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.

Reining in Blogging, Tweeting and Internet Surfing by Jurors

The National Law Review recently published an article about Jurors and Social Media, written by Carolyn M. Wendel of Barnes & Thornburg LLP:

It is estimated that in 2011, 64 percent of U.S. Internet users utilize social networks—Facebook, Twitter, MySpace, LinkedIn, and the like—on a regular basis, amounting to nearly 148 million people. In addition, with the expansion of the smartphone market to the general populace from more limited business usage, people can access their social networks virtually anytime and anywhere, including the courtroom.  Such access creates a host of problems and recent years have seen a dramatic increase in the number of mistrials and overturned verdicts as a result of jurors’ use of social networking and other Internet sites.

Jurors sharing too much information.

Until recently, what went on behind the closed doors of the jury room remained largely a secret. For better or worse, the ability of jurors to instantly share thoughts and observations via blogs and social networks has offered a glimpse into the decision making process. While these instances are often used as grounds for an appeal, they account for a very small portion of the cases that are actually overturned.

The Illinois Appellate Court recently upheld an award of $4.75 million to the widow of a blind man killed by a Metra commuter train despite the fact that a juror was blogging about the case throughout the trial.  Eskew v. Burlington Northern & Santa Fe Ry. Co., 2011 IL App. (1st) 093450.  The defense argued the verdict must be overturned because the juror’s blog entries showed she had discussed the case with her husband, the jurors had discussed the case among themselves prior to deliberations, and, before all the evidence was in, one juror had stated, “All that’s left now is deciding how much.”  The Court, however, noted that the blog entries showed the other jurors had chastised the juror who made the statement, were generally keeping an open mind, and had been offered no outside information that would influence their decision making process. The Court upheld the verdict, concluding, “The blog entries on which the defendants rely do not indicate that premature deliberations resulted in a jury that was biased when it commenced its deliberations or that the jury’s actual deliberations and verdict were affected by any discussions during trial.  In fact, the entries indicate just the opposite.”

Generally, allegations involving jurors’ texts, tweets, or blogs do not necessitate declaring a mistrial or vacating a verdict.  In a few extreme cases—such as where jurors posted pictures of a murder weapon, blogged about fellow jurors by name, or hosted a chat room where people could ask questions about the case—the courts have taken action. Overall, however, relatively few cases have been overturned because of jurors sharing general thoughts or experiences via posts and blogs.

Jurors seeking out impermissible input and information.

Seemingly more prevalent, and responsible for the majority of mistrials and overturned verdicts, is the situation where jurors impermissibly access the Internet to bring outside information into the jury room.  In 2009 a federal judge in Florida was forced to declare a mistrial eight weeks into a drug trial after learning that jurors were using Internet search engines, Wikipedia, and other Internet sites to research issues associated with the case. Other cases show that jurors have conducted Internet searches of defendants, researched sentencing guidelines, and looked up the social networking profiles of alleged victims.  In one extreme case, a juror in England posted key facts from the case and asked her Facebook friends to vote on whether the defendant was guilty or innocent.  More often than not, where jurors have conducted their own research or solicited outside opinions, judges have been forced to declare mistrials or overturn verdicts.

How courts are responding.

Courts across the country continue to struggle with how to curtail jurors’ use of the Internet and social networking sites. Some courts have banned jurors from using cell phones or similar electronic devices in the courtroom and jury room.  Other courts are warning jurors that violations could lead to jurors being held in contempt. At this point, however, the majority of courts addressing the issue are focusing on updating their jury instructions to emphasize the impermissible uses of the Internet and social networking sites.

In 2010, a committee of the Judicial Conference of the United States endorsed a set of model jury instructions for district judges aimed at deterring jurors from electronically communicating or researching about their case. The committee issued separate instructions to be given before trial and at the close of the case, specifying that during the course of the trial and deliberations, jurors “may not use any electronic device or media, such as a telephone, cell phone, smartphone, iPhone, Blackberry or computer, the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case.”

A 2011 survey of federal and state jury instructions revealed a majority of circuits and states have such “modern” civil jury instructions that address the Internet, social media, or specific social networking sites by name.  See Eric P. Robinson, Jury Instructions for the Modern Age: A 50-State Survey of Jury Instructions on Internet and Social Media, 1 Reynolds Courts & Media Law Journal 307 (2011).  A minority of the circuits and states retain “archaic” instructions that either have no language addressing jurors’ access to media, or only reference newspapers, radio, and television.Only one circuit and 10 states offer an explanation in their civil instructions as to why jurors should refrain from using the Internet and social networking sites during a trial.

