The National Law Forum

Determining How to Structure Your Family Farm Business, P.1

Regardless of the type of business you run, you need to put a well-thought-out business plan in place. Business planning covers all aspects of a business, from its legal structure, to marketing, to succession planning. Without putting a viable plan in place covering each important aspect of the business, companies are taking a risk. This applies as much to a family farm businesses as to multinational corporations.

Looking at the issue of the legal structure of a family farm, there are a number of options available. Although family farms may be operated as sole proprietorships, they may also be operated as corporations, limited partnerships, limited liability companies, or a unique combination of these legal categories. Getting the business form right is important because the form or structure the business takes can have an impact on important aspects of the business.

One of these is the valuation of the business for purposes of transfer tax. This refers to taxation which applies to the passing of title to property from one person to another, which includes estate tax and gift tax. Another way legal structure can impact a family farm, or any business for that matter, is by its effect on income taxation during the business’ operation and possibly even upon liquidation.

Selecting a business form which has a favorable effect from a tax perspective, without taking other factors into consideration, is not always going to be the best strategy, but it should at least be kept in mind when determining how to structure the business at its inception.

In our next post, we’ll look at another critical reason to carefully consider how to structure a family farm business.

Source: Agri-View, “Is farm business planning part of your New Year’s Resolutions,” Troy R. Schneider, Dec. 31, 2014.

ARTICLE BY

Business and Corporate Law Practice Group

McBrayer, McGinnis, Leslie and Kirkland, PLLC

New Year to Bring Increased Regulatory Focus on Cybersecurity for Financial Institutions

Having weathered the cybersecurity turbulence of 2014, the financial services sector can look forward to increased regulatory attention from federal, state and non-governmental regulators in 2015. First, in the wake of data breaches at major banks and financial institutions, and drawing upon its mid-2014 “Report on Cyber Security in the Banking Sector,”¹ the New York Department of Financial Services (the “NYDFS” or the “Department”) has announced a New Cybersecurity Examination Process for the banks under its regulatory jurisdiction (the “Examination Letter”). Additionally, the Chairman of the federal Commodity Futures Trading Commission (“CFTC”) has testified before a Senate committee that the CFTC will increase its attention to cybersecurity during its upcoming examinations of clearinghouses and exchanges. Also, the Conference of State Bank Supervisors (“CSBS”) has issued a resource guide for bank executives on cybersecurity that community bank CEOs, senior executives and board members are being strongly encouraged to use to address cybersecurity threats at their banks.

These latest regulatory developments impacting financial institutions will likely affect the cybersecurity policies of other regulators, including enforcement actions against regulated entities that fail to implement adequate cybersecurity programs. Thus, even if your organization is not a financial institution regulated by the NYDFS, CFTC or a state banking regulator, the key takeaways discussed below will provide insight into the types of questions regulators will pose, and offer practical guidance for developing a compliant privacy and data security program to mitigate cybersecurity risks. The December 2014 ruling that retailer Target had an affirmative duty to protect its customers’ personal and financial information illustrates that these pronouncements provide important guidance not just to regulated entities, but to companies generally.

NYDFS’s Examination Letter

On December 10, 2014, the NYDFS issued the Examination Letter to all New York chartered and licensed banking institutions announcing the Department’s new, targeted cybersecurity preparedness assessment. In an effort to promote greater cybersecurity across the financial services industry, the NYDFS warned that it will expand its routine information technology examinations to include cybersecurity. However, as noted in an article in American Banker², the Examination Letter provides no indication that the examinations will differentiate among banks by size, meaning a smaller community bank may be subject to the same cybersecurity requirements as multinational banks with significantly more resources.

The new examination procedures are designed to encourage “all financial institutions to view cybersecurity as an integral aspect of their overall risk management strategy, rather than as a subset of information technology.” According to Benjamin M. Lawsky, Superintendent of the NYDFS, new procedures are also intended to promote a “laser-like focus on this issue by both banks and regulators” given that regulatory examination rankings can have a significant impact on the operations of financial institutions, including their ability to enter into new business lines or make acquisitions.

The Examination Letter notes that the NYDFS will be incorporating the following new security-oriented topics into its pre-examination “First Day Letters” to assist in expediting the Department’s review of financial institutions’ cybersecurity preparedness:³

Corporate governance, including written information security policies and procedures, and the periodic reevaluation of such policies and procedures in light of changing risks;
Cybersecurity incident detection, monitoring and reporting processes;
Resources devoted to information security and overall risk management;
The risks posed by shared infrastructure;
Protections against intrusion, including multifactor or adaptive authentication, and server and database configurations;
Information security testing and monitoring, including penetration testing;
Training of information security professionals as well as all other personnel;
Vetting and management of third-party service providers; and
Cybersecurity insurance coverage and other third-party protections.

In addition to the information requested in the First Day Letter, the NYDFS stated that it will schedule IT/cybersecurity examinations following the risk assessments of each financial institution. The new IT/cybersecurity examinations will take a deeper look into the financial institution’s ability to prevent, detect and respond to data breaches and other cyber attacks by requesting:

The qualifications of the institution’s Chief Information Security Officer, or the individual otherwise responsible for information security;
Copies of the institution’s information security policies and procedures;
The institution’s data classification approaches and data access management controls;
The institution’s vulnerability management programs, including its consideration of applications, servers, endpoints, mobile, network and other devices;
The institution’s patch management program, including how updates, patches and fixes are obtained and disseminated;
The institution’s due diligence process regarding information security practices used to vet, select and monitor third-party service providers;
Application development standards used by the institution, including the extent to which security and privacy requirements are incorporated into application development processes;
The institution’s incident response program, including how incidents are reported, escalated and remediated; and
The relationship between information security and the organization’s business continuity program.

