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The National Law Forum - Page 518 of 753 - Legal Updates. Legislative Analysis. Litigation News.

Think Tanks Ask Supreme Court to Clarify Definition of “Foreign Official” in FCPA (Foreign Corrupt Practices Act)

Katten Muchin Law Firm

Two think tanks, the Washington Legal Foundation and the Independence Institute, have filed anamicus brief in the Supreme Court on behalf of petitioners Joel Esquenazi and Carlos Rodriguez, who were recently convicted of violating the Foreign Corrupt Practices Act (FCPA). The amiciseek clarity of the definition of “foreign official” in the FCPA.  The FCPA prohibits certain persons or entities, including US businesses, from paying a “foreign official” for the purpose of obtaining or retaining business. The FCPA defines “foreign official” to include “any officer or employee of a foreign government or any department, agency, or instrumentality thereof.”

Esquenazi and Rodriguez were executives of Terra Telecommunications Corp., a Florida company that purchased phone time from foreign vendors and resold the time to US customers. Terra conducted business with Haiti-owned vendor Telecommunications D’Haiti S.A. (Haiti Teleco). Prosecutors argued that Esquenazi and Rodriguez made payments to Haiti Teleco officers to obtain lower rates. To determine whether Haiti Teleco was an “instrumentality” under the FCPA, the trial court instructed the jury to consider whether the company “provided services to the citizens and inhabitants of Haiti,” and whether it was majority owned by the Haitian government. Defendants were convicted, and Esquenazi was sentenced to 15 years’ imprisonment and Rodriguez received seven years’ imprisonment. The US Court of Appeals for the Eleventh Circuit affirmed, finding that an “instrumentality” is “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own,” and setting forth a list of factors.

Amici contend that the business community needs concrete guidance in this undeveloped area. They argue that the Eleventh Circuit’s definition is overly broad because (1) Haiti Teleco was never designated a government entity; (2) Haiti Teleco issues common stock, and the government was not an initial stockholder; and (3) Haiti Teleco, as a telephone service provider, does not perform a traditional government function.

Brief for Esquenazi and Rodriguez as Amici Curiae Supporting Petitioners, Esquenazi, et al. v. U.S., Sup. Ct. No. 14-189 (Aug. 14, 2014).

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House Passes Bill to Prevent EPA Overreach

Varnum LLP

The U.S. House of Representatives recently passed legislation prohibiting the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) from developing, finalizing, adopting, implementing, applying, administering, or enforcing the EPA rule defining what constitutes “waters of the United States” under the Clean Water Act.

This Waters of the United States Regulatory Overreach Protection Act of 2014, H.R. 5078, comes as a response to a move by the EPA in April of this year that proposed changes to how the EPA will define “waters of the United States.” The EPA’s update uses scientific terms from hydrogeology to define which waters are covered under the Clean Water Act.

Farmers, however, have criticized the EPA update as 80 pages of technical and legal jargon. After Congressional hearings, the House passed The Waters of the United States Regulatory Overreach Protection Act of 2014. This bill will go to the Senate next for consideration.

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Common Social Media Profile Picture Mistakes

Consultsweb Logo

How you present yourself on social media can either draw clients to you, or send them packing.

What’s the first thing you notice about someone’s social media account? Their profile picture. There are over 645 million active Twitter users, 829 active daily users on Facebook, and over 200 million users on Instagram. Profile pictures are the first thing any of these users will see when your account is searched or suggested on social platforms, so it is vital that your picture send the right message.

Do’s and Don’ts of social media profile pictures:

DON’T make yourself so far away that the person has to play a strategic game of “Where’s Waldo” just to identify you.

Where's Waldo

DON’T filter your picture so heavily so that the viewer can’t even imagine what the original looked like.

Filter 2

DON’T pose like you’re on the cover of a magazine. There is a time and a place for glamour shots, but your professional profile is not it.

Model

DON’T set your profile image as a picture of you and your spouse. Marriage is a beautiful thing, but this is your profile, not yours and your significant other’s.

Spouse

DON’T make your profile picture your firm’s logo. While it is important to gain exposure for your firm, your profile picture isn’t the ideal place to do so. A profile picture should personalize you as an attorney. You can, however, put something like a logo as your cover photo so that it is the background to your profile image.

Logo

DON’T leave your image as the default, such as the signature Twitter egg. Doing this will not only look impersonal, but also come off like you didn’t care enough to put in the effort to change the photo.

Twitter egg

DO follow these guidelines for profile pictures:

Profile Picture

  • Crop the picture so it is an up-close, professional shot of your face.

  • Make sure it is well-lit and that you’re looking directly at the camera.
  • Smile! This can showcase how personable you are and also be inviting to the people who see it.
  • Don’t have anything directly behind you; it is ideal to have professional head shots in front of a green screen.
  • Your profile picture needs to be large enough that it can be recognized without actually having to click on the image. Be mindful of general size requirements across social media networks.