As an example, Indiana’s Model Civil Jury Instructions represent one of the most thorough set of instructions. The instructions start out by informing jurors that their decision must be based only on the evidence presented in the courtroom and the judge’s instructions. After listing general activities that are forbidden, the instructions specifically emphasize electronic communication and research:

[Y]ou must not communicate with anyone or post information about the case, or what you are doing in the case, by any means, including telephone, text messages, email, Internet chat rooms, blogs, or social websites, such as Facebook, MySpace, or Twitter.

You also must not Google or otherwise search for any information about the case, or the law that applies to the case, or the people involved in the case, including the parties, witnesses, lawyers, or Judges.

Finally, the instructions offer an extensive explanation of why it is important that jurors not discuss the case with anyone outside of the jury, visit any place discussed in the testimony, or access any media coverage about the case or conduct their own research. The concept of fairness is repeatedly emphasized. “These rules are designed to guarantee a fair trial” and jurors should not conduct independent research because to do so “would not be fair.”  Jurors should not talk with anyone outside the jury because, “Only you have been found to be fair, and only you have promised to be fair – no one else has been so qualified.”

Not many instructions are as thorough in the conduct they prohibit or the rationale behind the rules as the Indiana instructions. However, more and more states will likely move in this direction as there is a growing belief that only if jurors are told specifically what they cannot do and, more importantly, why they cannot do it, will the increasing trend of juror violations be reversed.

© 2012 BARNES & THORNBURG LLP

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.

Supreme Court: Pharmaceutical Sales Reps Are Exempt from Overtime Pay Requirements Per FLSA’S Outside Sales Exemption

An article by David Barmak of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., regarding The Supreme Court’s Ruling about Pharmaceutical Sales Reps, was recently featured in The National Law Review:

In a major win for pharmaceutical companies, the Supreme Court has ruled that pharmaceutical sales representatives (PSRs) are exempt from federal overtime pay requirements under the “outside sales exemption” of the Fair Labor Standards Act (FLSA). The case, Christopher v SmithKline Beecham Corp., DBA GlaxoSmithKline (No. 11-204, Decided June 18, 2012), resolves a conflict between the Second and Ninth Circuit Courts of Appeal and impacts some 90,000 pharmaceutical sales representatives throughout the United States.

Under the relevant provision of the FLSA’s outside sales exemption, the employee’s primary duty must be making sales. But because of the unique regulatory environment that applies to drug companies, PSRs do not actually sell their employer’s products to physicians. Rather, PSRs meet with physicians and provide information about the benefits and uses of the company’s drugs and other medical products in the hope that the physician will be persuaded to prescribe the products to patients, as medically appropriate. Prescription drugs are then sold by pharmacies that dispense the drugs to individual customers who have a physician’s prescription. Therefore, PSRs do not actually make sales in the usual sense of the word.

As the Supreme Court noted, pharmaceutical companies have promoted their drugs through “sales reps” or “detailers” since at least the early 1950s, treating PSRs as exempt from the FLSA’s overtime requirements without objection from the Department of Labor (DOL). In fact, the DOL did not voice any objection to this classification until 2009, when it filed an amicus brief in a case pending against Novartis in the Second Circuit Court of Appeals, In re Novartis Wage and Hour Litigation, 611 F. 3d 141 (2nd Cir. 2010). DOL supported the PSRs’ bid for overtime pay in that case, arguing that PSRs are not exempt under the outside sales exemption because they were not involved in a “consummated transaction,” as contemplated by the regulations issued under the FLSA. The Second Circuit gave substantial deference to the DOL’s interpretation of its regulations and ruled that the exemption did not apply, and the Supreme Court declined to review the Second Circuit’s ruling. Meanwhile, a similar case against SmithKline Beecham (which trades as “GlaxoSmithKline”) had proceeded to the Ninth Circuit Court of Appeals. The DOL supported the PSRs’ claims in that case, too, but the Ninth Circuit ruled that the DOL’s interpretation of the FLSA was not entitled to controlling deference and that the sales repsdid make sales within the meaning of the regulations. The Supreme Court then agreed to review the Ninth Circuit’s ruling. (During the same period that the Novartis and SmithKline Beecham cases were wending their way through the courts, two other pharmaceutical companies, Johnson & Johnson and Eli Lilly, had won rulings in the Third and Seventh Circuits, respectively, that pharmaceutical sales reps qualified as exempt under a separate FLSA exemption, the administrative exemption.)

