Author: National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.

Holy Infringement!—Noncommercial Infringement Is Not Fair Use

The National Law Review recently featured an article regarding Infringement written by Hasan Rashid of McDermott Will & Emery:

 

Declining to find fair use for an archbishop’s educational, non-commercial use of copyrighted material the U.S. Court of Appeals for the First Circuit upheld a grant of summary judgment over numerous orthodox (and unorthodox) arguments. Society of the Holy Transfiguration Monastery, Inc., v. Archbishop Gregory of Denver, Colorado, Case No. 11-1262 (1st Cir., Aug. 2, 2012) (Torruella, J.) (Souter, J., sitting by designation).

In the mid-2000s, Archbishop Gregory (the Archbishop) posted seven works (that he helped to create), translated by the Society of the Holy Transfiguration Monastery (the Monastery), on his website.  After the Monastery brought suit for copyright infringement, the district court granted summary judgment of infringement by the Archbishop. On the Archbishop’s appeal, the First Circuit affirmed the district court on the infringement issue and declined to recognize a transfer of copyright by operation of law.

Of particular interest are the 1st Circuit’s fair use analysis and the non-commercial and educational nature of the infringement.  The 1st Circuit held that a lack of monetary gain does not warrant a finding of fair use.  It cited precedent holding that monetary gain is not the question, but rather whether copyrighted material is exploited without payment.  It also cited precedent for the proposition that, when considering the economic market, the court does not look at commercial gains or losses, but rather whether the infringement affects the value of the work and denies the copyright holder of a reward Congress intended him to have.  For these, among other reasons, the court rejected the Archbishop’s asserted fair use defense.

The Archbishop also attacked the Monastery’s ownership of a valid copyright because of transfer to another, general publication, and unoriginality.  First, the court rejected the transfer argument based on the Monastery’s disassociation from another because disassociation did not necessitate reversion.  Second, the court rejected the argument that the works were generally published, concluding rather that the targeted distribution to selected congregations is a limited publication, not a general publication.  Third, the court rejected the unoriginality argument because, although similar to other works, word usage and structure were different between them.

The court next turned to copying.  Conceding that there was actual copying, the Archbishop argued that he did not copy protected elements of the works.  The Court disagreed—concluding that the slight textual differences between the two were insufficient to avoid summary judgment.  The court also rejected the argument that, by definition, translations are not variable.  Applying the merger doctrine, however, the court found that the art of translation involves choosing among several expressions of ideas.

In addition to fair use, the court rejected three other defenses.  First, the Archbishop argued he did not directly infringe because he did not himself post the works on the internet.  The court found that he nevertheless owned the website and admitted to having authority and responsibility for the site’s contents.  Second, he argued that the Digital Millennium Copyright Act (DMCA) immunized him from infringement.  The court rejected this argument because he failed to plead it and because the argument was simply a remolding of his direct infringement defense.  Third, the Archbishop asserted copyright misuse.  Noting that the 1st Circuit does not recognize that defense, it declined to accept the offer to do so in this case.

Practice Note:  Be mindful when advising on the fair use defense for activities that are not for profit.  Such activities may nevertheless infringe.

© 2012 McDermott Will & Emery

7th Annual ABA GPSolo National Solo & Small Firm Conference

The National Law Review is pleased to bring you information about the upcoming 7th Annual ABA GPSolo National Solo & Small Firm Conference:

When

October 11 – 13, 2012

Where

  • Westin Seattle
  • 1900 5th Av
  • Seattle, WA, 98101
  • United States of America

The Seventh Annual ABA GPSolo National Solo & Small Firm Conference is an educational and professional forum that will discuss legal developments in the law that impact solo, general practitioners, and small firms.  The conference is designed to engage and inform attorneys at all levels of practice.  Attendees will gain practical knowledge from an expert faculty comprised of well-known nationally acclaimed speakers.

This conference will cover a wide spectrum of topics including Practice Empowerment, Technology, and Basic Skills.

