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.

Court Strikes Down EPA Overreaching – Again

An article by Robert M. Stonestreet of Dinsmore & Shohl LLP regarding the EPA recently appeared in The National Law Review:

 

For the third time in the past 10 months, a federal court has declared that the Environmental Protection Agency (EPA) has violated the law through its efforts to impose additional restrictions on coal operations in the Appalachian States. On July 31, 2012, the federal District Court for the District of Columbia struck down EPA’s “guidance memorandum” for coal-related water permitting actions. The guidance purports to establish a number of “recommendations” and “suggestions” for the Corps of Engineers and State agencies like the West Virginia Department of Environmental Protection (WVDEP) to “consider” when processing applications for mining related permits. One of the recommendations is that permits should place limitations on conductivity levels in discharges from mining operations to ensure compliance with “narrative water quality standards,” such as the requirement that discharges into State waters do not cause a “significant adverse impact” to aquatic ecosystems. Conductivity is a measurement of how well water conducts electricity and is considered to be a rough surrogate for the concentration of total dissolved solids (TDS) present in water. Neither EPA nor the Appalachian States have adopted a water quality standard for conductivity. Nonetheless, for more than two years the State agencies have been effectively prevented from issuing new water discharge permits for mining-related projects unless they included conditions that implemented the views expressed in EPA’s “guidance.”

The National Mining Association and the States of West Virginia and Kentucky sued EPA on the grounds that EPA’s “suggestions” and “recommendations” were effectively binding obligations, and therefore constituted a rulemaking action that EPA undertook without following the procedures required by law for issuing new regulations. U. S. District Court Judge Reggie Walton agreed. “Review of the Final Guidance itself and of the post-implementation evidence before the Court makes clear that the Final Guidance, whether intentionally or not, has caused EPA field offices and the State permitting authorities to believe that permits should and will be denied if its ‘suggestions’ and ‘recommendations’ are not satisfied.” Judge Walton further found that the guidance improperly interjected EPA into the permitting process for “dredge and fill” permits issued by the Army Corps of Engineers under Section 404 of the Clean Water Act, as well as the mining-related permits issued by State agencies like WVDEP, which have obtained federal approval to administer those permitting programs.

Judge Walton’s decision invalidating EPA’s guidance is only the latest in a string of court defeats for the EPA. In October 2011, as part of the same lawsuit, Judge Walton declared that EPA’s efforts to develop a new procedure for processing and evaluating “dredge and fill” permit applications for coal mining projects in Appalachia exceeded EPA’s authority under the Clean Water Act. Following that decision, federal Judge Amy Berman Jackson, an Obama appointee, ruled on March 23, 2012 that EPA violated the Clean Water Act in January 2011 by attempting to retroactively “veto” a permit that was granted to Mingo Logan Coal Company in January 2007.

What does this latest decision mean for the coal industry in West Virginia?

The upshot is an affirmation that the Corps of Engineers and WVDEP are the lead regulatory agencies responsible for determining the terms of mining-related permits. More importantly, Judge Walton’s decision invalidating EPA’s guidance should mean that WVDEP is free to interpret and apply West Virginia law to determine the appropriate terms to include in mining-related permits, including what requirements are necessary to ensure compliance with West Virginia’s narrative water quality standards. Earlier this year, the West Virginia Legislature passed a bill making clear that WVDEP has the authority to interpret and apply those standards, and established a number of specific factors for WVDEP to consider. Through its guidance, EPA had effectively arrogated to itself the role of interpreting and applying the narrative water quality standards in West Virginia and the other Appalachian States.

The practical effect of the decision may be negligible, or at least short-lived. EPA has a right to review and comment on all proposed water discharge permits issued by WVDEP. EPA can formally object to those permits, and if the grounds for those objections are not resolved to its satisfaction, EPA can prevent WVDEP from issuing the permits. EPA could undertake the required rulemaking process to formally implement the invalidated guidance. EPA is also in the process of developing a water quality standard for conductivity that could potentially be forced on the States. That would present a substantial regulatory burden on all West Virginia businesses because virtually all industrial discharges, particularly from publicly owned water treatment plants and any activity entailing even temporary earth disturbance, have conductivity levels in excess of background levels, and treatment is very expensive. Right now, EPA’s focus is on the coal industry. But other industries beware. You could be next.

