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.

Anti-Money Laundering Strategies and Compliance Conference May 9-11 New York, NY

Anti-money laundering officers, professionals, and in-house counsel should attend this conference to better understand the changing environment of the financial industry, learn how companies are adapting to these changes, and to identify new measures in which criminals are laundering money through the United States financial system. With technological advancements and the introduction of money laundering into new financial entities, it is important that anti-money laundering professionals and in-house counsel who oversee anti-money laundering compliance to stay abreast of current AML issues and best practices for preventing money laundering and suspicious activities from occurring in their organizations.

The Anti-Money Laundering conference is a highly intensive, content-driven event that includes case studies, presentations, and panel discussions over two full days. This conference targets industry leaders in AML, and Financial Compliance roles in order to provide an intimate atmosphere for both delegates and speakers.

key conference topics include:

Explore the Office of Foreign Assets Control Sanctions Program and updates to the Iranian Sanctions

  • Evaluate the increasing correlation between fraud and money laundering
  • Discuss potential risks that emerging technological products pose to the financial industry
  • Investigate the increase in money laundering through the US from Narcotics Trade and Human Trafficking

 Registration, Location & Details…..

  • May 9-11 Doubletree Metropolitan, New York City, NY, USA
  • To Register and for More information – please click here:

Ohio Governor Signs Bill Reducing the Collective Bargaining Rights of Ohio Public Employees

The week’s guest bloggers at the National Law Review are from Ogletree, Deakins, Nash, Smoak & Stewart, P.C..  LerVal M. Elva provides some deatils of the recent Ohio law which significantly reduces the collective bargaining rights of nearly half a million public employees throughout Ohio, including teachers, firefighters and police officers. 

On March 31, 2011, Ohio Governor John Kasich signed Senate Bill 5 into law. The new law significantly reduces the collective bargaining rights of nearly half a million public employees throughout Ohio, including teachers, firefighters and police officers. Below are a few key points of interest.

The new law faces likely opposition by Democrats and union leaders who plan to organize and collect the more than 230,000 signatures needed from at least half of Ohio’s 88 counties within 90 days to place a referendum of the law on the ballot this November. If the Secretary of State determines that there are a sufficient number of valid signatures by the 90-day deadline, the law is placed on hold until the election and would only go into effect if the electorate votes in favor of it in November. 

  • Public employees retain the right to collectively bargain over starting pay, hours, and other terms and conditions of their employment, but will be limited in their ability to bargain over health care, sick time and pension benefits, building assignments and staffing sizes.
     
  • Public employees no longer are permitted to strike.
     
  • Public employees are required to pay at least 15 percent of their health care benefits and 8 to 10 percent of their pension plan benefits.  
     
  • Police and firefighters, who previously did not have the right to strike, would see their right to binding arbitration replaced with last, best-offer arbitration to settle a negotiation impasse that ultimately would be decided by elected officials after full disclosure of all demands and a public hearing so taxpayers may have input.  
     
  • The law eliminates automatic pay increases for longevity and replaces it with a merit or performance pay system for public employees.
     
  • The law prohibits the practice of selecting employees for layoffs based solely on seniority.  
     
  • The law does not apply retroactively to existing labor contracts, but rather is effective upon a contract’s extension, modification or renewal after the effective date of the law. 

This article was drafted by the attorneys of Ogletree Deakins, a national labor and employment law firm that represents management. This information should not be relied upon as legal advice. 

© 2011, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Evaluating Critical Regulatory Reforms to Facilitate Compliance and Effectively Manage Regulatory Risk in the Financial Industry May 9-10 NY, NY

The National Law Review would like to remind you of the upcoming conference in NYC May 9-10:  Evaluating Critical Regulatory Reforms to Facilitate Compliance and Effectively Manage Regulatory Risk in the Financial Industry This conference is geared towards C-Level Executives, EVPs, SVPs, VPs, and Directors involved in compliance, risk, audit, AML or regulatory policy. Hear from leading executives within the financial services industry on how to stay up-to-date and ensure compliance with regulatory reforms such as the Dodd-Frank Act and Basel III.

