Dewonkify – Electoral College

The National Law Review recently published an article by Hilary M. Hansen of Drinker Biddle & Reath LLP regarding the Electoral College:

 

The Word: Electoral College

The Meaning: The Electoral College is a body of 538 electors that determine the official outcome of the Presidential elections. Each state’s representation in the Electoral College is based on the state population (two per state, plus one for each Congressional district). Washington, DC has three electoral votes, but other U.S. territories do not have any.

After the votes are cast on Election Day, electors gather in their respective state capitols to cast votes for President and Vice President based on their state’s popular vote.  The vote is then certified.

In all states except Maine and Nebraska, which use a district-based electoral system, votes are awarded winner-take-all – a candidate just needs to receive 51% of the popular vote to receive all the state’s electoral votes. Each state decides how electors are chosen; no person holding elected or appointed federal office can serve as an elector. A candidate needs 270 electoral votes to win; if no one reaches that threshold the House of Representatives determines the President.

Used in a Sentence: “The election night drama of 2000 may be recreated this year, as experts say there is a real chance for one presidential candidate to win the popular vote but lose the presidency thanks to the Electoral College system.” (from U.S. News article “Electoral College, Popular Vote Split is Possible, Experts Say”)

What it Means: What really matters in an election is getting 270 electoral votes. Under the Electoral College system, the winner of the popular vote can lose an election – it has happened four times, in 1824, 1876, 1888, and 2000. The distribution of votes across the country is important; while the popular vote may swing in favor of one candidate, if the votes are concentrated in certain states, they may not have enough electoral votes to win.

History: The roots of the Electoral College go back to the founding fathers’ debate over the extent to which the United States would be a federal system. Virginia delegates to the 1787 Constitutional Convention proposed having Congress elect the President. Out of concerns about separation of powers and the independence of the President, the “Committee of Eleven” recommended that there be an independent group of electors, apportioned to states in equal numbers as their representation in Congress. This indirect election mechanism was then incorporated into the Constitution; Article II, Section 1 refers to a system of Presidential “electors” and lays out the framework for the Electoral College. While the Constitution describes this system and the role of these electors, the term “Electoral College” was not used until 1845. Throughout U.S. history there have been over 700 proposals to reform the Electoral College, including efforts to change to a proportional vote base rather than winner-take-all and to abolish the system completely and rely on popular vote as the sole electoral method.

©2012 Drinker Biddle & Reath LLP

Securities Fraud National Institute – November 15-16, 2012

The National Law Review is pleased to bring you information about the upcoming Securities Fraud Conference by the ABA:

This national institute is an educational and professional forum to discuss the legal and ethical issues surrounding securities fraud.

Program highlights include:

  • Panel discussions with senior officials from the U.S. Securities and Exchange Commission  and U.S. Department of Justice
  • Updates since the passage of the Dodd-Frank Act
  • Breakout sessions focused on new financial reform legislation
  • Strategies for practitioners when representing clients under investigation, indicted and during appeals

When

November 15 – 16, 2012

Where

  • Westin New Orleans Canal Place
  • 100 Rue Iberville
  • New Orleans, LA, 70130-1106
  • United States of America

Federal Government to Launch Multistate Health Insurance Plans

The National Law Review recently published an article by Nita Garg of Barnes & Thornburg LLP regarding Multi-State Health Insurance Plans:

 

 

Under multistate plans recently announced by the Obama administration, health insurance operated under contract with the federal government will be available to consumers in every state through state insurance exchanges mandated under the Affordable Care Act (ACA). While the White House has suggested that these plans will serve as a substitute for the government-run health insurance plan that was discussed, and rejected, during health care reform negotiations, existing insurers and developers of CO-OPs were taken by surprise at the announcement.

The impetus behind these plans is the belief that a government sponsored multistate plan will increase competition in health insurance markets, which tend to be geographically clustered.

In those states and regions in which a single insurer is dominant, the hope is that these plans may lead to competitive pricing where such competition would otherwise be difficult.

While proponents speak of these plans’ promise, others are concerned. The ACA provisions pertaining to these plans do not specify how these plans will comply, if at all, with requirements under various state laws. Generally, issues related to insurance regulation fall under the jurisdiction of state governments. Private insurers worry that if state laws would not apply, these multistate plans may have an unfair competitive advantage over other insurers who are subject to state-specific requirements.