© 2012 Dinsmore & Shohl 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:

New York Enhances Employee and Consumer Privacy Rights Under its Social Security Number Protection Law

Four years ago, New York enacted a Social Security Number Protection Law, N.Y. Gen. Bus. Law, §399-dd, aimed at combating identity theft by requiring employers to better safeguard employee social security numbers in their possession.  (Click here for our summary of the law).  Now, New York is going one step further with its passage of two new Social Security Number Protection laws.

First a note: as of November 12, 2012, §399-dd – the original Social Security Protection Law – will be re-codified as new §399-ddd, and it will also add the statutory language of the first of these two new laws, which prohibits employers from hiring inmates for any job that would provide them with access to social security numbers of other individuals.

The second law, which is codified as a separate new §399-ddd, enhances the requirements for safeguarding employee social security number while also adding similar protections for consumers.  This law prohibits companies from requiring employees and consumers to disclose their social security numbers or to refuse any service, privilege or right to the employee or customer for refusing to make that disclosure, unless (i) required by law, (ii) subject to one of its many exceptions, or (iii) encrypted by the employer.  This law also applies to any numbers derived from the individual’s social security number, which means that it extends, for example, to situations where the company asks the individual for the last four digits of their number.  It is unclear whether this law will prove effective in accomplishing its objectives.

First, it contains an exception with the potential to swallow the rule – where the individual consents to the use of the social security number, which many individuals may freely provide absent knowledge of this law’s protections.  Even with an employee’s consent, however, employers must still be mindful that other provisions of the original Social Security Number Protection Law requires them to institute certain safeguards to protect against the number’s disclosure.  And further, even if the employer obtains the employee’s consent, the original law still prohibits employers from utilizing an employee’s social security account number on any card or tag required for the individual to access products, services or benefits provided by the employer.

Second, the penalties for violations are minimal – up to $500 for the first violation and $1,000 for each violation thereafter, and can be avoided where the employer shows the violation was unintentional and occurred notwithstanding the existence of procedures designed to avoid such violations.  Further, there is no private right of action, and only the Attorney General can enforce the law.

Governor Cuomo signed the acts into law on August 14, 2012.  The inmate law will take effect on November 12, 2012 and the disclosure law will take effect thirty days later on December 12, 2012.  Now if he would only sign the recently passed wage deduction law.

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

Retail Law Conference 2012

The National Law Review is pleased to bring you information about the upcoming Retail Law Conference:

at the Westin Galleria in Dallas, Texas

November 7-9, 2012

This event is the perfect opportunity to discuss the latest issues affecting the retail industry while obtaining important continuing legal education (CLE) credits.

Open to retail and consumer product general counsel, senior legal executives and in-house attorneys and their teams, the exceptional dialogue presented at this conference will help your organization navigate the current legal landscape of the industry.

How Many Calories is in that Burger? PPACA Makes Sure you know.

The National Law Review recently published an article by Molly Nicole Lewis of McBrayer, McGinnis, Leslie and Kirkland, PLLC regarding The Food Industry and The Patient Protection and Affordable Healthcare Act:

 

We all occasionally grab a quick bite on the go. With fall in full swing, and our schedules filling up, it is much more tempting to drive through and pick up dinner rather than slaving over the stove after a non-stop day. Consider this:  What if the menu was labeled with calorie information and you could see that the Hardee’s Thickburger you wanted to order contained 910 calories.  A healthy caloric intake for an average person is 2000 calories per day – that’s also stated on the menu.  The burger just became ½ of your daily allotment of calories. That information would definitely prompt anyone to reconsider their choices.

Menu labeling, as outlined in the Patient Protection and Affordable Health Care Act (PPACA), might actually change the way we eat, when we eat out!  That is exactly what the National Restaurant Association and the National Association of Convenience Stores is grappling with.  In the wake of the Supreme Court upholding the PPACA, it is not just the medical and insurance communities buzzing. The food industry is wadding through their own set of new rules regarding how they present their product and interact with consumers.