Attending this premier conference will give you the chance to address critical issues within the industry including new capital and liquidity requirements, economic consequences of new regulations and the restructuring of regulatory bodies. Conference attendees will gain practical knowledge on how to optimize their compliance and regulatory risk management programs.

Attending this conference will allow you to:

  • Examine critical regulatory reforms affecting the financial services industry, including the Dodd-Frank Act and Basel III
  • Address the impact of tighter regulation on the financial sector
  • Evaluate the people, process and technology required to facilitate compliance with regulatory reforms
  • Develop a long term approach to increasing operational efficiency in the compliance arena
  • Discuss best practices for regulatory compliance in the financial industry

The marcus evans Regulatory Risk Compliance conference is a highly intensive, content-driven event that includes presentations and panel discussions over two full days. This conference targets industry leaders in compliance, risk, audit, anti-money laundering, legal, regulatory policy, and general counsel roles in order to provide an intimate atmosphere for both delegates and speakers.

This is not a trade show; our Regulatory Risk Compliance Conference is targeted at a focused group of senior level executives 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.

Current Speakers Include:

  • HSBC North America
  • Wells Fargo Brokerage
  • UBS Wealth Management Americas
  • State Farm Bank
  • JP Morgan Chase
  • Bank of New York Mellon
  • The Northern Trust Company
  • Capital One Financial
  • Societe Generale

 

Registration, Location & Details…..

  • Doubletree Metropolitan Hotel, New York City, NY, USA 9-10 May 2011
  • For More Information and to Register – Please Click Here:

 

Racial Discrimination and the Hostile Work Environment: Employers May Be Responsible for the Actions of Their Customers and Vendors

Recently posted by Robert Neiman of Much Shelist Denenberg Ament & Rubenstein P.C.:  details of a recent Seventh Circuit Appellate court ruling that a nursing home, by catering to a resident’s preference for white nurses, had created a hostile work environment for its employees based upon race.

All employers know that they must protect their employees from a hostile work environment based upon discrimination and harassment by other employees. A recent federal appeals court decision, however, clarified the steps that employers should take when their customers and vendors discriminate against or harass company employees.

In Chaney v. Plainfield Healthcare Center, the United States Court of Appeals for the Seventh Circuit held that a nursing home, by catering to a resident’s preference for white nurses, had created a hostile work environment for its employees based upon race. This Seventh Circuit decision reversed the trial court’s summary judgment ruling in the nursing home’s favor, ultimately remanding the case for a trial.

Understanding the Issues

In the Chaney case, the resident told the nursing home’s managers that she only wanted white nurses to care for her. Plainfield Healthcare Center acknowledged that it maintained a policy of complying with its residents’ racial preferences. The nursing home also argued that it expected employees to respect these preferences because it otherwise risked violating state and federal laws that grant residents the right to choose providers, as well as the right to privacy and bodily autonomy.

Chaney, an African American nurse’s aide, followed Plainfield’s policy, even though the prejudiced resident continued to appear on her assignment sheet. Chaney reluctantly refrained from assisting the resident, even when she was in the best position to help. However, after Chaney had worked for Plainfield for just three months, the nursing home fired her for alleged misconduct on the job.

Chaney then brought a race discrimination claim against the nursing home, alleging that Plainfield allowed a hostile workplace to exist in violation of Title VII of the Civil Rights Act of 1964. The federal appeals court had “no trouble” ruling that a reasonable person would find the nursing home’s work environment hostile or abusive. The court found that the nursing home fostered a racially charged environment through its assignment sheet, which daily reminded Chaney and her coworkers that certain residents preferred not to receive care from African American nursing assistants. Unlike her white counterparts, Chaney was restricted regarding the rooms she could enter, the care that she could provide and the patients she could assist.