The NYDFS’s Examination Letter is essentially a “take-home test” for any New York chartered or licensed banking institution or regulated firm preparing for an NYDFS examination or conducting its own internal audit to strengthen its cybersecurity practices and incident response preparedness. Additionally, although the new examination procedures do not impose cybersecurity requirements on regulated entities per se, the NYDFS is essentially announcing the standards and practices it expects to be adopted in any compliant cybersecurity program. For now, the new cybersecurity examination procedures are limited to banks, but it is likely that the NYDFS will extend these same types of procedures to the other financial services firms it regulates, such as insurance companies and investment companies.

CFTC’s Increased Focus on Cybersecurity

On December 10, 2014, CFTC Chairman Timothy Massad testified before a Senate Agriculture Committee hearing that cybersecurity is “perhaps the single most important new risk to financial stability.” As a result, cybersecurity will become an increasingly important aspect of the CFTC’s oversight for futures and swaps markets.

Chairman Massad testified that the CFTC requires clearinghouses, swap execution facilities, designated contract markets and other market infrastructures to implement system safeguards, which must include four elements: (1) a program of risk analysis and oversight to identify and minimize sources of cyber and operational risks; (2) automated systems that are reliable, secure and scalable; (3) emergency procedures, backup facilities and a business continuity/disaster recovery plan; and (4) regular, objective, independent testing to verify that the system safeguards are sufficient. Each CFTC-regulated entity must also have a risk management program that addresses seven key elements, including information security, systems development, quality assurance and governance. Furthermore, these entities must notify the CFTC promptly of cybersecurity incidents.

Although the CFTC does not conduct independent testing of its cybersecurity requirements, it reviews evidence provided for satisfaction of the requirements. Chairman Massad testified that the CFTC’s upcoming examinations will focus on the following areas:

Governance—Are the board of directors and top management devoting sufficient attention to cybersecurity?
Resources—Are sufficient resources and capabilities being devoted to monitor and control cyber-related risks across all levels of the organization?
Policies and Procedures—Are adequate plans and policies in place to address information security, physical security, system operations and other critical areas? Is the regulated entity actually following its plans and policies, and considering how plans and policies may need to be amended from time to time in light of technological, market or other security developments?
Vigilance and Responsiveness to Identified Weaknesses and Problems—If a weakness or deficiency is identified, does the regulated entity take prompt and thorough action to address it? Does it not only fix the immediate problem, but also examine the root causes of the deficiency?⁴

CSBS Guidance for Financial Services Officers and Directors

On December 17, 2014, the CSBS issued “Cybersecurity 101: A Resource Guide for Bank Executives” (the “CSBS Resource Guide”), which is designed to aid chief executive officers, senior executives and board members in their understanding, oversight and implementation of effective cybersecurity programs. The CSBS Resource Guide is organized according to the five core cybersecurity functions of the Commerce Department’s National Institute of Standards and Technology’s Framework for Improving Critical Infrastructure Cybersecurity: (1) identify internal and external cybersecurity risks; (2) protect organizational systems, assets and data; (3) detect systems intrusions, data breaches and unauthorized access; (4) respond to a potential cybersecurity event; and (5) recover from a cybersecurity event by restoring normal operations and services. For each of these core functions, the CSBS Resource Guide provides questions that chief executive officers should ask, as well as training guidance and a model checklist to follow in the event of a data breach.

Takeaways

In light of these developments, banks and other financial institutions should consider undertaking the following steps and customizing them to their specific circumstances and risks:

1. Conducting Periodic Cybersecurity Risk Assessments

Identify potential cybersecurity threats (including physical security threats) to security, confidentiality and integrity of personal and other sensitive information (both customer and internal) and related systems;
Evaluate effectiveness of current controls in light of identified risks;
Prioritize resources, assets and systems corresponding to the nature and level of threats and vulnerabilities, and revise procedures and controls, as necessary and appropriate, to address and mitigate areas of risk; and
Determine whether existing insurance policies will cover the threats identified in the risk assessment, and determine whether separate cyber coverage is needed.

2. Evaluating Potential Third-Party Vendor Risks

Review due diligence procedures for selecting vendors and procedures for approval/monitoring of vendor access to networks, customer data or other sensitive information;
Obtain copies of vendors’ written information security plans or certifications of compliance with applicable standards; and
Determine whether contracts with vendors include appropriate security measures, including incident response notification procedures and cyber insurance coverage.

3. Developing and Periodically Testing a Comprehensive Incident Response Plan

Implement a comprehensive, written incident response plan to respond proactively to actual or suspected cybersecurity events; and
Conduct periodic “table top” exercises of mock cybersecurity events with IT, legal, compliance, human resources and other business stakeholders.

ARTICLE BY

John C. Cleary

Bruce A. Radke

Vedder Price

_{¹ See http://www.dfs.ny.gov/about/press2014/pr1405061.htm

² See http://www.americanbanker.com/news/bank-technology/new-york-cybersecurity-exams-will-be-tougher-than-ffiecs-1071603-1.html

³ The NYDFS’s new cybersecurity questions and topics are similar to the comprehensive cybersecurity questionnaire attached to the Securities and Exchange Commission’s Office of Compliance Inspections and Examinations’ (“OCIE”) Risk Alert, issued on April 15, 2014, as part of the OCIE’s cybersecurity examinations of registered investment advisors and broker-dealers. Click here.

