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.

Inside Counsel presents the 12th Annual Super Conference in Chicago

National Law Review is pleased to bring you information about the upcoming 12th Annual Super Conference sponsored by Inside Counsel .

Reasons why you should Attend This Year’s Event:

Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.

Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:

Chief Legal Officers
General Counsel
Corporate Counsel
Associate General Counsel
CEOs
Senior Counsel
Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

United Insurance Company of America Pays $37,500 To Resolve EEOC Disability Discrimination Lawsuit

The National Law Review recently published an article by the U.S. Equal Employment Opportunity Commission regarding a Disability Discrimination Ruling against the United Insurance Company of America:

Company Rescinded Job Offer to Recovering Drug Addict Because of His Disability, Agency Charged

RALEIGH, N.C. – United Insurance Company of America will pay $37,500 and furnish other relief to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s lawsuit, Craig Burns is a recovering drug addict who has been enrolled in a methadone treatment program since 2004. In January 2010, United Insurance offered Burns a position as an insurance agent in its Raleigh office, conditioned upon Burns’ passing a drug test. After Burns’ drug test showed the presence of methadone in his system, Burns submitted a letter to United Insurance from his treatment provider explaining that he was participating in supervised methadone treatment program and taking legally prescribed medication as part of the treatment. Upon receiving this information, United Insurance notified Burns that he was not eligible for hire and withdrew its offer of employment.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees and applicants from discrimination based on their disabilities. The EEOC filed suit in August 2011 in U.S. District Court for the Eastern District of North Carolina (Civil Action No. 5:11cv00430), after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to monetary damages, the two-year consent decree resolving the suit requires United Insurance to conduct training on, among other things, an employer’s obligation to conduct an individualized assessment in determining whether an employee or applicant is disabled under the ADA; appropriate methods of determining whether an employee or applicant poses a direct threat under the ADA; and the obligation to engage in an interactive process under the ADA when an employee or applicant requests a reasonable accommodation. United Insurance will also post a copy of its anti-discrimination policy at its headquarters in St. Louis.

“The ADA requires employers to make an individualized assessment of whether an individual can do the job rather than relying on fears or stereotypes,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District, which includes the Raleigh Area Office, where the original charge of discrimination was filed. “We are pleased that, in resolving this case, United Insurance is taking action to ensure that it fulfills its obligations under the ADA.”

The EEOC is responsible for enforcing federal laws prohibiting discrimination in employment. More information about the EEOC is available on its website at www.eeoc.gov.

FTC Raises Hart-Scott-Rodino Thresholds

An article about the FTC was recently published in The National Law Review and was written by the Antitrust Practice of Morgan, Lewis & Bockius LLP:

As of the effective date (on or about February 23, 2012) transactions must be valued in excess of $68.2 million to be subject to the preclosing notification requirements of the HartScottRodino Act.

The Federal Trade Commission (FTC) has announced that it will raise the HartScottRodino Act (HSR Act) jurisdictional and filing fee thresholds. Any transaction closing as of February 23, 2012 (or, if different, the effective date, which may be a few days after February 23, 2012) will be subject to the revised thresholds. The new rules include an increase in the “size of transaction” test from greater than $66 million to greater than $68.2 million-which means that under the new threshold, acquisitions valued for HSR Act purposes at $68.2 million or less will not require preclosing filing and approval.

New Jurisdictional Thresholds

As a general rule, the HSR Act requires both Acquiring and Acquired Persons (as defined in the HSR Act) to file notifications if the following post-adjustmentjurisdictional thresholds are met:

1. One person has net sales or total assets of at least $13.6 million.

2. The other person has net sales or total assets of at least $136.4 million.

3. As a result of the transaction, the Acquiring Person will hold an aggregate amount of stock and assets of the Acquired Person valued at more than $68.2 million.

-OR-

4. As a result of the transaction, the Acquiring Person will hold an aggregate amount of stock and assets of the Acquired Person valued at more than $272.8 million, regardless of the sales or assets of the Acquiring and Acquired Persons.

Conditions 1 and 2 are generally referred to as the “size of person” test, while conditions 3 and 4 are commonly described as the “size of transaction” test.

The HSR Act rules relating to acquisitions of partnership interests and membership interests in a limited liability company (LLC) remain the same. Only acquisitions of economic control in an LLC or partnership may be reportable. “Control” is defined as having a right to 50% or more of the profits of a partnership or LLC or 50% or more of the assets upon the dissolution of such entity.