As outlined in Section 4205, nutritional menu labeling is required for chain restaurants across the country. The provisions include labeling requirements for restaurants and food vendors, with 20 or more outlets. Calories have to be posted on menus and menu boards, including drive-thru menus. Display tags with additional information, including fat, saturated fat, carbohydrates, sodium protein, and fiber must be available in writing, upon request. Vending machine companies that operate at least 20 machines are also subject to these requirements. For buffet-style or self-serve restaurants, a sign must be placed adjacent to each food and beverage item listing calories per item or serving.  There are some exceptions that will not require calorie disclosure. Items not listed on the menu such as condiments, daily specials or temporary offerings. If an item appears on the menu less than 60 days per calendar year, or a test market items appears on a menu for less than 90 days, they are both exempt.

The Food and Drug Administration (FDA) considered Section 4205 effective immediately. However, without detailed guidance from the FDA, these provisions cannot be required.  The final FDA regulations are expected by the end of 2012.  Industry implementation would become effective six months after publication, in early 2013.  If a restaurant that is not required to comply with Section 4205, voluntarily registers with the FDA and follows the federal disclosure guidelines, they are not subject to any state or local nutrition disclosure requirements.

There is more at stake here then complying with disclosure regulations. For owners and operators in the food industry there are real costs to be considered. The new menu requirements alone will demand printing new menus and menu boards. Nutritional analysis may have to be performed to accurately report the information to the consumer. All of these added expenses could mean thousands in unbudgeted expenditures, and will result in consumer behavioral changes where the full financial impact cannot be determined – until after the fact.

It is interesting to contemplate how each of us will react to menu labeling. Will it help change the health of our country? The jury’s still out, but we are eagerly anticipating the verdict.

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

Rainmaker Institutes’s Top Ten Marketing Mistakes

The National Law Review is pleased to bring you information regarding The Rainmaker Institute’s Top Ten Marketing Marketing Mistakes:

 

Here’s What You’ll Discover When You Read This Free E-book:

♦ How to avoid the top 10 marketing mistakes before they destroy your practice

♦ 3 tools top Rainmakers useto automatically attract more and better clients

♦ Specific keys for building a powerful online presence

♦ How to market and position yourself as a recognized specialist

♦ The 1 thing you must never do when marketing your law firm

♦ The top 2 online resources for small and solo law firm marketing

♦ The advertising secrets they don’t want you to know

♦ …And much, much more!

D.C. Circuit Court Vacates EPA’s Cross-State Emissions Rule

GT Law

In a 2-1 decision issued today, the U.S. Court of Appeals for the District of Columbia Circuit ruled in EME Homer City Generation, L.P v. EPA, that the U.S. Environmental Protection Agency exceeded its statutory authority in adopting the Cross State Air Pollution Rule (CSAPR or Transport Rule).  The D.C. Circuit found that EPA’s Transport Rule exceeded the agency’s authority on 2 separate grounds, both of which violated the Clean Air Act and required that the Rule be vacated.

Led by Texas, various States, local governments, industry groups and labor organizations had challenged the Rule, which was a significant air policy regulation of the Obama administration.  Acknowledging the complexity of the facts,  Judge Brett Kavanaugh, writing for the majority, noted that “the legal principles that govern this case are straightforward : Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority.” The Court went on to note that its decision should not be viewed as a comment on the Rule’s wisdom or underlying merits but rather “to ensure that the agency stays within the boundaries Congress has set.”

©2012 Greenberg Traurig, LLP

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

Crop Insurance Will Pay On Drought-damaged Crops

Aaron M. Phelps of Varnum LLP recently had an article regarding The 2012 Drought published in The National Law Review:

Varnum LLP

 

Victims of drought might be eligible for crop insurance indemnity payments if they take the right steps. According to Jan Eliassen – a private risk management education consultant for the crop insurance industry, USDA’s Risk Management Agency and several state departments of agriculture – policyholders should contact the crop insurance company that sold the policy before putting their crop acres to another use by harvesting for silage, diverting irrigation from the crops or by abandoning the acres.

Producers should give damage notice within 72 hours of discovering the damage, which can be tricky when damage is due to developing drought, Eliassen said. Producers must provide the damage notice no later than 15 days after the end of the insurance period, even if the crop has not been harvested.

It’s very important to work closely with the company before making any changes to the crop, Eliassen said. The company must appraise and release the acres before the crop is destroyed or abandoned. Producers also must continue to care for and maintain crops that have been damaged and will be taken to harvest. But how much maintenance is required in such cases? Producers are required to continue to care for the crop using generally recognized practices. They are encouraged to seek advice from agriculture experts in the area as to what that entails.

© 2012 Varnum LLP

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)