The appellate court ruled that “a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” The court rejected Plainfield’s argument that laws designed to protect residents’ choices and autonomy justified its conduct, holding that residents’ privacy interests did not excuse the nursing home’s disparate treatment of its employees based upon race. Furthermore, the court suggested that Plainfield could have insisted that the racially biased resident employ a white nursing aide at her own expense.

The nursing home also argued that by preventing its African American nurses from treating the prejudiced resident, it was protecting those nurses from harassment, and that it could not simply discharge the resident to avoid exposing its employees to racial hostility. But the court noted that Plainfield had a range of other options, such as warning all residents of the facility’s non-discrimination policy prior to admission, securing written consent to the non-discrimination policy and attempting to reform the behavior of the racially biased resident after admission. The court further noted that the facility could have assigned staff based on race-neutral criteria that minimized the risk of conflict.

Notably, the court also suggested that Plainfield could have advised its employees that the resident was racially prejudiced, and informed them that they could ask the nursing home for protection from this and any other prejudiced residents. That way, the court explained, the nursing home would have allowed all employees to work in a race-neutral, non-harassing environment as the law requires, rather than imposing an unwanted, race-conscious work limitation on its African American employees.

Protective Steps for Employers

The Chaney case offers several lessons that employers should bear in mind. For starters, ensure that your discrimination and harassment policy clearly states that employees have the right to work in an environment free of hostility based on any legally protected class, even if that hostility is generated by customers, vendors or other non-employees. You should also consider informing customers and vendors of your non-discrimination policies where appropriate. If customers or vendors express a preference to deal only with certain employees—to the exclusion of others who belong to a legally protected class—then you should not tacitly cooperate. Instead, theChaney decision suggests that you should remind these third parties of your non-discrimination policy, warn employees that the customer or vendor is prejudiced, protect those employees from any hostility created by the customer or vendor, and help ensure that your employees have an easy way to communicate any hostile work environment to management.

Ultimately, you must measure the benefit of doing business with a prejudiced customer or vendor against the risk that your employees will suffer a hostile work environment, possibly leading to expensive discrimination or harassment claims. The Chaney decision suggests that employers don’t necessarily have to choose one over the other, but that they are required to take steps to protect their employees from racial prejudice.

© 2011 Much Shelist Denenberg Ament & Rubenstein, P.C.

 

Is Your Company's Retirement Plan in Need of a Spring Cleaning?

Recently posted at the National Law Review by Alyssa D. Dowse and Timothy C. McDonald of von Briesen & Roper, S.C. – about whether your company’s retirement plan(s) need a little updating: 

The Internal Revenue Service (the “IRS”) recently issued a list of retirement plan items that employers should review this year. This Update briefly highlights those items and provides you with useful resources for proper operation of your retirement plan.

Is Your Retirement Plan Right for Your Business?

An employer should review its retirement plan periodically to determine whether that plan remains suitable given the employer’s objectives.

Employers sometimes adopt retirement plans that prove to be overly complicated given the employer’s budget, the nature of the employer’s workforce, etc. For example, we recently helped a small non-profit organization unwind its defined benefit retirement plan. Given the organization’s objectives and budget and the nature of the organization’s workforce, the plan was too complex and costly to administer. The organization replaced that plan with a new defined contribution plan that (i) is much easier for employees to understand, (ii) is much less costly to administer, and (iii) provides the organization with needed funding flexibility.

Employers sometimes find that the off-the-shelf plan document that they have been using does not maximize the amounts that could be contributed on behalf of key employees. For example, we recently worked with a professional service corporation that found it could significantly increase its retirement plan contributions for shareholder-employees by implementing a feature known as “cross-testing.”

Some employers find that their business environment has become more uncertain so retirement plan designs that make funding requirements more predictable are desirable. For example, potential swings in the funding requirements under a defined benefit retirement plan could be reduced by converting the plan from a traditional pension formula to a “cash balance” formula and implementing an investment policy that tracks projected plan liabilities more closely.