⁴ The NYDFS and the CFTC are certainly not the only banking and financial services regulators that have intensified their focus on cybersecurity. Indeed, during her December 10, 2014 testimony before the U.S. Senate Committee on Banking, Housing and Urban Affairs, Valerie Abend, chair of the Federal Financial Institutions Examination Council (“FFIEC”) Cybersecurity and Critical Infrastructure Working Group, said the FFIEC’s interagency cybersecurity guidelines “require banks to develop and implement formal information security programs that are tailored to a bank’s assessment of the risks it faces, including internal and external threats to customer information and any method used to access, collect, store, use, transmit, protect, or dispose of the information.”}

More Tax Money for the City of Chicago in 2015: Broader Bases, Increased Rates and Lesser Credit

The City of Chicago’s (City’s) 2015 budget includes a number of changes to taxing ordinances found in titles 3 and 4 of the Chicago Municipal Code. The City of Chicago Department of Finance has notified taxpayers and tax collectors of the amendments, effective January 1, 2015, via a notice posted on its website. The text of the amendments can be found on the Office of the City Clerk’s website. The amendments, designed to bolster the City’s coffers, affect multiple City taxes by enlarging tax bases, increasing tax rates and tightening credit mechanisms. The amendments include:

Hotel Accommodations Tax(Section 3-24-020(A))
- The definition of “operator” (the tax collector) was amended to include: (1) any person that receives or collects consideration for the rental or lease of hotel accommodations; and (2) persons that facilitate the rental or lease of hotel accommodations for consideration, whether on-line, in person or otherwise.
- A definition of “gross rental or leasing charge” (the tax base) was added that excludes “separately stated optional charges” unrelated to the use of hotel accommodations.
Use Tax for Non-titled Personal Property(Section 3-27-030(D))
- A credit is available for sales and use “tax properly due” and “actually paid” to another municipality against the City’s 1 percent use tax imposed on the use in the City of non-titled tangible personal property that was purchased outside of the City. The added definitions of “tax properly due” and “tax actually paid” exclude other municipal taxes that are rebated, refunded, or otherwise returned to the taxpayer or its affiliate.
Personal Property Lease Transaction Tax
- The exemption from the tax for a “car sharing organization” (i.e., Zipcar) was eliminated. (Sections 3-32-020(A) (definition) and 3-32-050(A)(13) (exemption))
- The definition of “lease price” or “rental price” (the tax base) was amended to exclude nontaxable, separately-stated charges only if they are optional. (Section 3-32-020(K))
- The tax rate was increased from 8 percent to 9 percent. (Section 3-32-030(B))
Amusement Tax
- The amusement tax was amended to be imposed on the full charge paid for the privilege of using a “special seating area” such as a luxury suite or skybox (Section 4-156-020(F)). Credit against this tax is available in the amount of any other taxes the City imposes on the same charges (for example, food and beverage charges) if the taxes are separately-stated and paid. Previously, tax was imposed on 60 percent of the charge for a special seating area and did not include a credit mechanism.
- Credit against the amusement tax was eliminated for franchise fees paid to the City for the right to use the public way or to do business in the City. (Section 4-156-020(J))
- The amendments eliminated the additional tax imposed on ticket sellers (Section 4-156-033). The tax was imposed on sellers selling tickets from a location other than where the taxable amusement occurs on the amount of the service fee (as distinguished from the taxable admission charge). Now, all ticket sellers must collect amusement tax from the buyer on the full amount of charges paid to view the amusement. (Section 4-156-020(F))
Parking Lot and Garage Operations Tax
- The tax rate was increased by 2 percent for daily, weekly and monthly parking for “the use and privilege of parking a motor vehicle in or upon any parking lot or garage in the City of Chicago [“Parking Tax”].” (Section 4-236-020(a), (d))
- The definition of “charge or fee paid for parking” (the tax base) was amended to exclude nontaxable, separately-stated charges only if they are optional. (Section 4-236-010)
- An additional tax was added and is imposed on a person engaged in a valet parking business in the City. Section 4-236-025 imposes tax on the full amount charged by the valet parking business at a rate of 20 percent. A credit against the additional tax is available in the amount of Parking Tax paid. These rules replace the former rule for valet parking operators providing that they were to collect Parking Tax only if the operators of the parking lot or garage did not collect the tax.

ARTICLE BY

Jane Wells May

Lauren A. Ferrante

McDermott Will & Emery

Expert Witness Soap Opera Plays Out in Federal Court as Daubert Motions Fail

A federal magistrate judge has found himself at the center of a soap opera – literally.

As a battle brews between two Spanish-language television networks over copyright claims to the substance of their respective soap operas, Miami Federal Court Judge Jonathan Goodman has found himself faced with having to evaluate experts on telenovelas.

A telenovela, which combines the Spanish words for “television” and “novel,” is actually slightly different from a typical soap opera in that it has a limited run, or an end. Telenovelas are basically novels that play out on television and are popular throughout Mexico, Latin America, Europe, and Asia.

These are just a few of the factual intricacies that Judge Goodman found himself learning about as he attempted to rule on the admissibility of the telenovela experts that both parties offered in the recent U.S. District Court for the Southern District of Florida case of Latele Television, C.A. v. Telemundo Communications Group, LLC, et al.

For plaintiff, expert Dr. Tomás López-Pumarejo, a Brooklyn College professor and author of a “pioneering book on television serial drama,” is expected to testify that after performing a detailed literary analysis of the two telenovelas in question, he found substantial and striking similarities between the two shows and “leaves – in my opinion – no doubt that [El Rostro de Analía] is a remake of [María María].”

Contradicting López-Pumarejo is expert witness Dr. Carolina Acosta-Alzuru, a University of Georgia professor and author of a book on Venezuelan telenovelas. Acosta-Alzuru is expected to testify that the dissimilarities between El Rostro de Analía and María María “in terms of core plot development, triangle structure, character design, telenovela subgenre, and qualitative characteristics of dialogue far outweigh the limited similarities in the triggering plot.”

