“The #1 Client-Generation Tool:” The Web-Based Art of Legal Marketing

The business of law has always been important but today it is far more complicated due to the web which has allowed the channels of advertising and business development to grow exponentially. From product placement in movies to handrails featuring advertisements, commercial culture serves as an omnipotent force and has yielded two great premises:  that we as a people respond to advertisements and that the Internet is a powerful tool for advertising.

Mark Britton, founder, CEO and president of Avvo, teaches attorneys and marketing professionals to have no legal fear when it comes to the business of law. In his upcoming address at Lawyernomics 2013 entitled “Issue Spotting: Turning 10 Legal Marketing Challenges Into Opportunity,” he seeks to instruct attorneys how to establish a marketing protocol in order to expand their practices. Mr. Britton sat down with me recently to further school the legal community on web-based legal marketing and how to “sell” one’s self in the modern legal landscape.

Attorneys historically self-promoted by attending large gatherings at rotary clubs but now there are multiple outlets for them to sell their services, such as LinkedIn, YouTube and blogging. According to Mr. Britton, a practitioner can utilize any “set of variables” for advertising purposes and this is important, given the rising number of lawyers and the resulting competition. Therefore, in order to truly succeed in today’s legal marketplace, attorneys must remain strategic and learn how to manage their businesses effectively.

The Internet, which Mr. Britton characterized as “central to life” as the law, serves as the most influential avenue for legal marketing. Facebook alone hold 8 million registered users—a small nation of its own. Practitioners must therefore act defensively—while they frequently rely on word of mouth, they must transfer this technique to such Internet sources as Yelp, Reputation.com and the Yellow Pages. Mr. Britton advises that the attorney who is aware of her “Google status” is ahead of the game.

In addition, attorneys must act on the offensive by making use of the Internet to increase clientele. Mr. Britton relayed how in his interactions with thousands of lawyers on a yearly basis, the common complaint is that the less experienced attorneys obtain more business because they advertise more. Regardless of the level of experience and professionalism, practitioners must utilize the web as a “tremendous strategic tool” to attain a larger client base. For example, they can join blogging spheres and practice groups that exchange ideas, build networks and develop business. This sort of self-promotion might be considered “unseemly” by some lawyers, yet the Internet serves as the number one tool to generate clients.

Mr. Britton acknowledges the challenge of thinking in a technology-driven, business-geared mentality when one comes from a legal background. He stresses that the objective should be to take on the role of an opportunity-spotter rather than just an issue-spotter.  However, in law school, we were trained only to take fact patterns and analyze them and when we practice, we spot the issue and mitigate risks, all without placing any emphasis on the business aspects of practicing law. As a result, when it comes to a tool such as social media, nine out of ten attorneys will focus on its privacy issues, entirely missing the point of its social networking benefits.

For all the attorneys and legal marketing professionals who struggle with how to go about conforming to the marketing must’s, Mr. Britton offers his insights on five baselines of legal marketing with the ultimate intention of converting contacts into clients:

#1. Establish your target audience.

Who are you searching for? Future and existing clientele? Law firms invest significant resources into bringing in clients so figure out who you are trying to attract so you can tailor your marketing strategies accordingly. For example, after establishing that you want to attract clients, refrain from writing your blog posts in legalese.

#2. Target your time and money as it relates to your target audience.

This should be preplanned and reviewed on a quarterly basis and should be initiated with a goal in mind. For instance, if your aim is to acquire a higher number of lawyer referrals, find space in your budget and calendar to start an e-newsletter or present at a conference.

#3. Target channels that you think are valuable one at a time.

Be deliberate about your marketing tools. Learn if your channels’ ROI is worth the time and money and either maintain the channel or turn it off accordingly. After you start that e-newsletter, get Constant Contact or any other service that provides monthly reports to figure out how many people are reading them and whether it is a successful investment.

#4. Measure your targets by figuring out the benefits.

Hire a consultant to see if you are actually gaining benefits from your investments. Paying high fees to place an ad in the Yellow pages is pointless if you do not know how many clients you are actually attracting.

#5. Establish a strong web presence.