As your business and business objectives change over time, it is important that you review your retirement plan to make sure it continues to be appropriate for your business. The following are some of the factors you might consider in determining whether your retirement plan is still right for you:

  • Have you experienced or do you anticipate significant growth in your business and workforce?
  • Have you experienced or do you anticipate a reduction in your business or workforce?
  • Do you feel that the benefits your plan provides are sufficient?
  • What are your total annual costs of maintaining your plan (i.e., record keeping, investment, actuarial, legal, trustee, etc.) and are those costs reasonable given the benefits your retirement plan provides to employees?
  • Does your plan document permit, and would it be beneficial to your business to have, the plan pay eligible administrative expenses in accordance with Department of Labor guidance?
  • Is your plan easy to administer and understand or is it so complex that employees do not understand or appreciate the benefits you provide?
  • Do you need more funding stability or flexibility given the cash flow of your business?
  • Are your plan’s special features (e.g., plan loans, hardship distributions, etc.) utilized sufficiently to justify the administrative effort associated with those features?
  • Would you like to consider ways to increase retirement contributions and benefits for key members of your staff?

Careful consideration of these and other factors will help you determine if your retirement plan still suits your business’s needs and goals. The IRS has a website that provides basic information regarding various types of qualified retirement plans: http://www.retirementplans.irs.gov/.

Are There Any New Design Features You Might Want to Add to Your Plan?

It is never too late to redesign your retirement plan to make plan administration and operation more efficient and better tailored to your business’s goals. You may not be aware of optional plan features that benefit employees and/or reduce administrative burdens, such as automatic enrollment, Roth account features, and safe harbor plan designs:

  • Automatic Enrollment: You may want to amend your 401(k) or 403(b) plan to provide that eligible employees will be automatically enrolled, eliminating the need for them to make an affirmative election to participate.
  • Roth Accounts: You may want to amend your 401(k) or 403(b) plan to provide a designated Roth account feature. This feature allows employees to contribute after-tax dollars to their retirement plan account. If certain conditions are met, the employee can receive those contributions and investment earnings on those contributions tax-free when he/she retires.
  • Safe Harbor Designs: You may want to amend your 401(k) plan so it qualifies as a safe harbor 401(k) plan. A “safe harbor” 401(k) plan is not subject to nondiscrimination testing otherwise applicable to traditional 401(k) arrangements. As a result, participating highly compensated employees can maximize their annual deferrals under a safe harbor 401(k) plan without regard to the amounts other employees elect to contribute. We have worked with a number of employers that found they could convert their traditional 401(k) plans to safe harbor 401(k) plans with minimal design and cost changes.

Have You Updated Your Plan for Recent Law Changes?

The laws regarding retirement plans frequently change and plan documents must be amended to reflect such changes. For example, retirement plans were recently required to adopt special rules regarding retirement benefits for uniformed military members, pursuant to the Heroes Earnings Assistance and Relief Tax Act of 2008. The IRS recommends that all retirement plans review current law changes annually.

Although law changes and required deadlines for amendments are listed in various government and practitioner publications, failure to timely adopt a required amendment is a common plan mistake. If a retirement plan fails to adopt a required amendment by the IRS deadline, the employer should remedy that failure using an IRS compliance tool known as the Employee Plans Compliance Resolution System (“EPCRS”). Correcting an error under EPCRS is generally much less costly than correcting an error the IRS discovers on audit.

Do You Know and Understand Your Plan’s Terms?

The terms of your retirement plan document should dictate the way you administer your plan. Unfortunately, many employers are not aware of their retirement plan’s terms and have problems operating their plan correctly.

Make sure you know and understand the following questions regarding your retirement plan:

  • Which employees are eligible to participate in your retirement plan?
  • How does your retirement plan define “compensation” for the purpose of contributions to the plan?
  • When and how much are you required to contribute on behalf of employees under the plan?
  • What types of notices must you provide to employees and how often should the notices be provided?
  • Are you required to test the retirement plan for nondiscrimination and, if so, how often?
  • Are you required to file an annual return for the retirement plan?