Plaintiff, however, told the court that defendant actually hired the author of María María, which originally aired in 1989, to develop El Rostro de Analía and “that the copyright infringement is so obvious that the public and press have designated El Rostro as a remake or retelling of María María.”

However, according to one Mexican actress, the practice of remaking a successful telenovela from the past is not unusual. Adriana Llabrés, who stars on the telenovela Yo No Creo En Los Hombres, tells BullsEye that recreating a new telenovela from one that was previously successful is something that happens all the time, including on her own show, which has been remade twice.

“Most of the soap operas are remakes, and they have been for the past few years,” Llabrés explained to BullsEye. “The writer agrees with the director as to what they want to keep from the past versions based in accordance with the public’s perceived desires. They then may adapt the story to suit the tastes of the viewers.”

What allegedly appears to be different in this case is that while the original writer and new director may have collaborated, the original copyright holder was allegedly left out of the equation.

Considering all of this comparative television evidence and dissecting these two programs, however, will not be a task that Judge Goodman will need to undertake immediately, as he is faced with more than one Daubert motion. Goodman is the judge, not the jury; he is the gatekeeper, not the ultimate umpire on these issues.

**The Daubert Decisions**

In his December 15 Omnibus Order on Daubert Motions, Goodman explained that his role as gatekeeper “is not intended to supplant the adversary system or the jury’s role because, as Daubert explained, ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’”

Goodman found that both parties will have “ample opportunity” to cross-examine and attempt to impeach the other’s expert witnesses and that it would be inappropriate for the court to exclude either side’s telenovela expert.

“There is no doubt that the three Daubert motions all generate significant challenges to the proposed expert testimony,” Goodman wrote. “Nevertheless, the Undersigned deems the legal assaults to relate more to the weight of the experts’ opinions and to their credibility, rather than the threshold issue of admissibility.”

Specifically in addressing the qualifications of plaintiff’s expert Dr. López-Pumarejo, the court refuted defendants’ contention that Dr. López-Pumarejo offered only “impermissible legal conclusions” that are the “ultimate issue in the case” and based on the “insufficient methodology” by which he examined only a small percentage of the two telenovela scripts. Dr. López-Pumarejo’s conclusion that María María and El Rostro de Analía were “substantially similar” was formulated after he reviewed 33 episodes of the former and 53 episodes of the latter, totaling about 23 percent of the combined telenovelas’ aired content.

“This alleged deficiency may well generate fodder for fruitful cross-examination but the Undersigned views the objection insufficient to support a request to flat-out exclude his testimony,” Goodman wrote, citing Oceania Cruises, 654 F.3d at 1193- “in most cases, objections to the inadequacies of a study are more appropriately considered an objection going to the weight of the evidence rather than its admissibility.”

Goodman notes that he expects defendants to rigorously cross-examine Dr. López-Pumarejo about his failure to review even a quarter of the telenovelas’ materials and that it is this cross-examination that will provide “sufficient protection” to the parties and to overall fairness of the trial.

In the same manner, the court addresses plaintiff’s complaints and corresponding Daubert challenges to defense expert Dr. Acosta-Alzuru. The court notes that despite plaintiff’s claims that Dr. Acosta-Alzuru is unqualified as an expert, the professor has presented numerous lectures to U.S. State Department officials in Venezuela on her various studies of Spanish-language telenovelas and is the only expert who actually reviewed all 376 hours of the two TV shows, producing summary recaps and plot diagrams of each episode.

“The mere fact that she has not written a telenovela herself is insufficient to preclude her expert testimony, [nor is she] subject to exclusion as an expert merely because she is not a ‘literary expert’ or an expert on copyright infringement,” Goodman wrote. “Moreover, Acosta carefully addressed the existence of unprotectible scène à faire even though she did not use that specific term. Latele can certainly question her at trial about her unfamiliarity with the term, but it has not convinced the Undersigned that Acosta’s unfamiliarity with a few legal terms is reason enough to exclude her, especially given her substantial background in telenovela analysis.”

Cash and Clichés

A scène à faire, French for a “scene that must be done,” is a scene that is rather obligatory or necessary for the story or genre, and in copyright law, this term refers to a creative work that is unprotected because of this mandated or necessitated role.

Perhaps every romantic comedy has to have a love triangle, every action movie a chase scene, and every tragedy a tragic death. Copying such plot twists can be no copyright infringement.

However, the question for the Latele v. Telemundo jury will be whether or not the story is told differently. They will have full exposure to both sides’ expert testimony and perhaps hours of dramatic television ahead.

How much money Telemundo made as a result of El Rostro is also in dispute and subject to differing expert witness interpretations. Defendants retained CPA expert Ben Sheppard to refute the report of plaintiff expert Steven Berwick regarding the apportionment of Telemundo profits to the show and of the amount that would be attributable to the copyright-infringing portions thereof in the event that liability is, in fact, found.

Judge Goodman denied plaintiff’s Daubert motion to exclude expert witness Sheppard, citing similar reasons as stated above and saying that cross-examination and jury instruction shall cure any alleged deficiencies in the expert analysis. As for defendants’ omnibus motion in limine to exclude Berwick’s opinions, which was not a Daubert motion, the judge will decide in a separate order.

Defendants have until February 10, 2015, to fulfill plaintiff’s discovery demands.

When it comes to the copyright claims between two TV shows, do we even need experts to testify as to “substantial similarities,” or should we simply let laypeople and juries decide if two shows are too similar to have avoided copyright infringement?

ARTICLE BY

Ryan Thompson, Esq.