Practice Empowerment topics include:

  • Law firm and client development
  • Unbundling of legal services
  • Mastering the courtroom
  • Ethics 20/20 update
  • Estate planning for same sex couples
  • Persuasive legal writing

Technology programs will explore:

  • Using an iPad in litigation
  • The best apps and technology for your practice
  • Virtual offices and cloud computing
  • The ethics of legal technology
  • Building your practice through technology and advertising

The Basic Skills programs are a must for law students, new practitioners, and those looking to change or expand practice areas. Topics include:

  • Immigration
  • Criminal Law
  • Federal Estate Tax
  • Federal Rules of Evidence
  • Bankruptcy
  • Intellectual Property
  • Real Estate
  • Business Law

Seventh Circuit Joins Ranks of Courts Holding that Internal Grievances about Employer Fiduciary Duty Breaches is Actionable Under ERISA Section 510

Seventh Circuit Joins Ranks of Courts Holding that Internal Grievances about Employer Fiduciary Duty Breaches is Actionable Under ERISA Section 510, an article by Mark E. Furlane of Drinker Biddle & Reath LLP recently appeared in The National Law Review:

 

In Victor George v. Junior Achievement of Central Indiana Inc.,decided September 24, 2012, the Seventh Circuit joined the Fifth and Ninth Circuits in holding that Section 510 of ERISA applies to unsolicited, informal grievances to employers.  The courts of appeals have disagreed about the scope of §510, and the Second, Third and Fourth Circuits have permitted Section 510 retaliation claims only where the person’s activities were made a part of formal proceedings or in response to an inquiry from employers (i.e., §510’s language does not protect employees who make “unsolicited complaints that are not made in the context of an inquiry or a formal proceeding.”).  Concluding that the language of Section 510 of ERISA was “ambiguous” and “a mess of unpunctuated conjunctions and prepositions,” the Seventh Circuit concluded that, “an employee’s grievance is within §510’s scope whether or not the employer solicited information.”  The court did, however, reiterate the high threshold to prevail on a Section 510 claim:  “It does ‘not mean that §510 covers trivial bellyaches—the statute requires the retaliation to be ‘because’ of a protected activity…. What’s more, the grievance must be a plausible one, though not necessarily one on which the employee is correct.”

Section 510 of ERISA prohibits retaliation “against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this [Act].”  Remedies for violation of that section are limited to “injunctive and other ―appropriate equitable relief,” which would not include back pay typically, but could include an injunction and reinstatement.  Attorney’s fees are also possible.  In the case, Victor George was a former vice president of Junior Achievement who sued his former employer alleging he was terminated after complaining that money withheld from his pay was not being deposited into his retirement and health savings accounts.  He complained to management, outside accountants, the board, the Department of Labor (although he did not file a complaint).  The District Court dismissed the case on summary judgment, holding George’s informal complaints to his employer did not constitute an “inquiry” under ERISA.  The appellate court reversed holding that George’s informal proceedings do trigger the statute’s protections.

©2012 Drinker Biddle & Reath LLP

Class Actions National Institute October 24-25, 2012

The National Law Review is pleased to bring you information about the upcoming ABA Class Actions National Institute:

Attendees of the program will:

  • Gain practical knowledge on how judges view class-action lawsuits
  • Review class-action lawsuits in the Supreme Court
  • Learn trial techniques to sharpen their skills as class-action litigators

Who should attend?