Are You Operating Your Plan Correctly?

While it is important that you both amend your retirement plan to reflect law changes and understand your plan’s terms, you must also operate your plan in accordance with the plan’s terms. Incorrect operation of your plan could create serious problems for your business and your employees. In the worst case scenario, incorrect operation can lead to plan disqualification—which would subject your business and your employees to adverse tax consequences.

It is important to regularly review your plan to ensure that:

  • Your employees are allowed to participate in the plan when they are eligible under the terms of the plan;
  • The correct amount of employer and employee contributions are made based on (1) your plan’s definition of “compensation,” (2) your employees’ elections, and (3) your plan’s terms;
  • You deposit all employee contributions on time;
  • Any loans or hardship distributions allowed by the plan are properly administered; and
  • You issue required notices to your employees on time.

If you discover an operational error, please contact your employee benefits counsel. Operational errors can often be easily corrected under the IRS’s EPCRS. Please review the IRS’s Common Plan Mistakes website to learn more about mistakes plans often make and how plans can fix those mistakes:http://www.irs.gov/retirement/sponsor/article/0,,id=137958,00.html.

Are You Taking Advantage of Free IRS Resources?

The IRS provides many free resources to keep you informed, such as:

 ©2011 von Briesen & Roper, s.c 

 

Life Sciences Strategies for Anti-Corruption & FCPA Compliance 23-24 June Washington, DC

The National Law Review is  a proud media sponsor of the upcoming Life Sciences Strategies for Anti-Corruption & FCPA Compliance – which addresses  the Unique Challenges and Risk Areas Tied to FCPA and Corruption Faced by the Pharmaceuticals, Medical Device and Biotechnology Companies  

Pharmaceutical and medical device companies operating overseas are particularly vulnerable to FCPA violations because of the nature of public health systems in many foreign countries where health care systems are owned and operated by the government. Given the fact that employees are in constant contact with the health care providers at different touch points within the organization, there is a need to ensure all interactions are monitored and effective policies are in place to curb any potential violations.

Gain insights on how to deal with issues stemming from gifts and entertainment of government officials to develop effective training programs and best practices in operating in emerging countries as well as dealing with 3rd parties.

With a one-track focus, the Life Sciences Strategies for Anti-Corruption & FCPA Compliance Conference is a highly intensive, content-driven event that includes case studies, presentations and panel discussions over two full days. This conference targets industry leaders from the pharmaceutical, medical device and biotechnology and clinical research organizations in order to provide an intimate atmosphere for both the delegates and speakers.

key conference topics include:

  • Analyze the key provisions of the UK Bribery Bill and the impact on life sciences industries by Abbott Laboratories

  • Identify practical strategies to develop effective global anti-corruption compliance program from CareFusion

  • Assess the challenges of conducting and implementing effective global traning programs by Medtronic, Inc.

  • Develop robust internal controls for 3rd party due-diligence by Talecris Biotherapeutics, Inc.

  • Address FCPA and corruption risk stemming from sales and marketing activities and interaction from Covidien

    •  

    key conference features include:

  • Expert Case Studies and Presentations by Industry Leading FCPA & Anti-Corruption Professionals

    •  

  • Illuminating Roundtable Discussions Led by St. Jude Medical (June 23rd) and Johnson & Johnson (June 24th)

  • Earn up to 16 hours of CLE Credits

    •  

    for more details and to register:


    Highlights of the UK Bribery Act Guidance: What It May Mean For Your Company

    Recently posted by Bracewell & Giuliani LLP – a great overview of the recently passed UK Bribery Act:  

    On March 30, 2011, the UK Ministry of Justice issued its highly anticipated guidance (Guidance) for the UK Bribery Act (the Act), a criminal anti-corruption statute that will become effective July 1, 2011.1 The Act covers both commercial and official bribery, within and sometimes outside the UK, and a company may be criminally liable for failing to prevent bribes from being offered or paid by its employees, agents or subsidiaries.