IMS ExpertServices

Email Marketing for Attorneys: How to Create a Professional Newsletter in Just 45 Minutes a Month

You’ve been meaning to do it. You’ve maybe seen some from your competitors, or you’ve realized how the ones you get actually provide you with useful information you’re interested in getting.

I’m talking about e-newsletters. And if you have not launched one yet for your law firm, you are really missing out on a fabulous, low-cost way to stay engaged with your current clients, past clients and potential clients.

Newsletters are great for solos and small law firms because they:

Are cheap and easy. Using an email marketing service like Constant Contact to create and send your monthly e-newsletters costs only $35 per month if you have fewer than 2,500 people on your list. They have scads of free templates from which to choose, and you can customize those to feature your name and logo, your photos and even video.

Foster relationships and loyalty. How many times have you chastised yourself for not keeping in touch with referral sources on a regular basis? Sending out a monthly newsletter does that job for you. It helps keep you top-of-mind with your referral sources and past clients, many of which may not have thought of you otherwise when a legal issue arose.

Allow you to track engagement. Email marketing services have tools that let you know exactly who opened and read your newsletter, and if they clicked on any links within the content. This helps you figure out what people find the most interesting so you can refine your efforts every month.

Help you project a professional image. Newsletters help you project a professional, high quality image for your marketing efforts. You can even create templates that match your website to help solidify your branding in prospects’ minds.

ARTICLE BY

Stephen Fairley

The Rainmaker Institute

What You Need To Know: Boston and Cambridge Energy Use Disclosure Ordinances

On July 28, 2014, Cambridge, Massachusetts enacted an energy use disclosure ordinance, joining Boston and several other cities. The Cambridge ordinance is similar to its Boston counterpart, but contains several differences. Property owners in each municipality should be familiar with these ordinances.

1. Properties Covered By Each Ordinance

Cambridge:

Municipal buildings of 10,000 square feet or larger;
Non-residential buildings of 25,000 square feet or larger; and
Multi-family residential buildings with 50 or more units.

Boston:

City buildings (those the City owns or for which the City regularly pays energy bills);
Non-residential buildings (those located on a parcel of land with one or more buildings of at least 35,000 square feet and of which 50% or more is used for non-residential purposes, and which are not City buildings); and
Residential buildings (i) (a parcel with one or more buildings with 35 or more dwelling units that comprise more than 50% of the building, excluding parking, or (ii) any parcel with one or more buildings of at least 35,000 square feet and that is not a City building or a non-residential building, or (iii) any grouping of residential buildings designated by the Commission as an appropriate reporting unit).

2. Obligations of Owners and Tenants of Covered Properties

Both ordinances broadly defined “Owner” to include owners of record or a designated agent, and net lessees for a term of at least forty-nine years.

Cambridge:

No later than May 1st of each year, all covered properties must disclose energy consumed by such property during the prior year, together with other information required by an EPA Benchmarking Tool: (i) address; (ii) primary use type; (iii) gross floor area; (iv) energy use intensity; (v) weather normalized source energy use intensity; (vi) annual greenhouse gas emissions; (vii) water use; (viii) energy performance score; and (ix) compliance or noncompliance with ordinance.

Tenants (those who lease, occupy, or hold possession) of a covered property must comply with an owner’s request for information within thirty days or risk a fine.

Boston:

No later than May 15th of each year, owner of each covered non-city building shall accurately report previous calendar year’s energy, water use, and any other building characteristics necessary to evaluate absolute and relative energy use intensity of each building through Energy Star Portfolio Manager.

Owners must request information from tenants separately metered by utility companies in January for the previous year, and tenant must report information to owner no later than end of February, though a tenant’s failure to respond does not relieve an owner’s duty to report.

Enforcement and Penalties

Cambridge:

Failure to comply with the ordinance or misrepresentation of any material fact may result in a written warning on the first violation, and a fine of up to $300 per day for any subsequent violation.

Boston:

The Air Pollution Control Commission may issue written notice of violation, including specific delinquencies, to those failing to comply, giving thirty days within which an owner may cure the violation or request a hearing. The Commission also may seek injunctive relief requiring an owner or non-residential tenant to comply with the ordinance.

Boston provides a sliding scale fine schedule for failure to comply with a notice of violation, depending on the type of property, which ranges from $35 per violation up to $200 per violation. Each day of noncompliance is a separate violation, but owners or non-residential tenants may not be liable for a fine of more than $3,000 per calendar year per building or tenancy.

Both cities are actively developing programs to address climate change and adaptation. Property owners should monitor these efforts as well as similar initiatives by federal and state agencies.

ARTICLE BY

Jennifer L. Ioli

Sherin and Lodgen LLP

Register for the 22nd Annual Marketing Partner Forum – January 21-23, 2015 – Rancho Palos Verdes, California

When

January 21-23, 2015

Where

Rancho Palos Verdes, CA

Register now!

Join us in January as a newly re-imagined Marketing Partner Forum returns to Terranea for a three day summit on collaborative strategies in business development.

The Forum continues to be the premier event for marketing partners, managing partners, in-house counsel and senior-level marketing and business development professionals who want to sharpen their knowledge about the emerging trends and forces shaping the legal business and the impact on law firm business development client service and client relations.

Set against the backdrop of the Southern California sun, attendees will meet for a series of dynamic workshops designed to test one’s ability to approach, engage and close new business with a faculty of leading general counsel and industry icons.

Unlock your business development potential or refine time tested techniques as you network and forge new partnerships with some of the most powerful professionals in the business.

Why should you attend?

