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.

Another Loss for the Robinson-Patman Act

The National Law Review recently published an article by Harvey Saferstein, Bruce D. Sokler, Nada I. Shamonki, and Robert G. Kidwell of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., regarding the Robinson-Patman Act:

In Drug Mart Pharmacy Corp. v. American Home Products Corp., 2012 U.S. Dist. LEXIS 11582 (E.D.N.Y. Aug. 16, 2012), Magistrate Judge Steven M. Gold gave the Robinson-Patman Act another drubbing. He granted summary judgment for the defendants in this complex, long pending antitrust litigation between retail pharmacies and various pharmaceutical companies.

Numerous independently owned retail pharmacies claimed that five manufacturers of brand name prescription drugs offered discounts and rebates to their competitors in violation of the Robinson-Patman Act prohibition on price discrimination. In order to establish their losses, the pharmacies set out to compare their customers with the customers of favored pharmacies for the brand name prescription drugs in question. The “matching” process showed a very low number of lost customers. On average, each plaintiff pharmacy lost less than 200 customers and 537 transactions over the entire period examined—a 12-year time frame from 1998 to 2010.

Magistrate Judge Gold characterized these results as “de minimis.” “Many pharmacies lost no more than ten customers per defendant over the relevant twelve-year time period, or less than one customer per year.”

Accordingly, Judge Gold held summary judgment was appropriate—especially in light of the Supreme Court’s admonition in Volvo Trucks N. Am, Inc. v. Reeder-Simco GMC, Inc., to construct the Robinson-Patman Act narrowly. With that view in mind, the court concluded that plaintiffs could not show competitive injury required by Section 2(a) of the Robinson-Patman Act. Moreover, the same de minimis impact made it impossible for plaintiffs to demonstrate antitrust injury.

Despite the existence of a price disparity in drug prices, the plaintiffs were not able to show any real consequences in their business or as a matter of antitrust competitive injury. This doomed their Robinson-Patman claims.

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

IP Law Summit – September 13-15, 2012

The National Law Review is pleased to bring you information about the upcoming IP Law Summit:

The IP Law Summit will highlight the current challenges and opportunities through visionary conference sessions and keynote presentations delivered by your most esteemed peers and thought leaders from Americas leading corporations. The one-on-one meetings with leading service providers will offer vast expertise in the area of intellectual property law. All this, seamlessly integrated with informal networking opportunities over three days, will provide a unique interactive forum. Do not miss this opportunity to network, establish new connections, exchange ideas and gain knowledge.

Michigan’s Homestead-Exemption Law for Bankruptcy Debtors Upheld

The National Law Review recently published an article, Michigan’s Homestead-Exemption Law for Bankruptcy Debtors Upheld, by Stephen F. MacGuidwin of Varnum LLP:

Varnum LLP

A Michigan law that allows bankruptcy debtors to exempt up to $45,000 of the value of their home is valid under the U.S. Constitution, according to the recent decision of the U.S. Court of Appeals for the Sixth Circuit in Richardson v. Schafer (In re: Schafer), — F.3d—-, 2012 WL 3553294 (6th Cir. 2012).   The decision resolves a split of authority that had developed between different decisions in the U.S. Bankruptcy Court for the Western District of Michigan.

Michigan law, as the Court explained, allows a debtor to choose her list of property exemptions from three sources:  the federal Bankruptcy Code, 11 U.S.C. § 522(d); a Michigan law applicable only to bankruptcy debtors, M.C.L. § 600.5451; or (3) a Michigan law that applies to all Michigan residents (regardless of bankruptcy status), M.C.L. § 600.6023.  As far as exempting the equity in a homestead, the Michigan law for bankruptcy debtors is the most generous, protecting up to $30,000 of the value of his homestead (or up to $45,000 if the debtors is disabled or at least 65 years old).  This is significantly more than what is protected under the Bankruptcy Code ($21,625) or the Michigan general exemptions statute ($3,500).

In Schafer, the bankruptcy trustee challenged the $35,000 homestead exemption, arguing that the Michigan statute was unconstitutional under the Bankruptcy Clause and the Supremacy Clause of the U.S. Constitution.  The bankruptcy court held that the statute was constitutional, but the U.S. Bankruptcy Appellate Panel of the Sixth Circuit reversed.

On appeal, the Sixth Circuit agreed with the State of Michigan, holding that the Michigan law did not violate the Bankruptcy Clause or the Supremacy Clause:

  • The Court rejected the argument that the Bankruptcy Clause endowed Congress with the exclusive authority to pass bankruptcy laws, reaffirming the concurrent authority shared between state and federal legislatures to promulgate bankruptcy laws.  Where state laws are inconsistent with federal bankruptcy laws, the Supremacy Clause and pre-emption doctrines will invalidate those state laws.
  • The Court held that the Michigan act does not violate the “uniform Laws” phrase in the Bankruptcy Clause.  Assuming that the phrase applies to state laws (and not just federal laws), the Michigan act operates uniformly because it provides a uniform process (as opposed to a uniform outcome).
  • Third, the Michigan act does not violate the Supremacy Clause, because there is no actual conflict between it and the Bankruptcy Code, because field pre-emption does not apply in the area of bankruptcy exemptions, and because the Michigan act “actually furthers, rather than frustrates, national bankruptcy policy.”

© 2012 Varnum 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

Mandatory Paid Sick Leave: Employers Bracing for November Ballot Initiative in Orange County

The National Law Review recently published an article regarding Mandatory Paid Sick Leave, by Rachel D. Gebaide and Melody B. Lynch of Lowndes, Drosdick, Doster, Kantor & Reed, P.A.:

Citizens for Greater Orange County (CGOC), a Florida political committee, last week presented the requisite number of signatures needed to garner a spot on the November 6, 2012 ballot in Orange County for a proposed earned paid sick leave ordinance. Bill Cowles, Orange County Supervisor of Elections, verified the final petitions needed for the measure on Friday, August 17, 2012, after determining that the CGOC collected over 50,000 signatures from Orange County registered voters.

If approved by voters, the paid sick leave ordinance would require all employers in Orange County with 15 or more employees to provide each employee with one hour of paid job-protected sick leave for every 37 hours worked, up to a maximum of 56 hours of paid sick leave annually. Smaller employers in Orange County are not required to provide paid sick leave but may not retaliate against any employee who uses up to 56 hours of sick time per year. As a result, the ordinance essentially requires Orange County employers with fewer than 15 employees to provide up to 56 hours of unpaid sick leave annually to each employee.

Under the proposed ordinance, which applies to full and part-time employees, employees could use their paid sick leave for their own illness, diagnosis or preventative medical care, for the care of an ill family member, or to care for their child in the event that a child’s school or day care facility is closed due to a public health emergency. The definition of a family member under the ordinance is quite broad, and includes an employee’s spouse, child, parent, grandparent, grandchild, domestic partner, sibling or other individual related by blood or affinity.

In formal opposition to the sick leave ordinance and in an attempt to block the ballot initiative, a coalition of local chamber of commerce organizations and business associations filed a Complaint for Injunctive and Declaratory Relief in Orange County Circuit Court against the Citizens for Greater Orange County and Bill Cowles, in his official capacity as the Orange County Supervisor of Elections. The crux of the chambers’ and business associations’ argument is that the language of the ballot initiative is misleading to voters and is cost-prohibitive to employers, including the non-profit organizations, charities and religious institutions that also would be covered by the ordinance. According to the Orlando Sentinel, Orange County Mayor Teresa Jacobs and each of the Orange County Commissioners oppose the sick leave ordinance, suggesting that Board of County Commissioners is unlikely to adopt the ordinance which it could do instead of sending the issue to the voters.

Barring a successful legal challenge, Orange County voters will cast their vote for or against the sick leave ordinance in November. In addition to the legal challenge, Orange County voters can expect to see well-organized campaigns on both sides of the issue.

If the sick leave ordinance passes, employers in Orange County will need to analyze their current sick leave and other paid time off policies and implement new or revised policies no later than January 1, 2013, to comply with the ordinance.Lowndes, Drosdick, Doster, Kantor, & Reed, P.A. has a team of employment lawyers who can assist you with that analysis, including the interplay between the sick leave ordinance, related federal and state laws, and your paid time off policies.

© Lowndes, Drosdick, Doster, Kantor & Reed, PA

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

D.C. Circuit Vacates CSAPR, Instructs USEPA to Continue Administering CAIR

Schiff Hardin LLP‘s Environmental Group recently had an article regarding CSAPR published in The National Law Review:

 

In a 2-1 decision, the Court of Appeals for the D.C. Circuit vacated the United States Environmental Protection Agency’s (“USEPA”) Cross-State Air Pollution Rule (“CSAPR” or the “Transport Rule”), USEPA’s attempt to “fix” the Clean Air Interstate Rule (“CAIR”) to regulate downwind state air pollution under the Clean Air Act (“CAA”). EME Homer City Generation LP v. EPA, D.C. Cir. No. 11-1302 (Aug. 21, 2012). In 2008, the D.C. Circuit struck down and remanded CAIR, with instructions to USEPA to continue administration of the CAIR until the replacement rule was implemented. Here, in light of the vacatur of the CSAPR, the D.C. Circuit has instructed USEPA to “continue administering CAIR pending [USEPA’s] promulgation of a valid replacement.”

By way of background, USEPA promulgated the Transport Rule in August 2011 in response to the court’s order in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008) remanding the CAIR, and to address the 2006 24-hour national ambient air quality standard (“NAAQS”) for fine particulate matter. The Transport Rule established an interstate program to require power companies in 28 “upwind” states to reduce emissions of sulfur dioxide (“SO2”) and nitrogen oxides (“NOx”) to enable downwind states to achieve and maintain NAAQS for ozone and fine particulate matter. Following challenges by affected states and industry, the D.C. Circuit stayed the Transport Rule on December 30, 2011. The stay remained in effect until today’s decision on the merits, where the D.C. Circuit provided two independent grounds for vacatur.

First, the court found that USEPA exceeded its statutory authority granted under Section 110(a)(2)(D), the so-called “good neighbor” provisions of the CAA, by potentially requiring an upwind state to reduce emissions in excess of its contribution to a downwind states exceedance of air quality standards. In so ruling, the court explained that USEPA may require an upwind state to “eliminate only its own ‘amounts which will . . . contribute significantly’ to a downwind State’s ‘nonattainment,'” and “may not require any upwind State to ‘share the burden of reducing other upwind states’ emissions.'” Moreover, while the court acknowledged that USEPA may consider the cost of pollution reductions to lessen the burden upon an upwind state, it may not, as the court found USEPA did in establishing emission reductions under the Transport Rule, use cost considerations to impose pollution reduction obligations above and beyond what was necessary for downwind states to meet air quality standards.

Second, the D.C. Circuit struck USEPA’s decision to require that each state comply with a federal implementation plan (“FIP”) to implement the emission reductions mandated by the Transport Rule rather than allowing each state to determine how best to achieve the reductions within the state, i.e., the FIP-first approach included in the Transport Rule. By imposing a FIP prior to allowing states to implement their own plans, USEPA had usurped a role that was clearly designated by statute to the states. With regard to the “good neighbor” provision, the court held that USEPA must first inform states of their reduction obligations and then provide the states time to develop and submit SIPs, just as it does for new NAAQS. USEPA may not impose a FIP that directs each state on how to achieve the requirements of the Transport Rule without first providing each state a “reasonable time to implement that requirement [under a state implementation plan] with respect to sources within the State.”

The D.C. Circuit advised that its “decision … should not be interpreted as a comment on the wisdom or policy merits of EPA’s Transport Rule” and that USEPA should “proceed expeditiously” to promulgate yet another replacement for CAIR consistent with this decision and, presumably, with the North Carolina decision. The decision in this case further clarifies USEPA’s role and obligations regarding identifying states’ air quality impacts on downwind states. It also emphasizes that the cooperative federalism concept embodied in the CAA is vital to successful implementation of the Act.

© 2012 Schiff Hardin LLP

ICC Rules of Arbitration – October 8-9, 2012

The National Law Review is pleased to bring you information about the upcoming ICC Training:

  • Location: ICC Headquarters, Paris
  • Date: 08/10/2012 – 09/10/2012
  • Event Type: Training
  • Language: French, English

After the success of the first round of trainings, ICC will be hosting another 2-day session on the 2012 ICC Rules of Arbitration in Paris in October.

Learning outcomes

  • Acquire theoretical and practical knowledge of the main changes in the 2012 ICC Rules of Arbitration on important topics such as Emergency Arbitrator; Case Management and Joinder, Multi-party/Multi-contract Arbitration and Consolidation
  • Study the 2012 ICC Rules of Arbitration in small working groups of about 10 participants applying various provisions to mock cases
  • Gaining valuable insights from some of the world’s leading experts in arbitration including persons involved in the drafting of the New ICC Rules of Arbitration

Who should attend?
Arbitrators, legal practitioners and in-house counsel who already have knowledge in arbitration and wish to know more about the 2012 ICC Rules of Arbitration.

Immigration Law Alert – USCIS Extends Form I-9 Validity Period Past Aug. 31, 2012 Expiration Date

On Aug. 13, 2012, U.S. Citizenship and Immigration Services (USCIS)announced that employers should continue using the current version of the Form I-9 after the form’s expiration date of Aug. 31, 2012. The Form I-9 is the employment verification form designed to help employers verify individuals who are authorized to work in the United States. The current version of the Form I-9 has the expiration date of Aug. 31, 2012 printed in the upper right corner and the revision date of Aug. 7, 2009 printed in the lower right corner.

Previously, on March 27, 2012, USCIS published a proposed revision of the Form I-9 and accepted comments on the proposed form until May 29, 2012. USCIS’s announcement instructing employers to continue to use the current form until further notice indicates that the agency will not publish a final revised Form I-9 before the expiration date of the current Form I-9.

Additional information regarding the new I-9 form will follow as it becomes available.

© 2012 BARNES & THORNBURG LLP

Chief Litigation Officer Summit Fall 2011 15-17 September 2011, Red Rock Casino, Resort, Spa, Las Vegas, NV

The National Law Review is  pleased to announce the Chief Litigation Officer Summit Fall 2011 is taking place on the 15 through 17 of  September 2011, Red Rock Casino, Las Vegas, NV.

A Unique Event

The future of litigation will bring new matters, increased competition and a strong need for budget maximization. Employment, IP, product liability, commercial and securities litigation continue to become more complex and therefore more costly. As a Chief Litigation Officer, one of the main challenges is to stay within budget, and tactics such as eDiscovery and specialized outside counsel certainly compound this challenge.

Executives that can find solutions and best practices to work through these challenges will stand out amid a mounting sea of litigation counsel. By employing alternative billing structures, one can allow for fair and accurate budgeting in hopes of maximizing resources, which will help contribute to a successful trial. Skillful planning, organizing and managing of cases is absolutely necessary to stay on top of your game during the trial or deciding on alternative dispute resolution. Enhancing outside counsel relationships through effective communication can greatly increase your odds and assist in dealing with a building case load.

The Chief Litigation Officer Summit provides a unique forum for service providers to gain access to the leading in-house counsel across the nation. Over three days, service providers will meet and interact with the heads of litigation from the country’s leading organizations through a number of one-on-one business meetings and many networking activities. In addition, service providers will attend strategic conference sessions and keynote presentations delivered by these heads of litigation. Within the luxurious settings of The Red Rock Casino, Resort & Spa, this networking event presents a unique opportunity to develop meaningful and valuable business relations.

marcus evans will seek CLE accreditation in those states requested by registrants which have continuing education requirements. CLE credit hour information will be displayed on the certificate of attendance, which is provided to the attendees after the event has run and once each State has confirmed approval. marcus evans certifies that this activity has been approved for CLE credits by the State Bar of California and the State Bar of Pennsylvania.

Our executive delegation is selected according to the following criteria:

  • Scope of Responsibility
  • Budget
  • Sign-off Authority
  • Company Revenue
  • Interest in Purchasing Products and Services

Delegates will include decision makers with the job titles of General Counsel Litigation, Assistant General Counsel Litigation, Associate General Counsel, Litigation, Chief Litigation Officer, Vice President, Litigation and Senior Litigation Counsel with ultimate responsibility for litigation within their corporations.
Six Reasons Why You Should Attend the Summit:

  • Attend innovative summit sessions that outline tools to maximize the profitability of your company or organization
  • Network with an executive, focused group of your peers to discuss and debate differentiated strategies and develop future business contacts
  • Meet with leading Solution Providers to gain solutions to your most pressing business challenges
  • Maximize your time spent at the event by pre-selecting Keynote presentations, summit sessions, one-on-one meetings and networking activities through the Secured Summit Web site and scheduling software
  • Extensive opportunities for informal peer networking throughout the weekend through day and evening leisure activities
  • Documentation of presentations and information presented at the Summit via the interactive Web site


Delegate Package 

  • Pre-event Secured Web site access for scheduling
  • Executive Summit Program
  • 8-10 one-on-one business meetings with Solution Provider executives
  • Post-event Web site access for documentation and information on next event
  • Two nights accommodation at the Resort
  • All meals, receptions & special events
  • Participation in the Summit networking activities


For information on attending as a Delegate, please contact:
Marketing Manager
E: webenquiries@marcusevansbb.com
T: 246 627 3761