    Following a brief overview of the new Guidance, in this Update we review:

    • The jurisdictional reach of the Act
    • The impact of extended liability for business organizations
    • Six fundamental principles that can form a full defense for companies
    • Facilitation payments, which are considered illegal bribes under the Act
    • The treatment of hospitality and promotional expenses

    Overview

    The newly-released Guidance offers some assistance to commercial companies doing business in the UK seeking to implement “adequate procedures” – both to prevent violations and serve as an affirmative defense against liability under the Act. For United States companies doing business in the UK, both the Act and the Foreign Corrupt Practices Act (FCPA) form essential components of a comprehensive global anti-corruption compliance program.

    The Guidance sets out six fundamental principles (see below), but one overarching theme is clear:  Companies would be wise to fully evaluate and understand their entire business operations – how and where they do business — assess the differing risks they face and tailor common sense programs to address those specific risks. In pursuing a risk-based approach, companies may be afforded reasonable flexibility (depending on the size, structure, and complexity and the sophistication of their operations) to implement appropriate, and varying, programs.

    Jurisdictional Reach Over US and Other Companies

    The Act’s jurisdictional reach extends to business organizations that are incorporated or formed in the UK, and also to those that conduct business in the UK (wherever they are incorporated or formed). Whether a business is deemed to “carry on” business, or even part of its business, for the purposes of the Act – and be rendered a “relevant commercial organisation” — will be a fact-sensitive determination, which the Guidance submits will be based on a common-sense approach. Ultimately, the courts will make the final determination based on the particular facts and circumstances of each case. The Guidance provides two examples which in and of themselves will not confer jurisdiction on the company: (1) where the company’s securities are listed and may be traded on the London Stock Exchange; and (2) where it merely has a UK subsidiary (which “may act independently of its parent or other group companies”).

    Extended Liability for Business Organizations

    A “relevant commercial organization” risks prosecution if the government determines there is sufficient evidence to establish that an “associated person” bribed someone else with the intent to obtain or retain business or an advantage for that business entity. The associated person — someone who merely needs to “perform[] services” for or on behalf of the company — is not required to be prosecuted as a predicate for the company’s prosecution. Nor is the associated person required to have a close connection with the UK. Moreover, the determination of who performs such services is to be based on a broad interpretation. Employees are presumed to perform services, agents and subsidiaries qualify, and contractors and suppliers may also qualify depending on the circumstances. Titles and position are not determinative; far more important are the underlying conduct and the practical realities.

    In addition to liability for failing to prevent bribery from occurring, the business organization may also be prosecuted if the government can prove that the bribe giving or receiving (or offering, encouraging or assisting) took place by someone “representing the corporate ‘directing mind.'” JPG.

    An Adequate Compliance Program Is A Full Defense: Six Fundamental Principles

    The Act creates a full defense for companies that can demonstrate they have implemented “adequate procedures” to prevent associated persons from engaging in bribery (even if a case of bribery has been proved). The affirmative defense is required to be proved by “the balance of probabilities.” In deciding whether to proceed with its case, the government will also consider the adequacy of compliance procedures, which can turn on the case-by-case facts and circumstances, including the level of control exercised over the conduct of the relevant associated persons and the degree of risk for which mitigation is required.

    Six core principles have been set out in the Guidance and accompanying commentary to help advise companies in devising and implementing adequate procedures to prevent bribery:

    1. Proportionality of response to the bribery risks that the organization faces and to the nature, scale and complexity of the organization’s activities
    2. Commitment of top-level management to prevent bribery by associated persons (e.g., effectively communicating no tolerance policy from top to bottom)
    3. Risk Assessment (to promote periodic, informed and documented assessment proportionate to the company’s size and structure and to the nature, scale and location of its operations)
    4. Due Diligence: Demanding that companies investigate and are aware of who is acting on their behalf in order to mitigate bribery risks
    5. Communication (and training): Ensure that policies and programs are “embedded and understood” throughout the company through internal and external communication.
    6. Monitoring and Review: Undertake systematic review to assess changed circumstances and new risks and implement improved procedures where deemed appropriate