In a 5-4 decision written by Justice Alito, the Supreme Court affirmed the Ninth Circuit, ruling that SmithKline Beecham’s PSRs qualified as outside salesmen within the meaning of the FLSA exemption, and holding that, at least in the highly regulated environment of pharmaceutical sales, the PSRs were engaged in sales even though physicians do not actually purchase prescription drugs from them. This is so, the Supreme Court reasoned, because the FLSA broadly defines “sale” to include “… any sale, exchange, contract to sell, consignment for sale, shipment for sale or other disposition.” It concluded that the “catchall phrase ‘other disposition’ is most reasonably interpreted as including those arrangements that are tantamount, in a particular industry, to a paradigmatic sale of a commodity,” and that the PSRs’ efforts to persuade physicians to prescribe their company’s drugs met this standard.

Significantly, the Supreme Court’s interpretation of the relevant FLSA and regulatory provisions was contrary to the DOL’s own interpretations. Usually, the agency’s interpretation would have been accorded substantial deference. It was not, in this instance, because the Court found that the DOL’s interpretation was, in effect, ex post facto, arrived at following decades of silence and only after there was litigation between Novartis and SmithKline Beecham and some of their PSRs.

While the Supreme Court was clearly influenced by the unique regulatory environment in which the pharmaceutical industry operates and its decision applies first and foremost to the pharmaceutical industry, the Court’s reasoning may provide the basis for other employers to argue for the application of exemptions in other situations where there has been a long history of treating a particular class of employees as exempt without DOL interpretive guidance or enforcement activity to the contrary.

©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)

Illuminating the “Invisible Branch” – the Supreme Court

The National Law Review recently featured an article by Health Government Relations Team of Drinker Biddle & Reath LLP regarding the Supreme Court:

While Congress’ deliberations over policy dominate the news, the Supreme Court often flies under the radar of the American people, unless there is a major case before it. Many Americans are not well-versed in the Supreme Court’s dealings; in fact, a Pew Research Center political knowledge survey found that in July 2010 only 28% of Americans polled could correctly identify John Roberts as the Chief Justice of the Court. As much of the health policy world’s attention is focused on the Supreme Court due to the Affordable Care Act case (Department of Health and Human Services, et al. v. Florida, et al.), below is a refresher on Supreme Court procedure and why there will be months of silence from the Court between the oral arguments and the announcement of the Court’s decision.

First, a few Supreme Court basics. The Supreme Court’s term begins on the first Monday in October and lasts for a year. The Court is typically in recess from late June or early July until the end of the term in October. The current term began on Monday, October 3, 2011, and will be wrapping up business for this term over the next two months. The next term will begin on Monday, October 1, 2012.

Each week when the Court is in session, the Justices hold a conference. Only the Justices are allowed in the room, and as a testament to the collegiality of the Court, each conference begins with each Justice shaking hands with every other Justice. During conferences, the Justices review petitions for certiorari or, in other words, decide which cases the Court will hear. The Justices then review the cases heard previously that week. Each Justice, beginning with the Chief Justice and going in order of seniority (who has been on the court the longest), is given time to state his or her views and raise any questions without interruption. Each Justice, in seniority order, then casts a preliminary vote on the case. In the case of the health reform arguments, which were heard March 26-28, the Justices met in conference to discuss the case and cast their votes on Friday, March 30.

So, if the votes have been cast and an outcome decided, why has there been no announcement of a decision yet? What has been going on since March 30?

After the votes are cast, the Court must then produce documents that state the Court’s reasoning for deciding a certain way. If the Chief Justice is in the majority (generally an opinion five or more Justices join), he or she assigns who will write the opinion. If the Chief Justice dissents from the majority opinion, the senior-most associate Justice in the majority assigns the opinion. The Chief Justice or most senior Justice may choose to write the opinion him or her self. Likewise, the most senior Justice in the minority assigns who will write the dissenting opinion. Dissenting opinions carry no legal weight or precedent, but might lay groundwork for future cases. Additionally, any Justice may write a concurring opinion, and anyone can write a separate dissenting opinion should they agree with the ruling but for a different rationale. In the case of a tie vote, which might happen if there is a vacant seat or if a Justice recuses themselves from the case, the decision of the lower court stands. In this situation, the case is not considered to be binding precedent.