  • Attorneys who litigate class-action lawsuits
  • In-house counsel and litigators interested in learning about the current state of class actions, including recent Supreme Court class-action decisions
  • Lawyers who litigate class-certification motions

When

October 24 – 25, 2012

Where

  • Sax Chicago
  • 333 N Dearborn St
  • Chicago, IL, 60654-4956
  • United States of America

Congress Fails to Advance Federal Farm Bill or Disaster Assistance Bill

The National Law Review recently featured an article, Congress Fails to Advance Federal Farm Bill or Disaster Assistance Bill, by Laura L. Riske of Michael Best & Friedrich LLP:

 

Every five years, Congress takes up the Farm Bill which covers food and agriculture policy under the purview of the United States Department of Agriculture.  The current 2008 Farm Bill’s financial support programs are set to expire on September 30, 2012 unless they are re-authorized by Congress.  In recent weeks, passage of a new Farm Bill received extensive attention given both the expiration date and record drought conditions that have plagued the U.S. agriculture industry. Recently, more than half the nation’s counties had federal disaster designations that included most in Wisconsin largely because of the drought.  Unfortunately, neither the expiration deadline nor the severe drought conditions stopped the ongoing partisan gridlock in Washington, and Congress departed for a five-week August recess without having taken the critical votes needed to pass either a new comprehensive compromise farm support bill or a limited disaster assistance relief bill.  This article provides an overview of the legislative action that took place prior to the August recess on three key House and Senate bills including:

•  H.R. 6083 – Federal Agriculture Reform and Risk Management Act of 2012 (“FARRM Bill”);

http://www.gpo.gov/fdsys/pkg/BILLS-112hr6083ih/pdf/BILLS-112hr6083ih.pdf;

•  H.R. 6233 – Agricultural Disaster Assistance Act of 2012 (“ADA Bill”);

http://www.gpo.gov/fdsys/pkg/BILLS-112hr6233eh/pdf/BILLS-112hr6233eh.pdf

•  S. 3240 – Agriculture Reform, Food & Jobs Act of 2012 (“ARFJ Bill”); and

http://www.gpo.gov/fdsys/pkg/BILLS-112s3240pp/pdf/BILLS-112s3240pp.pdf

it provides an update on the outcome of the summer recess and September negotiations.

On July 12, 2012, the U.S. House Agriculture Committee passed their new comprehensive bipartisan five-year FARRM Bill. The cost of the Committee’s FARRM Bill was $491 billion and contained $36.5 billion in savings over 10 years through program cuts and reductions that included $14 billion in cuts to the commodity title, $6 billion in cuts to the conservation title and $16.5 billion in cuts to the nutrition title.  The FARRM Bill eliminated highly criticized direct payments and replaced it with new price and revenue support programs, restored the expired disaster relief program, and cut $16.5 billion from the Supplemental Nutrition Assistance Programs (“SNAP”) or food stamps.

In the House at large, Republican farm state lawmakers and some Democrats criticized the Committee FARRM Bill and indicated the impact of enormous program changes and cuts would be disastrous to those most in need, while some Republican conservatives objected to the high cost and questioned whether the cuts were deep enough.  Given this division, House Republican leaders who control the chamber were reluctant to bring the controversial Committee FARRM Bill to the full floor out of concern it could go down in defeat right before the November elections. Instead, House Republican leadership maneuvered to quell criticism of the stalemate and turned to consider either quick passage of a one-year extension of the 2008 Farm Bill, or a simple stand-alone disaster relief bill.

On July 31, 2012, with resistance from many conservative Republicans over a one year renewal of the current 2008 Farm Bill, and after several Democrats announced their opposition to this measure, House Republican leaders dropped the renewal plan and instead pressed for immediate short-term disaster assistance for drought-stricken farmers and ranchers. House Agriculture Committee Chairman Frank Lucas encouraged his colleagues to support the ADA Bill saying, “My priority remains to get a long-term five-year farm bill on the books and put those policies in place, but the most pressing business before us is to provide disaster assistance to those impacted by the drought conditions who are currently exposed.”

On August 2, 2012, the Republican controlled House passed their scaled-down short-term $383 million ADA Bill to assist farmers whose livestock losses and feed expenses had increased due to the drought conditions.  The ADA Bill would have continued programs that had already expired, those that indemnify livestock and forage programs, provided some assistance to producers of a handful of other crops, and it would have been paid for through the placement of caps on conservation programs in the current farm law.