    Facilitation Payments Constitute Illegal Bribes Under the Act

    Unlike the FCPA, the Act prohibits facilitation payments – small grease payments to low-level government officials to perform or expedite routine, non-discretionary services (e.g., processing immigrations or customs forms, turning on the electricity, etc.)… Nonetheless, the Guidance makes clear that the UK government appreciates that given the realities in certain global regions and in certain sectors, overnight elimination is not feasible. Moreover, “eradication” of facilitation payments is recognized as a “long-term objective.” However, the JPG identifies factors tending in favor of and against prosecution:

    Factors in favor of prosecution: (i) large or repeated payments; (ii) planned or accepted payments that may reflect standard operating procedure; (iii) payments reflective of an official’s corruption; and (iv) the failure to follow the organization’s facilitation payment policies and procedures

    Factors against prosecution: (i) a single small payment; (ii) payment identified as part of genuinely proactive approach involving self-reporting and remedial action; (iii) adherence to the organization’s clear and appropriate procedures for facilitation payment requests; and (iv) the particular circumstances placed the payer in a vulnerable position

    Hospitality and Promotional Expenses Are Not Prohibited by the Act

    Like the promotional expense exception under the FCPA, the Act does not criminalize bona fide hospitality and promotional expenses, as long as there is no improper intent. Specifically, the guidance makes clear that providing tickets to sporting events or taking clients to dinner to promote and continue good relations, or paying for reasonable travel expenses in order to demonstrate your company’s goods or services, if reasonable and proportionate, will not run afoul of the Act. However, where hospitality expenses are made to mask an intent to bribe or improperly induce advantageous business conduct, the authorities can be expected to view the expense payment as an illegal bribe under the Act. The extent of the hospitality and promotional expenses offered, the way in which they were provided and the level of influence the client exercised or could exercise in the business decision will all be examined.

    Current Considerations

    The next three months, until July 1, when the Act goes into effect, will provide a special opportunity for U.S. and other companies doing business in the UK to re-evaluate their operations and take a fresh look at the effectiveness, or “adequacy,” of their anti-corruption policies and procedures. Conducting a measured, proportionate and risk-based assessment makes eminent good sense in light of the UK Bribery Act, the FCPA and an evolving global propensity for strict anti-corruption enforcement.

    The Ministry of Justice Guidance can be found here.

    _______________________

    1Also issued that same day is the Joint Prosecution Guidance of the Director of the Serious Fraud Office and the Director of Public Prosecutions (JPG), which provides some insight into the Directors’ views as to “prosecutorial decision-making” regarding violations of the Act.

    © 2011 Bracewell & Giuliani LLP

    7th Patent Strategies Summit April 27 – 29, 2011, Four Season Hotel Silicon Valley at East Palo Alto

    The National Law Review would like to remind you of the upcoming  Patent Strategies:   Summit Focusing on Optimizing your Patent Portfolio April 27-29 in East Palo Alto, CA  

    Developing Innovative Strategies To Optimize Your Patent Portfolio

    Companies prioritize patents as securing intellectual property rights is often the key to the foundation, growth, and ultimate survival of a company. foundation, growth, and ultimate survival of a company. Now more than ever before, patent practitioners must have up-to-the-minute strategies to effectively protect, monetize and leverage their company’s patent portfolio. The market demands companies to anticipate competitor’s movements, sustain innovation, license strategically and ultimately increase revenue. In order to do this, they must be cognizant of the shifting litigation landscape as a result of new court decisions and changing regulations.