While administration officials stated that for they past three months they have been reviewing rules to be issued soon (Pear, New York Times, Oct. 27, 2012), insurers have been without any regulatory guidance as of yet, and, as mentioned earlier, the ACA provisions have not provided much clarification on how these plans will operate. Given this lack of direction, insurers been unable to prepare for implementation of these plans. Speaking to Sarah Kliff of the Washington Post, John McDonough, a Harvard University School of Public Health professor who worked as a health policy adviser to Sen. Ted Kennedy, said that these plans have the potential to disrupt insurance markets, due to the rushed nature of these discussions. “It’s happened so fast, in a brief window, that there was not a lot of time for robust conversation,” he says. “The conversation was like, ‘this is a good idea, let’s cook something up.’ It was definitely not a thoughtful, nuanced conversation.”

© 2012 BARNES & THORNBURG LLP

FATCA Compliance Conference – December 4-5, 2012

The National Law Review is pleased to bring you information regarding the upcoming FATCA Compliance Conference December 4-5, 2012 in New York City:

Implementing FATCA compliance standards will come with challenges for financial institutions across the globe. It is imperative that organizations and individuals, who oversee FATCA compliance regulations adequately prepare, understand and comply with the standards of the new regulations. The marcus evans FATCA Compliance Conference, December 4-5, 2012 in New York, NY will focus on the main concerns and issues with the upcoming compliance expectations under FATCA and analyze the existing requirements and how financial organizations can adequately comply.

Join industry leading experts, including key speakers:

  • Kathleen G. Dugan, Senior Vice President, Corporate and Institutional Services at Northern Trust
  • Jason Vasquez, Senior VP, BSA/AML Officer at Provident Bank
  • Kevin V. Sullivan, Head, North American Tax Operations Vice President at BNP Paribas Corporate & Investment Banking
  • Bill Holmes, Director, International Data Management at US Internal Revenue Services
  • Michael N. Obolensky, Senior Regulatory Counsel at Lloyds Bank

Attending this premiere marcus evans conference will enable you to:

  • Discuss the fundamental challenges with FATCA compliance as it relates to clarification of terms and definitions
  • Review the advantages of leveraging current Anti-Money Laundering (AML) programs in order to implement FATCA compliance
  • Discuss FATCA’s impact on insurance companies application and implementation process
  • Evaluate the growing concern of violating privacy rules as it relates to disclosure of client information

Attendees will benefit from a dynamic peer-to-peer presentation format consisting of workshops, interactive panel discussions and case studies. Each network and interactive session will be followed by 10-15 minutes of Q&A affording all in attendance an opportunity to get the answers to questions affecting their business. Moreover, 4+ hours of networking opportunities will supply attendees with benchmarking and best practices.

For more information, please contact Michele Westergaard at 312-540-3000 ext. 6625 or Michelew@marcusevansch.com.

For a full list speakers and topics, visit http://www.marcusevans-conferences-Northamerican.com/FATCA_NLRB

Voting Day Funny

Thanks to Kendall Gray of Andrews Kurth for the submission to The National Law Review:

 

 

 

Social Media: The New Harassment Landscape Continued

A recent government study uncovered that 23% of harassment victims were targeted through text messaging, email or other digital forms. Not so long ago, the only evidence human resources had to investigate in harassment claims were the face-to-face comments of the parties involved, making the truth sometimes difficult to determine.  With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and “he said, she said” testimony, because nothing can refute written proof.

Even though there are pitfalls in allowing employees to use social media in the workplace, there are also very positive effects. Giving employees the ability to interact via social media keeps morale high, and can be a platform for work related resources. The marketing benefits of social media connections alone can outweigh the risks. The main objective of a social media policy should not be to ban social media usage on the job, but to protect itself through clear and concise social media policies.  For example, a company’s anti-harassment policy should include social media and clearly state that derogatory comments about co-workers are prohibited  and should be reported. Employers should offer training, not only to managers and supervisors, but to all employees about what is appropriate for online postings, and what is not.  Perhaps most importantly, as illustrated in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), employers have an obligation to investigate complaints and reports of suspect social media abuse just as it would with traditional harassment claims.

Crafting social media policies can be tricky business. Finding the right balance between being overly broad and infringing on worker’s rights is a struggle. Recently the National Labor Relations Board (NLRB) found that social media policy of Costco Wholesale Corporation violated Section 7 of the National Labor Relations Act because it too broadly limited employees’ on-line comments and conduct.  Complete restriction is not the path to fairness and protection. Rather finding a balance in a carefully worded policy that provides examples and avenues for employees to safely report any suspect activity.

The laws concerning harassment, especially online, are complex due to the intersection of longstanding legal principles and with technological proliferation. The best course of action in a harassment claim will vary greatly depending on the circumstances of the case.

