the right to speak too, and quite often thoughtful, careful engagement is the best remedy.

Some posts are simply so egregious and damaging that they must be addressed in a court of law.  If action is warranted, and you are lucky enough to have the name of the poster, you can pursue traditional legal avenues available to victims of defamatory speech.

If you do not have the name, however, if you want to take action you will need to file a civil defamation lawsuit naming as defendant a John Doe.  Unfortunately, even though many interactive internet service providers will remove defamatory posts upon request, none will give up the names, email addresses, or IP addresses of posters without a subpoena.  Once litigation is filed, you and your legal counsel will have subpoena power to require the interactive internet service provider to give up the names, emails and IP addresses associated with the poster.  Normally the providers will still put up a fight even in light of a subpoena, but this is the only way available to obtain the identity of an anonymous poster so that you can hold them responsible for their defamatory speech.

While we have the right to free speech in the United States, our laws require us to take responsibility for what we say when we are wrong and our speech causes damage.  In the case of internet-based speech, it may be difficult to vindicate your rights and hold speakers responsible, but with persistence and a clear understanding of how interactive internet service providers work you can protect your good name on the internet.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

ABA Gaming Law Minefield Conference – February 14-15, 2013

The National Law Review is pleased to bring you information about the upcoming ABA Gaming Law Minefield Conference:

ABA Gaming Law Feb 14-15, 2013

When

February 14 – 15, 2013

Where

  • Green Valley Ranch Resort & Spa
  • 2300 Paseo Verde Pkwy
  • Las Vegas, NV 89101
  • United States of America
 
The program will discuss revolutionary legal, regulator, and ethical issues confronting both commercial and Native American gaming.  Attendees will learn about global anti-corruption initiatives, Internet gaming, and the challenges faced by commercial and Native American gaming.

I’m Divorced, Now What?

Recently The National Law Review featured an article, I’m Divorced, Now What?, by Rebecca L. Palmer and Crystal Espinosa Buit of Lowndes, Drosdick, Doster, Kantor & Reed, P.A.:

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After you have finally made it through the divorce process and attend the final judgment hearing, the question often becomes, “Now what?”. Once a divorce is finalized, there are still many things that need to be considered. The following are some, but certainly not all, examples:

1. Transferring of Assets.  Often, parties come to an agreement regarding the division of assets and memorialize this in a written settlement agreement.  This document often contemplates who will be receiving certain bank accounts and other assets, and how these transfers are to occur.  In the “calm after the storm” it can be easy to forget that these actions need to occur – i.e. accounts divided and closed, personal property exchanged, and the like. This is important as deadlines by which these actions must be taken are often imposed in the written settlement agreements.  Furthermore, when vehicles are jointly titled, but only one party is receiving the vehicle as part of the equitable distribution of the assets, it is vital to transfer title in order to ensure the non-recipient former spouse no longer remains liable as a co-owner of the vehicle.  As the list of actions concerning distribution of assets can be lengthy, it is advisable to make a detailed “To-Do List” of all items that must be completed by you and/or your former spouse.

2. Taxes. Frequently, the settlement agreements entered into by parties will contemplate issues, including, but not limited to, child support, alimony, and liquidation of certain investments, that impact one or both parties’ taxes.  If a tax attorney and/or financial advisor was not consulted prior to the execution of a settlement agreement, it may be beneficial to meet with such experts to more accurately determine the tax effects set forth therein.

3. Estate Planning. It goes without saying that, after your divorce, you should meet with an estate planning attorney as soon as possible to address any estate planning issues that may have risen as a result of the dissolution of your marriage.

While the foregoing list is not exhaustive, as each divorce proceeding has its own set of unique circumstances, it is a helpful starting place.  Be sure to consider, however, the implications and actions required by any settlement agreement entered into by you in a divorce proceeding.

© Lowndes, Drosdick, Doster, Kantor & Reed, PA

Copyright and Trademark Protection in The Digital Age Conference – February 6-7, 2013

The National Law Review is pleased to bring you information about the upcoming marcus evans Copyright and Trademark Protection in The Digital Age Conference:

Copyright and Trademark Feb 6-7 2013

The marcus evans Copyright and Trademark Protection in The Digital Age Conference will provide strategies for organizations who are dealing with digital copyright and trademark issues, address the management of digital content, digital license agreements, and overall evolution of copyright and trademark to ensure they are protecting their brand.

Possible Investigation of Gas Price Hikes on the Horizon

The National Law Review recently featured an article, Possible Investigation of Gas Price Hikes on the Horizon, written by Roscoe C. Howard, Jr. and Leasa Woods Anderson of Andrews Kurth LLP:

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In May 2011, the Corporate Compliance, Investigations and Defense Group of Andrews Kurth issued an alert regarding the formation of the Oil and Gas Price Fraud Working Group (Working Group). The Working Group includes the Department of Justice, the National Association of Attorneys General, the Commodity Futures Trading Commission, the Federal Trade Commission, the Department of the Treasury, the Federal Reserve Board, the Securities and Exchange Commission, the Department of Agriculture and the Department of Energy. The Working Group was formed as a subcommittee of the Financial Fraud Enforcement Task Force, which was created to address financial crimes. As stated in the prior alert, this collection of state and federal agencies is charged with monitoring the oil and gas markets for potential violations of the law.

On November 27, 2012, following the circulation of a report from McCullough Research regarding oil production at some of the West Coast oil refineries, a group of six Senators sent a letter to Attorney General Eric Holder calling for the Working Group to conduct an investigation into whether market manipulation or false reporting by oil refineries contributed to a spike in gas prices on the West Coast earlier this year.

The letter, sent by Senators Dianne Feinstein (D-Calif.), Barbara Boxer (D-Calif.), Maria Cantwell (D-Wash.), Patty Murray (D-Wash.), Ron Wyden (D-Ore.) and Jeff Merkley (D-Ore.), seeks a “refinery-by-refinery level probe.” The Senators cite “[a] McCullough Research report released Nov. 15th in conjunction with a California State Senate hearing on California gas prices [which] revealed information that showed that the price spikes in May and October occurred while crude oil prices were declining, inventories were increasing, and possibly in conjunction with misleading market-making information.”

Based on the McCullough Research report, the Senators conclude that “[a]nomalous, uncompetitive market dynamics may have forced West Coast drivers to pay $1.3 billion more at the pump during the May 2012 price spike.” They seek the intervention of the Working Group to confirm the findings of the McCullough Research report which would include the issuance of federal subpoenas for records of the oil and gas companies involved.

As previously reported, the Working Group has been tasked with identifying markets, regions or individuals that should be a focus of law enforcement or consumer protection agency investigations. The Senators’ letter is a direct call for “the Working Group to use every existing authority and regulation to identify, stop, and prosecute any and all instances of false reporting, manipulation, or anticompetitive behavior in the West Coast wholesale petroleum markets.”

As we advised in May 2011, those operating in the oil and gas industries must understand that a government microscope is aimed at their work. Compliance officers and general counsel may want to make sure that their compliance programs are in place and functioning as intended, as well as ensuring that their employees understand the importance of those programs and communicate with management when something seems awry. Since the Working Group has such a broad mandate in a very specific market, regular training programs for employees that remind them of the laws that affect their business are in order.

Click here to view the May 2011 alert.

Click here to view the West Coast Senators’ letter to Eric Holder.

© 2012 Andrews Kurth LLP

White Collar Crime Institute – March 6-8, 2013

The National Law Review is pleased to bring you information about the upcoming White Collar Crime Institute:

White Collar Crime March 6-8 2013

The program will provide an in-depth analysis of three recent high visibility trials by the lawyers involved in the cases.  The many topics covered will include: ethical pitfalls and blunders in white collar practice, conducting global investigations (including issues of competing laws), data privacy and blocking statutes, trial tactics in white collar cases, Brady obligations, international issues in white collar practice (including obtaining evidence abroad), handling of, and dealing with, issues related to electronically stored materials, sentencing guidelines and arguing for a departure, updates and trends in securities and FCPA enforcement, and more!

2013 Notice to Employees Concerning the American Health Benefit Exchanges

Fowler White Boggs P.A.‘s Lawrence M. PlouchaBarbara L. Sanchez-Salazar, and Kathy J. Tayon recently had an article, 2013 Notice to Employees Concerning the American Health Benefit Exchanges, featured in The National Law Review:

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Under the Patient Protection and Affordable Care Act of 2010 (“PPACA”) each state is required to establish an American Health Benefit Exchange (“Exchange”) that:

  • facilitates the purchase of qualified health plans;
  • provides for the establishment of a small business health program that is designed to assist qualified small employers in the state with facilitating the enrollment of their employees into qualified health plans offered in the small group market in their state; and
  • meets certain organizational and operational requirements.

Although the Exchanges are not set to come on line until January 1, 2014, employers have an obligation in 2013 to inform current employees and new hires of the availability of the Exchange, of the employees ability to shop for coverage and if eligible to obtain coverage from the Exchange.

The employers notice must be in writing and must be issued by the following deadlines:

  • Information to new hires: March 1st and
  • Information to current employees: March 13th

The notice should explain:

  • General information concerning the employers health plan,
  • The employee’s right to purchase health insurance coverage through a state Exchange;
  • The services provided by the Exchange;
  • How to contact the Exchange;
  • The employee’s possible eligibility for government subsidies under the Exchange if the employer’s share of the aggregate cost of benefits is less than 60%; and
  • The employee’s possible loss of an employer subsidy, if any, (in the form of a tax-free contribution to the employer-provided health coverage) if the employee purchases health insurance coverage through the Exchange.

PPACA guidance on the “aggregate cost of benefits” defines it as the aggregate cost of applicable employer-sponsored coverage. Thus the aggregate cost for an individual employee is the total cost of coverage under all applicable employer-sponsored health coverage provided to the individual employee. The amount reported may differ among a company’s employees depending on each employee’s specific election of coverage (i.e. PPO, HMO, single, family, etc.). The cost of coverage under a particular group health plan is referred to as the “reportable cost,” and the aggregate cost of applicable employer-sponsored coverage is referred to as the “aggregate reportable cost.” The aggregate reportable cost generally includes both the portion of the cost paid by the employer and the portion of the cost paid by the employee, regardless of whether the employee paid for that cost through pretax or after-tax contributions. In addition, the aggregate reportable cost also includes any portion of an employer-sponsored group health plan’s cost of coverage that is includable in the employee’s gross income.

For the purposes of the notice requirement, “applicable employer-sponsored coverage” means coverage under any group health plan (including onsite primary-care medical clinics) made available to the employee by an employer that is excludable from the employee’s gross income under Section 106 or would be excludable if it were employer-provided coverage. (Thus, employee-pay-all group health coverage is included.) However, when calculating the applicable employer-sponsored coverage do not include the following coverage:

  • Long-term care
  • Accident or disability income insurance, or any combination of the two
  • Supplement to liability insurance
  • Liability insurance, including general liability insurance and automobile liability insurance
  • Workers compensation or similar insurance
  • Automobile medical payment insurance
  • Credit-only insurance
  • Other similar insurance coverage, specified in regulations, under which benefits for medical care are secondary or incidental to other insurance benefits
  • Any coverage under a separate policy, certificate or contract of insurance that provides benefits substantially for treatment of the mouth (including any organ or structure within the mouth) or for treatment of the eye
  • Coverage only for a specified disease or illness
  • Hospital indemnity or other fixed indemnity insurance

©2002-2012 Fowler White Boggs P.A.