New Filing Fee Thresholds

Filing fees are also determined by a threshold test relating to the size of the transaction. While the valuation thresholds have changed, the fees themselves have not been adjusted:

Valuation of Transaction	Filing Fee
in excess of $68.2 million or greater, but less than $136.4 million	$45,000
$136.4 million or greater, but less than $682.1 million	$125,000
$682.1 million and greater	$280,000

The figures above represent the new “as adjusted” threshold figures. The table below illustrates the changes.

Current Threshold (in millions)	“As Adjusted” Threshold (in millions)
$13.2	$13.6
$66	$68.2
$131.9	$136.4
$263.8	$272.8
$659.5	$682.1

These changes are being implemented pursuant to the 2000 amendments to Section 7A of the Clayton Act. Section 7A(a)(2) of the Clayton Act requires the FTC to revise the jurisdictional thresholds annually, based on the change in gross national product, in accordance with Section 8(a)(5). The revised thresholds will apply to all transactions that close on or after the effective date.

7th Drug & Medical Device Litigation Forum, 7-8 Mar 2012, Philadelphia

The National Law Review is pleased to inform you of the 7th Drug & Medical Device Litigation Forum: Implementing Appropriate Litigation Readiness and Costs Management Policies That Ensure An Effective Defense at Trial

Event Date: 7-8 Mar 2012

Location: Philadelphia, PA, United StatesKey conference topics

Mitigate and maintain costs associated with litigation

Gain judical insight on drug and medical litigation and its recent developments

Build better relationships with outside counsel in order to reduce the miscommunciation factor

Understand the limitations of marketing and advertising as it relates to emerging social media issues

Learn the latest on medical device product liability

Conference focus

Pharmaceutical and medical device manufacturers have faced a growing array of legal challenges this year. With the increase of mass tort litigation, as it relates to product liability, pharmaceutical and medical device manufacturers must be prepared to defend the increasingly sophisticated, well-funded and multi-jurisdictional product liability campaigns against their companies.

The 7^th Drug and Medical Device Litigation Conference will be a two-day, industry focused event specific to those within Drug & Medical Device Litigation, Product Liability and Regulatory Affairs in the Medical Device, Biotech and Pharmaceutical industries.

By attending this event, industry leaders will share best practices, strategies and tools on incorporating litigation readiness, utilizing cost efficient litigation strategies and accurately managing policies to ensure an effective defense at trial.

Attending This Event Will Enable You to:
1. Review the current landscape of drug and medical device litigation
2. Learn strategies in settlements and mass tort issues
3. Manage litigation expenses in order to effectively manage costs
4. Review recent case rulings, including the Mensing and Levine cases
5. Take a view from the bench: explore drug and medical device litigation
from a judicial point of view
6. Tackle product liability issues and challenges
7. Uncover the risks for drug and medical device companies when leveraging social media for marketing and advertising campaigns

With a one-track focus, the 7^th Drug and Medical Device Litigation Conference is a highly intensive, content-driven event that includes case studies, presentations and panel discussions over two full days.

This is not a trade show; our Drug and Medical Device Litigation conference series is targeted at a focused group of senior level leaders to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.

Testimonials:

“Great selection & breadth of speakers. Uniformly high quality of presentations. Intimate nature of meeting provided excellent opportunities for networking” – Abbott

“Great venue to learn and exchange best practices. More importantly how to leverage lesions learned from others.” – Baxter

“One of the best meetings I’ve attended. Excellent organization, topics and speakers. Overall extremely well done.” – Sanofi Aventis

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Televisual “Communication To The Public” Stays Undefined: The Law Needs to “Catchup” with Technology

Found recently in The National Law Review was an article by Rohan Massey, Francesco Mattina, Hiroshi Sheraton, Vincent Schröder, and Boris Uphoff of McDermott Will & Emery regarding Televisual Definitions:

In ITV Broadcasting Ltd v TVCatchup Ltd [2011] EWHC 2977 (Pat), the High Court of England and Wales decided to maintain its reference to the Court of Justice of the European Union (CJEU) on the issue of “communication to the public”, however the reference on “reproduction of a substantial part” was no longer necessary.

BACKGROUND

TVCatchup operates a website that allows viewers to watch live streams of free-to-air-televisions channels. The Claimants (a number of broadcasters and TV content providers) allege that TVCatchup infringes their copyrights in films and broadcasts by reproduction and by communication to the public.

TVCatchup denied infringement and, alternatively, relied on the transient copying defence under Section 28A of the Copyright Designs and Patents Act 1988(Article 5(1) of the Copyright Directive (2001/29/EC)) and the defence under Section 73 of the 1988 Act that permits cable retransmission of some broadcasts within their intended reception areas.

In July 2011, Mr Justice Floyd proposed references to the CJEU to determine whether live internet streaming of free-to-air TV channels is lawful. A further hearing was convened to consider the impact of the CJEU decisions in Joined Cases C-403/08 and C-429/08 Football Association Premier League Ltd v QC Leisure (FAPL) and in Joined Cases C-431/09 and C-432/09 Airfield NV v Sabamand Airfield NV v Agicoa Belgium (Airfield).

REFERENCES

The Claimants submitted that the decisions in FAPL and Airfield meant that a reference on the issue of “communication to the public” was no longer needed. Floyd J disagreed, stating that the CJEU’s decision in Airfield did not make it easy to distil a clear principle as to what amounts to communication to the public in this context. He therefore maintained the reference on this point.

In particular, Floyd J asked the CJEU to rule on whether, in the circumstances of there being available a free-to-air terrestrial broadcast in a given area, it amounts to communication to the public for a third party to provide the same broadcast by way of retransmission through the internet in the same area.

As for “reproduction of a substantial part”, Floyd J held that FAPL made it clear that the “rolling” approach to reproduction of Berne works was incorrect, and that the question must be asked in relation to “transient fragments”. Floyd J concluded that there was a reproduction of a substantial part of the films in the memory buffers of TVCatchup’s servers. He said that the segments of the films stored in the buffers must be sufficient to satisfy the tests as explained in FAPL. However, reproduction of the films on the screens was not established.

It therefore followed that Floyd J did not consider that this point warranted reference to the CJEU. Further, as regards broadcasts Floyd J said: “I do not see how it can be rational to apply the rolling basis to broadcasts when it does not apply to films”. Floyd J was further convinced of this fact given that: “If the Claimants fail on communication to the public the defence under Article 5(1) succeeds and there will be again no need to determine the point of law raised here”.

A further reference on the construction of Section 73 was also refused: this was a question for the national court.

COMMENT

In general, “communication to the public” has been given a rather wide interpretation by European case law. What is perhaps of most significance is that the communication has to be to a new public, i.e., not the public the broadcasters initially sent their broadcasts to. However, in this case, Floyd J was not persuaded either way: “It is not clear whether the audience reached by these broadcasts is an audience which is additional to the public targeted by the broadcasting organisation concerned”.

All of this is unsatisfactory for a number of reasons, not least because what is meant by the right of communication to the public now languishes somewhere between the ether and cyberspace while Floyd J’s reference wends its way to Luxembourg.

The 15th Annual ABA National Institute on the Gaming Law Minefield Feb 24-25 LasVegas

The 2011 Gaming Law Minefield program is specifically designed to provide in-depth coverage and discussion of the cutting-edge legal, regulatory, and ethical issues confronting both commercial and Native American gaming. Attorneys, compliance officers, Native American leaders, regulators, and legislators will all provide invaluable insights into current trends, opportunities and obstacles in the gaming industry. The program’s subject matter includes new gaming technology, increased IRS CTR and SAR compliance audit activity, Internet gaming, Native American gaming, breaking hot topics in the gaming industry, latest developments in dealing with problem gamblers, and a two-hour CLE-certified ethics program.

The Gaming Law Minefield program constitutes one of the most comprehensive, state-of-the-law gaming programs available. Program attendees have consistently rated the program as a valuable educational experience that provides participants with the opportunity to meet and talk with a wide variety of gaming law experts and leading state and Native American regulators.

Early Bird Registration ends January 24th. For More Information: Click Here:

EBSA Moving Forward with Rules to Protect Retirement Savings

An article featured recently in The National Law Review by the U.S. Department of Labor regarding Retirement Savings:

The Employee Benefits Security Administration is moving forward with regulations and proposals that will increase the quality of advice being provided to individual retirement account investors and 401(k) plan sponsors and participants. Assistant Secretary of Labor Phyllis C. Borzi delivered this message to the American Society of Pension Professionals and Actuaries last week during the group’s Los Angeles Benefits Conference. A final rule requiring financial services firms to disclose fees to retirement plan sponsors will be out soon, and EBSA is working toward re-proposing a separate rule that would re-define who is a fiduciary for the purposes of giving advice to retirement savers. These rules combined with other regulatory efforts will help ensure that employers and workers are able to make informed decisions and obtain the best possible advice when choosing how they save.

Cutting Edge Issues in Asbestos Litigation Conference

The National Law Review would like to advise you of the upcoming Perrin Conference regarding Cutting-Edge Issues in Asbestos Litigation:

Thursday, March 1^st – Friday, March 2^nd, 2012
Beverly Wilshire, A Four Seasons Hotel
Beverly Hills, CA

Indictments of Megaupload Are a Greater Threat to Web Users Than Piracy

Recently featured in The National Law Review was an article by Rachel Hirsch of Ifrah Law regarding Megaupload Indictments:

In last week’s Megaupload indictment, the U.S. government has raised the debate over copyright infringement on the Web to a whole new level – treating the operators of one of the most popular sites on the Internet as if they were part of organized crime.

On January 19, 2012, a federal grand jury in the Eastern District of Virginia charged executives, founders and employees of Megaupload.com, one of the leading file-hosting services on the Web, with copyright infringement, conspiracy to commit racketeering and money laundering. The U.S. Department of Justice is charging that Megaupload.com caused over $500 million in lost revenue from “pirated” content such as music and movies. In addition, the government seized Megaupload’s domain names and shut down all of its sites, contending that Megaupload is an organization dedicated to copyright infringement.

These actions, more suitable to the type of steps that the government takes against an organized-crime enterprise dedicated to murder, theft and racketeering, are astonishing. The government seems to have ignored the fact that other popular content-sharing sites have successfully defended themselves in civil cases by using the safe harbor provisions of the Digital Millennium Copyright Act, which provide immunity to a site that promptly takes down infringing content.

Among those charged in the indictment were Megaupload founders Kim Dotcom and Mathias Ortmann, chief marketing and sales officer Fin Batato, and lead programmer Bram Van der Kolk. All four were arrested in Auckland, New Zealand. On Monday, the Auckland district court denied bail, making way for extradition proceedings that will likely be contested. In addition to the arrests, approximately 20 search warrants have also been executed within the United States and in eight additional countries. The Eastern District of Virginia has called for the seizure of 18 domain names associated with the site, and about $50 million in assets and targeted sites have been seized thus far.

The indictment is riddled with inconsistencies. On the one hand, the government asserts that Megaupload is not entitled to use the safe harbor provisions. According to the government, everything on the site was doctored to create a veneer of legitimacy, while its employees knew full well that the site’s main use was to distribute infringing content. Yet the government readily admits that it has Megaupload emails talking about using U.S. courts and lawyers to file actions against other “pirate” sites and that the site did take down illegal content and build an abuse tool. To top it all off, many big-name artists support the site, as evidenced by an entirely legal video posted on YouTube, which Megaupload tried to save in U.S. courts from takedown requests.

The 72-page indictment is not some knee-jerk reaction to the ongoing protests of proposed misguided legislation that would strengthen protections against piracy at severe costs to the Internet. This action was clearly in the works for some time. But the filing of a criminal case against one of the most popular sites in the world is remarkable to say the least, given that other popular content-sharing sites have never faced criminal charges for allegedly facilitating piracy. Indeed, when these other sites have been targeted in well-financed civil cases, they have successfully asserted defenses.

When Viacom filed its lawsuit against YouTube in 2007 based on charges that YouTube and its parent, Google were engaging in “massive intentional copyright infringement,” the government did not arrest YouTube or Google executives. In fact, the U.S. District Court for the Southern District of New York held that YouTube was shielded from liability in that case by the safe harbor provisions.

Similarly, when IO Group, Inc. filed a complaint against Veoh Networks for copyright infringement, the U.S. District Court for the Northern District of California held that Veoh’s video-sharing website was entitled to the protection of the safe harbor provision. In both cases, U.S. courts recognized that simply providing access to content did not equate to engaging in infringing activities.

Megaupload, an online storage and web hosting service site, counts itself in the same category as YouTube and Veoh — merely acting as a hosting company that provides access to content. By invoking the full wrath of U.S. criminal laws, the government is using tools that were never meant for this situation – and is potentially doing incalculable harm to thousands of Internet users and to the integrity of the Web itself.

Author: National Law Forum

United Insurance Company of America Pays $37,500 To Resolve EEOC Disability Discrimination Lawsuit

Company Rescinded Job Offer to Recovering Drug Addict Because of His Disability, Agency Charged

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