• Learn practical takeaways – Depart the event with scalable takeaways that best prepare you for (r)evolutionary change on the horizon

• Hear about compelling new topics – Participate in a number of brand new topics, including how to advance your career across the C-suite, fostering collaboration between professional development and business development, and more.

• Network with a purpose – And enjoy the fresh air, as Thomson Reuters proudly introduces the Marketing Partner Forum Mixer for all attendees.

• Peer to Peer learning – Through a number of interactive seminars and workshops that ask attendees to collaborate and compete

• Great keynote presentation – Eric Siegel, Ph.D., former Columbia University professor and best-selling author of Predictive Analytics: The Power to Predict Who Will Click, Buy, Lie or Die discusses the science and strategy of predictive marketing.

• Meet the legal industry’s New Competition, as Marketing Partner Forum welcomes the Legal New Wave from Silicon Valley and beyond.

Who Should Attend

Heads of Marketing and Business Development for law firms
Managing Partners

Oklahoma and Nebraska Challenge Colorado’s Amendment 64: Legalized Marijuana

In 2012, Colorado was the first state to legalize recreational marijuana with Amendment 64. While this has made Pizza Franchisors happy and sent snack sales through the roof, it has also created controversy and unintended consequences. The entire country has watched Colorado sort through these issues, curious to see how things will land, how much people really want to get high, and most of all, exactly how much money is there to be made? Along with these practical issues and enforcement questions, several legal issues have come into play as marijuana legalization—and its conflict with federal law—has changed the landscape. Perhaps most significantly are the legal challenges to Colorado’s statute in front of the Supreme Court.

Colorado’s Amendment 64 changed the State Constitution to allow for recreational use of marijuana. According to the law, Adults 21 or older can grow up to six cannabis plants, with 3 being mature at a time, and legally possess all the cannabis from those plants. Adults may also travel with up to one ounce of marijuana while traveling, and gift up to one ounce to other adults 21 or over. Consumption is regulated like alcohol. The sale and growth of marijuana is regulated by the state, with licenses available for both growers and retail outlets.

The Attorney Generals’ of neighboring states Oklahoma and Nebraska, Scott Pruitt and Jon Bruning, respectively, have sued Colorado. The complaint cites Colorado for creating a “scheme” that “frustrates the federal interest in eliminating commercial transactions in the interstate controlled-substances market, and is particularly burdensome for neighboring states [Oklahoma and Nebraska] . . . States where law enforcement agencies and the citizens have endured the substantial expansion of Colorado marijuana.” Colorado’s Attorney General, John Suthers, was against marijuana legalization when it was being debated, but now he is tasked with defending the state’s controversial measure.

Oklahoma and Nebraska take issue with Colorado’s failure to take steps to prevent the drug from leaving the state. In particular, the complaint takes issue with Colorado not requiring patrons to smoke or eat the marijuana where they purchase it, or tracking marijuana once it is sold, or requiring a background check on purchasers. The law, in fact, only requires a driver’s license that says you are 21 to purchase the drug. Colorado has no effective way, according to the complaint, to stop “criminal enterprises, gangs and cartels from acquiring marijuana inventory directly from retail marijuana stores.”

Concerns about a black market exist, and how the law might be creating gray areas in how pot is sold and cultivated. A CNBC documentary “Marijuana Country: The Cannabis Boom” examines some of these issues. Cameras follow two pot dealers as they show how loopholes in the law allow them to profit from their excess marijuana, grown legally, in a gray market heavy with craigslist postings and terminology—he is a caregiver, not a dealer, and he gifts the marijuana and receives gifts of cash in return. It’s easy to see how this gray area doesn’t stop at the state line.

In fact, law enforcement officials from counties neighboring the Colorado border say they are seeing more Colorado marijuana, some of it still in the retail packaging, flow into their counties. The strained jail budgets in these counties are a result of the increased enforcement costs—more impounded vehicles, more arrests and higher costs all around because of the pot coming down the highway. Colorado AG John Suthers says 40 states have contacted his office regarding marijuana seized within their borders, and the Washington Post has gone so far as to call Colorado “the nation’s giant cannabis cookie jar.”

It is for these reasons that Oklahoma and Nebraska have filed their complaint. Invoking the Constitutional provision that gives the Supreme Court original jurisdiction on disputes between the states, basing their complaint on the claim to the right to have federal laws prevail over contradictory state laws under the Supremacy Clause of Article VI of the Constitution. Nebraska and Oklahoma v. Coloradohas not received permission to be filed by the court. It should be interesting to see how the case develops. But with over 130 metric tons of marijuana sold, legally, in Colorado last year, the demand is not going away.

The court documents and the complaint are here.

ARTICLE BY

Eilene Spear

The National Law Review / The National Law Forum LLC

Authority Marketing and Thought Leadership for Law Firms with John McDougall of McDougall Interactive [PODCAST]

Listen as we speak with John McDougall, McDougall Interactive, on authority marketing and thought leadership for law firms.

Nicole Minnis: Hi everyone. I’m Nicole Minnis with the National Law Review. I’m here today with John McDougall, the President of McDougall Interactive and author of legalmarketingreview.com. Today, we’re going to be talking about authority marketing and thought leadership for law firms.

Welcome, John.

John McDougall: Welcome. Thanks for having me.

Nicole: Thank you. Do you want to go ahead and get started with a little bit of background about McDougall Interactive and what your team is doing?

John: McDougall Interactive is in Danvers, Massachusetts. I started in ’95 at my father’s ad agency doing Internet Marketing. I was actually a media planner before that in ’94 at the agency.

Ever since ’95, I’ve been doing all digital marketing, and now we work with a lot of law firms in different areas, both business to consumer and B2B.