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A 10-Point Health Check for Your Law Firm Marketing

The Rainmaker Institute

A legal news aggregation website called LawFuel.com recently ran a post with a 10-point checklist of how law firms can gauge the health (and effectiveness) of their legal marketing programs.

Here’s the list — how are you performing?

1.  Does your firm encourage cross-selling among attorneys?  If you have multiple practice areas and lawyers who specialize in each area, then those lawyers should be cross-selling your services.  Make sure all your attorneys understand your total offerings.

2.  Is your staff involved in marketing?  Your legal marketing efforts should touch every member of your staff, who are your ambassadors to pass along your expertise to their contacts.

3.  Do you have a program for keeping in touch with former clients?  This is a no-brainer.  Add them all to your monthly e-newsletter list and establish a system for sending out keep-in-touch emails that doesn’t require any babysitting from busy lawyers.

4.  Are all your lawyers engaged in business development?  If not, implement a training program on your marketing messaging and encourage them to get out and network.

5.  Is your website current?  An out-of-date website tells prospects that your firm is out of date.

6.  Is anyone managing your online reputation?  Reputation management is critical for law firms.  You should have this task assigned to someone (internal or external) who regularly conducts online searches for your firm name and attorney names. If something bad pops up, you should have a process for dealing with it effectively.

7.  Are all your attorney bios up to date online?  Every attorney should have a complete and current bio with a professional photos on LinkedIn, Avvo, Martindale, etc.

8.  Do you have a blog?  A blog is one of the best ways for you to market to your niche, highlighting your practice areas and pumping out fresh content that showcases your expertise in each.

9.  Are you providing added value to clients?  Providing clients with value above and beyond what they are paying for will keep them coming back.

10. Are you micro-managing the client experience?  Do clients have to wait when they show up for an appointment?  Are you offering them something to drink and making them feel at home?  If not, you need to take another look at how your firm treats clients because they are measuring you not just against other law firms but against every service provider they know.  And if they don’t like the fit, they won’t be back.

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The Walmart List: Milk, Eggs, and a Doctor Visit? re: Primary Care Clinics

McBrayer NEW logo 1-10-13

By January 2015, Walmart will be operating dozen primary care clinicsacross the U.S. Six of these have already opened in South Carolina and Texas. Currently, some Walmart stores include acute care clinics that are operated through leases with local hospital operators. The new primary care clinics are distinct from the existing ones in several ways. The new clinics will be fully-owned by Walmart, offer a broader range of services, and be open seven days a week with longer operating hours. Walmart is partnering with QuadMed nationally to operate the clinics, rather than with local partners. The primary care clinics will be staffed primarily by nurse practitioners and medical assistants and will be supervised by a physician.

Walmart’s move into primary care comes at ideal time, as the Affordable Care Act has expanded coverage to millions of Americans. Many individuals are seeking new, more convenient sources of care. Pricing at the primary care clinics is reported to be $40 per visit – a low cost alternative to a doctor’s office. For Walmart employees and their dependents the cost is even lower – just $4 a visit!

What does this mean for traditional primary care providers? It is just one example of how the health care industry is transforming. As more companies like Walmart, Kroger, and Walgreens push their way into the market, providers must find a way to stay competitive. This may mean weekend accessibility, expanding into telehealth, or simply marketing services in a way that increases a provider’s exposure. Walmart has long been for a one-stop shop for grocery lists – now it is becoming the same for health care. It may be time providers step up their competitive edge.

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Molly Nicol Lewis

OF

McBrayer, McGinnis, Leslie and Kirkland, PLLC

Real Estate “Change in Ownership” Can Trigger Documentary Transfer Tax

Sheppard Mullin Law Firm

926 North Ardmore Avenue, LLC v. County of Los Angeles, (9/22/14, B248536)

The California Court of Appeals has recently held that, as a general rule, the Documentary Transfer Tax (“DTT”) applies whenever there is a “change in ownership” of real property under the California Revenue & Taxation Code. In the case, 926 North Ardmore Avenue, LLC v. County of Los Angeles, the court held that the phrase “realty sold” under the DTT Act includes a “change in ownership” (subject to the limited exceptions expressly included in the DTT Act).  San Francisco and Santa Clara Counties have already enacted amendments to their DTT ordinances to provide for this result, and there are several other counties (most notably Los Angeles and San Diego) that have taken this position without any change to their ordinances.

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Register for ARMA Live! 59th Annual Conference & Expo Oct. 26-28 San Diego, Calif.

ARMA Live! 59th Annual Conference & Expo  Oct. 26-28 San Diego, Calif.

Register today!