Your website is the modern-day calling card so certify that it is in fact well-developed. To exemplify, if someone were to raise a point on Twitter and you respond by saying you wrote about this topic on your blog, the potential client may go to your website and develop her first impression of you through your website. This is often how social networking works—it all goes back to the website where people first connect with you. Make sure you also have strong seo controls in place so you can zero in on the demographics of your website visitors.

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Supreme Court Finds Fair Labor Standards Act (FLSA) Collective Action Mooted By Offer Of Judgment

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In a traditional lawsuit, when a defendant offers a plaintiff the full amount the plaintiff seeks, that generally ends the litigation because the plaintiff no longer has a justiciable interest in the matter.  On April 16, 2013, the Supreme Court held in Genesis Healthcare Corp. v. Symczyk that a collective action under the Fair Labor Standards Act (FLSA) affords no exception to that rule.

Symczyk, a registered nurse, sued her former employer, Genesis Healthcare Corporation, a nursing home operator, for allegedly automatically deducting a half hour’s pay for lunch breaks irrespective of whether an employee took one.  Symczyk brought her claim as a collective action under the FLSA, which requires that similarly situated employees must opt in to the action in order to be represented by the plaintiff.

Two months after Symczyk filed her complaint, Genesis offered her full recovery on her claim, plus attorneys’ fees and costs, pursuant to Federal Rule of Civil Procedure 68.  The offer gave Symczyk 10 days in which to respond.  Symczyk failed to respond within 10 days, after which Genesis moved to dismiss on the ground of mootness.  The District Court granted the motion, reasoning that no other plaintiffs had joined the action and that Symczyk’s individual claim was moot because she could not recover more than Genesis had offered her.  The Third Circuit reversed.  Although it found that the settlement offer mooted Symczyk’s individual claim, it ruled that the defendant’s strategy nonetheless frustrated the FLSA’s goals by “short circuit[ing]” the collective action process.

On April 16, 2013, the Supreme Court reversed.

In doing so, the majority declined to reach the question of whether Symczyk’s individual claim had been mooted by virtue of an unaccepted offer, finding that the question had been waived:

[W]e do not reach this question, or resolve the split, because the issue is not properly before us.  The Third Circuit clearly held in this case that respondent’s individual claim was moot….  Moreover, … [i]n the District Court, respondent conceded that “[a]n offer of complete relief will generally moot the [plaintiff ’s] claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation.”  Respondent made a similar concession in her brief to the Court of Appeals, and failed to raise the argument in her brief in opposition to the petition for certiorari.  We, therefore, assume, without deciding, that petitioners’ Rule 68 offer mooted respondent’s individual claim.

Relying on Article III’s case-or-controversy requirement, the majority concluded that the District Court properly dismissed the case because “respondent has no personal interest in representing putative unnamed claimants or any other continuing interest” and thus “respondent’s interest became moot when her individual claim became moot.”  Justice Thomas concluded by noting that the claims of employees other than Symczyk had not been extinguished:  “While settlement may have the collateral effect of foreclosing un-joined claimants from having their rights vindicated in respondent’s suit, such putative plaintiffs remain free to vindicate their rights in their own suits.  They are no less able to have their claims settled or adjudicated following respondent’s suit than if her suit had never been filed at all.”

Justice Kagan’s dissent took the majority to task for relying on legal errors that she believes the lower courts had committed and the plaintiff had not challenged below:

The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it.  The issue here, the majority tells us, is whether a ‘collective action’ brought under the [FLSA] ‘is justiciable when the lone plaintiff’s individual claim becomes moot.’  Embedded within that question is a crucial premise: that the individual claim has become moot, as the lower courts held and the majority assumes without deciding.  But what if that premise is bogus?  What if the plaintiff’s individual claim here never became moot? …. Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again arise.

She then proceeded to offer her answer to the question the majority had declined to reach:

[A]n unaccepted offer of judgment cannot moot a case. When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was before.  And so too does the court’s ability to grant her relief.  An unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity, with no operative effect….  Nothing in Rule 68 alters that basic principle….  So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, unmooted.

She concluded by complaining that allowing a defendant to “eliminate the entire suit by acceding to a defendant’s proposal to make only the named plaintiff whole … would short-circuit a collective action before it could begin, and thereby frustrate Congress’s decision to give FLSA plaintiffs the opportunity to proceed collectively.”

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Business Groups Applaud Expected Compromise on Comprehensive Immigration Reform

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The Essential Worker Immigration Coalition (EWIC)*, a coalition of businesses, trade associations, and other industry organizations concerned with the shortage of lesser skilled and unskilled labor, and the TechServe Alliance, an industry group that represents IT & engineering interests before the U.S. Congress and other policymakers, have recently released statements applauding the bipartisan effort to craft a comprehensive immigration reform bill. The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, which many expect will be formally introduced shortly, was spearheaded by the “Gang of Eight” – namely Senators Rubio, Flake, McCain, Graham, Schumer, Menendez, Bennet and Durbin – and includes proposals for granting legal status to undocumented immigrants, requiring all U.S. employers to use an electronic employment eligibility verification system, creating a new less-skilled worker visa program, and permitting IT staffing firms to retain access to the H-1B visa program.

To view a summary of the provisions included in The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, please click here. To read EWIC and TechServe Alliance’s statements about the new legislation, respectively, please click here and here.

* Laura Foote Reiff, Co-Chair of Greenberg Traurig’s Business Immigration and Compliance practice, is a co-founder of EWIC.

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Final Rule for Physician Payments Sunshine Act Recently Released

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The long-awaited final regulations for the Physician Payments Sunshine Act (“Sunshine Act” or “Act”) were finally released on February 1, 2013. I previously discussed the Sunshine Act (see Here Comes the Sun, Are you Prepared?,10/18/2012), but with the final rule now implemented, providers should take a second look at it and reconsider its implications.

The Act requires applicable manufacturers of drugs, devices, biological, or medical supplies covered by Medicare, Medicaid, or the Children’s Health Insurance Program (“CHIP”) to report payments or transfers of value provided to physicians or teaching hospitals. Additionally, applicable manufacturers and group purchasing organizations (“GPOs”) must annually report to CMS certain information regarding ownership or investment interests held by physicians (or their immediate family members).

The Act was proposed in December 2011 and CMS had expected to issue the final rule by the end of 2012. However, due to the overwhelming number of remarks received during the comments period from concerned providers, manufacturers, and GPOs, the Act took considerably more time to become final.

The final rule addresses some of the concerns raised through the comments period, but certainly not all. One of the biggest revisions is to exempt speaker fees for accredited and certified CME programs from the reporting requirements. There are several other exemptions from the reporting requirements, including, but not limited to:

  • over-the-counter drugs and class I and II medical devices (such as elastic bandages and suture materials)
  • incidental items worth less than $10 (e.g., pens and note pads) as well as general food and drinks offered to all participants at conferences or large-scale events
  • gifts or payments valued at less than $10 — unless the aggregate amount paid to the physician exceeds $100 annually
  • educational materials and items intended for use by or with patients

Additionally, the final rule makes numerous changes to definitions included in the proposed rule and adds several new terms.

The estimated costs, as stated by CMS, for the manufacturers and GPOs to comply with the Act is $269 million for the first year, with costs thereafter estimated to be $180 million.  CMS estimates physicians will expend $250 during the first year for compliance, but many stakeholders have expressed the opinion that this is grossly underestimated.

The applicable manufacturers and group purchasing organizations are required to start collecting data on August 1, 2013. This data must be formalized in a report to CMS by March 31, 2014. The data is set to appear on a public website by September 30, 2014.

The final rule still creates a great deal of uncertainty. It is highly recommended that providers consider their existing relationships and revisit the Act when creating new ones. They should take time to review internal policies and examine all contacts for conflicts of interest.

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Internal Revenue Service (IRS) Capitalized Legal Fees Incurred by Pharmaceutical Company

 

McDermottLogo_2c_rgbIn a recently released Field Attorney Advice, the Internal Revenue Service (IRS) Office of Chief Counsel concluded that a pharmaceutical company must capitalize legal fees incurred to obtain Food and Drug Administration approval for marketing and selling generic drugs and to prevent the marketing and sale of a competing generic drug.  The IRS Office of Chief Counsel also concluded that it could impose an adjustment on audit to capitalize legal fees that the taxpayer expensed in prior years, including years closed by statute of limitations.

In a recently published Internal Revenue Service (IRS) Field Attorney Advice (FAA 20131001F, March 8, 2013), the IRS Office of Chief Counsel concluded that a pharmaceutical company must capitalize legal fees incurred to obtain U.S. Food and Drug Administration (FDA) approval for marketing and selling new generic drugs and to prevent the marketing and sale of a competing generic drug.  The IRS also concluded that the Commissioner could change the taxpayer’s method of accounting for the legal fees and impose an adjustment on audit to capitalize legal fees that the taxpayer expensed in prior years, including years closed by the statute of limitations.

NDA and ANDA

In order to market or sell a new drug in the United States, a New Drug Application (NDA) must be submitted to and approved by the FDA.  An NDA consists of clinical and nonclinical data on the drug’s safety and effectiveness, as well as a full description of the methods, facilities and quality controls employed during manufacturing and packaging.  An NDA also must disclose all the patents that cover the drug.

To market or sell a generic version of an existing FDA-approved drug, the maker of the generic drug must submit an Abbreviated New Drug Application (ANDA) for FDA approval.  An ANDA generally is not required to include preclinical and clinical trial data to establish safety and effectiveness.  Instead, an ANDA applicant must show that its generic drug is bioequivalent to an existing drug.  In addition, an ANDA applicant is required to provide certification that the ANDA will not infringe on the patent rights of a third party.  Specifically, if an applicant seeks approval prior to the expiration of patents listed by the NDA holder, then a “paragraph IV certification” must be submitted by the applicant to certify that it believes its product or the use of its product does not infringe on the third party’s patents, or that such patents are not valid or enforceable.  The first generic drug applicant that files an ANDA containing a paragraph IV certification is granted, upon approval, 180 days of marketing exclusivity.

For an ANDA with a paragraph IV certification, the applicant must send notices to the NDA holder for the referenced drug and to all patentees of record for the listed patents within 20 days of FDA notification that the ANDA is accepted for filing.  If neither the NDA holder nor the patent holders bring an infringement lawsuit against the ANDA applicant within 45 days, the FDA may approve the ANDA.  If the NDA holder or the patent holders file a patent infringement lawsuit against the ANDA applicant within 45 days, a stay prevents the FDA from approving the ANDA for up to 30 months.  If, however, the patent infringement litigation is still ongoing after the 30 months, the FDA may approve the ANDA.

The Facts

The taxpayer is a pharmaceutical company engaged in developing, manufacturing, marketing, selling and distributing generic and brand name drugs.  In the process of filing ANDAs with a paragraph IV certification, the taxpayer incurred legal fees in lawsuits filed by patent and NDA holders for patent infringement.  In addition, the taxpayer as an NDA holder incurred legal fees in a lawsuit it filed against an ANDA applicant with a paragraph IV certification to protect its right to sell its branded drug until all patents expired.  The taxpayer sought to deduct its legal fees as ordinary and necessary business expenses.

The IRS Analysis

Legal Fees Incurred in the Process of Obtaining FDA Approval of ANDAs

The IRS concluded that the legal fees incurred by the taxpayer as an ANDA applicant to defend actions for patent infringement in the process of filing the ANDA with paragraph IV certification must be capitalized under Treas. Reg. § 1.263(a)-4.  The IRS characterized the fees as incurred to facilitate the taxpayer obtaining the FDA-approved ANDAs with paragraph IV certification, which granted the applicant the right to market and sell a generic drug before the expiration of the patents covering the branded drugs, and by filing early, potentially with a 180-day exclusivity period.  As such, the IRS concluded, the fees are required to be capitalized as amounts paid to create or facilitate the creation of an intangible under Treas. Reg. § 1.263(a)-4(d)(5).  In so concluding, the IRS rejected the taxpayer’s argument that its fees did not facilitate obtaining FDA-approved ANDAs because it could have commercialized its generic drugs after the 30-month stay expired regardless of the outcome of the lawsuits.  The IRS reasoned that the filing of the ANDAs with paragraph IV certification and the defense of the patent infringement lawsuit were a part of a series of steps undertaken in pursuit of a single plan to create an intangible.