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

Criminal Tax Fraud and Tax Controversy 2012 – December 6-7, 2012

The National Law Review is pleased to bring you information about the upcoming ABA Criminal Tax Fraud Conference:

When

December 06 – 07, 2012

Where

  • Wynn Las Vegas
  • 3131 Las Vegas Blvd S
  • Las Vegas, NV, 89109-1967
  • United States of America

As in past years, these institutes will offer the most knowledgeable panelists from the government, the judiciary and the private bar.  Attendees will include attorneys and accountants who are just beginning to practice in tax controversy and tax fraud defense, as well as those who are highly experienced practitioners.  The break-out sessions will encourage an open discussion of hot topics.  The program will provides valuable updates on new developments and strategies, along with the opportunity to meet colleagues, renew acquaintances and exchange ideas.

Election Primer 2012

The National Law Review recently published a series of articles by Andrew Bowman of Drinker Biddle & Reath LLP regarding the Upcoming Elections:

Election Primer Part One:  The Race for the White House

Election Primer Part Two:  The House of Representatives

Election Primer Part Three:  The Senate

Supreme Court to Hear Arguments on Contours of “State Action” Exemption to Antitrust Laws

The National Law Review recently published an article by Steven J. Cernak of Schiff Hardin LLP regarding an upcoming Supreme Court Hearing:

 

On November 26, 2012, the U.S. Supreme Court will hear arguments in the only case this term to squarely raise antitrust issues. The case, FTC v. Phoebe Putney Health System, Inc., raises several issues related to the “state action” exemption to the federal antitrust laws. This case, along with another Federal Trade Commission (“FTC”) matter involving a North Carolina dental board on appeal in the 4th Circuit, should provide clearer antitrust guidance to doctors, dentists, lawyers, accountants and others arguably acting under the authority of a state, such as through licensure boards.

Since 1941, Georgia law has allowed counties to create hospital authorities to acquire and run hospitals. The Hospital Authority of Albany-Dougherty County was established immediately after the law’s passage and shortly thereafter acquired Phoebe Putney Memorial Hospital. The Authority has run the hospital ever since, the last several years through two wholly-owned subsidiaries. In 2010, the Authority gave permission for one of the subsidiaries to negotiate the purchase of the other hospital in the county, Palmyra Medical Center, from a private entity. The negotiations were successful and the Authority approved the transaction late in 2010.

In April 2011, the FTC initiated an administrative challenge to the acquisition as an anti-competitive merger and sought a preliminary injunction in district court. Both the district court and 11th Circuit denied the injunction request under the “state action” exemption to the antitrust laws. In particular, both courts found that the Georgia law’s delegation of powers to hospital authorities, including the power to acquire other hospitals, was a “clear articulation” of a policy to displace competition because such mergers were a “foreseeable result” of the legislation. Neither court thought that having the acquisition made through the Authority’s private subsidiaries precluded application of the exemption.

The Supreme Court has held that actions by a state as a sovereign trump the federal antitrust laws. Subdivisions of a state such as the Authority, however, are not sovereign and their actions are immune from prosecution under the antitrust laws only if the state legislature “clearly articulated” a policy to displace competition. If private parties are implementing that policy, they must be “actively supervised” by the state itself.

In this case, the FTC objects to a finding of a “clear articulation” where the action being challenged is just a “foreseeable result” of the state action. Instead, the FTC urges the Court to require that the clear articulation be made explicitly and clearly by the legislature or that the anti-competitive effect be a “necessary” or “inherent” effect of the state action. The FTC also believes that these private hospital parties were not “actively supervised”. The Authority and Phoebe parties respond that the lower courts’ “foreseeable results” standard was correct and correctly applied. In addition, the Authority and Phoebe parties argue that the “active supervision” prong is not necessary here because either 1) the Authority, not the hospitals, was taking the action; or, if rejected, 2) the hospitals were agents of the state-created Authority.

The case has attracted several amicus briefs. Perhaps the most important comes from the American Medical Association urging the Court not to rule in this case in such a way that the state action doctrine would not be available to state or local medical licensure boards that contained competitors. Here, the AMA is referring to another current FTC challenge to allegedly anti-competitive actions by a state-sponsored health care agency, this one involving a North Carolina dental licensure board with private dentist members. That case has been fully briefed for the 4th Circuit but oral argument has not yet been scheduled. These two cases are the latest examples of a decade-long effort by the FTC to obtain clear guidance from the courts on the limits of the state action exemption.

Clients acting at the behest of a governmental entity — such as serving on the local licensure board for insurance, real estate or other professionals — need to be aware of the current limits to the state action doctrine and the possibility that those limits might be further explained by the Court in this case.

© 2012 Schiff Hardin 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.