Once the opinions have been drafted, they are circulated to all the other Justices for comments and recommended changes. If a Justice in the majority agrees with the outcome expressed but disagrees with the argument in the drafted opinion, they may write their own concurring opinion or, at anytime before the Court’s opinion is handed down, they may switch their vote. In some controversial cases, the outcome of the case has actually reversed from what the original outcome would have been, due to Justices flipping their vote. Then once the draft has been revised, the opinion is signed by the author. Other Justices who are in agreement then “sign on” to the opinion, and the verdict is subsequently made public.

In regard to the timing of decision announcements, there are no rules other than it must be released by the last day of term (before the Court goes into recess in June or July). Unanimous or less contentious decisions generally take less time than cases on more controversial subjects. Given the weight and attention given to the health reform cases, a decision is not expected until late in the term, with most people predicting an announcement coming June 21st, 25th or 28th.

©2012 Drinker Biddle & Reath LLP

Canadian International Trade Compliance Conference – August 21-23, 2012

The National Law Review is pleased to bring you information about the upcoming Canadian International Trade Compliance Conference:

Addressing the Global Trade Compliance Concerns Involving Export Controls, Custom Compliance and Cross Border Trade in Canada

Event Date: 21-23 Aug 2012
Location: Toronto, Ontario – VENUE TO BE CONFIRMED, Canada

Key conference topics
  • Assess the latest export permit requirements in Canada with Pratt and Whitney Canada
  • Address re-exports of U.S. origin goods from Canada to comply with both Canadian and U.S. export controls with Future Electronics
  • Integrate an effective anti-corruption compliance program as part of a global trade compliance program with Methanex Corporation
  • Analyze supply chain security concerns when dealing with cross border trade with Stanley Black & Decker, Inc.
  • Uncover the updates to the Export Controls List and their impact upon Canadian companies with Research in Motion Limited

Currently, international trade compliance professionals need to stay up to date on the changing regulations within Canada and also abroad. With the changes to the Export Controls List and the ever-complex nature of Canadian-U.S. cross border trade, companies need to be aware of how these changes affect their international trade compliance programs.

Canada’s relationship with the U.S. makes it imperative that the International Trade Compliance community is informed on the impact that U.S. rules and regulations can have on Canadian companies.

Building upon the success of the 2nd Annual International Trade Compliance Conference, the marcusevans Canadian International Trade Compliance conference addresses the Global Trade Compliance Concerns involving export controls, customs compliance and cross border trade in Canada.

By attending this event, industry leaders will be able to overcome any potential challenges in crafting and sustaining a comprehensive trade compliance program.

Attending This Conference Will Enable You To:

1. Dissect the latest updates from the Department of Foreign Affairs and International Trade with Research in Motion Limited
2. Comprehend the U.S. Export Reform Initiative and the impact upon Canadian companies with Public Works and Government Services Canada
3. Develop and understanding of import value and transfer pricing with Ericsson Canada Inc.
4. Focus on NAFTA and other Free Trade Agreements with Plains Midstream Canada

Industry leaders attending this event will benefit from a dynamic presentation format consisting of workshops, panel discussions and case studies. Attendees will experience highly interactive conference sessions, 10-15 minutes of Q&A time after each presentation, 4+ hours of networking and exclusive online access to materials post-event.

Audience:

SVPs, VPs, Directors, Superintendents, Supervisors, Engineers, Specialists, Leaders and Managers from the Chemical, Petrochemical, and Refining Industries with responsibilities in:

  • EHS Environmental Health and Safety
  • Safety/Process Safety Management
  • Plant Management/Operations
  • Inspection/Reliability
  • Mechanical/Asset Integrity
  • Manufacturing/Technology
  • Training & Development

A New ‘Must-Do’ for Children’s Products Importers and Domestic Manufacturers: A CPSC-Compliant Product Testing and Certification Program