The IRS further concluded that the cost recovery of the capitalized legal fees incurred to obtain the FDA-approved ANDAs must be suspended until the FDA approves the ANDAs, and the capitalized fees must be amortized on a straight-line basis over 15 years as section 197 intangibles.

Legal Fees Incurred to Protect Its Right Against Other ANDA Applicants with Paragraph IV Certification

With respect to the legal fees incurred by the taxpayer as an NDA holder in the litigation against another ANDA applicant, the IRS characterized the fees incurred to defend the validity of the patents owned by the taxpayer as amounts paid to defend or perfect title to intangible property that are required to be capitalized under Treas. Reg. § 1.263(a)-4(d)(9).  In contrast, the fees incurred by the taxpayer in the litigation relating to determining whether valid patents have been infringed are not required to be capitalized under Treas. Reg. § 1.263(a)-4(d)(9).

The IRS further concluded that the capitalized fees incurred to protect the patents and the FDA-approved NDA must be added to the basis of the patents to be depreciated under section 167.  The cost recovery begins in the months in which the legal fees were incurred and is allocated over the remaining useful lives of the patents.

In characterizing the legal fees incurred by the taxpayer in defending the validity of its patents as costs of defending or perfecting title to intangible property, the IRS distinguished the legal fees at issue from the litigation expenses incurred by the taxpayers in defending a claim that their patents were invalid in Urquhart v. Comm’r, 215 F.2d 17 (3rd Cir. 1954).  In Urquhart, the taxpayers were participants in a joint venture that was engaged in the business of inventing and licensing patents.  The taxpayers obtained two patents involving fire-fighting equipment and, after threatening litigation against Pyrene Manufacturing Company, brought an infringement suit against a customer of Pyrene, seeking an injunction and recovery of profits and damages.  The case was dismissed, and Pyrene subsequently commenced an action against the taxpayers seeking a judgment that the taxpayers’ patents were invalid and that its own apparatus and methods did not infringe the patents.  A counterclaim was filed for an injunction against infringement, and an accounting for profits and damages.  Pyrene did not raise any questions as to title to, or ownership of, the patents and was successful in the lawsuit.  The patents held by the taxpayers were found to be invalid.  In holding that the legal fees incurred by the taxpayer were deductible as ordinary and necessary business expenses, the U.S. Court of Appeals for the Third Circuit rejected the IRS’s contention that the litigation was for the defense or protection of title.

Distinguishing the FAA from Urquhart, the IRS focused on the fact that the taxpayers in Urquhart were professional inventors engaged in the business of exploiting and licensing patents, and that Urquhart involved the taxpayers’ claims for recovering lost profits.  By emphasizing that Pyrene did not raise any issue as to title to the patents in Urquhart, the IRS seemed to ignore the fact that, like the taxpayer in the FAA, Pyrene sought a judgment on the validity of the taxpayers’ patents and that the outcome of the litigation in Urquhart also focused on the validity of the patents.

Change of Accounting Method for Legal Fees Incurred by the Taxpayer 

The IRS also concluded that the taxpayer’s treatment of its legal fess associated with each ANDA or patent as either deductible or capitalizable is a method of accounting that the Commissioner can change on an ANDA-by-ANDA or patent-by-patent basis.  The consequence of this conclusion, if valid, is that the IRS can impose on audit an adjustment to capitalize legal fees that the taxpayer deducted in prior years, including years closed by the statute of limitations.  For example, the IRS can include in the taxpayer’s gross income for the earliest year under examination an adjustment equal to the amount of the legal fees the taxpayer previously deducted, less the amount of amortization that the taxpayer properly could have taken had the taxpayer capitalized the legal fees.

A taxpayer that voluntarily changes its method of accounting, however, receives more favorable terms and conditions than a taxpayer that has its method of accounting changed by the IRS on examination.  For example, a taxpayer that changes its method of accounting voluntarily can spread the adjustment resulting from the change over four taxable years, and the first year of the adjustment is the current taxable year as opposed to the earliest open taxable year.

The publication of this FAA likely will bring the attention of examining agents to this issue.  Therefore, if a taxpayer believes it is using an improper method of accounting for legal fees (or any other item), it should carefully consider whether to voluntarily change its method of accounting before the IRS proposes to change the taxpayer’s method of accounting on examination.