Nicole: It sounds like you have a lot of wonderful expertise that you can draw from while we’re talking today, so I’m looking forward to getting a little bit of insight myself.

John, tell me, what is authority marketing and why is it important to law firms?

John: Authority marketing isn’t a really popular term yet and we’re trying to change that, because thought leadership is quite well known and people, in particular law firms, like to build up their reputation as leaders in certain practice areas by blogging on certain topics.

Authority marketing is taking that idea of building up your thought leadership in a systematic way, so that you can eventually turn your blog and your content into ebooks that become a printed book. Then as an author you get more media engagements, more speaking engagements. It all ties together in a way that also Google will appreciate.

That’s one of the real reasons, as an SEO company, again back from ’95, when we were saying “content is king.” Even in ’95, we used to say that.

We’ve been trying for all these years to get our customers really on board with building up content. It’s often quite hard to do that. What we realized is sometimes people are thought leaders and experts but they don’t have time to write.

Sometimes we do interviews to get their content out there, but the idea is that Google is going to pick up on that. The more you blog and have good content, your SEO rankings will go significantly up.

Authority marketing has good things about just your offline marketing and thought leadership, but it’s really good for Google Organic SEO.

Nicole: Do you recommend that lawyers use more news story content type things, or would they write on evergreen topics, like the estate planning of a $20 million estate? Do you think it’s more of a mix, or that they should focus on one or the other?

John: It’s probably a mix, but what we have seen when people do just news content is that it’s a little maybe boring or flat. Because if you’re just regurgitating news that other people are all talking about, there is only so much thought leadership in that.

Certainly, if there is a breaking issue, like for myself when Google Penguin happens, and different Google updates, I need to be leading the charge and blogging about those topics as they’re happening, to be a thought leader.

It’s not that news is a bad thing, but we have seen some people so overly focused on just news content that it falls short of answering the customer’s questions. So that evergreen content that you talk about and the struggles that people have with various issues — we can find those struggles by looking at the Google keyword tool, and looking at the monthly search volume of the way people are searching.

We can use social media listening tools to figure in your topically related communities what are people concerned with, what are they sharing on LinkedIn groups and Google+ communities. If you can take that content, and as you said, make more evergreen content that’s going to be heavily searched on, then it’s going to prove the test of time and keep ranking.

Google is going to rank that a little better in a long term trajectory, because the news isn’t just over with, this is content that Google will keep bringing back into the search engines, so that keeps a steady stream of visitors to your site year round, as opposed to just news content.

So a bit of a mix is good, but we’re a bit more fans of the evergreen and thought leader content.

Nicole: That makes sense, and just to try to get in front of the readers, with the news worthy things, but also searching for the useful content is what people are normally doing.

Is there a magic number for how often you compile blog posts to create an ebook? Is there a magic number, or a magic date or time? Do you do it four times a year? Or, is there not really a formula for what works for compiling everything?

John: In terms of content volume, once a week is sort of industry standard, that if you’re not blogging once a week, it’s a little bit weak. It really goes up from there to — it really depends on the organization. Mashable is doing maybe hundreds a day of blog posts, or certainly a hundred ish. [laughs] I don’t know the exact number, but I was just talking with one of my guys here who was quoting their editorial calendar and how much they’re producing.

The sites that have the most traffic on the Internet tend to be the sites that have the most content. There is not an exact correlation, because of content quality. If you pumped out 10,000 articles a year, and your quality was crap, then a site with 300 articles might outrank you, because Google is aware of the quality.

Again, I think a blog post a week is a good healthy start. Two, three a week is a little more serious. A blog a day, you’re going to start to get more significant SEO traffic.

Then you can turn that content — maybe at least a couple of times a year, if you have an ebook — that’s great. Hub Spot says that if you have 30 ebooks or more, you’ll have — I forget, I think it’s a 7x increase in leads.

It does depend on your industry, et cetera, but a couple of ebooks a year at least to have a top of the funnel call-to-action. A blog post a week at minimum. Maybe a video a month.

Then, certain times of day — that’s all going to be dependent on your audience. If you’re targeting kids that get home from school at two or three in the afternoon, then you might want to publish just before that, that type of thing, versus a different industry that’s targeting night owls. The time of day is probably depending on your actual audience.

Nicole: We’re doing this right now, but tell me, John, how can lawyers use podcasting to generate more leads and improve their SEO?

John: One of the keys to SEO as we’ve discussed is having more content, but a lot of people aren’t naturally writers. Maybe it’s somewhere between 10 percent of the population.

I was actually at the HubSpot Inbound conference this fall. They had the stats on that. I don’t remember exactly what they were, but basically not everyone is a writer. That’s why blogs often fail, because people hear someone like myself say, “Hey, you’ve got to blog every week.”

The people on the staff say, “Geez, we don’t really have any writers here.” But you think they would be able to publish content because they’re thought leaders. What we realized is there are a lot of experts at law firms that might not be comfortable writing, but they love to talk. Or certainly a fair amount of attorneys like to chat, and they’re really engaging and full of ideas and energy.

We like to bottle that up by interviewing them. Because you ask them to write, they’re busy, and they’re concerned potentially with the billable hour, of course. We all have to make money.

It’s so easy to get a great piece of content in even 15 minutes by asking three questions. Every three questions become about 1,500 to 1,800 words. So every question may be around 500 words if you answer fairly lengthily. So you’re able to, in a 15 minute conversation, get a very long blog post. The average blog post is maybe 500 to 700 words or so.

When people are thinking to write one, that’s what they shoot for. But you can get, again, 1,500 to 1,800 words in 15 minutes. That’s a lot of content. Now what you’re going to do is you’re going to transcribe the text. After this podcast is over, we use CastingWords in New York and some other places. You pay $1 to $1.50 a minute.