The premier event in information governance is heading to the land of sand, sun, and surf. Join us for ARMA Live! Conference & Expo 2014 in San Diego on October 26-28 for the most comprehensive educational and networking experience in the profession. From inspiring keynotes to cutting-edge best practices and technology; your takeaways from this conference are worth far more to you and your organization than the price to attend. Visit our site often – we’ll be adding more and more details as we get them!

Five Reasons to Attend ARMA 2014

1. Find Real Solutions in Real Time
ARMA 2014 provides cutting-edge solutions to the challenges information governance professionals face today, such as developing automated, accurate retention schedules, managing mobile technologies, and outsourcing information to the cloud.

2. Establish Connections, Get Validation

  • Networking: ARMA 2014 provides a myriad of networking opportunities to make valuable connections with other information governance professionals and the companies that have the solutions you’re seeking.
  • Education: ARMA International’s education sessions and facilitators can help you validate the direction of your records management projects and avoid pitfalls along the way.
  • Expert Access: Our buzz session roundtable discussions will give you one-on-one time to speak with industry experts about the unique challenges you’re facing.

3. Learn Best Practices, Eliminate Pain Points
Are you curious about your peers’ best practices for eliminating the pain points you have in common? ARMA 2014 is your chance for serious, in-depth discussions and problem solving. Offering more than 70 sessions, access to industry-leading experts, and exposure to tomorrow’s technologies today, ARMA 2014 will give you a new perspective about your job. Get inspired, refreshed, and prepared to take back to the office an array of new ideas and approaches you can begin using immediately.

4. Get Acquainted with Emerging Technology
With more than 200 exhibitors at the ARMA 2014 Expo, the industry’s top emerging technologies will be on display. This is the year’s best opportunity to visit with vendors offering products and services you need for such responsibilities as electronic content management, document capture and destruction, digital preservation, e-discovery, e-mail management, and archiving. Exhibitors also can provide advice about the best solutions for your specific circumstances.

5. Have Access to the Industry’s Best and Brightest
ARMA 2014 is the PREMIER information governance event. You’ll be eager to take home and implement all you’ve learned from the best in the profession during ARMA 2014’s education sessions, Expo discussions, and networking opportunities.

Employers’ Immigration Law Update – September 2014

Jackson Lewis Law firm

ICE Levies $2M Fine against Hotel for I-9 Related Violations

A Salt Lake City-based hotel will have to pay nearly $2 million for hiring unauthorized workers, including illegal aliens. The hotel will avoid criminal prosecution in exchange for its full cooperation with a U.S. Immigration and Customs Enforcement investigation and for taking action to correct its hiring practices. According to the non-prosecution agreement, several lower-level employees and mid-level managers conspired to rehire unauthorized workers amidst an administrative audit of I-9 employee verification forms that began in September 2010. The hotel was notified that 133 employees were not authorized to work in the United States; however, the conspirators created three temporary employment agencies, essentially shell companies, to rehire 43 of the unauthorized, and most of the workers returned under different names using fraudulent identity documents.

$300K for H-2B Violations

According to a Department of Labor announcement, the agency has charged a landscaping company with violating federal law by failing to hire U.S. workers, and for underpaying temporary foreign workers. The company will pay $280,000 in back wages to 80 workers and nine job applicants and $20,000 in civil money penalties.

Immigration Reform Update

With comprehensive immigration reform legislation no longer a realistic possibility for the foreseeable future, advocates for reform have shifted their focus to executive actions the President may take unilaterally to implement changes in immigration policy.

The President reportedly is considering broad use of executive action, granting relief potentially to up to 6 million undocumented individuals, similar to what has been provided under the administration’s Deferred Action to Childhood Arrivals program (DACA).

Building off of DACA, the President has directed the Department of Homeland Security to review the administration’s immigration enforcement policies and recommend additional changes, possibly expanding the deferred action and work authorization to family members of U.S. citizens and lawful U.S. residents. The administration reportedly also is looking at possible changes to current law and regulation that could benefit employers.

Any unilateral action by the administration likely will be controversial.

Owner Liable for H-1B, J-1 Costs

The owner of several medical clinics is personally liable for back wages and the costs of physicians’ H-1B visas and J-1 waivers, the Court of Appeals for the Sixth Circuit has ruled. Kutty v. DOL, No. 11-6120 (6th Cir. Aug. 20, 2014). The Court held Dr. Mohan Kutty and his medical clinics violated H-1B provisions by having physicians cover the costs of their own H-1B visa petitions and related J-1 visa waivers.

Register for ABA's National Institute on International Regulation and Compliance: FCPA, Economic Sanctions & Export Control

FCP14_250x250

For the first time ever, the American Bar Association is putting together an inaugural comprehensive program on the FCPA, economic sanctions, and export control.  Led by the Criminal Justice Section and its Global Anti-Corruption Committee, and co-sponsored by the Business Law and International Law Sections, the ABA National Institute on International Regulation and Compliance is a three-day program (October 1-3) in Washington, DC tackling some of the most pressing challenges in cross-border regulations affecting in-house and outside business and transactional lawyers, litigators, investigators, compliance professionals, and forensic examiners, as well as their organizations.