The National Law Review recently featured an article, A New ‘Must-Do’ for Children’s Products Importers and Domestic Manufacturers: A CPSC-Compliant Product Testing and Certification Program, by Ruth A. Bahe-Jachna, David P. Callet, Francis A. Citera, Victoria Davis Lockard, and Gretchen N. Miller of Greenberg Traurig, LLP:

GT Law

Since the 2008 passage of the Consumer Product Safety Improvement Act,importers and domestic manufacturers of children’s products (a consumer product designed or intended primarily for children 12 or under) have been required to issue a certificate of compliance (known as a “General Conformity Certificate” or “GCC”) stating that the product is compliant with all U.S. Consumer Product Safety Commission (“CPSC”) mandated product safety rules. Now, however, children’s products importers and domestic manufacturers will be required to do more. Last year the CPSC issued regulations that require importers and domestic manufacturers to also develop and implement by February 8, 2013 their own Product Testing and Certification Program.

This new Product Testing and Certification Program, previously called a “Reasonable Testing Program,” must include specified elements, the implementation of which will, according to the CPSC’s regulations, provide the issuer of a new type of GCC (a “Children’s Product Certificate”) a “high degree of assurance” that all of its children’s products, not just the products that were tested, are compliant with applicable CPSC product safety rules.

The good news is that developing and implementing the new Product Testing and Certification Program will increase the likelihood that a company’s children’s products are in compliance with applicable CPSC product safety rules. Thus, it will help to protect the company’s brands from adverse publicity and avoid commercial disruption from goods being detained at a port or recalled by the CPSC.

A Company’s CPSC-Compliant Product Testing and Certification Program Must Include and/or Address:

  • Initial product certification which is to be based upon third-party lab testing of “sufficient samples” of the children’s products to provide the company a “high degree of assurance” that all of its children’s products meet applicable product safety rules.
  • A Periodic Testing Plan, which addresses the tests to be conducted, the intervals between tests, the number of samples to be tested and the methods that ensure that the tested samples are “representative” of the entire production population, so that the company can continue to have a “high degree of assurance” that its products remain compliant with all applicable product safety rules.
  • Material change in the product design or manufacturing process, including the sourcing of component parts, which could affect the children’s products’ ability to comply with applicable product safety rules.
  • Procedures to safeguard against a company using undue influence over third-party labs.
  • Records of all Children’s Product Certificates, third-party test results, Periodic Testing Plans, and material change and undue influence policy documents must be maintained for five years and made available to the CPSC on request.

A CPSC-Compliant Product Testing and Certification Program May Include and/or Address:

  • Component part certification and/or testing which a company may rely upon if it has exercised “due care” to ensure that reliance on that component part certificate and/or test was justified.
  • A Production Testing Plan which describes the production management techniques and tests that will be performed to provide the company a “high degree of assurance” that its children’s products continue to comply with applicable product safety rules after issuance of an Initial Product Certification. Although not required, a Production Testing Plan can extend the company’s mandatory third party testing from a minimum of once a year to once every two years.

©2012 Greenberg Traurig, LLP

ICC – Economic Sanctions in the Global Economy

The National Law Review is pleased to bring you information regarding the upcoming ICC Institute’s Economic Sanctions in the Global Economy Conference:

At a time when the global financial crisis has severely impacted trade flows and hampered world growth, what is the effect and the justification for the extraterritorial application of economic sanctions?

The long arm reach of law enforcement agencies sets global companies unprecedented challenges in terms of conflict of laws and regulatory jurisdiction. Dozens of criminal, administrative or regulatory investigations on both sides of the Atlantic are currently targeting billions of dollars worth of commercial transactions and cross-border payments. Penalties in the hundred of millions of dollars are regularly disclosed sanctioning global companies and banks for their past cross-border dealings . What is the right balance between the governments’ objective of moving to a safer world and the business reality? How are judges and arbitrators expected to adjudicate a claim for non-performance triggered by foreign economic sanctions?

Conference highlights
This event is unprecedented in bringing together senior government officials from both sides of the Atlantic and decision makers in global companies as well as their counsel. Speakers and participants have a unique opportunity to discuss in an open public-private forum the regulators’ approach towards economic sanctions and the expectation of industry leaders as to how sanctions could be better conceived and applied.

Who should attend?

Lawyers, compliance officers, bank executives, general managers, payment and treasury officers in companies and banks, government officials and academics.