In turn, Democrats who control the Senate refused to take up the House ADA Bill before their August recess. The Senate Democratic leaders indicated they preferred the House had taken up their sweeping five-year ARFJ Bill that had passed the full Senate on June 21, 2012 with overwhelming bipartisan support.  Senate Democrat leaders were quick to fault House Republican leaders for failing to consider the broader legislation in time.

The $500 billion Senate ARFJ Bill cut spending by approximately $25 billion over 10 years, including $15 billion in cuts to the commodity title, $6 billion to conservation and $4.5 billion to nutrition programs.  The Senate cuts were achieved primarily by replacing direct payments with an agriculture risk coverage program which protects farmers against losses in revenue, boosting crop insurance, and cutting the SNAP or food stamps.

Senate Democrats said they preferred their ARFJ Bill because it financed dozens of price support and crop insurance programs for farmers and food assistance for low-income families, and it provided more robust drought relief to other agricultural sectors. Senate Democrats also objected to the House Republican’s ADA Bill because it had deeper cuts to food stamps and offset costs through conservation fund cuts.

Moments after the House passed the ADA Bill, Senator Debbie Stabenow, Chairwoman of the Senate Agriculture Committee, took to the Senate floor and said she will work informally with House Agriculture legislators over the August recess to try to put together a new measure to present to Congress.

Although Congressional leaders in both chambers had indicated they would continue to work on the issues surrounding the Farm Bill during the summer recess, big questions remained as to whether or not they could muster the votes needed to pass a bill when Congress returned from recess in September, but it seemed more likely that a vote could be delayed until later in the year given that election season was well underway.  Upon return to Congress in early September, Senate and House officials indicated that compromise negotiations over the summer recess were not fruitful.  Then, on Friday, September 21st Congress left town again without consideration of a farm bill which has left the current farm bill to expire on September 30th.  House Speaker John Boehner indicated they would deal with the farm bill after the November elections because he didn’t believe he had the 218 votes needed to pass either an extension or new legislation.  In response, U.S. Agriculture Secretary Tom Vilsack expressed concerns that Congress would not be able to pass a farm bill in the upcoming lame duck session either.  In short, an unsuccessful lame duck session would mean that the measure would have to wait until a new Congress is sworn in, and the new Congress would have to start over again to develop a new farm bill.

We will continue to monitor and report on substantive developments surrounding the Farm Bill as it progresses through the legislative process.  In the interim, below are links that farmers can use to access drought information and assistance:

•  USDA’s Disaster and Drought Assistance programs

•  University of Wisconsin Cooperative Extension:

– Drought Resources

– Farmer-to-Farmer Hay and Forage Marketplace

– Farmer-to-Farmer Tool for Pasture Rental

•  Wisconsin Department of Agriculture, Trade and Consumer Protection

•  Wisconsin Department of Natural Resources

© MICHAEL BEST & FRIEDRICH 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

‘Get-Rich-Quick’ Systems Penalized by FTC to Tune of $478 Million

As part of the Federal Trade Commission’s ongoing efforts to shut down scams that target financially vulnerable consumers, a U.S. district judge has issued a $478 million judgment at the request of the FTC against the marketers of three get-rich-quick systems that the agency says are used for deceiving consumers. The order is the largest litigated judgment ever obtained by the FTC.

The judgment was awarded against companies and individuals who marketed the schemes, titled “John Beck’s Free & Clear Real Estate System,” “John Alexander’s Real Estate Riches in 14 Days,” and “Jeff Paul’s Shortcuts to Internet Millions.”

Nearly a million consumers paid $39.95 for one of these “get-rich-quick” systems, and some consumers purchased personal coaching services, which cost up to $14,995. According to the FTC complaint filed in June 2009, one system was marketed to consumers with the promise that consumers could “quickly and easily earn substantial amounts of money by purchasing homes at tax sales in their area ‘free and clear’ for just ‘pennies on the dollar’ and then turning around and selling these homes for full market value or renting them out for profit.”

The FTC said that nearly all the consumers that bought the systems lost money.

The FTC’s suit alleged violations of the Federal Trade Commission Act, based on the defendants’ representations in connection with the advertising, marketing, promoting and sale of the systems. The FTC also alleged that the defendants’ violated the Telemarketing Sales Rule through their marketing to consumers.

Two of the individual defendants, Douglas Gravnik and Gary Hewitt, were held jointly and severally liable for the monetary part of the judgment. The judge also imposed a lifetime ban from infomercial products and telemarketing against Gravnik and Hewitt. Gravnik and Hewitt indicated that they are likely to appeal the order to the extent it imposes a lifetime ban. A third individual, John Beck, is responsible for $113.5 million of the judgment.

In its case, the FTC filed 30 consumer declarations detailing consumers’ experiences with the defendants’ products. The defendants objected to many of these declarations on various grounds, including hearsay, relevance, and the best evidence rule among other objections, but these objections were all overruled.

The defendants also objected to the use of a survey by the FTC that showed that less than 0.2 percent of consumers who purchased the defendants’ system made any profits and only 1.9 percent of consumers who purchased coaching material made any revenue. The defendants moved to exclude all evidence relating to the survey on the ground that the pre-notification letter “poisoned the well in such a way as to invalidate whatever survey finding the FTC obtained” and argued that the manner in which the survey was conducted rendered the results unreliable. The court found that the survey was performed under accepted principles used by experts in the field and was admissible.

The court granted summary judgment for the FTC , finding that the defendants made material misrepresentations that were either false or unsubstantiated. The court pointed out that the materials provided by the defendants to consumers taught consumers how to purchase tax liens and certificates, but these purchasers do not obtain title to the property and thus were not “purchasing” the homes as the advertising materials stated.

The court also granted summary judgment on the Telemarketing Sales Rule allegations. The basis of the defendants’ argument was that the violations were isolated and should not be the basis for liability. The court found that there was no dispute that the defendants’ telemarketers repeatedly initiated calls to consumers who asked the defendants not to contact them. The FTC also produced “overwhelming” evidence that the defendants lacked a meaningful compliance program or any written procedures in place to comply with the regulations.

Jeffrey Klurfeld, director of the FTC’s Western Region, stated in a press release that “This huge judgment serves notice to anyone thinking of using phony get-rich-quick schemes to defraud consumers. The FTC will come after you if you violate the law.”

In this case, the FTC had already completed its surveys when it went to court. Trial judges will often be very impressed with FTC surveys and will grant judgment to the agency in nearly every case. Therefore, it is critical that a company that is being targeted by the FTC obtain counsel at the earliest possible stage, before the agency files anything in court. Counsel should be ready to vigorously defend the client’s marketing practices with techniques such as the use of countersurveys and customer testimonials and expert testimony, before the FTC files in court.

© 2012 Ifrah PLLC

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

Cyber Attacks Hit Major Banks. Is Your Business Next?

Roy E. Hadley, Jr. and Joan L. Long of Barnes & Thornburg LLP recently had an article regarding Cyber Attacks published in The National Law Review:

Over the past week, several websites belonging to some of the largest banks in the country have been hacked in what experts are calling one of the “biggest cyber attacks they’ve ever seen.” As this CNN Money article points out, the websites “have all suffered day-long slowdowns and been sporadically unreachable for many customers.”

According to security experts, the “denial of service” attacks, which began on Sept. 19, are the largest ever recorded.

For all businesses, denial of service attacks are a growing and more menacing threat.  Your customers can’t access your website and can’t buy your goods and services. This can be catastrophic to your company. So the question remains: What have you done to protect your business?

The CNN Money article can be read in its entirety clicking on the link below.

CNN Money – “Major banks hit with biggest cyberattacks in history”

© 2012 BARNES & THORNBURG LLP

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.