    IQPC’s 7th Patent Strategies Summit examines the latest changes in the industry and leverage your patent portfolio to extract innovation and financial gain. Corporate Patent experts will discuss:

    • Changes in patent strategy brought about by the current economic downturn
    • Best practices in Global IP Management
    • Prospects for the future in light of new regulations and potentially adverse court decisions
    • Trends in enforcement actions and litigation by NPEs
    • Tips for licensing in and licensing out intell

    For More Details and to Register:

     

     

     

    Planning Opportunities Under the New Estate and Gift Tax Law

    Recently posted at the National Law Review by Julia L. Frey, Matthew R. O’Kane, and Norma Stanley of Lowndes, Drosdick, Doster, Kantor & Reed, P.A. – some highlights of the recent tax changes impacting estate plans:  

    On December 17, 2010, Congress enacted a new tax law which changes the federal gift, estate and generation-skipping transfer (“GST”) taxes currently in effect. However, the new law is only effective for the next two years, through December 31, 2012. The new law increases the lifetime exemptions for the estate, GST and gift taxes to $5,000,000 per person and reduces the top tax rate to 35%.

    The increased gift tax exemption allows you to make tax-free gifts of your estate which might otherwise be subject to gift tax. The new gift tax provisions allow someone who has already made taxable gifts totaling $1,000,000 during his or her life to have an additional $4,000,000 of gift tax exemption available for his or her use. This is an immediate planning opportunity for those who wish to take advantage of the tax law changes.

    The new law may also alter many estate plans. For example, assume your estate is to be divided into a family trust and a marital trust with the family trust being funded with the maximum estate tax exemption and the marital trust being funded with the amount, if any, of the estate that exceeds the exemption amount. Thus, under current law, the family trust would be funded with the first $5,000,000 of the estate (or the entire estate depending upon the estate’s value) with the possibility that no portion of the estate would pass into the marital trust. Given the increased exemption, this may or may not be what you would want to happen.

    The new law provides for “portability” of the estate tax exemption. Under prior law, if the estate of the first spouse to die did not use that spouse’s exemption, it was lost. Now, a surviving spouse may elect to add the deceased spouse’s unused exemption to the surviving spouse’s exemption, thereby increasing the surviving spouse’s estate and gift tax exemption for transfers during life or upon death. For instance, if the first spouse dies and only used $2,000,000 of his $5,000,000 estate tax exemption, the surviving spouse would now be able to elect to shelter $8,000,000 from estate and gift tax (the surviving spouse’s exemption of $5,000,000 plus the deceased spouse’s unused $3,000,000 of exemption).

    While the new tax law is a step in the right direction, it only applies through December 31, 2012. Whether your estate is above or below the new exemption amount, it is important to make sure your estate plan is up-to-date to ensure your intent is carried out and to maximize all of the planning options currently available to you. In addition, if a family member passed away in 2010, there could be new planning opportunities available that may benefit the estate.

    © Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2011. All rights reserved.

    Ark Group/Managing Partner’s 4th Annual – At the Forefront of Diversity WOMEN LEGAL 2011 Forum- June 8th AMA Executive Conference Center ~ New York, NY

    The National Law Review is a proud media partner of the ARK Group’s WOMEN LEGAL Forum 2011– June 8th AMA Executive Conference Center ~ New York, NY which is dedicated to advancing the increasingly-important dialog on gender diversity in the American legal profession. 

    The Business Imperative for the Retention and Succession of Female Leadership:

    Why do so many Fortune 500 companies require their network of law firms to engage in diversity best practices that illustrate growth and change? Because evidence today not only supports that diversity practices are a sign of a well-managed company, but also because women make up almost half of the U.S. workforce and are assuming greater leadership roles in corporations across the board.

    Is the “business of law” itself a detriment to the retention and succession of women leadership? Gender-based discrimination that equates to marginalized access to resources and decision-making continues to plague women in law firms.  There should be far more women serving as managing partners, executive and compensation committee members and filling additional critical leadership roles than there are today. Yet with increasing frustration, we continue to bring attention to the institutional impediments to women’s success and advancement.

    For More Details and to Register: