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.

Privacy Funny

The National Law Review is pleased to bring you this funny brought to our attention by Cynthia LaRose of Mintz, Levin, Cohn, Ferris, Clovsky, and Popeo PC:

 

 

Negotiating Business Acquisitions Conference – November 1-2, 2012

The National Law Review is pleased to bring you information regarding the upcoming ABA Conference on Business Acquisition Negotiations:

When

November 01 – 02, 2012

Where

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

Restrictions on Digital Billboards Are Valid Under the First Amendment

Varnum LLP

A municipal zoning ordinance that restricts the placement of digital billboards does not violate an advertiser’s right to free speech, according to a recent decision  by the U.S. District Court for the Western District of Michigan in Hucul Advertising, LLC v. Charter Township of Gaines, No. 1:11-cv-682 (Bell, J.).  The lawsuit follows an earlier, unsuccessful lawsuit by Hucul against the Township that was the subject of an earlier blog post.

The case involves the outdoor advertising company’s challenge of a Township ordinance under the First Amendment to the U.S. Constitution.  The ordinance requires that billboards be placed next to a local highway and that digital billboards be placed more than 4,000 feet apart from one another.  Hucul filed the lawsuit after the Township denied the company’s application to erect digital billboards that did not conform with the ordinance.

In granting summary judgment for the Township, the Court explained that a municipality may place valid limits on the “time, place, and manner” of speech provided:

(1) that they are justified without reference to the content of the regulated speech, (2) that they are narrowly tailored, (3) to serve a significant governmental interest, and (4) that they leave open ample alternative channels for communication of the information.

Applying this test, the Court found that the restrictions in the ordinance were valid.  The ordinance: (1) did not distinguish between commercial and non-commercial speech; (2) was “content neutral”—i.e. they didn’t depend on the message being displayed on the billboard; (3) furthered the Township’s interest in traffic safety and community aesthetics; and (4) was a reasonable fit with the Township’s goals.  Further, the Court emphasized the fact that the ordinance did not restrict Hucul from communicating its speech through alternate channels.

© 2012 Varnum LLP

NLR 2011 Law Student Writing Competition

The National Law Review would like to remind you of the Winter Law Student Writing Contest deadline is November 21st!

The National Law Review (NLR) consolidates practice-oriented legal analysis from a variety of sources for easy access by lawyers, paralegals, law students, business executives, insurance professionals, accountants, compliance officers, human resource managers, and other professionals who wish to better understand specific legal issues relevant to their work.

The NLR Law Student Writing Competition offers law students the opportunity to submit articles for publication consideration on the NLR Web site.  No entry fee is required. Applicants can submit an unlimited number of entries each month.

  • Winning submissions will initially be published online in November and December 2011.
  • In each of these months, entries will be judged and the top two to four articles chosen will be featured on the NLR homepage for a month.  Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
  • Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
  • All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).

In addition, the NLR sends links to targeted articles to specific professional groups via e-mail. The NLR also posts links to selected articles on the “Legal Issues” or “Research” sections of various professional organizations’ Web sites. (NLR, at its sole discretion, maydistribute any winning entry in such a manner, but does not make any such guarantees nor does NLR represent that this is part of the prize package.)

Why Students Should Submit Articles:

  • Students have the opportunity to publicly display their legal knowledge and skills.
  • The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
  • Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
  • Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters, law firm blogs, bar association journals and trade association publications.
  • Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
  • For an example of  a contest winning student written article from Northwestern University, please click here or please review the winning submissions from Spring 2011.

Content Guidelines and Deadlines

Content Guidelines must be followed by all entrants to qualify. It is recommended that articles address the following monthly topic areas:

Articles covering current issues related to other areas of the law may also be submitted. Entries must be submitted via email to lawschools@natlawreview.com by 5:00 pm Central Standard Time on the dates indicated above.

Articles will be judged by NLR staff members on the basis of readability, clarity, organization, and timeliness. Tone should be authoritative, but not overly formal. Ideally, articles should be straightforward and practical, containing useful information of interest to legal and business professionals. Judges reserve the right not to award any prizes if it is determined that no entries merit selection for publication by NLR. All judges’ decisions are final. All submissions are subject to the NLR’s Terms of Use.

Students are not required to transfer copyright ownership of their winning articles to the NLR. However, all articles submitted must be clearly identified with any applicable copyright or other proprietary notices. The NLR will accept articles previously published by another publication, provided the author has the authority to grant the right to publish it on the NLR site. Do not submit any material that infringes upon the intellectual property or privacy rights of any third party, including a third party’s unlicensed copyrighted work.

Manuscript Requirements

  • Format – HTML (preferred) or Microsoft® Word
  • Length – Articles should be no more than 5,500 words, including endnotes.
  • Endnotes and citations – Any citations should be in endnote form and listed at the end of the article. Unreported cases should include docket number and court. Authors are responsible for the accuracy and proper format of related cites. In general, follow the Bluebook. Limit the number of endnotes to only those most essential. Authors are responsible for accuracy of all quoted material.
  • Author Biography/Law School Information –Please submit the following:
    1. Full name of author (First Middle Last)
    2. Contact information for author, including e-mail address and phone number
    3. Author photo (recommended but optional) in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 150 x 200 pixels.
    4. A brief professional biography of the author, running approximately 100 words or 1,200 characters including spaces.
    5. The law school’s logo in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 300 pixels high or 300 pixels wide.
    6. The law school mailing address, main phone number, contact e-mail address, school Web site address, and a brief description of the law school, running no more than 125 words or 2,100 characters including spaces.

To enter, an applicant and any co-authors must be enrolled in an accredited law school within the fifty United States. Employees of The National Law Review are not eligible. Entries must include ALL information listed above to be considered and must be submitted to the National Law Review at lawschools@natlawreview.com. 

Any entry which does not meet the requirements and deadlines outlined herein will be disqualified from the competition. Winners will be notified via e-mail and/or telephone call at least one day prior to publication. Winners will be publicly announced on the NLR home page and via other media.  All prizes are contingent on recipient signing an Affidavit of Eligibility, Publicity Release and Liability Waiver. The National Law Review 2011 Law Student Writing Competition is sponsored by The National Law Forum, LLC, d/b/a The National Law Review, 4700 Gilbert, Suite 47 (#230), Western Springs, IL 60558, 708-357-3317. This contest is void where prohibited by law. All entries must be submitted in accordance with The National Law Review Contributor Guidelines per the terms of the contest rules. A list of winners may be obtained by writing to the address listed above. There is no fee to enter this contest.

Congratulations to our Spring 2011 Law Student Writing Contest Winners!

Spring 2011:

Another Hurdle for GHG Suits as Ninth Circuit Affirms District Court Ruling in Kivalina v. ExxonMobil

The National Law Review recently featured an article by Xiaorong Jajah Wu and Jane E. Montgomery of Schiff Hardin LLP regarding GHG Suits:

 

In a unanimous decision last week, the Ninth Circuit Court of Appeals ruled that federal common law public nuisance claims regarding domestic greenhouse gas emissions have been displaced by the Clean Air Act (“CAA”) and the United States Environmental Protection Agency (“USEPA”) action the CAA authorizes. Native Vill. of Kivalina v. ExxonMobil Corp., 09-17490, 2012 WL 4215921 (9th Cir. Sept. 21, 2012).

On February 28, 2008, the Village sued ExxonMobil Corporation in federal court along with eight other oil companies, fourteen power companies, and one coal company. The suit was based on, among other things, the federal common law theory of public nuisance. The Village alleged that the companies named in the suit are substantial contributors to global warming because of their high volume of greenhouse gas emissions, and that the Village was directly harmed by global warming because the melting of sea ice exposed the Village to erosive coastal storms. The Village sought monetary damages for the defendants’ contributions to global warming. The district court dismissed the case, holding that (1) the political question doctrine precluded judicial consideration of the Village’s federal public nuisance claims and (2) the Village lacked standing under Article III. Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 868 (N.D. Cal. 2009).