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SEC Staff Meets with IRS to Discuss Tax Implications of a Floating Net Asset Value (NAV)

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SEC staff recently met with staff members of the IRS to discuss the tax implications of adopting a floating net asset value (NAV) for money market funds. The discussion centered on the tax treatment of small gains and losses for investors in money market funds, and the IRS reportedly told the SEC there is limited flexibility in interpreting current tax law. A floating NAV could require individual and institutional investors to regard every money market fund transaction as a potentially taxable event.

Investors would have to determine how to match purchases and redemptions for purposes of calculating gains, losses and share cost basis. The SEC reached out to the IRS as it continues to consider measures, including a floating NAV, to enable money market funds to better withstand severe market disruptions.

For additional discussion of money market reform, please see “SEC Debates on Money Market Reforms Continue” in our January 2013 and October 2012 updates.

Sources: John D. Hawke, Jr., Economic Consequences of Proposals to Require Money Market Funds to ‘Float’ Their NAV, SEC Comment Letter File No. 4-619, November 2, 2012; Christopher Condon and Dave Michaels, SEC Said to Discuss Floating NAV for Money Funds with IRS, Bloomberg, March 7, 2013; Joe Morris, SEC Sounding Out IRS on Floating NAV, Ignites, March 7, 2013.

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U.S. Commodity Futures Trading Commission (CFTC) Grants No-Action Relief for End Users from Swap Reporting Requirements

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On April 9, 2013, the Division of Market Oversight of the U.S. Commodity Futures Trading Commission (CFTC) issued a no-action letter delaying the swap reporting compliance deadlines for end users and other swap counterparties that are not swap dealers or major swap participants (non-SD/MSP counterparties).  The relief provided to market participants is effective immediately.

The CFTC had issued regulations setting forth various reporting requirements for swap transactions (Part 43 — real-time reporting for swap transactions, Part 45 — transactional data reporting to a registered swap data repository, and Part 46 — historical swap data reporting) of the CFTC’s regulations. The rules had established a deadline of April 10, 2013 for swap counterparties that are not swap dealers or major swap participants (non SD/MSP counterparties). Citing implementation concerns involving technological and operational capabilities, a number of market participants requested that the Division of Market Oversight provide a six-month extension of the compliance deadline.  The CFTC’s April 9 no-action  letter does not grant the full six-month extension requested, but provides certain time-limited no action relief to nonSD/MSP swap counterparties as described below.

1.          No-Action Relief for Reporting of Interest Rate and Credit Swaps

The letter extends no-action relief for end users’ interest and credit swaps reporting untilJuly 1, 2013.  However, non SD/MSP swap counterparties that are “financial entities,” as defined in Section 2(h)(7)(C), must comply with reporting requirements under Part 43 and 45 on April 10, 2013.

2.         No-Action Relief for Reporting of Equity, Foreign Exchange and other Commodity Swaps

The no-action relief for end users who engage in swaps in other asset classes (e.g., equity, foreign exchange, and other commodities) is extended until August 19, 2013.  For non-SD/MSP swap counterparties that are “financial entities,” as defined in Section 2(h)(7)(C), the no-action relief extends until May 29, 2013.

3.         No-Action Relief for Historical Swap Data Reporting Under Part 46

The letter also extends no-action relief to end users’ Part 46 historical swap data reporting for all swap asset classes until October 31, 2013.  For non SD/MSP swap counterparties that are “financial entities,” as defined in Section 2(h)(7)(C), the Part 46 no-action relief extends until September 30, 2013.  Any pre-enactment or transition swap entered into prior to 12:01 a.m. on April 10, 2013 is reportable as a historical swap.

4.         Compliance Date for Recordkeeping Obligations has not been Extended

The letter also confirms that the no-action relief provided for reporting requirements doesnot impact any Dodd-Frank-related recordkeeping obligations applicable to SDs, MSPs or end users.  Thus, for historical swaps, end users must maintain records under the Part 46 rules for any such swaps entered into prior to April 10, 2013.   With respect to swaps entered into on or after April 10, end users must maintain records under the Part 43 and 45 rules, and obtain a CFTC Interim Compliant Identifier for this purpose by April 10, 2013.

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