You put that text up on the blog post under — we use sound cloud, but that’s just one player. You put the audio file that you can click and listen to the podcast in the blog post itself, then under it, you put the transcribed text. Because you’re picking keywords as the topics before you write the titles of the post and pick the interview questions, it’s a very search-engine-friendly strategy.

You just title the name of the post in WordPress, or whatever you’re using, and that becomes the URL, then you can put that search-engine-keyword-friendly title in the heading, in the title tag. Google is going to read all that nice rich text of Q&A content, and it’s going to pop up in the search engines.

Now, you wouldn’t want to only use podcasting for your blog necessarily. We do that with a lot of our customers. We also like them to either pay us to write or for them to write a little bit of regular prose as well, but it’s an awesome way to get regular, consistent content.

Again, say once a week, if you do an hour of podcasting a month in four 15 minute interviews with three questions each, you’re going to have an easily-generated one blog post a week.

Nicole: How about making the leap to video? How important is a video strategy for SEO?

John: YouTube is the second largest search engine in the world. There was a guy from — it was Distilled, recently that said, “If you don’t have a video and YouTube strategy in 2014, you’re just simply not doing SEO.” [laughs] It’s that important.

Google, they own YouTube. Again, it’s the second largest search engine in the world above Bing, Yahoo, et cetera. Yet, you still have to pick keywords for your YouTube videos.

We do a similar routine with the podcasting where we ask our attorneys to answer basically one question. “What to do if you get pulled over for drunk driving”, for a DUI lawyer, or something along those lines.

When they answer that one question, and that question is something people actually search for, because we’re looking again at the keyword research and the forum social listening to see how people — what are the common questions.

Because we know that that’s an actively looked-for topic, then you’re going to pop up both in YouTube if you upload the video with the right keywords in the title, in the description, et cetera. You can also put in the transcript into the close caption area.

We do the same routine with the podcasting as with the video. We put the YouTube video up in the blog post using the embed code from YouTube. The video shows up, and you can play it right in the blog post, but under that, you put in the transcription of the conversation. Usually those are like one or two minutes long. Maybe three minutes.

You don’t want to kill people with “too long”. Those are going to be maybe 300 words or so. But again, you’re popping up now both in YouTube and your blog because you have the YouTube video in a blog post. You’re getting that extended benefit beyond YouTube of your blog’s ability to rank for the conversation that’s in the video.

Nicole: Those are all really great thoughts. I’m actually personally excited about implementing a podcasting and video strategy for our company.

Thank you so much, John, for joining us today, and talking to us about authority marketing and thought leadership for law firms.

John: Absolutely. Great talking to you.

Nicole: It’s great talking to you, too. I will see you on our next post when we talk about content marketing for law firms another time. Thank you so much.

John: Sounds good.

ARTICLE BY

Nicole Cudiamat Minnis

The National Law Review / The National Law Forum LLC

U.S. Department of Homeland Security Extends REAL ID Document Enrollment Dates Affecting State-Issued Driver’s Licenses and IDs

Pursuant to its phased implementation of the REAL ID Act, which establishes minimum standards for the production and issuance of state-issued driver’s licenses and identification cards and prohibits federal agencies from accepting non-compliant versions of these documents for official purposes, the U.S. Department of Homeland Security (DHS) recently announced an extension of document enrollment rules. According to current regulations, beginning Dec. 1, 2014, federal agencies may not accept state-issued driver’s licenses or identification cards for official purposes from individuals born after Dec. 1, 1964, unless the license or card is REAL ID-compliant and was issued by a compliant state as determined by DHS. In addition, as of Dec. 1, 2017, federal agencies will be prohibited from accepting any non-compliant documents for official purposes from any individual. Pursuant to this extension, both document enrollment dates have been moved to Oct. 1, 2020.

The implementation of the final rule, which goes into effect immediately, follows a multi-year plan to help budget-strapped states conform their document issuance and production processes to the standards set forth in the REAL ID Act. According to the DHS, this extension was granted due to the agency’s recognition that large numbers of residents from REAL ID Act-compliant states would be required to renew their driver’s licenses or identification cards prior to the end of the year or risk being unable to use them for official federal purposes as of Dec. 1, 2014. This would, in turn, impose significant burdens on compliant states due to the costs and operational difficulties of issuing high numbers of documents prior to the current regulatory deadline. In addition, the existence of two enrollment dates may complicate DHS’ enforcement objectives and diminish the agency’s opportunity to reasonably evaluate the impact of various enforcement phases.

The new rule does not impact the prohibition against federal agencies accepting licenses and identification cards issued by non-REAL ID Act-compliant states.

ARTICLE BY

Nataliya Binshteyn

Greenberg Traurig, LLP

Like this:

NYDFS’s Examination Letter

CFTC’s Increased Focus on Cybersecurity

CSBS Guidance for Financial Services Officers and Directors

Takeaways

Like this:

Hotel Accommodations Tax(Section 3-24-020(A))

Use Tax for Non-titled Personal Property(Section 3-27-030(D))

Personal Property Lease Transaction Tax

Amusement Tax

Parking Lot and Garage Operations Tax

Like this:

The Daubert Decisions

Cash and Clichés

Like this:

Like this:

1. Properties Covered By Each Ordinance

Cambridge:

Boston:

2. Obligations of Owners and Tenants of Covered Properties

Cambridge:

Boston:

Enforcement and Penalties

Cambridge:

Boston:

Share this:

Like this:

When

Where

Why should you attend?

Who Should Attend

Like this:

Share this:

Like this:

Like this:

Share this:

Like this:

**The Daubert Decisions**