Air Quality Alert: EPA Proposes Stricter Particulate Matter Standard

An article by Environmental Law Department of Barnes & Thornburg LLP, Air Quality Alert: EPA Proposes Stricter Particulate Matter Standard, was featured in The National Law Review:

On June 15, 2012, U.S. EPA proposed stricter standards to the National Ambient Air Quality Standards (NAAQS) under the Clean Air Act for fine particulate matter. The proposed rule, which is the result of a lawsuit in the U.S. Court of Appeals in the Washington D.C Circuit brought by environmental groups and certain states, proposes to tighten the annual standard for particulate matter under 2.5 microns (PM 2.5) from 15 micrograms per cubic meter (ug/m3) (the 2006 standard) to between 12 and 13 ug/m3. The rule also proposes a new separate standard for improving visibility in urban areas of either 28 to 30 “deciviews,” a measurement of visibility. The proposed rule and “fact sheets” provided by the Agency make clear that EPA is not proposing a change to the existing 24-hour and secondary standards for fine and course particulate matter set in 2006.

EPA claims that the new standard will come at an annual cost of between $2.9 million and $69 million (depending upon a final standard of 12 or 13 ug/m3), but claims these costs are outweighed by alleged health benefits of $220 million to $5.9 billion. EPA is also claiming that all but six counties in the United States should be able to meet the new standards without additional action. However, San Bernadino and Riverside Counties in California, Santa Cruz County in Arizona, Wayne County in Michigan, Jefferson County in Alabama, and Lincoln County in Montana – are all expected to need to reduce fine particulate emissions to attain the new standards.

Under state and federal Clean Air Act regulations, counties that are out of attainment with the NAAQs can be subject to special “Retro-active Control Technology” (RACT) requirements, and new sources of fine particulate emissions will need to obtain “offsets” prior to construction among other requirements.

In addition to the new proposed standards, EPA is also proposing changes to monitoring requirements for fine particulate matter including the addition of fine particulate ambient air monitors especially along urban highways.

EPA’s proposed rule comes during an election year and is expected to draw broad criticism from Republicans and industry groups. Environmental groups are already praising the new proposed lower standards. The new proposed rule has not yet been published in the Federal Register. Comments on the new proposed rule are due within 63 days of publication in the Federal Register and can be submitted through http://www.regulations.gov. The proposed rule and related fact sheets can be viewed at http://www.epa.gov/pm/actions.html.

© 2012 BARNES & THORNBURG LLP

Patents for Financial Services Summit

The National Law Review is pleased to bring you information about the upcoming Patents for Financial Services Summit:

The protection of patents and IP is critical to the financial services industry due to the increasingly competitive marketplace and the growth of patent trolls. You must ensure protection of your own innovation to remain competitive and take great care to avoid infringing on the patents of others. World Research Group’s 9th Annual Patents for Financial Services Summit, which is being held on July 25-26, 2012 in NYC is intended for in-house legal executives to engage in networking opportunities, shared best practices, hear cutting-edge case studies, and discuss new rules and regulations impacting financial services patent policies. This two-day Summit will consist of informative educational sessions and interactive panel discussions led by senior-level patent counsels and experts on patent trends and strategies.

Join our Patents for the Financial Services Summit and benefit from in-depth discussions on ways to grow patent strategies, practical case-studies and interactive panel discussions, featuring experienced and highly knowledgeable IP counsels, regulators, law firms and technology experts.

The 9th Annual Patents for Financial Services Summit addresses key issues and uncovers the latest developments including, but not limited to the following topics:

  • The America Invents Act and its impact on patent procedures and litigation
  • Implementing a successful monetization program to determine the most valuable and effective use of IP
  • Learning the newest updates from recent Supreme Court cases
  • Legal update on the US Patent Office Examination of financial services inventions post-Bilski
  • Aligning your IP department and outside counsel with corporate business objectives to impact the bottom line
  • Effectively managing your legal department activities and budget
  • Ensuring you consistently allocate resources to the right risks or opportunities, including identifying the cases to try and the cases to settle
  • Communicating with outside counsel to ensure an updated knowledge of the ever-changing legal landscape
  • Altering patent protection strategies to account for recent court decisions
  • Social media update on managing control over protected IP
  • Avoiding and managing patent litigation
  • Defending against patent trolls
  • Incentivizing employees and finding new ways to encourage creativity