The Ninth Circuit affirmed the dismissal on the grounds that the Village had failed to satisfy the threshold question of whether or not legislative action has displaced the theory of public nuisance under federal common law. The court stated that “[i]f Congress has addressed a federal issue by statute, then there is no gap for federal common law to fill.” Relying heavily on the recent Supreme Court ruling in American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), the court held that, because the CAA already “provides a means to seek limits on emissions of carbon dioxide from domestic power plants . . . [the CAA and] the EPA actions it authorizes displace any federal common law right” the Village might have to seek damages based on federal common law nuisance. The Ninth Circuit also refused to allow the absence of a damages remedy under the CAA in this case to revive the federal common law damages action. In its decision, the appeals court declined to discuss the issues of political question or standing. The ruling poses another hurdle for greenhouse gas suits based on the theory of public nuisance. At least in the Ninth Circuit, federal common law suits based on transboundary pollution claims against greenhouse gas emitters are now foreclosed. Further, the decision provides additional backing to USEPA to implement the suite of rules regulating GHG emissions pursuant to the CAA.

While the Ninth Circuit backed USEPA’s authority to address global warming through the CAA, the Republican-controlled House passed a deregulatory bill on the same day titled “Stop the War on Coal Act of 2012” (H.R. 3409). The proposed bill would prevent USEPA from enforcing its recent GHG regulations and require the agency to consider the costs and economic impacts of certain regulations. However, the future of the bill is uncertain because the Obama administration has issued a veto threat (182 DEN A-11, 9/20/12), and it is unlikely to move through the Democratic-controlled Senate. Future actions to address these issues are unlikely until after the November elections. Text of the Stop the War on Coal Act of 2012 (H.R. 3409) is available here

Details on each of the amendments to the bill are available here and by clicking on “Amendments” tab.

© 2012 Schiff Hardin LLP

Rainmaker Retreat: Law Firm Marketing Boot Camp

The National Law Review is pleased to bring you information about the upcoming Law Firm Marketing Boot Camp:

WHY SHOULD YOU ATTEND?

Have you ever gone to a seminar that left you feeling motivated, but you walked out with little more than a good feeling? Or taken a workshop that was great on style, but short on substance?

Ever been to an event that was nothing more than a “pitch fest” that left a bad taste in your mouth? We know exactly how you feel. We have all been to those kinds of events and we hate all those things too. Let me tell you right up front this is not a “pitch fest” where speaker after speaker gets up only trying to sell you something.

We have designed this 2 day intensive workshop to be content rich, loaded with practical content.

We are so confident you will love the Rainmaker Retreat that we offer a 100% unconditional money-back guarantee! At the end of the first day of the Rainmaker Retreat if you don’t believe you have already received your money’s worth, simply tell one of the staff, return your 70-page workbook and the CD set you received and we will issue you a 100% refund.

We understand making the decision to attend an intensive 2-day workshop is a tough decision. Not only do you have to take a day off work (all Rainmaker Retreats are offered only on a Friday-Saturday), but in many cases you have to travel to the event. As a business owner you want to be sure this is a worthwhile investment of your time and money.

WHO SHOULD ATTEND?

Partners at Small Law Firms (less than 25 attorneys) Solo Practitioners and Of Counsel attorneys who are committed to growing their firm. Benefits you will receive:

Solo practitioners who need to find more clients fast on a shoe-string budget. In addition to all the above benefits, solo attorneys will receive these massive benefits:

Law Firm Business Managers and Internal Legal Marketing Staff who are either responsible for marketing the law firm or manage the team who handles the law firm’s marketing. In addition to all the above benefits, Law Firm Business Managers and Internal Legal Marketing Staff will also receive these benefits:

Of Counsel Attorneys who are paid on an “eat what you kill” basis. In addition to all the above benefits, Of Counsel attorneys will also receive these benefits:

Associates who are either looking to grow their book of new clients in the next 6-12 months or want to launch their own private practice. In addition to all the above benefits, Associates will also receive these benefits:

Quality Stores Decision Could Lead to Significant Refunds of FICA Tax

The U.S. Court of Appeals for the Sixth Circuit recently held that certain dismissal payments were Supplemental Unemployment Compensation Benefits (SUB) exempt from FICA taxes—a clear split with the U.S. Court of Appeals for the Federal Circuit’s decision in line with an Internal Revenue Service (IRS) Revenue Ruling that significantly narrowed the criteria for determining whether certain separation payments qualify as SUB pay.  For employers that have made significant reductions in force payments in open years, the Quality Stores decision could lead to significant refunds of FICA tax.

In a long-awaited decision, the U.S. Court of Appeals for the Sixth Circuit held inUnited States v. Quality Stores, Inc., September 7, 2012, that certain dismissal payments were Supplemental Unemployment Compensation Benefits (SUB) exemptfrom FICA taxes.  This decision creates a clear split with the U.S. Court of Appeals for the Federal Circuit’s decision in CSX Corporation v. United States (518 F.3d 1328 (Fed. Cir. 2008)), which followed an Internal Revenue Service (IRS) Revenue Ruling that significantly narrowed the criteria for determining whether certain separation payments qualify as SUB pay.  For certain employers that have made significant reductions in force payments in open years, the Quality Stores decision could lead to significant refunds of FICA tax.

The Ruling

The Internal Revenue Code excludes any SUB payments to employees from the definition of “wages” for federal income tax purposes.  The statute essentially sets forth two requirements in order for severance or dismissal payments to constitute SUB pay.  The amounts must be paid to an employee:

  • Because of an employee’s involuntary separation from employment
  • Resulting directly from a reduction in force, the discontinuance of a plant or other similar conditions (IRC §3402(o)(2)(A).)

Based on the Sixth Circuit decision in Quality Stores, and the reasoning of the lower court decision in CSX (reversed by the Federal Circuit), it could be argued that these are the sole criteria to also exempt such payments from FICA and FUTA taxes.  However, the IRS in Rev. Rul. 90-72 (1990-2 C.B. 211) significantly narrowed the criteria for determining whether such payments will qualify as FICA/FUTA-exempt payments.  The IRS requires that separation payments not be made as a lump sum, that they be specifically designed to supplement state unemployment benefits and that the individual satisfies the requirements to receive state unemployment benefits.

The Sixth Circuit disagreed with the Federal Circuit, concluding:

“While the Supreme Court may ultimately provide us with the correct resolution of these difficult issues under the law as it currently stands, only Congress can clarify the statutes concerning the imposition of FICA tax on SUB payments.  Our role is to interpret the statutory law as it presently exists, and we have done that today.”

In a series of informal remarks on September 14, 2012, at the American Bar Association’s Section of Taxation Joint Fall CLE Meeting, a knowledgeable spokesperson from the IRS Office of Chief Counsel advised that, outside of the Sixth Circuit, the IRS maintains its previous position under Rev. Rul. 90-72 regarding the employment tax treatment of SUB pay.  The IRS is still deciding whether to seek a rehearing by the Sixth Circuit, or to request certiorari to the Supreme Court in response to the recent decision in Quality Stores.

Consider Filing a Protective Claim Now to Preserve Refund Opportunity

Although filing a complete refund claim can be burdensome from an administrative perspective, it is relatively easy for an employer to file a protective claim to preserve the statute of limitations on employment tax refund claims for open years and later file a supplementary claim with necessary employee consents and exact calculations.  The due date for the protective claim is three years from April 15 of the calendar following the year in which the severance payments were made.  For example, for FICA taxes paid in 2009, a protective claim should be filed by April 15, 2013.

To preserve the statute for FICA refund claims already disallowed by the IRS (many have simply been held in abeyance by IRS), made in prior years, employers need to review the dates for the IRS notices of disallowance carefully, in order to ensure they preserve the period to bring a suit for refund against the IRS.

Continue Withholding FICA Taxes

Until this controversy is resolved, employers are advised to continue withholding FICA taxes on separation payments made in connection with the present or future involuntary termination of employees, which do not meet the strict Rev. Rul 90-72 definition for exemption.

© 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

Apple Shareholders Request Information From Board on Privacy/Security Risk

The National Law Review recently published an article, Apple Shareholders Request Information From Board on Privacy/Security Risk, by Amy Malone of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.:

 

This week, Apple shareholders requested that its Board of Directors publish a report explaining how the board oversees privacy and data security risks.  The proposal, which is available here, was prompted by concern that recent issues such as the unauthorized access to iPhone users’ address books and the release of one million Unique Device IDs could place the company’s growth opportunities at risk.

The shareholder proposal references a recent study conducted by Carnegie Mellon University’s Cylab that made various recommendations to boards including, annual reviews of privacy and security programs to gage effectiveness and identify gaps and requiring regular privacy and security reports from management.   The interest in privacy and security as risk management issues at both the shareholder and board level is increasing. A recent study conducted by Corporate Board Member & FTI Consulting, Inc. surveyed 11,340 corporate directors and 1,957 general counsel regarding legal risks on their radar.  For the first time in the 12 years since the study has been conducted, data security was noted as the most prevalent concern among both directors (48 percent) and general counsel (55 percent). This level of concern has almost doubled in the last four years. For instance, in 2008, only 25 percent of directors and 23 percent of general counsel identified data security as an area of great concern.  Moreover, 33 percent of general counsel surveyed believe their board is not effective at managing cyber risk. This is one of the lowest ratings among the 13 risk management areas surveyed.

When asked whether their company had a plan in place to manage a data breach should one occur, only 42 percent of directors said their company had a formal Incident Response Plan. Twenty-seven percent responded that their company had no such plan and 31 percent were uncertain.  Despite acknowledging such unpreparedness, 77 percent of directors and general counsel still believe their company is prepared to handle a data breach. There is a serious concern, however, given the disconnect between having written response plans and the perception of preparedness.   Apple shareholders are recognizing that disconnect and apparently want to ensure that its Board has adequately addressed it.  The proposal will be voted on at Apple’s 2013 Annual Meeting.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Consumer Financial Services Basics – ABA Conference

The National Law Review is pleased to bring you information regarding the upcoming Consumer Financial Services Basics Conference sponsored by the ABA:

When

October 08 – 09, 2012

Where

American University

Washington College of Law

Washington, DC

Program Description

Facing the most comprehensive revision of federal consumer financial services (CFS) law in 75 years, even experienced consumer finance lawyers might feel it is time to get back in the classroom. This live meeting is designed to expose practitioners to key areas of consumer financial services law, whether you need a primer or a refresher.It is time to take a step back and think through some of these complex issues with a faculty that combines decades of practical experience with law school analysis. The classroom approach is used to review the background, assess the current policy factors, step into the shoes of regulators, and develop an approach that can be used to interpret and evaluate the scores of laws and regulations that affect your clients.Program FocusThis program will explain each of the major sources of regulation of consumer financial products in the context of the regulatory techniques and policies that are the common threads in a complex pattern, including:

  • Price regulation and federal preemption of state price limitations
  • Truth in lending and disclosure requirements
  • Marketing, advertising and unfair or deceptive conduct
  • Account servicing and collections
  • Regulating the “fairness” of financial institution conduct
  • Data security, fraud prevention and identity protection
  • Consumer reporting: FCRA & FACT Act
  • Fair lending and fair access to financial services
  • Remedies: regulators and private plaintiffs
  • Regulatory and legislative priorities for 2012 and beyond

Who Should Attend…The learning curve for private practitioners, in-house lawyers and government attorneys to understand the basics and changes to CFS law is very steep. This program is a great way to jump up that curve for:

  • Private practitioners with 1-10 years of experience who focus on CFS products or providers
  • In-house counsel at financial institutions and non-bank lenders
  • Government attorneys, in financial practices regulatory agencies
  • Compliance officers (who may be, but need not be, attorneys)