Attracting many of the country’s leading thought leaders and practitioners in their respective fields – and drawing from the membership of all three Sections – the Institute is anchored by an exceptionally strong faculty with deep knowledge of, and experience in, their respective topics.  In addition, the Institute benefits from the participation of a cross-section of government and former government lawyers, who are important contributors to the Institute’s program-content dialogue.  So come be a part of an important, cutting-edge conference with many benefits, including:

  • Fair and balanced program content targeted at both experienced and less experienced professionals in different legal fields
  • Satisfying your state bar legal ethics requirement
  • Increased networking opportunities

Register today!

United Nations: A Renewed Focus on Climate Change This Week in New York

Covington BUrling Law Firm

Regardless of your perspective on the subject, expect significantly increasing media and public attention around climate change and greenhouse gas emissions this week.

The Secretary General of the United Nations, Ban Ki-moon, is convening a Climate Summit on Tuesday in conjunction with the meeting of the UN General Assembly in New York.  More than 120 world leaders are expected to attend this gathering, making it significant and historic to have so much focus on this issue.  The Climate Summit prompted activists to put together a People’s Climate March on Sunday calling for action by the assembled world leaders.  Hundreds of thousands of people reportedly joined the march in New York — creating media and popular momentum– and demonstrations also occurred in cities around the world.

This focus on climate change has come to be known as Climate Week in New York City.  One of the most notable features of it is the role that businesses are playing in promoting private sector innovation for clean energy solutions, accounting for their climate-related activities, and even advocating for clearer governmental climate emissions policies.  The week is filled with dozens of meetings and forums featuring such business approaches.  Today, for example, Apple’s CEO Tim Cook will be joining Climate Week opening day events to discuss his company’s approach, and dozens of CEOs will be attending a Private Sector Forum tomorrow at the UN.  These meetings include financial firms and investors, as well as greenhouse gas emitters.  The Carbon Disclosure Project (CDP) will be at the New York Stock Exchange on Tuesday to release its annual survey of company reporting on carbon emissions, showing that some 70% of the S&P 500 companies voluntarily report on their carbon emissions.  Several major companies are expected to announce commitments to power 100% of their operations from renewable energy.

The business discussions in New York will increasingly center on a call for companies to put an internal price on carbon, as a complement to efforts to have governments establish regulatory mechanisms — such as emissions limits or trading schemes — that likewise impose such a price.  A carbon price is believed to sharpen the business focus on climate change risks, costs and opportunities.  The UN Global Compact and the World Bank are promoting leadership criteria for companies based on such reporting.  Indeed, a just released report  from the Carbon Disclosure Project (CDP) shows that some 150 companies have developed internal carbon pricing schemes.  It would not be surprising for calls for company pricing policies to increasingly appear in future shareholder resolutions.

This increasing private sector focus complements the accelerating pace of the official UN negotiations.  Interestingly, the Climate Summit is merely an effort by the Secretary General to enhance the focus on the climate treaty negotiations, which are happening elsewhere.  The next step is the annual meeting of the parties of the UN Framework Convention on Climate Change in Lima, Peru in early December to continue with drafting a framework.  Countries will then submit emissions reduction commitments in the Spring, with an effort  to reach a global agreement at the Paris meeting of the parties in December 2015.  Yesterday, the Major Economies Forum of the largest nations met to tackle these issues and discuss next steps to accomplish such an agreement.  Several observers see this meeting as a demonstration of the increasing importance of this issue, as for the first time that meeting consisted of country Foreign Ministers (Secretary of State Kerry attended) rather than simply energy or environmental officials.  Issues around addressing the growing emissions from rapidly developing economies, such as China and India — which currently sit outside of the existing UN framework — remain central to the ultimate success of this endeavor.

Key to the United States’ position are the significant emissions reductions that would be derived from the Environmental Protection Agency’s recently proposed rules for existing power plants. They are a central piece in fulfilling the President’s international pledge in 2009 that the United States would reduce its carbon emissions by 17% by the year 2020.  The President’s speech this week will be important in setting a trajectory for how much further the United States may be willing to go after 2020.

The UN’s chief climate change official, Christian Figueres, speaking at a small gathering yesterday, regards the week’s activities as an indication that the climate issue may be reaching a tipping point.  She characterizes the public demonstrations as a statement that the nations of the world “must” address climate change, the business actions as a demonstration that governments “can” address climate change, and believes that governmental leaders are now poised to assert that they “will” address it.  While the outcomes may not be fully settled for some time, companies can expect to see a renewed public focus on these issues and will likely find that they present a range of increasing risks and opportunities.

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