Retaining Millennials at Law Firms Requires Change

Millennials law firmManaging attorney departures at a law firm can be a daunting task, especially if a departing attorney has a book of business and takes clients along when leaving the firm. Although it can be difficult for the firm, a practice area and, often, the attorneys who remain, it has been a fairly rare occurrence in the past, particularly for equity partners.

That rarity is changing at an increasing rate as baby boomers have phased out of the workforce, leaving millennials to become the largest percentage of the U.S. employee pool. In fact, millenials are expected to make up 75 percent of our nation’s workers by 2030. They bring a different attitude regarding their careers and longevity with a particular company than we have become accustomed to, especially in a law firm culture.

As most business professionals are aware, it takes much more money to hire and train a new employee than to simply retain astute professionals. And, with millennials’ perceptions of how office life should be, law firms will need to pay much more attention to those ideals in order to keep excellent talent, which is imperative for a successful firm.

Millennial Expectations

So, what do millennials expect in the way of work life? This is a frequently discussed topic in the media, at companies and within law firms throughout the world. I’ve read several good articles on the subject lately and will share from one in particular written by Jeff Fromm for Forbes magazine.

Fromm, who consults on the “Millennial Generation” or “Gen Y,” often speaks about the attributes these employees want from their companies, and it’s not all about salary and benefits.

Although there is no precisely defined birth date range for this segment of the population, it is often described as people reaching young adulthood around the year 2000. These individuals were raised with technology and gadgets at a time when developing a child’s self esteem and individuality was a predominant theme in educational and behavioral methodologies.

Other attributes discussed include:

    1. Millenials want to be a part of  “the process.” They have strong entrepreneurial tendencies and desire growth. If they do not feel they are growing at a company or firm, they are much more likely to move to another than their older peers.
    2. Millenials prefer to be coached and mentored instead of “bossed” or just told what to do. Interestingly, this does not mean that they want to work independently with little supervision; it’s quite the opposite. They actually prefer more interaction and feedback than the typical baby boomer.

Conforming to the Millennial Way of Life

So, what does this mean for law firms and particularly law firm management, practice area leaders and the like? It means an almost 180-degree change in the way associates have been managed in the past.

Millennial attorneys will want to be part of the process from the beginning. They are not content to receive a directive such as, “Research a particular point of law and prepare an annotated brief on the subject.” Instead, they want to know about the case, why the research is important for the case and how it will be used to benefit the case.

Likewise, instead of just receiving a red-lined document back with few instructions regarding how to improve the work, millennials will prefer to discuss how the work product was perceived, why changes were made and how the changes make the information better in relation to the case. They want to learn and grow from the process; i.e., from performing their work.

These types of processes will, indeed, make for a better learning experience for associates, enhance their skills and grow more capable team members. However, this approach will also take more time and patience on the leader’s behalf. Just a “do as I say” directive, without an explanation of why to do it, doesn’t sit well with a millennial. Over time, such treatment will erode the associate’s desire to stay at the firm.

Millennial Mentoring

Remember, these younger attorneys need to feel included and that they are growing and making a difference to be motivated and engaged. Just receiving a good paycheck and the chance at equity ownership isn’t a long-term motivator for them. That really is a cultural change in how many, if not most, young associates used to be trained to be the future leaders of a law firm.

Also, consider that dramatic change in a firm’s processes can’t happen all at once, or else the culture will implode. Instead of instituting entirely new training and evaluation programs, try adding in or updating your firm’s processes. As a start, adding a strong associate mentoring program with real checks and balances will go a long way toward including associates in the process. And know that opening up the lines of communications top-down and bottom-up at any organization also will result in better operations and more-satisfied employees. If good communication isn’t standard at your firm, offer training across the board.

The impact the changing workforce has had on law firms isn’t just beginning … it is happening and must be addressed now to avoid major business operational issues for law firms. Take note of this growing trend and make the necessary changes to ensure your firm has the best talent today and in the future.

ARTICLE BY Sue Remley of Jaffe
© Copyright 2008-2016, Jaffe Associates

EEOC Alleges Hospital’s Mandatory Flu Vaccine Policy Violates Title VII

Mandatory Flu VaccineAs summer temperatures soar, one might think the last thing to worry about is the upcoming flu season. And while that may be true in most respects, the flu is on the minds of the Equal Employment Opportunity Commission (EEOC). A lawsuit filed by the EEOC sheds light on the issue for healthcare employers who impose mandatory flu vaccine requirements on employees as a condition of continued employment.

The EEOC alleges in EEOC v. Mission Hospital, Inc. – a lawsuit that includes class allegations – that Mission Hospital violated Title VII by failing to accommodate employees’ religious beliefs and by terminating employees in connection with the hospital’s mandatory flu vaccination program. In particular, the EEOC took issue with the hospital’s alleged strict enforcement of its deadlines, which required employees to request an exemption by Sept. 1 and, if the exemption request was denied, to obtain the vaccination by Dec. 1.

According to Lynette Barnes, regional attorney for the EEOC’s Charlotte District Office, “An arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation. An employer must consider, at the time it receives a request for a religious accommodation, whether the request can be granted without undue burden.”

The key takeaway here is that, similar to what is required under the Americans with Disabilities Act (when, for example, an employer is analyzing the application of a policy to a particular employee with a disability), employers should consider analyzing their duty to accommodate under Title VII based on the facts and circumstances of the particular case, as opposed to applying an (allegedly) inflexible rule without regard to the circumstances of the particular case. The other take-away here is that employers should consider basing this kind of employment decision on more than one reason – for example, a missed deadline plus a determination that granting the exemption would (or would not) be an undue burden (and why).

A copy of the EEOC’s lawsuit is found here and a copy of Mission Hospital’s answer is found here.

ARTICLE BY Norma W. Zeitler of Barnes & Thornburg LLP
© 2016 BARNES & THORNBURG LLP

Failure to Comply with Hart-Scott-Rodino Act Just Got More Expensive

FTC Hart-Scott-Rodino AntitrustLast November, President Obama signed into law an amendment to the Federal Civil Penalties Inflation Adjustment Act (Sec. 701 of Public Law 114-74). The amendment requires federal agencies to adjust the maximum civil penalties for violations of the laws they enforce no later than July 1, 2016.

On June 29, 2016, the Federal Trade Commission revised its Rule 1.98 to reflect the new higher levels for maximum civil penalties. The new maximums will apply to civil penalties assessed by the FTC after August 1, 2016. They include civil penalties for violations that occurred prior to the effective date. (Going forward, the maximums will be adjusted for inflation each January.)

Of particular significance to corporations that acquire, sell, or merge with other businesses, the penalties for violating the premerger reporting and waiting requirements under the Hart-Scott-Rodino Act have been increased from $16,000 per day to $40,000 per day, an increase of 150%.

As most businesspersons know, under the HSR Act, the parties to mergers and acquisitions that meet the dollar thresholds of the Act and are not otherwise exempt must file a premerger notification form, pay the appropriate fees, and wait 30 days (or possibly more) prior to closing the transaction. Failure to file the required notification or to observe the mandatory waiting period will subject the parties to civil penalties, which are now significantly higher.

Note that for continuing violations of the HSR Act, each day is a separate violation. As a result, the maximum civil penalty may be multiplied by the number of days for each violation of the applicable statute or order. (For example, a company or individual that is required to report but fails to do so for one year would be facing a fine of up to $14.6 million under the new levels.)

But statutory maximums are not automatically imposed. Before levying a civil fine, the Commission considers various factors in determining whether the maximum should be mitigated. Those factors include:

  1. Harm to the public

  2. Benefit to the violator

  3. Good or bad faith of the violator

  4. The violator’s ability to pay

  5. Deterrence of future violations by this violator and others

  6. Vindication of the FTC’s authority

Why does it happen that a company or individual fails to make the required HSR filing? The FTC reports that it frequently sees two specific scenarios:

  1. Company executives who acquire company voting shares through exercising options or warrants may fail to aggregate the value of such shares with the value of the company shares they already hold and therefore do not realize that they have satisfied the HSR size of transaction threshold test.

  2. Sometimes companies or individuals who have qualified for the “investment-only” exemption in the past may erroneously continue to rely on that exemption even though they have become active investors in the company or their holdings in the company have increased above 10%.

Other recurring scenarios can also trip up acquirers. For example, companies may not realize that patent and other IP licenses are in certain circumstances treated as the acquisition of an asset for HSR Act purposes.

© 2016 Schiff Hardin LLP

Congress to Vote on Short-Term FAA Reauthorization This Week

Congress FAA reauthorizationThis week, Congress will vote on a short-term Federal Aviation Administration (FAA) authorization that will reauthorize FAA programs through September 30, 2017. The short-term authorization includes some policy changes, but avoids many significant changes the House and Senate had been pursuing. While the Senate passed a long-term FAA reauthorization bill this year, the FAA Reauthorization Act of 2016 (S. 2658), the House did not take up the bill reported out of the Transportation and Infrastructure Committee, the Aviation Innovation, Reform, and Reauthorization (AIRR) Act of 2016 (H.R. 4441). Both the House and Senate are expected to pass the highly-negotiated short-term extension, before FAA authorization expires on July 15.

The short-term extension does include provisions related to safety and security, as well as some unmanned aircraft systems (UAS) provisions. Among the policy changes, the bill will increase funding for bomb-sniffing dog teams, direct FAA to detect and mitigate UAS operation near airports, and require airlines to refund baggage fees if luggage is delayed or lost, among other provisions.

It appears that House Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA) successfully kept many policy changes out of the short-term extension, in order to keep pressure up on Congress to pass a long-term extension next year that includes Chairman Shuster’s controversial air traffic control reform proposal.

This Week’s Hearings:

  • On Tuesday, July 12, the Senate Commerce, Science, and Transportation Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security will hold a hearing titled “Intermodal and Interdependent: The FAST Act, the Economy, and Our Nation’s Transportation System.” The witnesses will be:

    • Patrick J. Ottensmeyer, Chief Executive Officer, Kansas City Southern Railway Company;

    • Major Jay Thompson, Arkansas Highway Police; President, Commercial Vehicle Safety Alliance;

    • David Eggermann, Supply Chain Manager, BASF; and

    • Stephen J. Gardner, Executive Vice President and Chief of NEC Business Development, Amtrak.

  • On Wednesday, July 13, the Senate Commerce, Science, and Transportation Subcommittee on Space, Science, and Competitiveness will hold a hearing titled “NASA at a Crossroads: Reasserting American Leadership in Space Exploration.” The witnesses will be:

    • William H. Gerstenmaier, Associate Administrator of Human Exploration and Operations, NASA;

    • Mary Lynne Dittmar, Executive Director, Coalition for Deep Space Exploration;

    • Mike Gold, Vice President of Washington Operations, SSL;

    • Mark Sirangelo, Vice President of Space Systems Group, Sierra Nevada Corporation; and

    • Professor Dan Dumbacher, Professor of Engineering Practice, Purdue University.

  • On Tuesday, July 12, the Senate Foreign Relations Subcommittee on Department and USAID Management, International Operations, and Bilateral International Development will hold a hearing titled “Public-Private Partnerships in Foreign Aid: Leveraging U.S. Assistance for Greater Impact and Sustainability.” The witnesses will be:

    • Eric G. Postel, Associate Administrator, U.S. Agency for International Development; and

    • Daniel F. Runde, William A. Schreyer Chair and Director, Project on Prosperity and Development, Center for Strategic and International Studies.

© Copyright 2016 Squire Patton Boggs (US) LLP

Law Firm Business Strategies: 4 Keys to Breaking the 7-Figure Barrier

It’s no surprise when laid-off lawyers or law school grads who can’t find a job hang out their own shingles, but there are even more attorneys heeding the siren call to start up their own firm in order to achieve a better work-life balance (if that even exists).law firm marketing business strategy

You may feel at times that starting a law firm is counterintuitive when it comes to finding balance in your life. However, if you build it right, running your own firm can be a highly satisfying way to employ yourself and serve clients the way you’ve always wanted.

I have personally trained over 18,000 lawyers on how to manage and market their firms more efficiently and effectively. I have probably helped more attorneys break the seven-figure barrier in revenues than anyone else. I’m not telling you this to brag, but to share with you the keys to breaking the seven-figure barrier based on my experiences.

Key #1:  Run your law firm like a business.

You studied the law as a noble profession, but to break the seven-figure barrier, you must run your law firm like a business. As a solo practitioner or the owner of a small law firm, your primary focus – after gaining competency as an attorney – is to understand and apply the key principles of business development, operations, management and law firm marketing every single day. There are 10 major parts every successful law firm owner must focus on – in this order:

Marketing: The purpose of marketing is to generate leads. There are a wide variety of ways to do this. All of them work, but they are not always suited for all situations, practice areas or attorneys. Find three-five different ways that work for you and use them frequently. Not every attorney will be a top Rainmaker, but everyone can do something to grow and market his or her practice.

Sales: The purpose of sales is to close the deal or sign up the client. Once you start generating leads, you must become better at getting prospects to become paying clients.

Services: Once you have become proficient at generating leads and closing the deal, you must perform the services for the client. When you fix your marketing, then you have a sales problem. When you fix your sales problem, then you have a services problem. See how this works?

Staff: When you become successful at marketing and sales, eventually you will also need more staff to do the work. You cannot hire just any staff; they must be the right staff for you. What kind of culture do you want your firm to have? Who will best fit that culture? Develop a list of qualities and characteristics you need your team members to have.

Systems: Policies, procedures and systems allow you to scale to the next level. Without written systems you cannot scale your business. You will hit a breaking point. It may be at half a million or more, but eventually you will experience a lot of unnecessary pain and suffering because you didn’t invest in creating written policies, procedures and systems for your law firm. You need written systems for every major part of your business. From marketing and intake to money and metrics, it all must be logically written down so even a brand new team member who knows nothing about your business can follow it.

Space: After you start hiring the right staff because you have more clients to serve, eventually you will need more office space to house them. Far too many attorneys get caught up in renting a much bigger or nicer space than they can afford in an attempt to “keep up with the Joneses” or give off the appearance of being more successful than they are. The pleasure you may gain from a fancy office is nothing compared with the worry of making those big payments every month. Don’t strap yourself with too many financial obligations and be careful about signing longterm agreements, especially when you’re just starting off.

Money: Very few attorneys went to school to become a bookkeeper or an accountant, but to manage a growing business you must know how to manage your money. You need to know the basics of finances for small business, from reading a profit and loss statement to analyzing your cash flow. Being an owner means other people are depending on you to manage the money wisely.

Metrics: To consistently break a million dollars per year in revenues, there are over a dozen numbers you must be monitoring and measuring consistently. Here are a few of them – unique website visitors each month, leads per month, average cost per lead by marketing channel (PPC, SEO, TV, radio, print, etc), appointments your team sets per month, show up rate to your appointments, conversion rate for initial consultation by attorney, average cost per client acquisition by marketing channel, cost of goods sold (COGS) per practice area and profit margin per practice area. This is not a comprehensive list, but if you know, measure and track each of those metrics every month, you’re on your way to comprehensively monitoring your business.

Strategy: While having a great strategy is necessary, most attorneys spend too much time developing a strategy and too little time implementing the strategy! Get some leads in the door. Make the sale. Collect the money. Do great work. Obtain some referrals. Wash, rinse and repeat! Then work on your next level strategy.

Self: Upgrading yourself is the last, but most important step. You need to read business growth books or take classes or seminars if that fits your style of learning better. Hang around other successful business owners. Join a mastermind group of successful attorneys. Push yourself outside of your comfort zone. You will never build a multimillion-dollar law firm by staying inside your comfort zone.

Key #2: Focus on a Niche

When you’re in the startup phase (from $0 to about $250,000), you face a never-ending challenge of taking whatever business comes in through the door in order to pay the bills or concentrating on one area to build a niche practice. It becomes a question of short-term focus versus longterm survival – and I realize that most solos need to balance both in order to make it.

However, the faster you can start focusing on one to two practice area niches, the faster you will go from having a job ($0 to $500,000) to creating a practice ($500,000 to $1M). When people see you as a jack of all trades (the generalist approach), they also perceive you as the master of none. People will pay more for a specialist because they see you as an expert. People will refer more to a specialist because they aren’t afraid of you stealing their clients or competing with them. Contrary to popular belief, this approach does not limit you. It helps to focus your marketing and business development efforts.

There are many ways to select a niche, but it must be small enough to be realistic, yet big enough to have enough potential clients in it. For example, being No. 1 divorce attorney in all of the Phoenix metro area is not realistic. There are far too many entrenched and successful competitors to ever achieve this. However, you could be the No. 1 divorce attorney for entrepreneurs and small business owners in the East Valley. Here are a few other ways to select a niche:

  • ServiceNiche: DUI attorney for licensed health care professionals; estate planning and asset protection for doctors and dentists; tax attorney for the self-employed; business transactional lawyer for real estate investors; business immigration law for the hi-tech industry; business law for health care providers; and IP and trademark lawyer for small business owners.

  • Industry Niche: Technology, agriculture, doctors, transportation, restaurant owners, manufacturing, construction, energy, or real estate development.

  • Geographic Niche: Phoenix, Gilbert, Tempe, Chandler, Scottsdale, or the East Valley.

  • Specialty Market Niche: Privately held companies, Fortune 500, physicians, white collar executives, blue collar construction workers, franchise owners, bicycle accidents, fitness centers, Spanish-speaking clients, developers, or commercial lenders.

Review your top 10 client list (either by amount of revenue/fees generated or in terms of how much you enjoy working with them). Then, look for any similarities. It may not be apparent at first, but keep asking questions and you will find it. Building a niche around a solid client base is one of the fastest ways to differentiate yourself.

Read Part 3-Law Firm Business Strategies: 4 Keys to Breaking the 7-Figure Barrier (Part 3 of 4)

© The Rainmaker Institute, All Rights Reserved

Professional Liability: Punishing Effect of Rule 11 in Keister v. PPL Corp.

professional liabilityFederal courts correct bad litigation behavior, eventually.

People take being sued personally, and lawsuits can take an emotional toll on defendants, whether as an individual or as a representative of an employer. Anger and frustration always lead to the same questions: Can we sanction them for lying? Can I get my fees (or my insurance deductible) back? Won’t the court do something?

Federal courts can and do sanction attorneys for lying, failing to investigate claims and “posturing” a case to get a settlement. But sanctions are reserved for the worst offenders, and it often takes multiple violations before attorneys’ fees, costs or other monetary fines are imposed.

A Case in Point

In Keister v. PPL Corp., U.S. District Court Judge Matthew W. Brann of the Middle District of Pennsylvania directed Attorney X to pay opposing counsel’s fees and costs in excess of $103,000.

What did Attorney X, a solo practitioner in a rural Pennsylvania county, do to potentially warrant more than $100,000 in sanctions? In a 55-page Opinion (which supplemented a 48-page summary judgment opinion), the court explained that  Attorney X:

  • Engaged in “litigious necromancy” by “conjuring” facts to support the age discrimination claim of his client, Ernest Keister, a 34-year employee of PPL and a union member, who worked in a unique position (i.e., his job could not be compared with others) and who was neither fired nor replaced by a younger worker.

  • Proceeded with the claim, in the absence of any evidence that Keister’s age was a factor in (1) his employer’s 2011 denial of a request to reevaluate his job title, duties, salary and management role or (2) the union’s decision not to support moving Keister’s position from the collective bargaining unit.

  • Alleged that Keister faced “ongoing” discrimination in order to avoid dismissal of his client’s lawsuit, despite the complete absence of evidence that anyone insulted or otherwise mistreated Keister.

  • Intentionally asserted claims that were directly contradicted by Keister’s testimony, failed to comply with local motion practice by failing to admit undisputed facts, and submitted documents that were “calculated” to confuse the court and opposing counsel.

  • Failed to investigate the facts and observe procedural requirements, including following the union’s grievance process and filing the federal action within the applicable limitations period (as established by the EEOC’s denial of a claim filed by Attorney X).

  • Amended the complaint for the sole purpose of forcing a mediation to settle a valueless case.

  • Engaged in this conduct after receiving two (non-monetary) Rule 11 sanctions in other cases as well as a public reprimand by the Pennsylvania Disciplinary Board.

Judge Brann repeatedly stated that Rule 11 sanctions are not a “general fee-shifting device” and are not available merely because one side was successful. Sanctions were imposed because Attorney X “is simply not getting the message,” despite prior federal court and state bar disciplinary reprimands. The court held that the “least severe sanctions adequate to serve the purpose” of punishing Attorney X’s conduct and deterring it in the future was to award all costs and fees to the defendants.

Summary

The Keister ruling suggests that a Rule 11 motion should only be filed when it can be proven that opposing counsel did not have the facts to back up a client’s claims and made an effort to hide the absence of a factual dispute. However, even when such proof can be found, federal courts will first award non-monetary sanctions for an attorney’s first and even second offense, as happened here with Attorney X.

When facing a litigation opponent who lies to the court, it is best to prove the lie, document it, and then decide the most appropriate way to bring it to the attention of opposing counsel and, if appropriate, the court or disciplinary authorities. The work might not yield monetary sanctions in the first instance, but the federal courts may not act to stop abusive litigators until presented with multiple examples of bad conduct.

In the short run, it may seem more cost-effective to ignore an opponent’s abusive actions because a judicial reprimand does not return money to the client. But in the long run, the federal courts will not protect a client from future bad acts or additional lawsuits until an attorney’s repeated pattern of deception is established.

© 2016 Wilson Elser

The Impact of Recently Proposed Regulations on Ineligible Nonqualified Plans Under Internal Revenue Code § 457(f)

qualified plans IRS taxThe Treasury Department and the Internal Revenue Service recently issued comprehensive proposed regulations governing nonqualified plans subject to tax under Internal Revenue Code § 457. Code § 457 prescribes the tax rules that apply to “eligible” and “ineligible” nonqualified deferred compensation plans. Code § 457(b) defines the requirements to be an “eligible” nonqualified plan; a deferred compensation plan that does not satisfy the requirements of Code § 457(b) is an “ineligible” plan under Code § 457(f). Eligible and ineligible plans may be maintained only by state or local governments or organizations exempt from tax under Code § 501(c). The proposed regulations make the following changes:

  • Eligible plans (Code § 457(b))

The proposed regulations would amend the final regulations issued in 2003 to reflect subsequent statutory changes made to Code § 457.

  • Ineligible plans(Code § 457(f))

The proposed regulations make good on the Service’s promise, made in Notice 2007-62, to issue “guidance regarding a substantial risk of forfeiture for purposes of § 457(f)(3)(B) under rules similar to those set forth under § 1.409A-1(d).” This promise prompted much concern amount ineligible plan sponsors and their advisors. Notice 2007-62 was aimed squarely at the interaction between Code § 457(f) and the then recently issued final regulations under Code § 409A. It was clear to many that the latter would have some consequences for the former. To what extent would Code § 409A force unwelcome changes to the rules governing ineligible plans of deferred compensation? When maintained by private sector tax-exempt entities, these plans are restricted to covering only senior management (or, in the parlance of ERISA, the “top-hat group”), which in many institutions, meant the chief executive officer. In particular, sponsors and their advisors worried about three, broad issues:

  • Will the narrower definition of ‘substantial risk of forfeiture” set forth in Code § 409A be applied to arrangements governed by Code § 457(f)?

  • Will elective deferrals continue to be allowed?

  • Will a non-compete agreement continue to operate to defer vesting (and hence the imposition of tax)?

Though not addressed in Notice 2007-62, sponsors of ineligible plans had the following additional worries relating to the interaction between Code § 457 and Code § 409A:

  • Code § 457 includes a carve-out for bona fide severance plans; Code § 409A similarly includes a carve-out for severance plans, but only for terminations based on an involuntary termination. It was only a matter of time they surmised, before the regulators intervened to “harmonize” the two provisions of the Code.

  • The final Code § 409A regulations contained detailed rules governing what constitutes an “involuntary termination of employment.” Whether a termination of employment is also (critically) important for purposes of Code §457, since only an involuntary termination can defer vesting. Will the same definition apply in each case?

  • How “constructive termination” actions (often referenced as “good reason” provisions) would operate as a basis for vesting of benefits for ineligible plans?

In this post, we examine the impact of the proposed regulations on ineligible plans under Code § 457(f) with a particular emphasis on the issues raised above. As a result—or at least it so appears—of comments received in response to Notice 2007-62, the worst fears of sponsors and advisors alike have not materialized. Once these rules are made final, however, there will be a “new” far more constrained “normal.” These regulations will introduce a new level of rigor into the design, maintenance and operation of ineligible deferred compensation plans.

Background                                                                                                  

A “plan” for purposes of Code § 457 includes “any plan, agreement, method, program, or other arrangement, including an individual employment agreement, of an eligible employer under which the payment of compensation is deferred. There are, however, certain plans that are not subject to Code § 457. These include bona fide vacation leave, sick leave, compensatory time, severance pay, disability pay, and death benefit plans, plans paying solely length of service awards to bona fide volunteers (or their beneficiaries), and bona fide severance pay plans. While these exceptions apply to eligible and ineligible plans alike, the exception for bona fide severance pay plans is of particular interest to sponsors of ineligible plans…

Continue reading…

A Whole New World for Qualified Plans: Internal Revenue Procedure 2016-37

IRS qualified plansThe Internal Revenue Service (IRS) announced changes to the determination letter program for individually designed qualified plans in IRS Announcement 2015-19 and IRS Notice 2016-03, which we have discussed in prior posts. In our June 2016 we described the report made to the IRS by the Advisory Committee on Tax Exempt and Government Entities, which provided recommendations to the IRS regarding changes to the determination letter program.

The IRS issued Revenue Procedure 2016-37 on June 29, 2016, which clarifies, modifies and supersedes Revenue Procedure 2007-44 and is generally effective January 1, 2017.  Revenue Procedure 2016-37 provides additional guidance on changes to the determination letter program and ongoing plan compliance, extends the remedial amendment period for individually designed qualified plans, revises the remedial amendment cycle system for pre-approved qualified plans in accordance with the changes made to the determination letter program and delays the beginning of the 12-month submission period for pre-approved qualified plans to request opinion and advisory letters. This Client Alert addresses the modifications to the determination letter program and ongoing compliance for individually designed qualified plans. A subsequent post will address the modifications in Revenue Procedure 2016-37 that apply to pre-approved qualified plans.

Key Points for Individually Designed Qualified Plans:

  • The current five-year determination letter program for individually designed qualified plans described in Revenue Procedure 2007-44 is eliminated effective January 1, 2017, consistent with prior recent IRS guidance.

  • Effective January 1, 2017, sponsors of individually designed qualified plans may submit determination letter applications only for initial plan qualification, qualification on plan termination and certain other circumstances to be determined annually by the IRS.

  • The IRS intends to publish annually a “Required Amendments List” of disqualifying provisions that arise as a result in a change in qualification requirements.

  • The remedial amendment period for a disqualifying provision related to a change in qualification requirements which is on the Required Amendments List generally will be the end of the second calendar year following the year the list is issued.

  • The remedial amendment period for a disqualifying provision related to an amendment to an existing plan which is not on the Required Amendments List generally will be the end of the second calendar year following the calendar year in which the amendment is adopted or effective, whichever is later.

  • To assist plan sponsors with operational plan compliance, the IRS intends to issue an Operational Compliance List annually to identify changes in qualification requirements that are effective during a calendar year.

Elimination of the Five-Year Remedial Amendment Cycle

Effective January 1, 2017, the staggered five-year remedial amendment cycle system for individually designed plans is eliminated. Cycle A plans (plan sponsors with employer identification numbers ending in 1 or 6) may submit determination letter applications during the period beginning on February 1, 2016, and ending on January 31, 2017. Controlled groups and affiliated service groups that maintain one or more plan may submit determination letter applications for such plans during Cycle A in accordance with prior valid Cycle A election(s). Also effective January 1, 2017, individually designed plan sponsors are no longer required to adopt interim plan amendments as described in Revenue Procedure 2007-44 with adoption deadlines on or after such date.

When May a Determination Letter Application Be Submitted?

  • Initial Plan Qualification.  A plan sponsor may submit a plan for initial plan qualification on a Form 5500 if a favorable determination letter has never been issued for the plan.

  • Qualification Upon Plan Termination.  A plan sponsor may submit a plan to obtain a favorable determination letter upon plan termination if the filing is made no later than the later of (i) one year from the effective date of the termination; or (ii) one year from the date on which the action terminating the plan is taken, but in any case not later than 12 months after the date that substantially all plan assets have been distributed in connection with the plan termination.

  • Other Circumstances.  The IRS will consider annually whether determination letter applications will be accepted for individually designed plans under circumstances other than initial qualification or plan termination. Factors that may affect such consideration include:

    • Significant law changes

    • New approaches to plan design

    • Inability of certain plans to convert to a pre-approved format

    • IRS case load and resources available to process applications

Additional situations in which plan sponsors will be permitted to request determination letters will be announced in the Internal Revenue Bulletin. Comments will be requested on a periodic basis as to the additional situations in which a determination letter application may be appropriate. The only determination applications that will be accepted during the 2017 calendar year are for initial plan qualification, qualification upon plan termination and Cycle A submissions.

Extension of Remedial Amendment Period

Generally, a disqualifying provision is a provision or the absence of a provision in a new plan or a provision in an existing plan that causes a plan to fail to satisfy the requirements of the Internal Revenue Code (Code) as of the date the plan or amendment is first effective. Additionally, a disqualifying provision includes a plan provision that has been designated by the IRS as a disqualifying provision by reason of a change in those requirements. For disqualifying provisions that are first effective on or after January 1, 2016, the remedial amendment period for plans (other than governmental plans) is extended as follows:

  • New Plan.  The remedial amendment period ends the later of (i) the 15th day of the 10th calendar month after the end of the plan’s initial plan year; or (ii) the “modified Code Section 401(b) expiration date.”

  • Amendment to Existing Plan.  The remedial amendment period for a disqualifying provision (other than those in the Required Amendments List) is the end of the second calendar year after the amendment is adopted or effective, whichever is later.

    • Plan Not Maintained by a Tax-Exempt Employer: The modified Code Section 401(b) expiration date is generally the due date for the employer’s income tax return, determined as if the extension applies.

    • Plan Maintained by a Tax-Exempt Employer: The modified Code Section 401(b) expiration date is generally the due date for the Form 990 series, determined as if the extension applies or, if no Form 990 series filing is required, the 15th day of the 10th month after the end of the employer’s tax year (treating the calendar year as the tax year if the employer has no tax year).

  • Change in Qualification Requirements.  The remedial amendment period for a disqualifying provision that relates to a change in qualification requirements is the end of the second calendar year that begins after the issuance of the Required Amendment List on which the change in qualification requirements appears.

Example: Remedial Amendment Period for Amendment to an Existing Plan.

Employer maintains an individually designed plan that received a favorable determination letter in 2014.  Effective January 1, 2018, Employer amends the plan’s vesting schedule. The plan amendment, which is signed on January 1, 2018, results in a disqualifying provision. During its annual plan compliance review in March 2019, Employer realizes that the plan amendment resulted in an impermissible vesting schedule. To maintain the plan’s qualification, Employer must: (i) adopt a remedial amendment to correct the disqualifying plan provision no later than December 31, 2020 – the last day of the second calendar year after the plan amendment was adopted and effective; (ii) make the remedial amendment retroactively effective as of January 1, 2018; and (iii) correct the plan’s operation to the extent necessary to correct the disqualifying provision.

Example: Remedial Amendment Period for Change in Qualification Requirements.

Employer maintains an individually designed plan with a calendar year plan year. The IRS publishes guidance in the Internal Revenue Bulletin in July 2016 that changes a qualification requirement under the Code. The guidance, which is effective for the first plan year beginning on or after January 1, 2017, is included on the 2017 Required Amendments List (issued in December 2016). To maintain the plan’s qualification, Employer must: (i) adopt an amendment to the plan reflecting the guidance no later than December 31, 2019 – the last day of the second calendar year that begins after the issuance of the Required Amendments List on which the qualification change appear; and (ii) ensure that the plan is operationally compliant with the guidance as of January 1, 2017.

Note that the remedial amendment periods differ for new and existing plans of governmental entities.

Extended Remedial Amendment Period Transition Rule

The remedial amendment period for certain disqualifying provisions identified in Revenue Procedure 2007-44 was set to expire as of December 31, 2016, as a result of the elimination of the five-year remedial amendment cycle system. The remedial amendment period for such provisions is extended to December 31, 2017, except that with respect to any disqualifying provision that is on the 2016 Required Amendments List, the remedial amendment period will end on the last day of the second calendar year that begins after the issuance of the Required Amendments List.

Terminating Plans

Generally, the termination of a plan ends the plan’s remedial amendment period. Retroactive remedial plan amendments or other required plan amendments must be adopted in connection with the plan termination even if such amendments are not on the Required Amendments List.

Plan Amendment Deadline

For disqualifying provisions, the plan amendment deadline is generally the date on which the remedial amendment period expires, unless otherwise provided. For discretionary amendments (i.e., any amendment not related to a disqualifying provision) to any plan that is not a governmental plan, unless otherwise provided, the amendment deadline is the end of the plan year in which the amendment is operationally put into effect. An amendment is operationally put into effect when the plan is administered in a manner consistent with the intended plan amendment (rather than existing plan terms).    

Required Amendments List

The Treasury and IRS intend to publish a Required Amendments List annually, beginning with changes in qualification requirements that become effective on or after January 1, 2016. The Required Amendments List will provide the date that the remedial amendment period expires for changes in qualification requirements. An item will appear on the Required Amendments List after guidance (including any model amendment) has been provided in regulations or in other guidance published in the Internal Revenue Bulletin, except as otherwise determined at the discretion of the IRS.

Operational Compliance List

The deadline for amending a plan retroactively to comply with a change in plan qualification requirements is the last day of the remedial amendment period.  However, a plan must be operated in compliance with a change in qualification requirements as of the effective date of the change. The IRS intends to issue annually an Operational Compliance List to identify changes in qualification requirements that are effective during a calendar year. The Operational Compliance List is intended to assist plan sponsor in operational compliance, but plan sponsors are required to comply with all relevant qualification requirements, even if not on the list.

Scope of Plan Review

The IRS will review plans submitted with determination letter applications based on the Required Amendments List issued during the second calendar year preceding the submission of the application. The review will consider all previously issued Required Amendments Lists (and Cumulative Lists prior to 2016). Terminating plans will be reviewed for amendments required to be adopted in connection with plan termination.  Plans submitted for initial qualification in 2017 will be reviewed based on the 2015 Cumulative List. With the exception of a terminating plan, individually designed plans must be restated to incorporate all previously adopted amendments when a determination letter application is submitted.

Reliance on Determination Letters

As provided in Revenue Procedure 2016-6, effective January 4, 2016, determination letters issued to individually designed plans no longer contain expiration dates, and expiration dates in determination letters issued prior to January 4, 2016, are no longer operative. A plan sponsor that maintains a qualified plan for which a favorable determination letter has been issued and that is otherwise entitled to rely on the determination letter may not continue to rely on the determination letter with respect to a plan provision that is subsequently amended or is subsequently affected by a change in law. However, the plan sponsor may continue to rely on such determination letter for plan provisions that are not amended or affected by a change in the law.

Action Steps for Sponsors of Individually Designed Qualified Plans

  • Conduct an annual compliance review to assess compliance with the current Operational Compliance List and correct any failures detected in accordance with the IRS guidance.

  • Periodically conduct a more in depth compliance review to assess compliance with all prior Operational Compliance Lists.

  • Review plan documents annually to assess compliance with the current Required Amendments List and determine whether plan amendments are required within the applicable remedial amendment period.

  • Review plan documents annually to determine whether all discretionary plan amendments have been timely adopted.

  • For any new individually designed qualified plan, determine the timing of the IRS submission request for an initial favorable determination letter.

  • For any terminating individually designed qualified plan, determine: (i) whether a favorable determination letter will be requested in connection with the plan termination; (ii) whether plan amendments are required in connection with the plan termination; and (iii) the timing of the submission to the IRS for a favorable letter on the qualification upon plan termination.

  • Annually, determine whether an IRS submission is permissible for an existing individually designed qualified plan, based on current IRS guidance.

©2016 Drinker Biddle & Reath LLP. All Rights Reserved

Will Brexit Undermine U.K. Participation in the General Data Protection Regulation and the U.S./E.U. Privacy Shield?

The June 23, 2016 Brexit referendum outcome in the U.K. does create uncertainty about whether the U.K. will continue to follow EU data protection laws, including implementation of the E.U.’s new General Data Protection Regulation (“GDPR”), scheduled to become effective on May 25, 2018. Furthermore, the recently negotiated new U.S./E.U. Privacy Shield, intended to replace the E.U.-invalidated Safe Harbor, faces an uncertain future in the U.K. as well if it is not an available framework for multinational businesses to do business in the U.K. For example, Microsoft stated in an open letter in May, 2016 to its 5000 U.K. employees before the Brexit vote that the U.K.’s EU membership was one of the factors that attracted Microsoft to make investments in the U.K., including in a new data center. One important future signal will be whether the U.K. opts to join the European Economic Area, or otherwise maintains significant trade with the EU, in which case the U.K. would necessarily need to comply with EU privacy regulations. If not, the U.K. would still need to develop its own data pgeneral data protectionrotection network. However, because at least two years must elapse before the U.K. can formally exit the EU under Article 50 of the Treaty of Lisbon, and even that two year period does not commence until formal notice is given, both the GDPR (in May 2018) and the Privacy Shield are likely to be in place in the U.K. before any actual exit from the EU occurs. And many observers believe that any law that Britain adopts will likely be similar to the GDPR, since a non-member country’s data protection regime must be deemed “adequate” by the EU for businesses in that non-member country to exchange data and to do business within the EU. In short, nothing is going to change immediately, and because Brexit won’t likely be completed for years, the Privacy Shield could well be implemented in the U.K. for personal data transfers from the U.K. to the U.S. well before actual withdrawal is completed. It also may take years to negotiate and complete agreements, and enactment of alternative U.K. data privacy laws.

See our previous post regarding the text of the U.S./EU Privacy Shield

Article by Douglas Bonner of Womble Carlyle Sandridge & Rice

Copyright © 2016 Womble Carlyle Sandridge & Rice, PLLC. All Rights Reserved.

Federal Circuit Requires 180 Day Notice For All Biosimilars, Even After Patent Dance

biosimilars patent danceIn Amgen v. Apotex, the Federal Circuit rejected Apotex’s arguments that the 180-day pre-marketing notice requirement does not apply to biosimilar applicants who participated in the “patent dance” process of the Biologics Price Competition and Innovation Act (“BPCIA”), expanding on its decision in Amgen v. Sandoz that 42 USC § 262(l)(8)(A) is a mandatory, stand-alone requirement. The Supreme Court has asked the Solicitor General to weigh in on whether it should grant certiorari in Amgen v. Sandoz. Will this decision make the Court more or less likely to review the Federal Circuit’s interpretation of this important biosimilar statute?

The Biosimilar Patent Dance

The biologic product at issue is Amgen’s Neulasta® (pegfilgrastim) product. Amgen describes pegfilgrastim as “a recombinantly expressed, 175-amino acid form of … human granulocyte-colony stimulating factor (‘G-CSF’) conjugated to a 20 kD monomethoxypolyethylene glycol (m-PEG) at the N-terminus.” After Apotex filed a Biologic License Application (BLA) seeking FDA approval to market a biosimilar version of Neulasta® (pegfilgrastim), the parties followed several steps of the patent dance procedures, which resulted in Amgen asserting U.S. Patent Nos. 8,952,138 and 5,824,784 in the U.S. District Court for the Southern District of Florida. Those infringement claims are being litigated, although the ‘784 patent has been dropped since it expired.

The Biosimilar 180-Day Notice Dispute

As noted in the Federal Circuit decision, Apotex sent Amgen a letter on April 17, 2015, stating that it was “providing notice of future commercial marketing pursuant to 21 USC § 262(l)(8)(A), though Apotex lacked (as it still lacks) an FDA license.” Amgen sought a preliminary injunction to “require Apotex to provide … notice if and when it receives a license and to delay any commercial marketing for 180 days from that notice.” The district court granted that motion, citing the Federal Circuit decision in Amgen v. Sandoz that notice cannot be given before the biosimilar product is approved. Apotex appealed.

The Federal Circuit Decision

The Federal Circuit decision was authored by Judge Taranto and joined by Judge Wallach and Judge Bryson. The bottom line of the court’s decision is this:

The [§ 262(l)](8)(A) requirement of 180 days’ post-licensure notice before commercial marketing … is a mandatory one enforceable by injunction whether or not [the biosimilar applicant provided a copy of its biosimilar application to the reference product sponsor in accordance with  § 262(l)(2)(A)].

As it had in Amgen v. Sandoz, the court emphasized the “categorical” language used in the statute:

The subsection (k) applicant shall provide notice to the reference product sponsor not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).

The court noted that § 262(l)(8)(A) “contains no words that make the applicability of its notice rule turn on whether the applicant took the earlier step of giving the [§ 262(l)](2)(A) notice that begins the § 262(l) information-exchange process,” and stood by its holding in Amgen v. Sandoz that the statute is “‘a standalone notice provision’ not dependent on the information-exchange processes that begin with [§ 262](l)(2)(A).”

Further justifying its decision, the court emphasized that the BPCIA created a “two stage” patent litigation process, and found that the 180-day pre-marketing notice is essential to the second stage. In that regard, it explained that the 180 day period “gives the reference product sponsor time to assess its infringement position for the final FDA-approved product as to yet-to-be-litigated patents,” and “gives the parties and the district court the time for adjudicating such matters without the reliability-reducing rush that would attend actions for requests for relief against immediate market entry that could cause irreparable injury.”

The court also considered and rejected Apotex’s arguments based on the relationship between § 262(l)(8)(A) and other sections of the BPCIA, such as § 262(l)(9)(B) and § 262(l)(9)(C), which give the reference product sponsor the right to bring delcaratory judgment actions when the biosimilar applicant fails to follow some or all of the patent dance procedures.

Requiring 180-Days Notice Does Not Extend The 12-Year Exclusivity Period

Perhaps Apotex’s most compelling argument was that the court’s interpretation of 262(l)(8)(A) effectively gives original biologic products 12.5 years of exclusivity rather than the 12 years provided by Congress in § 262(k)(7). The court dealt with this argument in two ways. First, the court noted that “§ 262(k)(7) by its terms establishes the 12-year date only as an earliest date, not a latest date, on which a biosimilar license can take effect” (emphasis added). Second the court hypothesized that the FDA could implement the 12-year exclusivity period by “issu[ing] a license before the 11.5-year mark and deem[ing] the license to take effect on the 12-year date.” In that case, the 180-days notice could be given in time to expire when the 12-year exclusivity period expires.

(The FDA has not yet issued guidance or regulations on this issue, and is not bound by the Federal Circuit decision. Indeed, the U.S. Court of Appeals for the District of Columbia is the appellate court most likely to review the FDA’s interpretation of § 262(k)(7).)

What Will the Supreme Court Do?

As noted above, the Supreme Court has asked the Solicitor General to weigh in on whether it should grant certiorariin Amgen v. Sandoz. Since this decision is consistent with that one, it is not clear that it will make the Court more or less likely to hear the case. The opinion here provides a detailed summary of the patent litigation procedures of the BPCIA and the related sections of the patent infringement statute, 35 USC § 271. That analysis may make the Court more comfortable with the Federal Circuit’s interpretation, or could lead the Court to try its own hand at deciphering a statutory scheme that Judge Lourie characterized as deserving of  “a Pulitzer Prize for complexity.”

© 2016 Foley & Lardner LLP